Opinion
2d Crim. No. B296129
06-30-2020
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JONATHAN DAVID HIGHLEY, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CR02077)
(Santa Barbara County)
Jonathan David Highley appeals the judgment entered after a jury convicted him of willful, deliberate, and premeditated murder (Pen. Code, §§ 187, subd. (a), 189) and assault with a firearm (§ 245, subd. (a)(2)). The jury also found that in committing the murder appellant personally used a firearm causing death (§ 12022.53, subd. (d)). The trial court sentenced him to an aggregate term of 54 years to life in state prison. Appellant raises claims of evidentiary error, sufficiency of the evidence, and instructional and cumulative error. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
STATEMENT OF FACTS
Prosecution
On March 3, 2017, appellant lived in Orcutt with his wife Mayra and their three children in a duplex townhouse adjacent to the parking lot of Elmer's Bar and the Orcutt Liquor store. That night, appellant went to the bar and began drinking alcohol. After consuming several drinks he "cold cocked" Alex Ortiz, causing Ortiz to bleed from his nose. When asked why he had done so, appellant replied that Ortiz was obnoxious and drunk.
Brandon Hernandez (Brandon) witnessed the incident and asked appellant why he hit Ortiz. Appellant walked over to Brandon and they "exchanged words." Appellant "laid into Brandon with one hit" and both men fell to the ground. Brandon was briefly knocked unconscious and had to be helped up.
Everyone was told to leave the bar and appellant was escorted out by his friends Michael Hernandez and Assael Lopez. Someone in the bar said, "Yeah, get out of here you fat shit." Appellant was visibly upset by this remark.
Kurt Mahelona and Kaniela Keuma were also in the bar when the incident occurred. After Mahelona left the bar and got into his car in the parking lot, appellant approached him and repeatedly yelled, "Where is he." Mahelona replied, "Nobody is in my car." Appellant walked to the end of the block and began walking back. Mahelona tried to get his family and friends in the car so they could leave.
Appellant was being taken back to his townhouse but broke free and went back inside the bar. A bouncer told appellant he could not be there, and appellant pushed him out of the way. Keuma, who witnessed the incident, pushed appellant as he was leaving the bar and said, "You like to sucker punch people, let's go, me and you one-on-one." Keuma walked backwards and said, "Come on, come on." Appellant hit Keuma and Keuma hit appellant back, causing appellant to fall to the ground. Keuma said, "Okay, we're cool, just me and him, we're cool, we're done." Keuma and the other bystanders headed back toward the bar. As appellant was walking toward his townhouse with Hernandez and Lopez, one of them was overheard saying, "I'm gonna take care of this. I'm gonna handle it."
Hernandez and Lopez took appellant just inside the entrance to his home. While Hernandez tried to lock appellant inside the townhouse, Lopez and Ortiz spoke outside. Victim Anthony San Juan, who had been in the bar when appellant hit Ortiz, approached Ortiz and asked, "Is this the guy?" Ortiz replied, "No, this guy is cool. This is not the guy."
When Hernandez heard appellant coming down the stairs in his townhouse, he told everyone to "run." Appellant was holding a handgun. After Ortiz started running, he heard gunshots and a woman screaming.
Kathryn A. was outside the bar about to light a cigarette when she heard a gunshot. She saw San Juan fall to the ground as appellant stood over him holding a gun. Kathryn followed appellant as he slowly walked back toward his townhouse, yelled that San Juan "was dead," and asked appellant why he had shot him. Appellant stepped inside his townhouse, pointed his gun in Kathryn's face, and told her "[y]ou're lucky" before closing the door.
Jacqueline Salinas lived in the townhouse next door to appellant. She was awakened that night by a woman yelling, "There he goes, there goes the shooter." She also heard someone running and heard appellant say "I shot the mother fucker in the head" and "What the fuck am I gonna do?"
Appellant was in his townhouse talking to Mayra on the phone and Salinas could hear what he was saying because he was speaking very loudly near an open window. Salinas used her cell phone to record what she was hearing and a copy of the recording was played for the jury.
On the night of the murder, appellant's wife Mayra and the children were staying in Merced with Mayra's brother Adalberto Perez. At about 2:00 a.m., Mayra and the children left and returned to Orcutt. Adalberto found it odd that they would be leaving at that hour.
About 2:30 a.m., Santa Barbara Sheriff's Detective Wayne Flick arrived at the crime scene and reviewed video surveillance footage from Elmer's Bar. The footage showed San Juan interacting with Ortiz shortly before appellant punched Ortiz. Detective Flick did not observe any interaction between appellant and San Juan.
Detective Kevin McGillivray arrived at the crime scene at about 6:00 a.m. and began watching appellant's townhouse. About 20 minutes after visible police presence was pulled away, Mayra walked out the front door, entered a car parked at the curb and moved it into the parking lot. She went back into the townhouse, retrieved the children, and put them in the car. She then returned to the townhouse and came out with appellant. As Mayra and appellant were loading up the car, Detective McGillivray and his partner pulled up in their vehicle and detained them. Inside the rear passenger side of appellant's car, the police found a Victoria's Secret bag with a black pouch that contained four handgun magazines, a bleach-stained pair of jeans, a bleach-stained red and blue flannel shirt, boots, a Glock 17 nine-millimeter handgun, and an additional magazine.
An expended nine-millimeter bullet and shell casing were found near San Juan's body. In executing a search warrant at appellant's residence, the police found an empty gun case for a Glock containing several loose nine-millimeter rounds, and one full and one partial box of ammunition.
Criminalist Angela Stroman test-fired the Glock recovered from appellant's car but was unable to find any significant individual characteristics matching the bullet recovered from the crime scene. After comparing the shell casing recovered from the crime scene to the shell casings from the test-firing, Stroman determined that the shell casing recovered from the scene was also fired from the Glock. Stroman also determined that the bullets found in the Glock case recovered from appellant's residence were consistent with the type and manufacture of the bullet recovered from the scene.
An autopsy revealed that San Juan had died from a single gunshot wound to the head. The left side of San Juan's face and head were facing the barrel of the gun when he was shot and he suffered abrasions to the top and side of his head. There were also scrapes to his knees and elbows and gravel impressions on the palms of his hands. The pathologist who conducted San Juan's autopsy determined that he suffered these injuries while he was still alive. No defensive wounds were found.
Defense
Appellant testified in his own defense. Prior to arriving at Elmer's Bar on the night on the incident, appellant had spent the afternoon and evening drinking at several other bars. He remembered punching Ortiz, but did not recall his altercation with Brandon. He remembered being upset when he left the bar and recalled fighting with Keuma. The next thing he remembered was being in his townhouse at the bottom of the stairs holding a gun. He did not know San Juan and had no disagreements or issues with him.
After calling Mayra, appellant washed and bleached his clothes and cleaned his gun. He did not know what had happened until he was arrested. Before leaving the townhouse, he hid his clothes and the gun in a Victoria's Secret bag. He also removed the remaining nine rounds from the gun's magazine and flushed them down the toilet.
DISCUSSION
Appellant's Statements to Mayra
Appellant contends the trial court erred by admitting evidence of the statements Salinas overheard him make to Mayra regarding the murder. He claims the statements were inadmissible under the marital communications privilege as set forth in Evidence Code section 980. We are not persuaded.
"Evidence Code section 980 establishes a privilege for confidential communications between spouses: '[A] spouse . . . , whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.'" (People v. Badgett (1995) 10 Cal.4th 330, 363.)
"'To make a communication "in confidence," one must intend nondisclosure [citations], and have a reasonable expectation of privacy [citation].' [Citation.] 'As a general matter, the claimant of the confidential marital communication privilege has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the claim. [Citation.] He is aided by a presumption that a marital communication was made in confidence. (Evid. Code, § 917.) The opponent has the burden to prove otherwise [citation] by a preponderance of the evidence [citation].' [Citation.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 420.)
The trial court did not err in finding that the presumption of Evidence Code section 917 was rebutted here. As the prosecutor noted in opposing appellant's claim below, Salinas overheard appellant yell in front of an open window that he "shot a motherfucker in the head. . . . What the fuck am I going to do?" Moreover, Salinas's roommate had repeatedly complained to appellant and the property manager about the loud voices emanating from appellant's townhouse. The court could thus infer that appellant knew his neighbors could overhear any loud conversations he had with Mayra, whether they be in person or on the telephone, particularly when those conversations took place in front of an open window. Appellant also knew that several people were outside near his townhouse when the subject conversation took place.
In light of this evidence, the court correctly found that appellant had no reasonable expectation of privacy in the martial communication. (See People v. Von Villas (1992) 11 Cal.App.4th 175, 214-215 [defendant had no reasonable expectation of privacy in jail visiting room conversation with his wife where he spoke loudly while a guard was nearby]; compare People v. Urbano (2005) 128 Cal.App.4th 396, 403 [attorney-client privilege did not apply to conversation the defendant had with his attorney while sitting next to him in the jury box when court was not in session and spoke loudly enough to be overheard by another individual sitting in the back row of the courtroom].) Although appellant notes that the communication took place in his residence rather than a public place, the circumstances and manner in which that conversation was conducted indicate he had no reasonable expectation of privacy in that communication.
Contrary to appellant's assertion, there is no evidence to support a finding that Salinas overheard the conversation as an eavesdropper. As the People aptly put it, "[Salinas] did not have a surreptitious listening device in appellant's home. She did not put a special listening device to the wall. She only overheard the statements because appellant was yelling with his window open. Salinas was in her own home with the window open, a place she had every right to be."
Even assuming that the evidence of appellant's statements to Mayra should have been excluded, appellant fails to demonstrate a reasonable probability the results of the trial would have been more favorable to him absent the error. (See People v. Partida (2005) 37 Cal.4th 428, 439 [applying People v. Watson (1956) 46 Cal.2d 818 (Watson) harmless error standard of review to analyze evidentiary error involving state law]; People v. Harris (2005) 37 Cal.4th 310, 336 ["the application of ordinary rules of evidence does not implicate the federal Constitution, and thus we review allegations of error under the 'reasonable probability' standard of [Watson]"].) Appellant contends the alleged error violated his constitutional rights but offers no authority to support this assertion.
In any event, the error, if any, is harmless regardless of the controlling standard of review. The independent evidence of appellant's guilt was overwhelming. Contrary to appellant's claim, the evidence did not fatally undermine his defense of unconsciousness due to voluntary intoxication. Appellant testified that due to his intoxication he did not remember telling Mayra he had shot someone, much less the undisputed fact that he had actually shot and killed San Juan. To the extent appellant also complains that the prosecutor relied upon appellant's statements to Mayra in arguing that he lacked remorse for his crime, his lack of remorse was independently established by other evidence including Kathryn A.'s testimony. Appellant's claim of claim of prejudicial error thus fails.
Sufficiency of the Evidence
Appellant claims the evidence is insufficient to support his conviction of willful, premeditated and deliberate murder. In reviewing this claim, we "must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., 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. Nguyen (2015) 61 Cal.4th 1015, 1054-1055, internal quotation marks omitted.) We "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Ibid.)
The "mental state [for first-degree murder] is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death." (People v. Chiu (2014) 59 Cal.4th 155, 166.) The process of premeditation and deliberation does not require any extended period of time. (People v. Watkins (2012) 55 Cal.4th 999, 1026.) The test is one of the extent of reflection rather than the duration of time. (Ibid.)
Our Supreme Court has identified three categories of evidence relevant to establishing premeditation and deliberation. (People v. Anderson (1968) 70 Cal.2d 15, 26-27; People v. Brooks (2017) 3 Cal.5th 1, 58-59; People v. Houston (2012) 54 Cal.4th 1186, 1216.) The categories include events occurring before the killing that indicate planning, motive to kill, and manner of killing that reflects a preconceived design to kill. (Anderson, at pp. 26-27.) The factors are neither exclusive nor invariably determinative. (Brooks, at p. 59; Houston, at p. 1216.) Evidence of each category is not required to affirm a judgment of first degree murder. (People v. Mejia (2012) 211 Cal.App.4th 586, 605.) The factors are merely a guide in determining whether the evidence supports an inference that the killing occurred as a result of preexisting reflection rather than a rash impulse. (Brooks, at p. 59.)
The evidence, viewed in the light most favorable the judgment, is sufficient to support appellant's conviction of willful, premeditated and deliberate murder. "[T]hat appellant brought his loaded gun . . . and shortly thereafter used it to kill an unarmed victim reasonably suggest that defendant considered the possibility of murder in advance." (People v. Miranda (1987) 44 Cal.3d 57, 87, disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907, 933, fn.4.) The evidence also supports the inference that appellant was motivated by a desire to seek revenge for having lost a fight. Finally, the manner in which appellant killed San Juan was "sufficiently '"particular and exacting"' to permit an inference that [he] was 'acting according to a preconceived design.' [Citations.]" (People v. Halvorsen (2007) 42 Cal.4th 379, 422; see also People v. Mendoza (2011) 52 Cal.4th 1056, 1071 [single gunshot to the victim's head supported "the inference of a deliberate intent to kill"]; People v. Koontz (2002) 27 Cal.4th 1041, 1082 ["firing a shot at a vital area of the body at close range" is "indicative of a deliberate intent to kill"]; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1552.) Appellant's claim of insufficient evidence thus fails.
Voluntary Manslaughter
Appellant contends the court erred in failing to instruct the jury on the heat of passion theory of voluntary manslaughter as a lesser included offense of murder. We conclude otherwise.
"'"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.]'" (People v. Breverman (1998) 19 Cal.4th 142, 154.) The obligation to instruct on general principles includes the duty to give instructions on lesser included offenses when the evidence raises a question as to whether all elements of the charged offense were present, but not when there is no evidence that the offense was less than that charged. (Ibid.) Such instructions on lesser included offenses are required only when a jury could reasonably conclude that the defendant committed the lesser offense but not the greater one. (Id. at pp. 161-162; People v. Hardy (2018) 5 Cal.5th 56, 98.) The question whether such instructions should have been given is subject to our independent review. (People v. Souza (2012) 54 Cal.4th 90, 113.)
Voluntary manslaughter is a lesser included offense of murder. (People v. Duff (2014) 58 Cal.4th 527, 561.) "Heat of passion, which . . . reduces murder to voluntary manslaughter, arises when the defendant is provoked by acts that would 'render an ordinary person of average disposition "liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment"' [citation], and kills while under the actual influence of such a passion." (Id. at p. 562.)
Extreme intensity of the heat of passion is required to reduce a murder to manslaughter. (People v. Beltran (2013) 56 Cal.4th 935, 950.) "This passion must be a '"'"[v]iolent, intense, high-wrought or enthusiastic emotion"'" [citation].'" (Ibid.) The standard is an objective one; a defendant may not set up his own standard of conduct to justify or excuse himself because his passions were aroused, unless the jury believes the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. (Ibid.) Moreover, "a passion for revenge cannot satisfy the objective requirement for provocation." (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 301.)
The court did not err in failing to instruct the jury on voluntary manslaughter as a lesser included offense of murder. First and foremost, there was no evidence from which the jury could have found that appellant was provoked by San Juan or that he had reason to believe otherwise. "'"The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim." [Citation.]' [Citation.]" (People v. Verdugo (2010) 50 Cal.4th 263, 294.)
Even assuming such evidence existed, any provocation that appellant may have perceived was not sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Duff, supra, 58 Cal.4th at pp. 561-562.) A voluntary manslaughter instruction is not required where, as here, "the act that allegedly provoked the killing was no more than taunting words, a technical battery, or slight touching." (People v. Gutierrez (2009) 45 Cal.4th 789, 826.)
Moreover, "it is not sufficient that a person 'is provoked and [then] later kills.'" (People v. Nelson (2016) 1 Cal.5th 513, 539.) Where "'"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."'" (People v. Moye (2009) 47 Cal.4th 537, 550.) Appellant had ample time to reflect upon his perceived provocation while he left the parking lot, entered his townhouse, got a handgun, went back outside, returned to the parking lot, and shot San Juan.
In any event, any error in failing to instruct on voluntary manslaughter was harmless. "It is well established that '[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to the defendant under other properly given instructions.' [Citations.]" (People v. Lancaster (2007) 41 Cal.4th 50, 85.)
It is unclear whether prejudice arising from the failure to instruct on a heat of passion manslaughter theory in a non-capital case should be evaluated under the federal constitutional standard set forth in Chapman v. California (1967) 386 U.S. 18, 17 L.Ed.2d 705, or the state standard identified in Watson, supra, 46 Cal.2d 818. (See Moye, supra, 47 Cal.4th at p. 564 (dis. opn. of Kennard, J.); People v. Lasko (2000) 23 Cal.4th 101, 113; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1145-1146.) We need not resolve this issue because the error here is harmless even under the more stringent federal standard, which, compels reversal unless it appears beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman, at p. 24.)
In convicting appellant of willful, premeditated and deliberate murder, the jury necessarily rejected any assertion that his decision to kill San Juan was "made rashly, impulsively, or without careful consideration." (CALCRIM No. 521.) "We cannot see how a determination that [appellant] carefully weighed his choice to act and did not decide rashly or impulsively can coexist with the heat of passion, which '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.] In other words, the jury's finding of premeditation and deliberation is 'manifestly inconsistent with having acted under the heat of passion' and nullifies any potential for prejudice here. [Citations.]" (People v. Franklin (2018) 21 Cal.App.5th 881, 894, italics omitted.)
Cumulative Error
Appellant contends that the cumulative effect of the alleged errors deprived him of a fair trial. We have found no error, so "there is nothing to cumulate and hence there can be no cumulative prejudice." (People v. Grimes (2016) 1 Cal.5th 698, 737.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
TANGEMAN, J.
Gustavo Lavayen, Judge
Superior Court County of Santa Barbara
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.