Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura Herbert No. 2005019701 Curtis III, Judge.
Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Lance E. Winters, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Joseph James Dwyer appeals from the judgment after a jury convicted him of voluntary manslaughter with a finding of personal use of a deadly weapon. (Pen. Code, §§ 192, subd. (a), 12022, subd. (b)(1).) The trial court sentenced him to state prison for 12 years, including an 11-year upper term for manslaughter and a one-year deadly weapon use enhancement. Appellant contends that the trial court committed evidentiary and instructional errors and violated his constitutional right to a jury trial by relying on facts that were not found by a jury to select an upper term sentence. We affirm.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
In late 2003 or early 2004, appellant met Debbie Wood at the Spearmint Rhino in Oxnard, where she worked as a stripper or exotic dancer called "Ashley." Wood was then approximately 24 years old, and appellant was nearly 60.
Before meeting appellant, Wood had begun a romantic relationship with another young woman named Melissa Hunt. Hunt and Wood lived together. Hunt observed that Wood experienced depression and severe mood changes. Wood became manipulative, controlling, and very aggressive when she "switch[ed] from" Debbie into Ashley. Wood sometimes hit or wrestled with Hunt. Appellant and Hunt became friends after Wood introduced them.
Appellant paid Wood's rent and gave her a check for $16,000 to help her complete her master's degree. Wood sometimes referred to appellant as "the [w]allet." Appellant often stayed at the Spearmint Rhino throughout Wood's entire shift and usually danced only with her. Wood sometimes stayed at appellant's apartment in Camarillo.
Wood started dating John Wells after meeting him at the Spearmint Rhino in October 2004. She married Wells in November 2004 in Las Vegas. She promised Wells that she would no longer accept money from appellant. Wood moved out of the apartment she had shared with Hunt but maintained a friendship with her.
Wood's marriage to Wells upset appellant. On December 7, 2004, Wood told a 911 operator and a deputy sheriff that appellant was threatening to kill himself. Although appellant denied having threatened to commit suicide, sheriff deputies took him to a mental health center for observation. The center released him the next day.
Wells called the 911 operator on January 28, 2005, when Wood refused to leave his house during an argument. On April 7, 2005, Wood destroyed a telephone during or following another argument at Wells' residence. Later that day, Wood approached Wells with a knife, which he told her to put down. She refused and said, "You know I'll do it." He walked past Wood and called the 911 operator. While discussing the problem, Wells told the 911 operator that Wood was "just psychotic or something." On other occasions, Wood had smashed things like dishes at Wells' home.
On April 8, 2005, Wood called 911 to request a police escort while she retrieved things from her home. She then claimed that Wells had abused her. Wood had also told her friends that Wells had abused her. Wells admitted having had loud arguments with Wood but denied having hit her.
Wood moved into appellant's apartment some time after marrying Wells. She moved back and forth between appellant's and Wells' residences. Wood had smashed some of appellant's belongings with a hammer and threatened to smash other items at his apartment.
Appellant sometimes drove to Wells' residence or the Spearmint Rhino to look for Wood. One night appellant and Hunt went to the Spearmint Rhino to see Wood. They learned from the bouncers that Wood had just quit and would not return; she apparently quit after Casa Pacifica employed her.
On Thursday, June 9, 2005, Wood was at appellant's apartment. Wood became enraged when appellant said something like, "You're going to the burning barn," in reference to Wood's returning to Wells. To appellant, the expression conveyed a horse's tendency to return to a burning barn because it is the only place it knows. Wood and appellant had an extended argument; she left the apartment and returned at least twice. Wood hit and kicked appellant and he stuck or stabbed her with a knife. She died with a knife in her back. Appellant had a swollen, fractured hand and injuries on his shins. He said that Wood had kicked him while wearing steel-tipped boots.
Later on June 9, appellant visited Hunt at her workplace, had lunch with her, and spoke with her after work. He told Hunt that he and Wood had fought and that she would never forgive him. He also talked about taking back "those 15 seconds," and said that he did not "know whether to put a bullet in" Wells or himself.
During the next several days, appellant spoke with several people, including strippers at the Spearmint Rhino. He paid one stripper $300 for a lap dance. On Sunday, June 12, appellant again stopped at Hunt's workplace; he gave her a birthday gift--an angel that had belonged to Wood. Appellant told several people that he and Wood had fought. He never mentioned her death to any of them.
Meanwhile, Hunt had been calling Wells and Wood's workplace to try to locate Wood. On Monday, June 13, at about 6:00 p.m., Hunt called the Ventura County Sheriff's Office to report that Wood was missing. At Hunt's suggestion, a deputy sheriff went to appellant's apartment to look for her. Wood's car was parked nearby, and he knocked on appellant's door. When nobody answered, he placed his business card on the door and left.
Later in the evening on June 13, Hunt and her roommate went to appellant's apartment with a key that appellant had given Hunt. When Hunt entered the apartment, she noticed "an extreme foul odor." She saw something covered with blankets in front of the television. She lifted the blankets, saw Wood's feet, and called 911. A sheriff deputy drove to appellant's apartment and found Wood on the floor, dead, with a knife in her back.
At some point between June 9 and June 13, appellant placed bags of ice near Wood, as well as a bowl of sage. He also placed a wooden crucifix on her chest. He left her on the living room floor and slept on the couch at night, to be near her. Knowing that the manager sometimes entered his apartment, appellant covered Wood's body with blankets and a piece of carpet. He also sprayed the apartment to cover the smell.
Wood died from a seven and one-half inch deep stab wound that entered her back, passed through her rib, heart, and lung, and penetrated her sternum. The path of the wound was consistent with a single-thrust stabbing. The knife blade was eight inches long.
On June 14, 2005, after his arrest, appellant told detectives that he and Wood fought on Thursday (June 9), and Wood started punching him in the head. He tried to hold and turn her, but she kicked him. He took a kitchen knife from the counter and put it in Wood once, a "short way," thinking it would just scare her, but she fell. When asked if he had killed Wood in self-defense, appellant stated: "That sounds like I'm trying to cover myself. I'm not gonna do that." "[W]hat does it matter if I . . . was protecting myself? She's dead. . . . That's the bottom line." He said he did not know if she was trying to kill him. Appellant told detectives that he went to the Spearmint Rhino twice after Wood died, to say goodbye to her.
At trial, appellant testified that Wood had grabbed a knife from the kitchen counter and turned toward him. Fearing for his life, he grabbed her wrist, and tried to twist her arm back, to force her to drop the knife. She did not drop it, and the "knife went in." Wood turned and fell on her back. Appellant did not call 911 while Wood lay bleeding on the floor. He did not want to leave her to die alone while he went to find his cell phone. Instead, he showed her a photograph of her young daughter. Appellant explained that he did not claim self-defense earlier because he did not want people to perceive Wood as a "crazy person" who died while attacking him. Instead, he took the blame, so that people would feel sorry for her. He blamed himself for her death because he had failed to help Wood after promising to do so. Marc Firestone, a forensic engineer with a Ph.D. in physics, concluded that Wood fell on her back, which increased the depth of the knife wound. He also concluded that the knife would not have penetrated deeply, absent Wood's fall.
DISCUSSION
Appellant contends that the trial court deprived him of his Sixth Amendment right to present a defense by excluding "expert testimony from [a doctor] regarding the violent character of the victim." (U.S. Const., Amends. VI, XIV.) We disagree. A "trial court retains discretion to exclude expert testimony . . . that is unreliable or irrelevant . . . ." (People v .Carpenter (1999) 21 Cal.4th 1016, 1061.) We review a trial court's ruling on expert testimony under the deferential abuse of discretion standard. (People v. Mayfield (1997) 14 Cal.4th 668, 766.)
In this case, appellant sought to introduce the opinion of a psychiatrist, Dr. Lakshaman W. Rasiah. Rasiah described his proposed testimony as his "tentative thoughts" or "tentative diagnostic impression." The court observed that Rasiah had not interviewed or examined Wood. In an apparent reference to trial testimony about Wood's prior violent conduct, the court noted that "the events, they speak for themselves." Appellant claims that the exclusion of Rasiah's testimony curtailed his self-defense claims. There was ample evidence of Wood's threats and violent conduct which was very relevant to appellant's self-defense claims. (People v. Minifie (1996) 13 Cal.4th 1055, 1068-1069; see also CALCRIM No. 505.) While living with Wells, Wood approached him with a knife, saying, "You know I'll do it." Wells had also described Wood as "psychotic," and said that she threw things around his house when she was upset. The court properly concluded that Rasiah's "tentative diagnostic impression" would not "in any way aid this jury" and excluded his testimony. (See People v. Carpenter, supra, 21 Cal.4th 1016, 1061.)
We also reject appellant's claims that the instructions were "constitutionally defective" because they removed the burden of proof from the prosecution on the issue of self-defense or "justification." The court gave the jury the CALCRIM No. 500 instruction defining homicide: "Homicide is the killing of one human being by another. Murder and manslaughter are types of homicide. . . . [¶] A homicide can be lawful or unlawful. If a person kills with a legally valid excuse or justification, the killing is lawful and he or she has not committed a crime. If there is no legally valid excuse or justification, the killing is unlawful; and, depending on the circumstances, the person is guilty of either murder or manslaughter. You must decide whether the killing in this case was unlawful and, if so, what specific crime was committed. I will now instruct you in more detail on what is a legally permissible excuse or justification for homicide."
Appellant acknowledges that the court instructed the jury that the instructions must be read together and in context, and also instructed them that "[t]he People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder or manslaughter." (CALCRIM No. 505.) Appellant nonetheless contends that the instructions were confusing and inconsistent and left the jury "in a quandary" about which instruction to follow. He contends that the term "excuse or justification" in CALCRIM No. 500 erroneously states that the defense bears the burden of establishing an excuse or justification, removes the burden of proof from the prosecution on the issue of self-defense or justification, and erroneously implies that, even if all the elements of the crime have not been established, the jurors must find the defendant guilty if there is "no legally valid excuse or justification."
These contentions lack merit. There is no reasonable likelihood that a jury would interpret the instructions as stating that the defendant bears the burden of establishing an excuse or justification, or that the absence of a legally valid excuse or justification alone is sufficient to prove the defendant's guilt. The court instructed the jury to consider the instructions together (CALCRIM No. 200) and that the prosecution had to prove each element of the crime beyond a reasonable doubt (CALCRIM No. 220). Juries are presumed to follow the court's instructions. (People v. Hill (1992) 3 Cal.4th 959, 1011, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; accord, Weeks v. Angelone (2000) 528 U.S. 225, 234.)
Appellant also contends that his sentence violates his federal constitutional right to due process and a jury trial, because in choosing to impose the upper term, the court relied on factors not found by a jury. (Blakely v. Washington (2004) 542 U.S. 296, 303; Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) "[T]he Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham v. California (Jan. 22, 2007, No. 05-6551) __ U.S. __ [127 S.Ct. 856, 860] (Cunningham).)
At the time of appellant's conviction, California's determinate sentencing law (DSL) provided for a lower, middle and upper term, and required the imposition of the middle term, unless there were circumstances in aggravation or mitigation of the crime. (§ 1170, subd. (b).) In Cunningham, the United States Supreme Court held that because the DSL permitted a trial court to impose the upper term based on facts found by the court rather than by a jury beyond a reasonable doubt, or admitted by the defendant, it violated a defendant's Sixth and Fourteenth Amendment right to a jury trial. (Cunningham, supra, __ U.S. __ [127 S.Ct. 856, 860, 868-871].)
Here, the trial court imposed the upper term because "the crime involved great bodily injury, great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness, in that . . . the defendant did not call for help after the victim was stabbed." (Italics added.) The court was "troubl[ed]" that appellant "left Debbie Wood lying in his apartment for five days, her body decomposing with a knife in her back, and we don't know [if] she died instantly . . . or . . . lingered and suffered in pain, but either way he did not make any effort . . . to pick up the phone and dial 911 . . . ." (Italics added.)
Aggravating factors admitted by the defendant need not be tried to a jury. (Blakely v. Washington, supra, 542 U.S. 296, 303; Apprendi v. New Jersey, supra, 530 U.S. 466, 488; People v. Sandoval (2007) 41 Cal.4th 825, 836.) Appellant admitted that he did not call 911 while Wood lay injured in his apartment and that he left her body in his apartment for five days. We conclude that the court's reliance upon those facts was not Cunningham error.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.