Opinion
C097811
08-14-2024
THE PEOPLE, Plaintiff and Respondent, v. ROOSEVELT HARDLEY, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 20FE001275
MAURO, ACTING P. J.
A jury convicted defendant Roosevelt Hardley of second degree murder and assault with a deadly weapon. With respect to the murder, the jury also found that defendant used a deadly weapon. In a bifurcated proceeding, the trial court found that defendant had a prior strike conviction and that several aggravating circumstances were true. The trial court sentenced defendant to state prison for an aggregate indeterminate term of 30 years to life consecutive to a determinate term of five years.
Defendant now contends (1) the evidence is insufficient to support his murder conviction, and (2) the trial court should have dismissed the weapon enhancement.
Viewing the evidence in the light most favorable to the verdict and resolving all conflicts in its favor (People v. Najera (2006) 138 Cal.App.4th 212, 215 (Najera); People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we conclude sufficient evidence supports the murder conviction. We further conclude the enhancement challenge is forfeited. Accordingly, we will affirm the judgment.
BACKGROUND
At about 9:00 p.m. on January 16, 2020, SC and her sister picked up their nephew Joshua Thavisack and drove him to a bank so he could deposit his paycheck. At the bank, Joshua used an ATM while his aunts stayed in the car. Defendant arrived at the ATM as Joshua returned to the car. His arrival was captured on two surveillance videos, as were the events that followed. At the car, Joshua realized he did not have his cell phone, and he went back to the ATM to look for it.
Defendant arrived on foot with a backpack, plastic bag, and rolling utility cart containing additional belongings. About 20 seconds later, Joshua ran up to defendant and, according to defendant's testimony, started "going on about . . . [a] cell phone." The surveillance videos did not capture audio, but they show Joshua and defendant exchanging words, followed by Joshua shoving defendant. Defendant positioned himself behind a bollard separating the parking lot from the ATMs, extended one of his hands with the palm out, and motioned towards his cart. More words were exchanged between the two. Defendant again motioned towards his cart, after which Joshua briefly looked at defendant's belongings and then started looking around the ATMs. As Joshua looked around for his cell phone, defendant moved out from behind the bollard and said something. This prompted Joshua to punch defendant in the face. The two men grabbed onto each other, fell to the ground, and began grappling next to the ATM.
S.C. heard the commotion and ran toward the men. She grabbed defendant and began pulling him away from her nephew. Joshua stood up and punched defendant a second time. S.C. pushed her nephew in response. As his other aunt was coming over from the car, Joshua punched defendant a third time. S.C. pulled her nephew away and slapped his arm in an attempt to get him to return to the car. As this was happening, Joshua repeatedly told his aunt that defendant stole his cell phone. Joshua then began to pick up certain belongings that had fallen on the ground during the scuffle. As he did so, he dropped his debit card. Defendant stepped on the card. Joshua responded by punching defendant a fourth time.
Joshua started walking back to the car with his aunts, but paused to pick something up off the ground. As Joshua bent over, defendant pulled out a folding knife, unfolded the blade with one hand, and stabbed Joshua in the back. Joshua fell to the ground and S.C. pushed defendant away. Defendant began circling with the knife in his hand, saying "I'm going to kill this motherfucker." Defendant stabbed Joshua again, this time in the side. S.C. again pushed defendant and pleaded: "Please, sir. I'm begging you. Please stop." She also tried to pull her nephew away from the attack. Defendant continued to circle around with the knife. S.C. placed herself between him and her nephew. A stranger also intervened and did the same. Defendant stabbed Joshua a third time in the chest. Joshua died from his injuries. At some point during these events, defendant also cut S.C.'s leg with the knife.
Defendant testified in his own defense. He admitted intentionally stabbing Joshua with the knife. But he said Joshua had put a sense of fear in him that he had not had before. Defendant explained: "I don't want him to get up again. Because I figure, if he got up again, then it was going to be a done deal for me."
Additional facts are set forth in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant contends the evidence is insufficient to support his murder conviction because the undisputed facts establish as a matter of law that the killing was, at most, voluntary manslaughter. We disagree.
In connection with this sufficiency of the evidence claim, defendant's opening brief devotes several pages to suggesting that certain claimed inaccuracies in the prosecutor's closing argument might have led the jury to convict him of murder despite "the lack of evidentiary support" for such a finding. Defendant does not, however, raise a separate claim of prosecutorial misconduct. Moreover, any such claim would be forfeited for failure to object to the prosecutor's argument or request a curative admonition. (Najera, supra, 138 Cal.App.4th at p. 224.) We therefore decline to address defendant's complaints regarding the prosecutor's remarks.
The standard of review is well settled: "When reviewing a challenge to the sufficiency of the evidence, we ask' "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' [Citation.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for' "substantial evidence -- that is, evidence which is reasonable, credible, and of solid value"' that would support a finding beyond a reasonable doubt. [Citation.]" (People v. Banks (2015) 61 Cal.4th 788, 804.)
Conflicts in evidence, and even testimony subject to justifiable suspicion, do not justify reversal, because it is the province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) A reversal for insufficient evidence is unwarranted unless there is no substantial evidence to support the jury's verdict. (Ibid.) Where the circumstances justify the trier of fact's findings, a reviewing court's conclusion that the circumstances might also support a contrary finding does not warrant reversal. (Id. at pp. 357-358.)
"Criminal homicide is divided into two types: murder and manslaughter. 'Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.' ([Pen. Code, ]§ 187, subd. (a).) Malice aforethought may be express or implied. ([Pen. Code, ]§ 188.) 'Express malice is an intent to kill.... Malice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses.' [Citation.] A killing with express malice formed willfully, deliberately, and with premeditation constitutes first degree murder. [Citation.] 'Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.' [Citation.]" (People v. Beltran (2013) 56 Cal.4th 935, 941-942 (Beltran).) "Manslaughter is the unlawful killing of a human being without malice." (Pen. Code, § 192.) The form of manslaughter at issue in this appeal is voluntary manslaughter committed in the heat of passion. (§ 192, subd. (a).) "Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter. Heat of passion arises if,' "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.] Heat of passion, then, is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation. While some measure of thought is required to form either an intent to kill or a conscious disregard for human life, a person who acts without reflection in response to adequate provocation does not act with malice." (Beltran, supra, 56 Cal.4th at p. 942.)
Undesignated statutory references are to the Penal Code.
Heat of passion is not" 'an element of voluntary manslaughter' that must be affirmatively proven," but rather is a" 'theor[y] of partial exculpation' that reduce[s] murder to manslaughter by negating the element of malice." (People v. Moye (2009) 47 Cal.4th 537, 549.) However, if the evidence is sufficient to raise such a theory, "the People must prove beyond a reasonable doubt that these circumstances were lacking in order to establish the murder element of malice." (People v. Rios (2000) 23 Cal.4th 450, 462, italics omitted.)
Here, the evidence is sufficient to support a finding that defendant stabbed Joshua with an intent to kill. Immediately after stabbing him the first time, defendant declared: "I'm going to kill this motherfucker." Although defendant claimed he did not remember making this statement, he also did not question the accuracy of S.C.'s testimony in this regard, and even conceded: "I probably did." Notwithstanding defendant's testimony that he did not intend to kill Joshua, the jury could rationally have concluded his contemporaneous statement more accurately reflected his intent when he stabbed Joshua to death.
The People therefore established malice unless the evidence raised heat of passion as a malice-negating possibility and the People failed to prove beyond a reasonable doubt that such a theory did not in fact negate malice. There is no dispute that heat of passion was adequately raised in this case. Killings in response to" 'angry and sudden assaults'" have long been held to be sufficient to raise the theory. (Beltran, supra, 56 Cal.4th at p. 946, quoting Burdick, The Law of Crime (1946) § 426a, p. 188, discussing Regina v. Mawgridge (1707) 84 Eng.Rep. 1107, 1112-1115.) The evidence in this case establishes that defendant killed Joshua after Joshua shoved him and punched him several times. However, that does not end the inquiry.
" 'The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must, subjectively and actually, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are viewed objectively....' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1215-1216.) Thus, the provocative circumstances must be sufficient to"' "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.]" (Beltran, supra, 56 Cal.4th at p. 942.) And the defendant must have subjectively killed while his or her judgment was actually overcome by this "extreme intensity" of passion. (Id. at p. 950.)
The jury was properly instructed as to these requirements and necessarily rejected the theory when it convicted defendant of murder. The evidence supports the verdict. Even if we assume that Joshua's unprovoked assault would have caused a reasonable person to act rashly out of anger and without reflection, defendant denied being angry when he stabbed Joshua There is evidence to the contrary, to be sure, but that is precisely what makes this a jury question. Simply put, while the jury could have disregarded defendant's testimony and concluded that he reacted to Joshua's assault out of anger or rage, it was not required to do so. Moreover, even if the jury accepted that defendant stabbed Joshua while in a state of anger, it was not required to also conclude that the level of anger he actually experienced eclipsed his judgment and caused him to simply react to the provocation. (Beltran, supra, 56 Cal.4th at p. 950.) It is not a matter of law but a matter of fact for the jury to determine under the circumstances whether the assault was sufficient to lessen the degree of the offense by negating malice. (Id. at pp. 950-951, quoting People v. Jones (1911) 160 Cal. 358, 368.)
Defendant correctly points out that "anger or rage" are not the only emotions that can supply the necessary heat of passion. With the exception of revenge, "any '[violent], intense, high-wrought or enthusiastic emotion'" can qualify (People v. Berry (1976) 18 Cal.3d 509, 515; see People v. Valentine (1946) 28 Cal.2d 121, 139), "including fear and panic." (People v. Dominguez (2021) 66 Cal.App.5th 163, 180.) Defendant testified that he stabbed Joshua out of fear. But the jury was not required to believe him. Although defendant was 64 years old at the time of the killing, and was physically assaulted by the much younger 18-year-old victim, age is not the only consideration. The video evidence shows the men were roughly the same size. A photo of defendant taken after the killing shows he was physically fit. Defendant also had a knife attached to his belt. And aside from initially placing himself behind the bollard after Joshua shoved him, defendant's actions during the incident do not suggest he was afraid. Based on the entirety of the evidence, the jury could reasonably have concluded that defendant was not afraid when he stabbed Joshua, but rather did so either because he was angry or because he wanted to get even with Joshua for attacking him. If the latter, heat of passion would not be available. If the former, as stated previously, the jury was not required to conclude that defendant was so overcome by anger or rage that he stabbed Joshua "out of unconsidered reaction to the provocation." (Beltran, supra, 56 Cal.4th at p. 942.)
Nevertheless, relying on People v. Elmore (1914) 167 Cal. 205 and People v. Bridgehouse (1956) 47 Cal.2d 406, abrogated on another point in People v. Lasko (2000) 23 Cal.4th 101, 110, defendant argues the evidence establishes that he killed Joshua in the heat of passion as a matter of law. But those cases are different. In Bridgehouse, the defendant was provoked by the ongoing infidelity of his wife, among other things, and killed his wife's lover when he encountered him unexpectedly. (Bridgehouse, at pp. 412-414.) But the defendant did not make any threatening remarks about the victim, whereas here defendant stabbed Joshua, declared he was going to kill him, and then stabbed him two more times. And in Elmore, although the victim initiated harassment and assaultive behavior which led to a stabbing (Elmore, at pp. 207-208), the incident "occurred as rapidly as the successive motions could be made." (Elmore, at p. 209.) Whereas in this case, Joshua was walking away and then bending over when defendant stabbed him in the back. Defendant declared he was going to kill Joshua and proceeded to stab him two more times while Joshua was on the ground. Whether defendant did so with malice was for the jury to decide. Even if we were to disagree with the jury's assessment, we cannot substitute our judgment for that of the jury. (Zamudio, supra, 43 Cal.4th at pp. 357-358.)
II
Defendant also claims the trial court should have dismissed the weapon-use enhancement under section 1385, as amended by Senate Bill No. 81 (Reg. Sess. 20212022) (Senate Bill 81) (Stats. 2021, ch. 721, § 1). The claim is forfeited.
"Effective January 1, 2022, [Senate Bill 81] amended section 1385 to include subdivision (c). [Citation.] Section 1385[, subdivision ](c)(1) provides that '[n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.' [Citations.] Section 1385[, subdivision ](c)(2) provides as follows: 'In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. "Endanger public safety" means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.' One of the mitigating circumstances is: 'The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.' [Citation.]" (People v. Mendoza (2023) 88 Cal.App.5th 287, 295, fn. omitted.)
Defendant argues the trial court was required to dismiss the one-year weapon enhancement attached to his murder conviction because his aggregate sentence was over 20 years, the trial court did not specifically find that dismissal of the enhancement would endanger public safety, and no rational trial court could so find. However, as defendant acknowledges, he was sentenced on January 6, 2023, "more than a year after the effective date of [Senate Bill 81]." His trial counsel did not object to imposition of the enhancement or request that it be dismissed under section 1385, subdivision (c). Failure to do so forfeited the issue on appeal. (People v. Carmony (2004) 33 Cal.4th 367, 375-376; People v. Scott (1994) 9 Cal.4th 331, 351-354.)
Anticipating this conclusion, defendant argues forfeiture does not apply because the trial court's imposition of the enhancement without making a finding that dismissal would endanger public safety resulted in "an unauthorized sentence." Not so." 'The unauthorized sentence doctrine is designed to provide relief from forfeiture for "obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings." [Citation.] It applies when the trial court has imposed a sentence that "could not lawfully be imposed under any circumstance in the particular case."' [Citations.]" (People v. Moore (2021) 68 Cal.App.5th 856, 865.) Here, defendant is not arguing that the enhancement could not lawfully be imposed under any circumstance, but rather that it should have been dismissed in these circumstances, i.e., because the trial court did not make a "threshold finding" that dismissal would endanger public safety. Thus, defendant implicitly concedes there are certain circumstances in which the sentence would have been proper. The "unauthorized sentence" exception to the forfeiture rule therefore does not apply.
DISPOSITION
The judgment is affirmed.
We concur: RENNER, J., FEINBERG, J.