Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. MA037673, Elena J. Duarte, Judge.
Patricia Ihara, 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, Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Kenneth Lavelle Finnell appeals the judgment entered following his conviction by jury of murder in which he personally discharged a firearm causing death and assault with a firearm in which he personally used a firearm. (Pen. Code, §§ 187, 12022.53, subd. (d), 245, subd. (a)(2), 12022.5.) The trial court sentenced Finnell a term of 40 years to life in prison for murder and imposed a concurrent term for assault with a deadly weapon.
Finnell contends the People failed to bear their burden of demonstrating the absence of heat of passion. Thus, the conviction of murder must be reduced to voluntary manslaughter. Finnell also contends defense counsel rendered ineffective assistance in failing to object to the prosecutor’s misconduct. We reject Finnell’s claims of error and affirm the judgment as modified to reflect the correct concurrent term imposed by the trial court for assault with a deadly weapon.
FACTS AND PROCEDURAL BACKGROUND
1. Finnell and Moreau separate in July of 2005 and attempt to reconcile through November of 2006.
Alta Moreau and Finnell met in high school and began living together in 1997 or 1998. In July of 2005, they separated. Moreau moved with their two children to the home of Moreau’s mother in Lancaster. The children shared a bedroom on the second floor and Moreau lived in a converted bedroom in the three-car garage.
Moreau remained in contact with Finnell after they separated because of the children. Also, approximately three times after they separated, Finnell and Moreau attempted to reconcile at Finnell’s request. Each attempt failed and resulted in periods of separation that lasted “months at a time.” Moreau last had sexual relations with Finnell in early November of 2006.
Moreau ended her romantic involvement with Finnell in November of 2006 after Finnell told her that he had a child with another woman. Moreau testified, “[W]e were finished. We were done.” Moreau told her mother and the children about her decision and began to distance herself from Finnell. When Moreau ended her relationship with Finnell in November of 2006, she began dating Everrett Haydale and told Finnell she was dating Haydale. Finnell was upset upon learning this news. “He didn’t want anyone around his kids.” Moreau met Haydale in 2005 or 2006. Before November of 2006, Moreau and Haydale dated off and on because Moreau’s relationship with Finnell also was off and on but they were mainly just friends.
Finnell and Haydale were in Carter’s home at the same time on Thanksgiving in 2005. Finnell became upset, went upstairs and talked with family members. Later, Finnell angrily asked Moreau why Haydale had been there. On Father’s Day in 2006, Finnell became upset when he saw Haydale and left the house after about 10 minutes.
Moreau’s mother, Fannie Carter, testified Finnell came to the home to visit the children or pick them up but he did not have a key to the home and he always called before he arrived. Carter further testified that, even before Haydale became Moreau’s boyfriend, Haydale came to the home “three, four or five nights” a week after work to help the children with their homework, do laundry or prepare dinner. Moreau worked evenings and Haydale had been doing this for “almost a year.” When Haydale arrived at the home, his practice was to check on Carter, who has chronic obstructive pulmonary disease, help Carter with her oxygen and visit with her.
2. The trip to the tax preparer’s office.
On February 8, 2007, Finnell and Moreau drove from Lancaster to Los Angeles to see a tax preparer. After the appointment, they ate lunch and returned to Lancaster. Finnell was supposed to tell Moreau more about his child during the drive but he did not. Finnell talked about getting back together and said he would change. Moreau specifically told Finnell she did not wish to resume a relationship with him. Moreau testified they “had a nice day” and did more talking than arguing, “so it wasn’t... a bad day.” However when they separated, Finnell said, “All right. Fine,” and slammed the car door.
3. The night of the shooting.
Moreau returned home from the trip to the tax preparer’s office at 6:00 or 7:00 p.m. At approximately 9:00 p.m., she spoke with Finnell on the telephone and told him she was not going to argue with him. Moreau went to bed before 10:00 p.m. and was asleep when Haydale arrived at the house. Moreau let Haydale into the house, then went back to sleep. Moreau thought Haydale arrived between 10:30 and 11:00 p.m. but she was “not sure.” Haydale took a shower, then went upstairs.
Carter testified Haydale came to her room at approximately 2:00 a.m. to check on her and he stayed until 2:30 a.m. Sometime after 2:00 a.m., Carter saw Finnell flashing the high beams of his car on Carter’s second-story bedroom window from the street behind Carter’s home. Finnell frequently did this. Five to ten minutes after she saw the flashing lights, Carter heard a pop.
Moreau testified she awoke sometime around 2:30 a.m. to see Finnell at the end of her bed wearing a black shirt, black pants and a black hat. Finnell had a gun Moreau previously had seen which was pointed at Haydale. Haydale said, “Hey, Papa [Finnell’s nickname] man. Hold on.” Finnell shot Haydale in the head and the trunk. Both wounds were fatal. Haydale also was shot below the mouth. After Finnell shot Haydale, he pointed the gun at Moreau, then shook his head, turned and walked out a sliding glass door.
Carter called 911 and reported that an intruder had shot her daughter’s “boyfriend.” Moreau also described Haydale to the dispatcher as her “boyfriend.”
4. Finnell’s voice messages on Moreau’s telephone.
Two days after the shooting, Moreau checked the voice messages on her cell phone and found Finnell had left voice messages on the day before they went to see the tax preparer, Wednesday, and on the night of the shooting. A detective recorded two messages from Wednesday night and three messages from the night of the shooting.
The first telephone message from Wednesday at 11:09 p.m. states, “I don’t know what kind of games you playing, but I just got off the phone with [our son]. He tell me you on the phone with somebody. I’m calling your phone – its busy – but you tell me you going to sleep; you fixing to lay down; so what the fuck really going on? As soon as I hung up with him, I get to chirping you. Now you don’t want to answer the chirp. [¶] Then I mother-fucking call you at the house, and the line busy; so I know you on the phone with somebody, and don’t tell me no... shit about you been asleep ‘cuz I know you didn’t go to sleep that fast; so I’m fixing to ride out, and we going to fucking see what’s really happening.”
The second message from Wednesday at 11:12 p.m. states: “[I]f I have to come out there, I’m bringing all hell with me; so I suggest you answer the mother-fucking phone, tell me what the fuck going on. That’s what you need to do ‘cuz I know you ain’t asleep and the chirp is going through; so don’t tell me no shit about the fucking phone being off because it was on the charger – no bullshit like that either.”
In these messages Finnell sounded angry. Moreau did not remember if Finnell came to the house Wednesday night. At the time, Moreau considered herself on friendly terms with Finnell.
In the messages left on the night of the shooting, Finnell sounded drunk and in a rage. The first message from Friday at 1:44 a.m. states: “Why... won’t [you] answer your phone when I call it. Why you don’t answer your phone? I mean, that’s not even cool. Why, why you don’t want to talk to me? What do you have to hide? Nothing, right? So why you don’t even want to....”
In a message saved on Friday at 1:50 a.m., Finnell stated, in a sing-song manner: “Hey, you know you might want to answer my call, you know. You might, you really, really might want to answer my call, you know. You might wanna just, you know, hit the chirp, say something. You just might want to do that. So hit the chirp. Say something. You might want to do that right now. You really might want to.”
A message saved on Friday at 2:18 a.m. states: “Okay, baby, uh, well, who’s truck is this? This little white Toyota. It’s right out, parked right out here in front at the end. (Inaudible.) It’s not blocking you in so I, I been sitting in the back, you know, back in the cut watching and it’s nobody....” Based on the reference to the white truck, Moreau thought Finnell must have been near the house because Finnell had not previously seen Haydale driving the white truck, which Haydale had borrowed from a friend.
Moreau testified Finnell left a fourth voice message on the night of the shooting that was not recorded. In that message, Finnell described a truck and said he thought he saw someone knocking on the garage.
Finnell surrendered to law enforcement in Texas on February 28, 2007.
5. Defense evidence.
Anthony Hunt, Finnell’s closest friend, testified Finnell and Moreau came to the barbershop where he worked in February of 2007. The day after the shooting, Finnell telephoned Hunt and said something crazy was on the news or was going to be on the news.
6. Rebuttal evidence.
Hunt told a detective that Finnell telephoned him and said “he had done something and [Hunt] would be reading about it.”
7. Instruction, argument and verdict.
The trial court instructed the jury on first and second degree murder and voluntary manslaughter.
The prosecutor argued the messages left by Finnell on Wednesday demonstrated planning activity because Finnell spoke of driving to the house to see what was really happening. The prosecutor also referred to the unrecorded message in which Finnell said he saw someone enter the home. The prosecutor noted Finnell did not knock on the door and ask to speak to Moreau and Haydale. Rather, he broke into the home at 3:00 a.m. with a loaded firearm intending to ambush Haydale in his sleep.
The jury convicted Finnell of second degree murder of Haydale and assault with a deadly weapon on Moreau.
CONTENTIONS
Finnell contends the People failed to prove the absence of heat of passion beyond a reasonable doubt and thus there is insufficient evidence to support a conviction of murder. Finnell also contends defense counsel rendered ineffective assistance in failing to object when the prosecutor committed misconduct by producing and relying on false evidence, namely, Moreau’s testimony regarding the unrecorded telephone message.
DISCUSSION
1. The evidence demonstrated Finnell did not act in heat of passion.
a. Finnell’s argument.
Finnell argues the conviction of murder in this case depends on Moreau’s testimony that Finnell knew Moreau and Haydale were dating at the time of the shooting. Finnell asserts Moreau’s testimony on this point was so thoroughly impeached and inconsistent with the other evidence adduced at trial that a rational trier of fact could only have concluded Moreau hid her relationship with Haydale from Finnell and misled Finnell to believe she was not involved with another man. Finnell notes Moreau told Finnell she did not wish to resume a relationship with him but she did not tell him she was romantically involved with another man. According to Finnell, the recorded voice messages show only that Finnell had begun to suspect Moreau was deceiving him. He did not know what he would find at the house and did not know about Moreau’s relationship with Haydale until he saw them in bed together, the classic voluntary manslaughter situation. Finnell concludes this discovery engendered provocation sufficient to establish heat of passion, thereby negating the element of malice and rendering the offense voluntary manslaughter as a matter of law.
b. Legal principles.
Murder is a killing with “malice aforethought.” (§ 187, subd. (a).) Murder is of the first degree when it is committed in a willful, deliberate and premeditated fashion or in the perpetration of an enumerated felony. (§ 189.) All other kinds of murder are of the second degree. (Ibid.) Voluntary manslaughter is the unlawful killing of a person without malice “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).)
“ ‘Heat of passion arises when “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.” ’ [Citation.]” (People v. Lee (1999) 20 Cal.4th 47, 59.)
When murder and voluntary manslaughter are under joint consideration, the prosecution must prove the absence of a sudden quarrel or heat of passion beyond a reasonable doubt. (People v. Rios (2000) 23 Cal.4th 450, 454, 462.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
c. Application.
Here, Moreau testified she told Finnell she was dating Haydale in November of 2006, shortly after Finnell told her he had fathered a child by another woman. This evidence was sufficient to prove Finnell knew Moreau and Haydale were involved romantically. However, even if it is assumed Finnell was not aware that Moreau and Haydale were sleeping together, the circumstances of the shooting demonstrate that Finnell’s reason was not obscured by heat of passion at the time of the shooting.
The voice messages left on Moreau’s cell phone the night before the trip to the tax preparer’s office indicate Finnell, at minimum, suspected Moreau was involved with another man. Finnell argues he could not have known about Moreau’s relationship on the trip to tax preparer’s office because he would have been jealous and angry at that time. However, Finnell’s mood might have been variable on the subject, angry at some times and more peaceful at others, such as when he was attempting to persuade Moreau to resume their relationship. Further, the evidence showed Finnell was angry at the end of the trip. He slammed the door and said, “Fine,” after Moreau told him she did not wish to reconcile.
Later that night, Finnell left angry and drunken voice messages on Moreau’s cell phone, then drove to her home with a loaded firearm. He left another voice message at 2:18 a.m. regarding the presence of the white truck, which had not previously been parked outside the house. Finnell then entered the home, dressed entirely in black, went directly to Moreau’s bedroom and shot Haydale in bed. This evidence reveals Finnell did not come upon Moreau and Haydale unexpectedly. Rather, the evidence indicated Finnell knew Moreau was not alone and that Finnell’s purpose when he entered the residence dressed in black and wielding a loaded handgun was to confront and kill whoever was sleeping with Moreau.
Comparison of this case with People v. Bridgehouse (1956) 47 Cal.2d 406, the case on which Finnell places primary reliance, demonstrates the lack of merit in Finnell’s contention. In Bridgehouse, a wife hid from the defendant the fact her lover was living at the home of her mother. The defendant in Bridgehouse was overwrought from working two jobs, one of them as a deputy sheriff. The defendant came upon his wife’s lover unexpectedly and shot him with his service weapon. Bridgehouse found the evidence sufficient, as a matter of law, to constitute only voluntary manslaughter. Finnell asserts the same result should obtain here.
However, as noted above, Finnell did not come upon Moreau and Haydale unexpectedly. Rather, Finnell broke into Moreau’s home in the middle of the night with a loaded firearm expecting to find Moreau in bed with another man. Further, Finnell offered no explanation for the presence of the loaded gun at the scene of the offense other than to establish he had owned the weapon for some time. The defendant in Bridgehouse, on the other hand, had recently worked as a deputy sheriff and was in the process of transporting his service weapon from a pawn shop to his home. Finally, this case may be differentiated from Bridgehouse based on the reaction of the respective defendants to the crime. The defendant in Bridgehouse was pale and shaking after the shooting; Finnell fled to Texas after telling his friend to look for news reports about him. The numerous, significant factual differences between Bridgehouse and Finnell’s case demonstrate Finnell’s conduct was not the result of heat of passion.
Based on the foregoing, we conclude the evidence presented by the People was sufficient to permit the jury to conclude, beyond a reasonable doubt, that Finnell did not shoot Haydale rashly or without due deliberation and reflection. (People v. Lee, supra, 20 Cal.4th at p. 163.)
2. Finnell fails to demonstrate ineffective assistance of counsel.
Finnell contends defense counsel rendered ineffective assistance in failing to object when the prosecutor committed misconduct. Finnell argues this misconduct occurred when the prosecutor elicited Moreau’s false testimony about the unrecorded voice message and again when the prosecutor relied on this evidence in argument to show planning activity. Finnell asserts the prosecutor’s knowing use of false evidence violated Finnell’s right to due process and a fair trial. (Napue v. Illinois (1959) 360 U.S. 264, 269 [3 L.Ed.2d 1217].)
A prosecutor commits misconduct when he or she “ ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.]” (People v. Young, supra, 34 Cal.4th at p. 1184.) Deliberately eliciting inadmissible testimony is a form of misconduct. (Id. at p. 1188; People v. Valdez (2004) 32 Cal.4th 73, 125.)
Finnell’s claim fails because Moreau’s testimony about the unrecorded voice message was not “false evidence.” Finnell argues Moreau’s testimony about the unrecorded telephone message, which indicated Finnell was outside the house when Haydale arrived at 11:00 p.m., must have been false because it was inconsistent with the recorded voice messages which suggested Finnell drove to the house after the 1:50 a.m. message. Carter saw Finnell’s car behind the house sometime after 2:00 a.m. and at 2:18 a.m. Finnell left the message in which he asked about the white truck in front of the house. Finnell concludes Moreau’s testimony that Finnell saw Haydale arrive at 11:00 p.m. must have been false. Further, this false evidence prejudicially permitted the jury to find Finnell had a four-hour cooling off period before the shooting.
Finnell fails to demonstrate that Moreau’s testimony was false. Moreau testified she was not certain what time Haydale arrived at the home on the night of the shooting. Thus, the unrecorded message did not necessarily place Finnell outside Carter’s home at 11:00 p.m. Moreau also testified she was asleep when Haydale arrived, she awoke to let him in and went back to sleep. Moreau’s mother, Carter, testified Haydale was in her room from 2:00 until 2:30 a.m. Thus, the evidence, viewed in total, suggests Moreau was mistaken with respect to the time at which she thought Haydale arrived at the home on the night of the shooting, not that her testimony regarding the unrecorded message was false.
Finnell asserts it was highly unlikely a detective would not have recorded a statement that placed Finnell outside the home when Haydale arrived. We agree. However, this does not show the falsity of Moreau’s testimony. The message might have been inadvertently deleted by the detective or Moreau.
Because Finnell fails to demonstrate prosecutorial misconduct in eliciting or relying upon Moreau’s testimony about the unrecorded message, it follows that defense counsel did not render ineffective assistance in failing to object to the evidence or in failing to cross-examine Moreau more extensively with respect to the unrecorded message. Defense counsel reasonably could conclude the evidence would have been admitted over a hearsay objection. Indeed, Finnell concedes this evidence, if it was not false evidence, was admissible as a party admission under Evidence Code section 1220. Defense counsel is not required to make pointless objections. (People v. Anderson (2001) 25 Cal.4th 543, 587.) Further, defense counsel reasonably could conclude a fruitless objection would only highlight the evidence in the eyes of the jury.
In sum, the record fails to disclose ineffective assistance of defense counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674]; People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Cain (1995) 10 Cal.4th 1, 28.)
3. Correction of the abstract of judgment.
At the time of sentencing, the trial court imposed a concurrent term of three years on count two, assault with a deadly weapon, plus four years for the firearm enhancement for a total term of seven years. However, the abstract of judgment indicates a term of seven years, plus four years for the gun enhancement.
Finnell contends the abstract of judgment must be corrected to reflect the term imposed by the trial court. The People concede the error and it appears their concession is well taken. We shall therefore order the abstract of judgment corrected to conform to the trial court’s oral pronouncement of judgment.
DISPOSITION
The judgment is modified with respect to count two to reflect a concurrent term of three years for assault with a deadly weapon, plus four years for the firearm enhancement for a total term of seven years. In all other respects, the judgment is affirmed.
We concur: KITCHING, J., ALDRICH, J.