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People v. Gay

California Court of Appeals, Third District, San Joaquin
Mar 17, 2008
No. C053534 (Cal. Ct. App. Mar. 17, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALLEN GAY, Defendant and Appellant. C053534 California Court of Appeal, Third District, San Joaquin March 17, 2008

NOT TO BE PUBLISHED

Super. Ct. No. SF097076A

RAYE, J.

Angry about his impending divorce, defendant Robert Allen Gay shot and killed his wife Peggy. In the process, defendant suffered a penetrating gunshot wound to his torso. An information charged defendant with murder and an enhancement for intentionally and personally discharging a firearm and for personally using a firearm in the commission of a felony. (Pen. Code, §§ 187, 12022.53, subd. (d), 12022.5, subd. (a).)

All further statutory references are to the Penal Code unless otherwise indicated.

A jury convicted defendant of voluntary manslaughter and found he had personally used a firearm. Sentenced to 10 years, defendant appeals, arguing: (1) the trial court erred in excluding the 911 phone call made by defendant after the killing, (2) the court erred in instructing on voluntary manslaughter under heat of passion or unreasonable self-defense theories, and (3) insufficient evidence supports his conviction for voluntary manslaughter. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 31, 2005, officers responded to a 911 call from defendant’s residence. They arrived to find Peggy lying on the garage floor with a gunshot wound to her breast. A loaded revolver lay at her feet. Defendant suffered from a penetrating gunshot wound to his torso. Following Peggy’s death, an information charged defendant with murder and alleged two enhancements.

A jury trial followed. The jury heard the following evidence at trial.

The Prosecution’s Case

Defendant and the Victim

Defendant and his wife Peggy lived with their 13-year-old daughter Megan. Married 32 years, the couple also had a 27-year-old son, Adam.

In February or March 2005 Peggy asked defendant for a divorce. The couple slept in separate rooms, and Peggy kept her bedroom door locked. Defendant verbally abused Peggy, calling her vituperative names. He accused his wife of looking at other men. Peggy changed her and Megan’s last name to Peggy’s maiden name on June 1, 2005.

Defendant opposed the divorce. He drafted writings to Peggy and to himself enumerating the arguments against ending the marriage. In one, defendant listed 100 things he loved about his wife. In another, he listed 29 reasons to remain married arrayed against one reason to get a divorce.

Testimony of the Victim’s Sister

Nancy Brown, Peggy’s sister, testified about the couple’s relationship. Defendant asked her to prevail upon Peggy to remain married. From February 2005 to June 2005 defendant regularly called Brown about the divorce. Brown described defendant as desperate and obsessed about her sister. He also told Brown a divorce would ruin the couple financially. Although Brown attempted to dissuade Peggy from divorcing defendant, Peggy was adamant she could no longer remain with defendant and his anger.

Defendant persuaded Peggy to attend a marriage seminar with him in early June. In exchange, he promised to move out of the house. However, defendant told Brown he would not move out even if Peggy complied, unless Brown came to California to try to convince her sister not to divorce him.

Defendant previously made several comments that Brown found upsetting. Defendant told Brown: “I don’t know what I’m going to do to your sister if she divorces me” and “I don’t know what’s going to happen to Peggy.” On several occasions defendant said: “I can’t guarantee you what I’m going to do to your sister . . . I can’t guarantee what’s going to happen to her.”

At one point defendant told Brown she might be “looking at [Peggy] six feet under, and you can pat yourself on the back because it will be your fault. Everything will be your fault if she doesn’t make it because you can’t . . . come out here and look at her face-to-face instead of talking to her on the phone. All you can do is talk to her on the phone, and I told you it would make a difference if you looked at her face-to-face.”

On another occasion, defendant called Brown and told her maybe he should “just kill” Peggy. When Brown told defendant he would go to jail, he replied, “haven’t you heard of murder/suicide?” Although Brown tried to warn her sister, Peggy did not take defendant’s threats seriously. Brown told other family members about defendant’s disturbing comments. Brown last spoke with defendant on June 11, 2005.

The Day of the Crime

On the morning of July 31, 2005, the couple watched their daughter Megan play in a tennis tournament. Peggy spoke with a friend at the game, who expressed surprise she was still with defendant. Peggy replied that she had tried to leave defendant for the past five years, but defendant desperately opposed splitting up. Peggy told her friend that the couple attended a marriage seminar, but that she could have told defendant it would not do any good.

According to Peggy, she had been done with the marriage for a very long time. Peggy told her friend defendant was supposed to move out that day. Although Peggy worried about job prospects and being single, she planned to take courses and return to the work force.

That afternoon, Megan and a friend went shopping. Although Peggy offered to drive them, defendant said he would do it. Defendant dropped off the girls at about 3:30 p.m., arranging for Megan to call for a ride home.

The Crime Scene

At 4:39 p.m., officers responded to a 911 call that someone had been shot at defendant’s residence. When the officers arrived, they saw defendant walk out of the garage holding a cordless telephone. Defendant was injured and bloodied on his right side.

When they entered the garage, officers found Peggy lying on the floor on her right side. A loaded Taurus .38 Special Ultra revolver lay on the floor about a foot away from her feet. Although Peggy’s eyes were open, she had no pulse and was nonresponsive. Peggy had a gunshot wound in her left breast, and blood pooled on the floor around her. There were no blood smears elsewhere in the garage.

The gun was never tested for fingerprints. The first responding officers moved the gun for safety purposes, putting it back on the floor later. However, the floor was by then covered in bloody footprints, contaminating the gun.

Paramedics arrived at 4:50 p.m. They moved Peggy to treat her, attempting lifesaving measures before transporting her to the hospital. Doctors performed surgery on Peggy at 5:25 p.m. The operating surgeon stated the bullet pierced Peggy’s lung, causing the accumulation of blood in her chest.

According to the surgeon, based on his 40 years of experience, death from such an injury was unusual. In the surgeon’s opinion, a patient suffering this injury would have a 90 percent chance of surviving if medical help were summoned within 13 to 20 minutes of the shooting. The surgeon’s estimate assumed medical personnel would need 10 minutes to reach the scene.

Emergency personnel also transported defendant to the hospital. When admitted, defendant weighed 220 pounds and was six feet two inches tall. Exploratory surgery revealed no significant injuries to defendant. Defendant’s injury was a gunshot wound inflicted from close range, based on the soot around the wound and lack of stippling.

Subsequent Searches

The Garage

Officers found evidence of four shots being fired in the garage. The revolver contained four spent shell casings and one live round. One shot resulted in the wound to Peggy’s breast. The bullet exited Peggy’s body and ended up above the door along the garage’s north wall. A second shot traveled through defendant and into two plastic chairs between the back side of the garage and the garage door.

Two other shots were fired vertically into the garage floor. Officers found two bullet strike marks about 17 inches apart in the concrete floor. One indentation was near Peggy’s forehead; the other was in back of her head.

A subsequent search of the garage revealed a bullet fragment on top of a “basketball court” and metal fragments around the bullet strike marks. On the garage wall a garage door opener was bloodied.

A suitcase sat in front of the plastic chairs along the garage wall. Blank name change papers littered the floor by the door to the house. Defendant’s fingerprints were found on the papers; Peggy’s were not. The garage floor also yielded a pair of sunglasses and a gold hoop earring.

Search of the House

A search of the house revealed the cradle of the cordless telephone was free of blood. A magazine next to the phone cradle was also blood free. Officers found no blood anywhere in the house. Officers found the family dog inside and a tennis match playing on the television. Inside a nightstand in the bedroom, officers found 15 .38-caliber bullets.

A search of defendant’s laptop computer revealed that on July 30, 2005, the user “B-Gay” visited several Web sites. The Web sites included “Asian Brides On Line dot com,” “Russian Ladies dot com,” and “Latin Life mates dot com.”

Search of Defendant’s Car

A few days after Peggy’s death, officers searched defendant’s Taurus station wagon, which was parked in the driveway. Inside the locked trunk, officers found a hidden compartment. The compartment held a revolver box labeled “Taurus”; documents describing the Taurus revolver safety system, a general safety operating manual, handgun certification, and an instruction pamphlet; a clear plastic top to an ammunition box; and an empty bullet box for 20 bullets.

Under the driver’s seat officers located a brown paper bag. Inside the bag they found: a receipt from the Outdoor Sportsman dated July 25, 2005, for ammunition and paid for by defendant’s credit card; a pair of latex gloves (which later yielded gunshot residue); a latex bag labeled “Taurus”; and a letter written to Peggy by defendant.

In the letter, defendant warned Peggy she was making a terrible decision she would live to regret. He wrote that many couples experience communication problems and said he had changed. Defendant reaffirmed his love for Peggy and promised to care for her. Two Post-it notes accompanied the letter. One discussed the dog; the other asked what Peggy had learned about mediation.

The Revolver

An investigation revealed defendant purchased the revolver and a gun lock on July 13, 2005. On July 25 defendant picked up the gun. On the required form, defendant acknowledged buying the gun for personal use.

The Neighbor’s Testimony

The couple’s neighbor, Irene Melendez, worked at home on her computer on the afternoon of July 31, 2005. She sat down to work around 3:00 p.m. She heard a popping noise like a gunshot. Melendez listened but believed it was only a car backfiring. She did not expect to hear gunshots in her neighborhood. Melendez returned to work and heard another gunshot. However, Melendez was unable to recall how long she had been working on the computer or how much time passed between gunshots.

Melendez stopped and looked out the front window but saw nothing. Later, when asked by her husband what time it was, Melendez noticed the clock on the microwave said 4:25 p.m.

The Son’s and Daughter-in-Law’s Testimony

Defendant and Peggy’s son, Adam, did his laundry at their home the morning of the shooting. Adam saw a box of bullets on a shelf in the den where his father slept. Adam showed his wife the box; his wife testified she had also seen it the week before. Adam’s wife further testified she might have told an officer on the day of the shooting that she did not know what happened, but defendant “might have been pushed to the edge.”

A hat covered the bullets. Following the shooting, officers saw a hat in the den closet.

Testimony of Victim’s Friends

Several of Peggy’s friends testified; some said that Peggy told them of defendant’s verbal abuse. She also told her friends she wanted a divorce but feared defendant would not allow it.

Peggy told one friend she felt threatened when defendant unexpectedly returned home early from a business trip. Peggy thought defendant was checking up on her. Peggy also told her tennis partner that should something happen to her, the partner should take another person, named by Peggy, as her new partner.

Pathologist’s Testimony

A pathologist, Dr. Robert Lawrence, testified Peggy died from internal bleeding caused by a lung wound as a result of the gunshot to her chest. Lawrence stated the gun barrel was held against her breast and aimed at her heart. The bullet entered the rib cage and shattered the upper portion of her lung’s left lower lobe, just missing the heart and exiting out her back.

On the right side of Peggy’s face irregular gouges of skin formed a V-shaped pattern. Lawrence believed these were shrapnel injuries caused by a bullet striking something hard and then fragmenting into Peggy’s face after it ricocheted. Lawrence thought the bullet ricocheted near the front of her body, perhaps in the lower chest area.

According to Lawrence, Peggy could have been falling to the ground as a bullet struck the ground, bouncing up and hitting her. Lawrence theorized Peggy was down near the floor when a bullet was fired from the direction of her feet at the floor. A bruised abrasion on Peggy’s nose could have resulted from such a fall, or from a blow from a fist. Peggy also suffered shrapnel injuries to her collar bone.

Lawrence found stippling, small marks caused by burning and unburned powder as it leaves the gun, on the left side of Peggy’s face, neck, and shoulders. Bruising on her right index finger might have been the result of her fall. Peggy’s fingernails were intact.

Lawrence stated at least three different shots were aimed at Peggy. One shot entered Peggy’s left breast; a bullet just missed her neck, leaving stippling marks; and a ricocheting bullet injured her chest and face as she hit the ground. Peggy weighed 107 pounds and was five feet five and one-half inches tall at the time of her death.

Criminalist Testimony

Duane Lovaas, a Department of Justice criminalist, also testified. Lovaas found three holes in the collar of Peggy’s shirt. The holes appeared to correspond to a bullet trajectory. The positioning of the holes indicated the shots came from behind. Lovaas estimated the shots were fired from about one to two feet away.

Lovaas testified two strike marks on the garage floor indicated Peggy was face down on or near the ground when shot. According to Lovaas, the shots went “vertically into the concrete” and Peggy “had to be in the path of one of those vertical bullets in the concrete to catch that path through the collar.” Lovaas believed the red marks on Peggy’s neck could have been stippling from the gun barrel, if her head had been to the side facing the bullet’s path. The red marks on Peggy’s shoulder, neck, and left side could have been the result of bullet fragments ricocheting up from the floor. The holes in Peggy’s shirt were consistent with bullet fragments ricocheting up from the floor.

Firearms Expert Testimony

Ron Welsh, a Department of Justice firearms expert, testified that the bullet strike marks on the floor left distinctive patterns. Each mark had a circular void in the center where the concrete was not gouged out as deeply. Welsh conducted an experiment: using the murder weapon, he fired bullets at concrete blocks from a muzzle-to-target distance of about two feet. When fired at an 80- or 90-degree angle, the shots produced a similar strike mark to those found on the garage floor. Most bullets fragmented to the sides instead of straight back. According to Dean De Young, another Department of Justice firearms expert who witnessed Welsh’s experiment, Peggy should have had multiple injuries to her lower legs had the gun discharged into the floor directly in front of her.

Defense Case

Criminalist Testimony

Defendant offered testimony by retired police captain Robert Gale. Gale, a veteran of some 700 homicide investigations, had three decades of experience in crime scene investigations. He was lead investigator on about 75 cases. Gale became a consultant two years before the trial; this was his first testimony as a consultant.

According to Gale, officers responding to the crime scene failed to properly secure it to prevent evidence contamination. Gale pointed out the gun was handled multiple times during the investigation. Originally, an officer found it on the floor but picked it up and placed it out of the way. He subsequently returned the gun to its original location, a contaminated surface containing blood particles and gunshot particles. Instead, Gale testified, officers should have secured the gun in a locked trunk.

Gale also faulted officers for overlooking, during their original investigation the evening of the crime, several pieces of evidence. A plastic chair with a bullet hole in it was not tested. Officers also failed to search the garage cupboards or defendant’s car. Moreover, when the Department of Justice arrived a few days after the crime, the crime scene had been repaired. Blood was removed, a bullet hole in the wall patched, and a different vehicle was parked in the garage.

Reconstructionist Testimony

Dr. Kenneth Solomon, a Ph.D. in nuclear science and engineering, also testified. Solomon tested the revolver trigger pull, and performed a trajectory analysis using Peggy’s and defendant’s measurements and injuries and the damage done to the plastic chair. Based on the trajectory analysis, Solomon prepared a computer simulation of the shootings.

Solomon testified he believed Peggy first shot defendant while they stood two feet apart. As they struggled for the gun, it fired twice while Peggy had her finger on the trigger. The gun recoiled, bruising Peggy’s nose. The gun in Peggy’s hand turned to face upward, and she shot herself with her head facing downward and her body at a 45-degree angle. This accounted for the stippling below the wound.

Solomon did not believe defendant shot Peggy because of the lack of injury to defendant’s hand. The physical evidence, in Solomon’s opinion, did not support the theory that Peggy had been shot while lying on the ground. Nor did Solomon believe defendant sat in a chair and shot himself. Solomon again based this belief on the physical evidence of defendant’s wounds and the damage to the chair.

Matthew Donohoe, with a master’s degree in physical education and an emphasis in biomechanics, worked with Solomon at his reconstruction firm. Donohoe performed a test in which he placed lipstick on a Taurus revolver and videotaped a woman holding the gun during a struggle to see what impressions the lipstick left on the hand holding the gun. The tape, played for the jury, revealed marks that were similar to Peggy’s hand injuries.

Donohoe examined Peggy’s shirt, finding several holes that had not been documented in the crime reports. Donohoe believed these were not bullet holes because there were no black rings or soot marks around them. An experiment he performed bolstered Donohoe’s opinion: firing a revolver into 12 shirts from different distances resulted in soot marks. Donohoe also concluded that holes in the collar of Peggy’s shirt resulted from the struggle, or the age of the shirt.

Donohoe failed in an attempt to position Peggy’s body in the position required by the prosecution’s theory of the shooting. The bullet trajectories from Peggy’s injuries and the bullet hole above the door did not line up with Peggy’s position on the floor.

In a final test, Donohoe put on latex gloves after handling a revolver and bullets to see if they would test positive for gunshot residue (GSR). The swab taken from the right glove contained one particle consistent with GSR. The left glove was inconclusive for GSR. In a second test, Donohoe fired the gun while wearing latex gloves to measure the GSR. The left glove had 12 particles consistent with GSR; the right had 5 particles consistent with GSR.

Testimony of Cardiothoracic Surgeon

Dr. James Morrissey, a cardiothoracic surgeon, reviewed defendant’s medical reports. Dr. Morrissey testified defendant’s wound resulted from a close encounter with a weapon since there were stippling or burn marks around the entry wound. He explained defendant’s wound could have been fatal.

Based on Dr. Morrissey’s review of Peggy’s autopsy report, he theorized Peggy died from a hole that was three inches in diameter in her lower left lobe, not from a hemorrhage. According to Dr. Morrissey, Peggy could have survived the wound if clots had formed in the pulmonary vein. Assuming that defendant had been involved in a fight over a gun, the surgeon believed defendant’s decision-making abilities may have been impaired by his gunshot injury and the injury to his wife.

Investigator Testimony

Defense investigator Paul Mazzilli, a retired police officer with 32 years of service, criticized the police investigation. Officers failed to locate or fingerprint a bat Mazzilli found under the bed in the master bedroom, or find the plastic chairs in the garage that contained bullet holes. Mazzilli found bank account records in Peggy’s name. Statements for the account, which had a balance of $12,000 to $14,000, were sent to Peggy’s mother’s residence in Ohio.

Character Evidence

Defendant’s brother and his tennis partner also testified. Both described defendant as a loving father dedicated to providing for his family. Defendant’s brother had never witnessed defendant act violently or threaten anyone. Defendant’s tennis partner had been a friend for four years and also knew Peggy. He never saw the couple express outrage, hatred, or ill will toward one another.

Defendant’s daughter-in-law, Cassidy Spencer, also testified. She spent a good amount of time with both defendant and Peggy from the time she began dating their son in 2001 up until Peggy’s death. Cassidy observed that defendant was more of a disciplinarian with his children then Peggy was. Cassidy felt Peggy was not emotionally expressive, but was “very fake” and “cold.” Peggy rarely hugged family members but was warm toward her tennis partners. When Peggy was angry, her face twitched and she had a “gleam in her eye.”

Even before Cassidy married defendant’s son Adam, Peggy told her she never loved defendant. Peggy also told Cassidy she would leave defendant before she told defendant himself. Cassidy did not recall Peggy telling her she had given defendant a deadline to move out of the house. Peggy never told Cassidy she feared defendant.

A few months before Peggy’s death, Cassidy noticed a change in her. Peggy became colder toward defendant and told Cassidy she did not want to be married to defendant any longer. The evening prior to the shooting, Cassidy, defendant, and Adam discussed moving to Texas to start a new life without defendant’s wife and daughter. Defendant stated he would “split everything 50/50” with Peggy when they divorced. Prior to the shooting, Cassidy saw bullets in a den closet. Cassidy also testified Peggy occasionally drove defendant’s Taurus and put her purse in the hidden compartment in the back of the car.

Attorney Testimony

Attorney Richard Gibson testified defendant met with him on June 6, 2005. Defendant asked about the process of going through a divorce.

Defendant’s Testimony

Defendant testified in his own defense. He believed he and Peggy shared a good relationship. Although defendant knew Peggy was somewhat cold and distant, he believed this was just a personality flaw. Defendant never felt unloved and the couple shared many interests.

Defendant admitted cursing and storming off when he became upset with his family and confessed to having a temper. Defendant’s anger never manifested itself in violence. When angry with Peggy, defendant cursed her, but never to her face. However, during quarrels Peggy would call him names and tell him to shut up. In June 2005 Peggy told defendant she hated him. To deal with anger issues, defendant voluntarily sought the assistance of a marriage counselor in March 2005.

On March 6, 2005, Peggy told defendant she did not love him anymore and wanted a divorce. Defendant, who did not want a divorce, tried to save the marriage. Defendant called Brown, Peggy’s sister, to find out why Peggy wanted to “try it alone.” He urged both Brown and Peggy’s mother to come to California for a family intervention to try to save the marriage. Brown, who initially agreed to come, later changed her mind.

From June 10 through 12, 2005, the couple attended a “Save My Marriage” seminar in Texas. Defendant testified he had agreed to move out if Peggy attended the seminar but denied he was to move out on July 31. Peggy remained steadfast in her determination to leave. Defendant consulted with an attorney because he was afraid Peggy would change the locks on him and he wanted to know what his rights were.

On the couple’s wedding anniversary, June 29, 2005, defendant told Peggy they should proceed with the divorce. Defendant offered to split things 50/50 with Peggy. Peggy would receive the house, the car, and the furnishings; defendant would receive the other assets, including the IRAs and bonds.

Since he had not dated in 32 years, defendant began looking up computerized dating services to find a new companion. On July 27 defendant submitted a name change application to change his name from Gay to Spencer, in order to have the same last name as his children.

Shortly after July 4, 2005, Peggy asked defendant to buy a gun. She wanted it to protect herself. Defendant, who described himself as “henpecked,” got Peggy a gun. Defendant told Peggy about the gun the day he picked it up. Defendant picked up the gun on July 25, 2005; he kept the gun and bullets in the closet from that day until the day of the shooting.

A few days before the shooting, defendant practiced loading and unloading the gun. He never thought to wipe his prints off the gun. Defendant put the gun and the bullets back in the den closet before he, Peggy, and Megan left to play tennis. When Peggy and Megan returned home, defendant met them in the garage. He then put the gun box and the bag the bullets had been in on top of the file cabinet in the garage and offered to help carry in the groceries.

Peggy complained she smelled dead mice in the garage. Defendant placed the gun box and several tennis bags into the Taurus. He put on gloves and removed dead mice from some traps. Defendant then sprayed for wasps, removed his gloves, and put the gloves in a bag, which he placed under the armrest of the Taurus.

On the afternoon of the shooting, defendant gave Megan and a friend a ride to a shopping center. Megan arranged to call for a ride home.

Defendant returned home and Peggy asked him about the gun. Defendant got the gun and bullets and put them on the kitchen table. Defendant told Peggy she needed to be licensed to use the gun and showed her how to load and unload it. Peggy was not paying attention, so defendant dumped the bullets out on a placemat and went to the garage to pack for an upcoming trip. Defendant later returned to the kitchen. Peggy had left the kitchen, and the gun and bullets were gone. Defendant returned to the garage.

Peggy came into the garage, slamming the door behind her. Peggy held the gun in her right hand and the blank name change papers in her left. She demanded to know why defendant was suddenly changing his last name. While she was screaming, “hate just pour[ed] out of her.”

Defendant pushed Peggy, and “the gun went off and hit [him].” As defendant fell into Peggy, they hit a clothes hamper, spun around, hit the bookcase, and fell down. Defendant testified he never gained control over the gun; his hand was always on Peggy’s hand. Defendant did not count the shots and only realized later that four shots had been fired.

After being shot, defendant could not breathe and was in a lot of pain. Defendant, disoriented, lay on top of Peggy, who was on her side. When he tried to get up, defendant put his hand in a pool of urine. Defendant wiped his hand off on a paper towel.

As defendant knelt at Peggy’s feet she remained motionless, lying in pools of blood. Peggy’s eyes were open and she was breathing. When defendant tried to roll her over, she made a gurgling sound. Since Peggy was breathing, defendant did not perform CPR. Defendant got up, retrieved the phone from the kitchen, and called 911. He had no idea how much time passed between the shots and calling 911. Defendant was frightened. He believed he was dying, and Peggy was not moving.

Defendant denied shooting Peggy or shooting himself. Defendant testified he was caught in a life-and-death struggle with Peggy for the gun. Defendant had never been violent with Peggy or anyone else. Defendant never planned to kill Peggy, nor did he tell Peggy’s sister he planned to kill Peggy and commit suicide.

Rebuttal

Megan’s tennis coach testified defendant had once frightened her. Defendant became angry when the coach told him Megan was immature in her tennis development. He hurled epithets at the coach.

Paul Mazzilli testified defendant told him on August 24 that just prior to the shooting, Peggy entered the garage waving the blank name change papers in her hand. Defendant said Peggy was “pissed” and “screaming.” Defendant stood close to Peggy and tried to get the gun. He “went with [his] left hand first and pressed down.” Defendant ran into Peggy but could not remember when the gun shot. His left hand was on the gun and his right hand pulled at Peggy.

Criminalist De Young disputed Solomon’s recreation of the shooting, noting Peggy had no injuries to her legs. The result of the experiment conducted by Welsh, in which he shot into a concrete block, indicated Peggy would have suffered leg injuries if the shooting had happened as Solomon testified. De Young also criticized Solomon’s trajectory analysis. In addition, De Young testified the large amount of stippling on Peggy’s neck was inconsistent with the defense theory that it came from the cylinder gap on the revolver.

Stockton Police Officer Carlos Vina testified regarding his questioning of defendant in the ambulance following the shooting. Defendant responded readily when asked his name and address, but hesitated and changed his answers when asked about the shooting. Defendant said he kept the gun loaded in the nightstand. He also stated he was outside cleaning the garage when Peggy came out and shot him. He leaned forward to grab the weapon, fell on top of Peggy, and then the gun fired a second time. Defendant told Vina it was possible he grabbed the gun and pulled the trigger, but he was not sure.

Lovaas explained the lack of “bullet wipe” on Peggy’s shirt collar was not inconsistent with the holes in the collar resulting from a gunshot. He also stated the large quantity of stippling on Peggy’s neck was inconsistent with the defense theory of the shooting. He criticized the defense recreation of the shooting. According to Lovaas, Peggy could not have been standing when she was shot. Instead, she must have been within six inches of the ground for the gun blast on the ground to have caused her facial injuries.

Dr. Lawrence also disputed the defense theory that the stippling on Peggy’s neck was caused by cylinder blast because the muzzle was pushed against Peggy’s breast when she was shot. In addition, Lawrence disagreed with the defense hypothesis that the gun was upside down when Peggy was shot. Lawrence believed the gun was right side up based on the shape of the abrasion on Peggy’s entry wound.

Lawrence was not aware that Peggy’s shirt collar had bullet holes in it. In light of this information, he revised his previous opinion that the stippling on Peggy’s face was caused by something traveling from the front of her face to the back in an upward and slightly rearward motion.

DISCUSSION

Exclusion of the 911 Call

Defendant argues the trial court erred in excluding the tape of the 911 call he made following the shooting. Defendant contends the tape reveals his distress shortly after the shooting and does not constitute self-serving hearsay, but rather his state of mind. He also argues the tape should have been admitted under the excited utterance exception to the hearsay rule. Its exclusion, defendant asserts, prejudiced him.

Background

At trial the prosecution presented evidence that defendant was holding a telephone when officers arrived following the shooting, and that a 911 call was placed from the residence at 4:39 p.m. The prosecution did not play the 911 tape or offer any evidence regarding its contents. During cross-examination, defendant testified he could not recall how much time elapsed between the shooting and his 911 call.

Defendant filed a motion to compel the prosecution to admit the 911 tape during its case-in-chief. The prosecution stated it would introduce only evidence that a call was made, the time of the call, and the time it took officers to respond. The prosecution objected to the contents of the call on hearsay grounds. Defense counsel argued the statements were admissible to show defendant’s state of mind.

The trial court denied defendant’s request but ruled the statements admissible if offered by the prosecution. Defendant provided the court with a copy of the tape, arguing it showed defendant could “hardly breathe part of the time.” Subsequently, the trial court reaffirmed its earlier ruling that the statements were inadmissible unless offered by the prosecution. The trial court did not listen to the tape but, during a bail hearing, marked it as an exhibit for review by the appellate department.

During trial, defense counsel informed the court he wanted to comment on the tape since it had been referred to during trial. Over the prosecution’s objection, the trial court allowed defense counsel to comment about the tape.

During closing argument defense counsel argued officers decided defendant was guilty without a complete investigation. Defense counsel queried: “Where’s the 911 tape? Where’s the hospital tape? When Mr. Gay gives statements, where are those.”

Defendant moved for a new trial, arguing the 911 tape was admissible under the spontaneous or excited utterances exceptions to the hearsay rule. The prosecution opposed the motion, pointing out the defense never sought to introduce the 911 tape during defendant’s case-in-chief. The court denied the motion. The court noted that the “statute definitely states a statement made by the defendant may only be used against him, not on his behalf.”

The 911 Tape

The tape opens with defendant asking for help. Defendant tells the dispatcher, “She shot me and I shot her.” The dispatcher asks: “She shot you or you shot her?” Defendant replied: “Both.” Defendant says, “[O]h God, I can’t believe she did this.” When asked how his wife was shot, defendant responded, “I grabbed . . . we started wrestling. I knocked her down. [¶] . . . [¶] And it went off.” Defendant said they were arguing because he was changing his name. At various points, the dispatcher urges defendant to stay with her and to control his breathing.

Discussion

Defendant argues the trial court erred in excluding the tape of the 911 call at trial. We apply the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. We also apply this standard to rulings on the hearsay nature of the evidence. (People v. Waidla (2000) 22 Cal.4th 690, 725 (Waidla).)

Hearsay

Initially, defendant argues his statements to the 911 dispatcher do not constitute hearsay, since they were offered to show his state of mind following the shooting. Hearsay is evidence of a statement that was made other than by a witness while testifying at trial, and that is offered to prove the truth of the matter stated. Except as provided by law, hearsay evidence is inadmissible. (Evid. Code, § 1200.)

The tape defendant sought to admit contained numerous statements, made by defendant, regarding how Peggy was shot. These statements were not offered to prove defendant’s state of mind, but for the truth of the matter stated: that Peggy shot defendant and was shot herself during the struggle over the gun. Self-serving extra judicial statements made by a defendant are inadmissible to prove the truth of what was said. (People v. Gurule (2002) 28 Cal.4th 557, 605.) Here, although defendant casts the tape as illuminating his reaction to the shootings, much of the tape focuses on defendant’s scenario of the shooting. As such, the tape is offered for the truth of the matter stated and is inadmissible hearsay unless an exception applies.

State of Mind Exception

Defendant argues the 911 tape was offered to show his state of mind at the time of the emergency call, minutes after the shooting. The tape revealed defendant was in a state of shock and astonishment following the shooting –- a portrait at odds with the prosecution’s theory of a planned murder.

Evidence Code section 1250 provides, in pertinent part: “(a) Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.”

Evidence Code section 1252 provides that a statement regarding mental or physical state is inadmissible if the statement was made “under circumstances such as to indicate its lack of trustworthiness.” To be admissible under section 1252, a statement must be made in a natural manner, and not under circumstances of suspicion, so that it carries the probability of trustworthiness. Such statements are admissible only when made at a time when there was no motive to deceive. (People v. Edwards (1991) 54 Cal.3d 787, 820.)

The 911 call took place at least 14 minutes after the shooting. Defendant testified he could not recall how much time elapsed between the shooting and his call. Melendez, the couple’s neighbor, testified she was working at home between 3:00 and 4:25 p.m. Melendez heard two gunshots “a long time” before 4:25 p.m. Defendant called 911 at 4:39 p.m. Defendant offered no explanation for the delay in summoning aid.

Defendant’s statements during the 911 call, given the lapse in time between the shooting and the call, lack the “probability of trustworthiness” required to be admissible as revelatory of his state of mind. Defendant made the statements at a time when he possessed a motive to deceive. Therefore the state of mind exception to the hearsay rule does not apply to the 911 tape.

Spontaneous Statement

Defendant next argues his statements on the 911 tape are admissible under the exception for spontaneous statements. The prosecution disagrees, contending the statements were not made while defendant’s reflective powers were still in abeyance.

To render statements admissible under the spontaneous declaration exception it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must occur before there has been time to contrive and misrepresent, while the nervous excitement may be supposed to still dominate and the declarant’s reflective powers to be still in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. (Evid. Code, § 1240; People v. Poggi (1988) 45 Cal.3d 306, 318.) Because the inquiry as to whether a statement qualifies as a spontaneous declaration is factually driven, we will not disturb the trial court’s ruling unless there has been a demonstrable abuse of discretion. (People v. Brenn (2007) 152 Cal.App.4th 166, 173 (Brenn).)

Statements by a victim or a witness to a crime to a 911 operator may be admissible under the spontaneous statement exception. (People v. Corella (2004) 122 Cal.App.4th 461, 465-466.) Defendant argues his exchange with the 911 operator qualifies under Brenn.

We find Brenn distinguishable. In Brenn, the victim of a stabbing called the 911 operator “within minutes of the stabbing.” (Brenn, supra, 152 Cal.App.4th at p. 173.) The victim’s statements were fragmented and nonresponsive, indicating a clear lack of deliberation and thoughtfulness. (Ibid.) The appellate court found the trial court did not abuse its discretion in admitting the tape since the victim’s statements were made while his “reflective powers were still in abeyance.” (Ibid.)

Here, defendant placed the call at least 14 minutes after the shooting, offering no explanation for his delay in summoning aid. Although his responses were fragmentary, defendant possessed a clear motive to dissemble during the call. Because defendant’s statements buttressed his version of the shooting, and because they were made after considerable delay, the trial court did not abuse its discretion in finding them inadmissible hearsay.

Defendant also argues the 911 call was admissible because it was not testimonial under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford) and Davis v. Washington (2006) ___ U.S. ___ [126 S.Ct. 2266, 165 L.Ed.2d 224] (Davis). In Davis, the Supreme Court reasoned statements are non testimonial, and therefore not subject to cross-examination, when made in the heat of the event and directed at getting assistance for the victim. In contrast, statements made in a relatively calm environment and directed at reconstructing events for a criminal examination are testimonial. (Davis, supra, 126 S.Ct. at pp. 2273-2274.) Defendant argues that, under this test, the 911 call was not testimonial: “The dispatcher was palpably concerned with the medical condition of both victims. The dispatcher’s focus was on keeping appellant conscious and talking, and alive until the ambulance arrived.” Crawford, however, addresses the question of whether a statement that otherwise falls within an exception to the hearsay rule is nonetheless inadmissible because it violates a defendant’s constitutional right of confrontation and cross-examination. Crawford holds that testimonial statements are not admissible against a defendant unless the defendant is provided an opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at p. 68.) Crawford does not hold the converse, that non testimonial statements must be admitted irrespective of whether they fall within a hearsay exception. Therefore, defendant’s reliance on Crawford is misplaced.

Voluntary Manslaughter Instruction

Defendant contends the trial court violated his right to due process by instructing the jury on voluntary manslaughter based on heat of passion or unreasonable self-defense. In addition, defendant argues insufficient evidence supports the instruction.

Background

During jury instruction discussions, defense counsel argued the evidence at trial supported a charge for murder, not self-defense or manslaughter. The court disagreed, noting “[defendant] said he had a struggle.” Defense counsel stated defendant never got possession of the gun; “[t]his is an all-or-nothing situation; either he committed a murder, or he’s innocent.” Again, the court disagreed, pointing out “Not with the struggle. He said . . . he more or less said it was self-defense, and self-defense can reduce it to involuntary manslaughter, if it was . . . .”

Defense counsel responded that defendant “never got control of the gun. . . . [Peggy] held the gun for all four shots.” According to defense counsel, the jury should not be allowed to compromise.

The court ruled it would instruct on all the lesser included offenses, and the parties could argue the matter. The prosecution stated unreasonable self-defense could reduce murder to manslaughter, and defense counsel again stated he was not arguing self-defense. The court stated: “He got shot, and he said he struggled for the gun; the gun went off three more times.” Defense counsel countered: “And he testified he never got control of the gun. I am not here for a manslaughter.”

Neither party argued defendant was guilty only of manslaughter. Defense counsel argued the shooting might have been accidental. In addition, defense counsel told the jury there was no evidence to support manslaughter and urged the jury not to compromise. On rebuttal, the prosecution provided examples to support a manslaughter conviction, but argued defendant was guilty of first degree murder.

Discussion

The trial court has a sua sponte duty to instruct on lesser included offenses supported by substantial evidence. (People v. Lee (1999) 20 Cal.4th 47, 61.) “A trial court’s failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury’s truth ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an ‘all or nothing’ choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence.” (People v. Barton (1995) 12 Cal.4th 186, 196.)

Here, the trial court instructed the jury on justifiable homicide based on self-defense, murder, second degree murder, voluntary manslaughter based on heat of passion or imperfect self-defense, and involuntary manslaughter. On appeal, we apply a de novo standard of review and independently determine whether an instruction on the lesser included offense of manslaughter should have been given. (Waidla, supra, 22 Cal.4th at p. 733.) In deciding whether substantial evidence supports the instruction, we do not evaluate the credibility of witnesses, which is the provenance of the jury. (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).)

Voluntary manslaughter, a lesser included offense of murder, is an intentional killing that lacks malice. (Breverman, supra, 19 Cal.4th at p. 153.) A defendant lacks malice in limited, explicitly defined circumstances: either when the defendant acts in a sudden quarrel or heat of passion, or when the defendant kills in unreasonable self-defense, the unreasonable but good faith belief in having to act in self-defense. (Id. at p. 153-154.)

The heat of passion requirement for voluntary 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 heat of passion are also viewed objectively. This heat of passion must be such as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances. (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)

The doctrine of imperfect self-defense as the basis for voluntary manslaughter exists “‘“when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury[;] the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.” [Citation.]’” (People v. Manriquez (2005) 37 Cal.4th 547, 581.)

Heat of Passion

Here, evidence produced at trial provides substantial evidence from which the jury could conclude defendant killed his wife in a sudden quarrel and heat of passion. Peggy and defendant’s marriage was strained by her desire for a divorce. The couple slept in separate rooms, with Peggy locking her door. Defendant testified Peggy was non communicative and distant for months prior to the murder.

Just prior to the shooting, defendant stated Peggy confronted him in the garage. She was upset and held a gun in one hand and the name change papers in the other. Defendant described her as “terribly upset” and agitated. Peggy screamed at defendant, calling him a jerk, angry that he would change his name to her maiden name under the circumstances. They exchanged words and Peggy aimed the gun at defendant. According to defendant, hatred poured out of his wife.

Defendant argues this evidence is insufficient to satisfy the subjective component required for a heat of passion instruction because “although the defendant testified, he claimed to have had no fear, rage, anger, or wish for revenge against his wife.” However, evidence at trial established defendant, possessed of a bad temper, was upset and distraught over the couple’s impending divorce. Fearing financial ruin, defendant told Peggy’s sister he could not be certain what he would do if the couple divorced.

In addition, the evidence also supported a plausible scenario in which defendant got the gun, went into the garage, and confronted Peggy. An argument ensued and, in a rage, defendant shot Peggy, wounding himself in an effort to conceal the crime.

This evidence supports the court’s instruction pursuant to CALCRIM No. 570: “Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.” The jury heard about defendant’s problems with anger, his past verbal abuse of Peggy, his dismay over the impending divorce, and his frantic efforts to convince Peggy to stay with him. Given defendant’s state of mind, Peggy’s confronting him in the garage could very well have led him to act in “violent and intense emotion . . . without due deliberation and reflection.”

Unreasonable but Good Faith Belief

Defendant also argues no evidence supports the trial court’s instruction of voluntary manslaughter based on an unreasonable but good faith belief in self-defense. According to defendant, “Although appellant testified that he was attacked and therefore believed that he was in imminent danger of death or great bodily injury, he never claimed that immediate use of deadly force was necessary to defend against the danger. He only tried to deflect the muzzle of the gun, he did not try to shoot his wife.”

We disagree. Defendant’s failure to state he used deadly force to defend against the danger is not dis positive. According to defendant, Peggy came into the garage armed with the gun. She confronted him about the name change papers and aimed the gun at him. Defendant believed “she was going to shoot [him].” Given the circumstances, the jury could conclude defendant shot Peggy after wresting the gun from her.

The jury could also conclude it was unreasonable for defendant to respond with deadly force because he was six feet two inches tall and weighed 220 pounds, while Peggy was only five feet five and one-half inches tall and weighed 107 pounds. As the trial court noted in denying defendant’s motion to strike the gun use enhancement, given the disparity in size between defendant and his wife, the jury could have believed that defendant should have been able to get the gun away from Peggy “without her ending up being dead.”

Defendant also contends the jury could not reasonably believe that he feared imminent danger of death if it did not also believe Peggy shot him first. If the jury so believed, it should have acquitted him on self-defense grounds. However, the court instructed the jury on self-defense, a theory the jury rejected.

Given the evidence, the trial court did not err in instructing the jury on voluntary manslaughter based on heat of passion or imperfect self-defense.

Substantial Evidence to Support the Voluntary Manslaughter Conviction

Finally, defendant argues his conviction for voluntary manslaughter is not supported by substantial evidence. When reviewing a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment. We determine whether the record contains substantial evidence, evidence that is credible and of solid value, from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.)

We have reviewed the evidence in support of the voluntary manslaughter instruction. We find the evidence sufficient to support the instruction and, by implication, sufficient to support defendant’s conviction for voluntary manslaughter.

DISPOSITION

The judgment is affirmed.

We concur: SCOTLAND, P.J., MORRISON, J.


Summaries of

People v. Gay

California Court of Appeals, Third District, San Joaquin
Mar 17, 2008
No. C053534 (Cal. Ct. App. Mar. 17, 2008)
Case details for

People v. Gay

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALLEN GAY, Defendant and…

Court:California Court of Appeals, Third District, San Joaquin

Date published: Mar 17, 2008

Citations

No. C053534 (Cal. Ct. App. Mar. 17, 2008)