Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA 091039, Robert J. Higa, Judge. Affirmed.
Landra E. Rosenthal, 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 and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, Acting P.J.
Defendant Andrew J. Frenes timely appealed his conviction for second degree murder. The jury also found gun allegations to be true. The court sentenced defendant to 40 years to life. Defendant contends the court erred when it failed to give a manslaughter instruction based on sudden quarrel and heat of passion and in giving CALCRIM No. 226. We affirm.
FACTUAL BACKGROUND
I. Prosecution Case
Celeste Mancillas and her boyfriend Brian Whitney had lived together for six years. Whitney did not own a gun. Mancillas and Whitney began taking methamphetamine in 2002. Methamphetamine did not change Whitney’s behavior, but it gave Mancillas more energy and sometimes made her feel happy.
Melissa Guirl, a homeless woman, met appellant before August 30, 2005, while living in a homeless encampment in a riverbed near the 105 Freeway and Studebaker Road in Los Angeles County. A couple of weeks before August 30, Donald Griego, known as Sambo, who used to live at the encampment, gave his tent there to Whitney. Griego had gotten a job and abandoned the tent and had no intention of returning.
On the morning of August 30, Mancillas and Whitney took some methamphetamine before Whitney left for court-ordered community service. Around 7 p.m., Mancillas and Whitney gathered some of their belongings to go stay at Griego’s tent. Around 9 p.m., Mancillas and Whitney arrived at the riverbed. Whitney went up to where people lived, while Mancillas waited for him at the bottom of the riverbed. After Whitney returned, they went to Griego’s tent and found appellant there with Guirl, a kid, the kid’s mother and her boyfriend. About five minutes later, the kid, his mother and her boyfriend left to go to a store. Appellant did not appear afraid or surprised to see Whitney.
Appellant and Whitney talked about the tent in which appellant was staying. Whitney was calm and did not appear angry or aggressive and did not threaten appellant. When Whitney said he wanted his tent back, appellant said he was going to keep the tent because Sambo had taken his gun. After exchanging a few more words, Whitney said, “‘Let’s take it aside from the ladies.’” Whitney tried “to keep things cool” and did not yell, but appellant raised his voice.
After they moved away, appellant said the tent was his and he was staying there. Then appellant said, “Hold on,” walked back to his tent, got his gun, returned, raised the gun and shot Whitney.
Mancillas ran to Whitney. When Mancillas turned around towards appellant to hit him, he pointed the gun at her and said he would shoot her if she did not move back. Appellant asked Guirl to grab his dogs and the gun; Guirl refused. Mancillas screamed for help. In shock, Guirl said, “‘Let’s get out of here,’” and left on a bike. Appellant also grabbed a bike and left in the opposite direction.
The jury acquitted appellant of counts 2 and 3 alleging appellant made criminal threats against Mancillas and assaulted her with a firearm.
Around 12:45 a.m., Kevin Lowe, homicide investigator for the Los Angeles County Sheriff’s Department, arrived at the encampment. Officers found no weapons, bullets, or shell casings at the camp site. According to Yu Lai Wang, deputy coroner, Whitney died of a single contact shotgun wound to his chest.
II. Defense Case
Johnny Chavez knew appellant from the time appellant worked for Chavez’s cousin. Around 8 p.m. on August 30, Chavez was leaving his girlfriend’s house at Foster Road and Bellflower when Whitney approached and asked if Chavez knew appellant. When Chavez said he did not, Whitney pulled out a gun and said, “‘Just let him know that Sparkey is looking for him.’” Chavez never told appellant about the incident. In July 2007, Chavez gave false information to a police officer and was convicted of a misdemeanor. Chavez was convicted of felonies involving moral turpitude in August 1996, June 1999 and January 2006.
According to Dr. Terence McGee, a medical review officer who specializes in addiction medicine and runs drug-testing programs, methamphetamine produces anorexia, insomnia, hyperactivity, paranoia and aggression. Methamphetamine has been linked to violence, loss of impulse control, teeth grinding, perspiration and muscle rigidity. People who regularly use methamphetamine could become rapidly intolerant of the drug. One study of five or seven patients showed that people with blood levels of methamphetamine between 150 nanograms per milliliter and 525 nanograms per milliliter were irrational and violent in an emergency room situation. Methamphetamine levels of 650 nanograms, or 0.65 ug/ml, is a “significant” amount. People under the influence of methamphetamine could be “brooding and introspective,” or “wild and crazy and all the stops in between.” The parties stipulated that Whitney’s blood test detected a 0.07 ug/ml level of amphetamine and a 0.65 ug/ml level of methamphetamine.
Appellant testified in his own behalf. About a week before August 30, appellant began living in an abandoned tent at the riverbed. At the camp, it was understood that if a tent was unoccupied, it was okay for a person to move in. Appellant kept a shotgun for protection because several people, including James Reagan who stayed at the tent next to appellant’s tent, told appellant that Whitney was looking for him and “‘going to get his ass.’”
James McDonald, another homeless man at the encampment, told appellant to “watch my back” and Whitney “was looking for me.” McDonald told appellant to be careful, that Whitney would shoot him and that he (McDonald) had been shot by Whitney in the past. Appellant said several people told him that Whitney had a gun. Appellant said he had not slept soundly that week, did not feel safe, and tried to keep people around him all the time. Appellant stayed at the camp because he had no place else to go.
On August 30, appellant invited Guirl, Josh, Josh’s mother and her husband for a barbecue at his tent. As Josh, his mother and her husband were going to a store, Whitney and his girlfriend arrived. Appellant felt alarmed. Appellant was nervous. Whitney, who appeared “confident” and “very arrogant,” approached appellant and told him to leave the tent and that everything there belonged to him (Whitney). When appellant refused, Whitney motioned toward his pants, flashed the butt of a chrome gun, stepped closer, and said, “‘Let’s just take this away from the girls.’” Appellant did not want to leave with Whitney, but Whitney said, “‘Let’s go into the shadows over there.’” Appellant felt Whitney was trying to bully him.
Appellant believed Whitney “wanted to take me somewhere and shoot me.” Because appellant felt in danger and wanted to protect himself, he went to his tent and retrieved his gun. Appellant thought it was not possible to handle the situation diplomatically. When appellant shot Whitney, he did not aim at any place in particular and did not intend to kill Whitney; he just raised the gun and fired it intending to shoot Whitney “[b]efore he shot me.”
When Whitney fell to the ground, Whitney’s girlfriend attacked appellant and started swinging at him. Appellant told her to back up. After Whitney’s girlfriend yelled at him to leave, appellant grabbed his backpack, ran down the embankment, dropped the gun and left. Appellant never returned to the area and was arrested a month later.
Appellant had been convicted of transportation of methamphetamine in November 1996 and of possession for sale of cocaine in July 1999.
DISCUSSION
I. An instruction for voluntary manslaughter based on heat of passion was not supported by substantial evidence.
The court instructed the jury on voluntary manslaughter based on imperfect self-defense. Appellant contends the court erred when it failed to give an instruction for manslaughter based on the heat of passion.
“The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial -- that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.” (Citations omitted.) (People v. Blair (2005) 36 Cal.4th 686, 744-745; see also People v. Breverman (1998) 19 Cal.4th 142, 154 [“‘The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.’”].)
“An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion,’ and is thus voluntary manslaughter, if the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘“ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”’ ‘“[N]o specific type of provocation [is] required . . . .”’ Moreover, the passion aroused need not be anger or rage, but can be any ‘“‘[v]iolent, intense, high-wrought or enthusiastic emotion’”’ other than revenge. ‘However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter.’” (Citations omitted.) (People v. Breverman, supra, 19 Cal.4th at p. 163.)
“The heat of passion requirement for manslaughter has both an objective and a subjective component. The defendant must actually, subjectively, kill under the heat of passion. But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago in interpreting the same language of [Penal Code] section 192, ‘this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,’ because ‘no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’” (Citations omitted.) (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253; see also People v. Dixon (1995) 32 Cal.App.4th 1547, 1552 [The defendant has the burden of setting forth sufficient evidence of heat of passion and provocation].)
According to appellant, the evidence he acted in the heat of passion was that he was homeless, living in an abandoned tent, Whitney (the victim) came looking for him, he had been warned that Whitney carried a gun and had used it, appellant was alarmed when Whitney told appellant to leave the tent and bullied him, appellant believed Whitney gestured to the gun he had been warned about, and appellant thought Whitney wanted to take him somewhere and shoot him. Appellant also asserts he did not intend to kill Whitney as he did not aim the gun. Appellant notes Whitney was a methamphetamine user though Whitney was acting normal that day, and they both were angry.
The testimony about the effects of methamphetamine turned out to be irrelevant as there was no testimony that Whitney was acting violently at the time of his encounter with appellant or that appellant knew Whitney used methamphetamine.
In the case at bar, Whitney did not threaten appellant when they met at the tent. The threats were not contemporaneous with the shooting; the evidence of threats was that others told appellant prior to that event that Whitney was looking for him. Other witnesses (Guirl and Mancillas) described Whitney as calm and not aggressive. Appellant testified Whitney was confident and very arrogant. Appellant claimed Whitney was bullying him and demanding he leave the tent, i.e., Whitney was trying to take away appellant’s home. Even if a jury could find that behavior constituted sufficient provocation to cause a reasonable person to grab a gun and shoot the offender at point blank range (see People v. Orcalles (1948) 32 Cal.2d 562, 573), there was no evidence appellant was acting in the heat of passion or that his reasoning was actually obscured.
Even by appellant’s own testimony he acted with deliberation and reflection not from passion. Although appellant stated he was alarmed when he saw Whitney, when Whitney suggested they move away from the ladies, appellant said “Hold on,” went to his tent and got his gun and then returned and shot Whitney (appellant’s claim that he did not aim the gun does not change the fact he shot Whitney at point blank range). Appellant did not testify he was acting under any intense or violent emotion at the time of the shooting or his reasoning was obscured. Thus, as there was no substantial evidence that appellant acted in the heat of passion, the court had no sua sponte duty to give an instruction based on that theory.
II. CALCRIM No. 226 is a proper instruction.
Appellant contends he was prejudiced by CALCRIM No. 226, which instructed the jurors to use their common sense and experience, and therefore opened the door for them to consider matters not in evidence.
Appellant suggests that when CALCRIM No. 226 is given, the court should also instruct jurors not to consider evidence not presented and to consider all circumstances and warn jurors they should not discuss their own personal, outside experiences with other members of the panel. Appellant did not object to the instruction or request additional language. (See People v. Catlin (2001) 26 Cal.4th 81, 149 [“‘“Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’”].) Thus, the issue is whether the instruction was proper as given not whether the instruction should be modified.
In relevant part, CALCRIM No. 226 instructs: “You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s gender, race, religion, or national origin. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth and accuracy of that testimony.” (Emphasis added.) The instruction then lists factors that may be considered.
Appellant incorrectly asserts “jurors must be told to set aside any specialized knowledge they have acquired in their various experiences, and to take as correct any testimony they receive from the witness stand.” (Emphasis added.) It is axiomatic that credibility (whether what is said on the witness stand is true) is for the jury to decide. (See People v. Breverman, supra, 19 Cal.4th at p. 162.)
First, appellant contends the instruction violates his federal constitutional rights to due process and a fair trial and lightens the prosecution’s burden of proof. Similar arguments similar were rejected in People v. Campos (2007) 156 Cal.App.4th 1228, 1240 [“CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses’ credibility should be evaluated is common sense and experience”; other instructions make it clear that common sense “is not a license to consider matters outside of the evidence.”].) We agree.
Second, the instruction does not tell the jury to use their common sense in general, but only in deciding whether or not to believe testimony. “If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” (Citations and internal quotation marks omitted.) (People v. Smithey (1999) 20 Cal.4th 936, 963.) The jury was advised with CALCRIM Nos. 103 (defendant is presumed innocent and the People have to prove each element beyond a reasonable doubt), 200 (decide the case based only on the evidence presented at trial and consider the instructions together), 201 (do not investigate, experiment or consult outside materials), 222 (use only evidence presented in court) and 223 (decide whether fact issue has been proved based on all the evidence). Thus, the jury was instructed to decide the case upon the evidence presented at trial and there was no violation of appellant’s constitutional rights. Moreover, considering the entire charge to the jury, CALCRIM No. 226 does not conflict with CALCRIM No. 222 as suggested by appellant.
Third, citing In re Malone (1996) 12 Cal.4th 935 and other cases, appellant argues the instruction invites misconduct by condoning references to personal experiences. In Malone, the court reasoned, a juror “should not discuss an opinion explicitly based on specialized information obtained from outside sources.” (Id., at p. 963.) However, the California Supreme Court stated that jurors with relevant personal experience were entitled to opinions regarding the evidence noting, “if we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use their experience in evaluating and interpreting that evidence. Moreover, during the give and take of deliberations, it is virtually impossible to divorce completely one’s background from one’s analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions attorney’s draw, never refer to their backgrounds during deliberations.” (People v. Steele (2002) 27 Cal.4th 1230, 1266.)
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J. JACKSON, J.