Opinion
B163761.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. LEE EZELL, Defendant and Appellant.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Lee Ezell appeals his conviction of first degree murder. He claims the instructions failed to inform the jury that imperfect self-defense was a defense to first degree murder based on a shooting from a vehicle. He also claims it was error to instruct the jury in terms of CALJIC No. 2.70 because
his statement to the police was tape-recorded. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Appellant Ezell was associated with the Pacoima Piru Blood gang, and Marcario Alcorn was a member of a rival gang, the Whitsett Avenue Crips. On February 10, 2002, Alcorn was attending a party in Blood territory. Also at the party was a 16-year-old girl, Sodany Seng. Ms. Seng had received permission from the others hosting the party to have appellant pick her up there; she and appellant had planned to go out to some clubs with another friend.
Appellant and Jamar Price drove up in Prices Expedition. Price was driving, appellant was in the front passenger seat. They did not get out of the vehicle. Alcorn informed Ms. Seng that someone was outside and asked if she knew the person. She and Alcorn went over to the passenger side of the Expedition. Ms. Seng noticed that appellant had a gun on his lap, and asked, "What the hell you brought that for?" According to Ms. Seng, appellant and Alcorn conversed calmly. She heard appellant say something about Alcorn not remembering him. (They both had attended the same high school.) Alcorn responded, "I know, dude. I know, dude." He then walked away.
Ms. Seng got into the Expedition and talked about picking up her friend and going to the club. She went back into the house to get her shoes and call her friend. When she came out about ten minutes later, Alcorns car, which had been in front of the Expedition, was gone. Ms. Seng got into the Expedition. Appellant told her he had "some business to take care of" and would talk to her later. Ms. Seng got out of the car, and appellant and Price drove away.
A short time later, some guests left the party. As they were driving, they saw Alcorns car crash into a nearby fence. There were several bullet holes in the car and the drivers side window was shattered. Alcorn had been shot in the head and the back of his shoulder, and he died from the gunshot wounds.
The gun used to shoot Alcorn was found in a bush behind Prices home, wrapped in a sweater. Ms. Seng identified the gun as the one she had seen in appellants lap just before the shooting. Appellant was arrested and interviewed by police. At first he denied involvement in the shooting, claiming he was home that night. Eventually he told police that Alcorn had been mouthing off outside the party. They had not gone looking for Alcorn when they drove away. Alcorn had pulled up beside their car and asked why they were following him. Alcorn told them he was going to come back and kill them. Appellant tried to calm Alcorn down, telling him, "You tripping, dude." Then appellant saw that Alcorn had a gun. When he saw Alcorn aim the gun at them, appellant shot Alcorn.
Appellant was charged with one count of murder. It was alleged that the crime was committed to promote criminal conduct by gang members to benefit the gang (Pen. Code, § 186.22, subd. (b)(1)); all statutory references are to this code) and that appellant personally used a firearm ( § 12022.53). Appellant was found guilty of first degree murder, and the allegations were found true. He was sentenced to a term of 60 years to life. This is a timely appeal from the judgment of conviction.
DISCUSSION
I
Appellant claims the court gave confusing and inadequate instructions as to the applicability of imperfect self-defense to the theory that the murder was perpetrated by shooting from a motor vehicle. The argument is premised on his characterization of section 189 as "the felony-murder statute." This is a misnomer.
In 2002, when this shooting occurred, section 189 provided: "All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree."
"Section 189 thus first establishes a category of first degree murder consisting of various types of premeditated killings, and specifies certain circumstances (use of explosives or armor-piercing ammunition, torture, etc.) which are deemed the equivalent of premeditation. Section 189 secondly establishes a category of first degree felony murders (murders perpetrated during felonies or attempted felonies such as arson, rape, carjacking, etc.). Finally, section 189 establishes a third category consisting of only one item, intentional murder by shooting out of a vehicle with intent to kill." (People v. Rodriguez (1998) 66 Cal.App.4th 157, 163-164.)
Only two of these theories—drive-by shooting and premeditated murder—were presented to the jury in our case. Felony murder was not the prosecution theory for first degree murder. The prosecutor argued: "First degree murder can come in two ways: a murder committed during a drive-by shooting, which is what we have here, that is from a car, either somebody on the street or in another car, is first degree murder under California law. And thats why Im asking you to find him guilty of first degree murder under the theory of drive-by shooting. Theres another way to get to first degree murder, and thats if a murder is premeditated and deliberated. And that means the person had time to think about it and plan it before he commits the crime. That is also first degree murder under California law. But I believe in this case its much simpler to find the first degree murder under the drive-by shooting statute or idea of law in California rather than wondering how much this defendant premeditated and deliberated this murder."
The prosecutor never argued that a drive-by shooting was first degree felony murder. He did argue that if the jury did not find that appellant committed the crime during a drive-by, and did not premeditate and deliberate, then it could find him guilty of second degree murder. He then explained that the easiest theory under second degree murder would be second degree felony murder, based on shooting into an occupied motor vehicle and killing a person.
The prosecutor turned to the question of manslaughter, based on imperfect self-defense: "If you believe that he was acting in self-defense, but it wasnt reasonable; that is, in his mind hes thinking self-defense, but it wasnt reasonable for him to be thinking self-defense, then you get to whats called a lesser included offense. Youll be instructed on this. If you think hes not guilty of these theories of murder, then you get to this lesser included of voluntary manslaughter. However, this theory does not apply to second degree felony murder, regardless of whether he thinks in his mind hes acting in self-defense. It does not matter. If you are committing a PC 246; that is, shooting at somebody in a car, you cannot get this voluntary manslaughter lesser included. So youll hear all these things instructed to you, but remember that it does not apply to this theory of felony murder." (Italics added.)
Nowhere in this argument is there any implication that the first degree murder theory based on a drive-by shooting was felony murder, or that imperfect self-defense was not applicable to reduce a drive-by shooting to manslaughter.
The courts instructions to the jury are equally free of those implications. The jury was instructed that murder is divided into two degrees, and was given two theories of first degree murder: deliberate and premeditated killing, and drive-by shooting—murder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside the vehicle when the perpetrator specifically intended to inflict death.
The court then instructed on second degree murder, including second degree felony murder: "The unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs during the commission or attempted commission of the crime of malicious and willful discharge of a firearm at an occupied motor vehicle is also murder of the second degree when the perpetrator had the specific intent to commit that crime."
The court instructed on self-defense, and then on imperfect self-defense: "Every person who unlawfully kills another human being without malice aforethought but either with an intent to kill, or in conscious disregard for human life, is guilty of voluntary manslaughter in violation of Penal Code section 192, subdivision (a). There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury."
The court explained further, in terms of CALJIC No. 5.17: "A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury kills unlawfully, but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation, seeing and knowing the same facts, . . . would not have had the same belief. Such an actual, but unreasonable belief is not a defense to the crime of voluntary manslaughter." This instruction concluded: "This principle is not available to felony murder." Notably, the only felony murder theory presented was second degree felony murder, based on shooting into an occupied motor vehicle.
The court distinguished murder and manslaughter, in terms of CALJIC No. 8.50: "The distinction between murder other than felony murder and manslaughter is that murder other than felony murder requires malice while manslaughter does not. [P] When the act causing the death, though unlawful, is done in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, the defense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [P] To establish that a killing is murder other than felony murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury."
Again, we note the only felony murder theory presented to the jury was second degree felony murder, based on appellant shooting into an occupied motor vehicle. Neither the instructions nor the prosecutors closing would have led the jury to believe that the drive-by shooting theory of first degree murder was felony murder. Hence, there was no likelihood that the jury could have been misled into thinking that imperfect self-defense was inapplicable to the drive-by murder theory. The court properly instructed on murder.
II
Appellant claims the trial court erred in instructing the jury in terms of CALJIC NO. 2.70, as follows: "A confession is a statement made by the defendant in which he has acknowledged his guilt of the crime for which he is on trial. In order to constitute a confession, the statement must acknowledge participation of the crime as well as the required criminal intent or state of mind. An admission is a statement made by the defendant which does not by itself acknowledge his guilt of the crime for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. [P] You are the exclusive judges as to whether the defendant made a confession or an admission, and if so, whether the statement is true in whole or in part. [P] Evidence of an oral, nontape-recorded confession or an oral nontape-recorded admission of the defendant not made in court should be viewed with caution."
"[A] trial court is required on its own initiative to instruct the jury that evidence of a defendants oral admissions must be viewed with caution [citations], except that this cautionary instruction is inapplicable, and should not be given, if the oral admission was tape-recorded [citations] . . . ." (People v. Mayfield (1997) 14 Cal.4th 668, 776, 928 P.2d 485.)
In this case both tape-recorded and nontape-recorded statements were presented. In the tape-recorded statement appellant made to police, he claimed at first that he was home on the night of the crime, and denied being present at the scene of the crime or having any involvement in the shooting. Later in the statement he admitted he was in the Expedition outside the party, that Alcorn came up to the car and talked to him, that Alcorn later drove up alongside them, and that he shot Alcorn.
The jury also heard testimony by Sodany Seng, the young woman appellant was picking up at the party, about oral statements made by appellant. According to Ms. Seng, when she and Alcorn went outside to the waiting Expedition, appellant and Alcorn were "talking calmly" and then appellant said that Alcorn "dont remember me." Alcorn said, "I know, dude. I know, dude." Ms. Seng got into the Expedition and talked with appellant, then went back inside to get her shoes and call her girlfriend. When she came back outside, Alcorns car, which had been in front of the Expedition, was gone. Ms. Seng got into the Expedition, and appellant told her he would talk to her later, he had "some business to take care of." Ms. Seng got out of the Expedition, which drove away.
CALJIC No. 2.70, as given, gave the jury guidance as to its consideration of whether appellant actually made the nontape-recorded statement to which Ms. Seng testified, and appropriately warned the jury to consider the nontape-recorded statement with caution. It also informed the jurors that they were the "exclusive judges" as to whether appellants statements were admissions, and whether the statements were true. The courts instruction expressly limited the warning to view confessions or admissions with caution to oral, nontape-recorded confessions or admissions. To the extent this portion of the instruction was inapplicable to the tape-recorded statement, the jury was appropriately instructed that not all instructions given would necessarily apply. We find no instructional error.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL (C.S.), P.J., CURRY, J.