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People v. Jennings

California Court of Appeals, Fifth District
Jun 14, 2024
No. F085406 (Cal. Ct. App. Jun. 14, 2024)

Opinion

F085406

06-14-2024

THE PEOPLE, Plaintiff and Respondent, v. GARY JENNINGS, Defendant and Appellant.

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No. BF185194A. Charles R. Brehmer, Judge.

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SNAUFFER, J.

A jury convicted defendant Gary Jennings of willful, deliberate, and premeditated murder (Pen. Code, § 187, subd. (a)) and unlawful possession of a firearm (§ 29800, subd. (a)(1)). As to the former count, the jury found true Jennings personally and intentionally discharged a firearm, causing death (§ 12022.53, subd. (d)). Jennings was sentenced to 50 years to life.

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

Jennings's appeal seeks reversal of his willful, deliberate, and premeditated murder conviction on the basis that the jury instructions improperly shifted the burden from the prosecution to Jennings to prove he killed in the heat of passion, thus violating his constitutional right to due process. He further argues the instructional error was not harmless because the prosecution did not prove beyond a reasonable doubt the absence of sudden provocation and heat of passion. The People respond the jury instructions did not shift the People's burden, and, even assuming error, it was harmless because Jennings was convicted of first degree murder and the facts are inconsistent with his acting under the heat of passion. We affirm.

PROCEDURAL BACKGROUND

On October 25, 2022, the Kern County District Attorney filed an amended information charging Jennings with willful, deliberate, and premeditated murder (§ 187, subd. (a)) and unlawful possession of a firearm (§ 29800, subd. (a)(1)). As to count 1, the information alleged Jennings personally and intentionally discharged a firearm, causing death (§ 12022.53, subd. (d)). As to both counts, the information alleged the following aggravating factors: Jennings committed a crime of great violence (Cal. Rules of Court,rule 4.421(a)(1)); was armed with or used a weapon at the time of the crime (rule 4.421(a)(2)); engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); and has prior convictions as an adult or sustained petitions in juvenile delinquency proceedings that are numerous or of increasing seriousness (rule 4.421(b)(2)).

All further rule references are to the California Rules of Court.

The jury found Jennings guilty as charged on both counts and found the firearm allegation true. In a court trial, the trial court found true that Jennings committed a crime of great violence (rule 4.421(a)(1)); was armed with or used a weapon at the time of the crime (rule 4.421(a)(2)); and engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)). The court did not find true that Jennings had prior convictions as an adult or sustained petitions in juvenile delinquency proceedings that are numerous or of increasing seriousness (rule 4.421(b)(2)).

The parties agreed to a bifurcated court trial on the aggravating factors.

The court sentenced Jennings to a term 50 years to life as follows: on count 1, 25 years to life (§ 187, subd. (a)), plus 25 years to life on the firearm enhancement (§ 12022.53, subd. (d)); and on count 2, three years (upper term), stayed pursuant to section 654 (§ 29800, subd. (a)(1)).

FACTUAL BACKGROUND

I. The Prosecution's Case

On the night of April 18, 2021, Jennings parked his car at a motel in Bakersfield where he had been living for the prior two and a half months. His girlfriend got out of the car and went into their shared motel room on the first floor. Jennings got out of the car but did not go into the room; instead, he placed a firearm on the hood of his car.

About ten minutes before Jennings parked his car at the motel, a female resident of the motel nearly got hit by a white truck driving erratically and doing "donuts" in the parking lot. When Jennings arrived at the motel in his car, approximately twenty bystanders on both the second floor and the ground floor of the motel accused Jennings of driving the white truck and nearly hitting the motel resident minutes before. Jennings denied he was the person driving the white truck. An argument broke out between Jennings and several of the bystanders regarding the incident with the white truck. C.F. was among the bystanders on the second floor of the motel during the argument.

There were several bystanders outside the motel, including babies and young children. When the bystanders on the second floor saw Jennings put a firearm on the hood of the car, they told him to put it away because children were in the area. Jennings did not put the firearm away; he covered it with his hand.

C.F. descended the stairs to the first floor. C.F. asked, "why do you have the gun out[?]" C.F. also told Jennings, "if you have ... a gun out, you better use it ._" C.F. spoke at a "normal" volume. C.F. walked toward Jennings with his hands down at his sides at a "normal" pace and told Jennings to put the firearm away. Jennings was by the driver's side door. Jennings approached C.F. by walking rapidly from the driver's side door to the front of his car with the firearm in his hand. Once in front of his car, Jennings raised his arm and aimed the firearm at C.F. He shot C.F. with a single shot from approximately seven feet away. C.F. died from the gunshot wound.

After Jennings shot C.F., he got back into his car. His girlfriend then came out of the motel room and ran to the car. Jennings and his girlfriend both hurriedly drove out of the motel's parking lot.

Just prior to the shooting there were no attacks, assaults, or violence between Jennings and C.F. or the bystanders. There was only arguing among Jennings and the bystanders regarding the firearm and the incident with the white truck.

II. The Defense Case

Jennings testified in his own defense. He described the motel as "[n]ot the safest place to be unless you're living that lifestyle." He further stated people on the streets call it "the zoo."

When Jennings pulled into the parking lot on the night of April 18, 2021, bystanders at the motel screamed and accused him of nearly hitting a motel resident while driving a white truck. He did not respond. He put his firearm on the roof of his car because he was gathering his things to take into his room for the night. The firearm was small. Jennings covered it with his hand so as not to intimidate the bystanders.

Then, C.F. screamed at Jennings, "if you're going to pull a gun out, you better be ready to use it." Jennings did not recognize C.F.'s voice; he was unfamiliar to Jennings. C.F. and Jennings yelled and cursed at each other regarding the firearm. C.F. screamed at Jennings twice before descending the stairs toward him. Jennings felt "anxious" and "scared."

C.F. began "charging" toward Jennings. Jennings grabbed the firearm from the top of his car as C.F. was still coming toward him. He told C.F. "if you don't stop, I'll shoot ._" He asked C.F. to stop three times. C.F. was "acting like he was going to pull up his shirt." As Jennings approached C.F. with the firearm, Jennings was struck in the back with a BB gun. Jennings went to the front of his car, pointed the firearm at C.F. and shot him in his chest. After Jennings shot C.F., bystanders from the second floor threw a bike and an iron at him. The iron shattered his car window.

Jennings later testified that C.F. was "walking hurriedly" toward him seconds before the shooting.

Video evidence from the motel surveillance camera did not show Jennings getting hit on the back with a BB gun.

C.F. did not have a firearm or weapon in his hand. C.F. did not threaten to shoot Jennings. C.F. neither verbally nor physically threatened Jennings; however, C.F. approached Jennings in a threatening manner. Jennings admitted he shot and killed C.F. but claimed it was in self-defense.

DISCUSSION

I. The Jury Instruction Under CALCRIM No. 570 Accurately Stated the Law

Jennings claims the jury instruction on voluntary manslaughter pursuant to CALCRIM No. 570 failed to adequately inform the jury in all its provisions it was the prosecution's burden to prove the absence of heat of passion or sudden provocation. He argues the instruction focused instead on what Jennings was required to establish, that he was provoked and acted rashly under the effect of intense emotion. He further argues the error was not harmless because the prosecution failed to meet its burden to prove he did not act in the heat of passion.

The People respond there is no reasonable likelihood the jury understood CALCRIM No. 570 to shift the prosecution's burden of proving the absence of heat of passion, and even assuming error, it was harmless. We agree with the People.

A. Additional Background

The jury was provided instructions regarding the People's burden to prove Jennings guilty beyond a reasonable doubt. (CALCRIM Nos. 103, 220.) The jury was also instructed regarding first and second degree murder with malice aforethought. (CALCRIM Nos. 520, 521.) The instructions regarding self-defense and voluntary manslaughter under the theories of imperfect self-defense and heat of passion were given. (CALCRIM Nos. 505, 570, 571.) The jury received the instructions orally and in writing.

With respect to voluntary manslaughter in the heat of passion, the trial court instructed as follows (CALCRIM No. 570):

"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.

"The defendant killed someone because of a sudden quarrel or in the heat of passion if, one, the defendant was provoked; two, as a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and, three, the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than judgment.

"Heat of passion does not require anger, rage, or any specific emotion. It could be any violent or intense emotion that causes a person to act without due deliberation and reflection. In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I [have] defined it.

"While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. It [is] not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct.

"You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition in the same situation and knowing the same facts would have reacted from passion rather than from judgment.

"If enough time passed between the provocation and the killing for an ordinary person of average disposition to 'cool off' and regain his clear reasoning and judgment, then the killing is not reduced to manslaughter on this basis.

"The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."

Before closing arguments began, the trial court reiterated that "the prosecution has the burden of proof ._"

B. Analysis

A legally erroneous jury instruction may be challenged for the first time on appeal. (People v. Frazier (2001) 89 Cal.App.4th 30, 35, fn. 3.) Jennings alleges such error occurred. The standard of review is de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) "The challenged instruction is viewed 'in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.'" (Ibid.)

Jennings contends the trial court's use of CALCRIM No. 570 deprived him of due process by impermissibly shifting the burden of proof. He argues the jury instruction implied it was his burden to prove he acted under the heat of passion. In support of his argument, he cites Mullaney v. Wilbur (1975) 421 U.S. 684, 704, which held the "[d]ue [p]rocess [c]lause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is ... presented in a homicide case." Jennings's argument fails in several respects.

First, the instructions are correct. (People v. Schuller (2023) 15 Cal.5th 237, 254; People v. Jones (2014) 223 Cal.App.4th 995, 1000-1001 [holding CALCRIM No. 570 accurately states the law].) CALCRIM No. 570 did not shift the burden of proof to Jennings but clearly stated the People have the burden of proving the absence of heat of passion. CALCRIM No. 570 told the jury that "[t]he People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."

None of the words or directives of CALCRIM No. 570 suggested that it was Jennings's burden to prove he killed C.F. in the heat of passion. When a defendant puts provocation in issue by a showing sufficient to raise a reasonable doubt whether a murder was committed, the prosecution must prove malice beyond a reasonable doubt by proving that sufficient provocation was lacking. (People v. Rios (2000) 23 Cal.4th 450, 461462.) "In such cases, if the fact finder determines the killing was intentional and unlawful, but is not persuaded beyond reasonable doubt that provocation . . . was absent, it should acquit the defendant of murder and convict him of voluntary manslaughter." (Id. at p. 462.) CALCRIM No. 570 is consistent with these principles. It instructed the jury regarding the standard of sufficient provocation and stated the People have the burden of proving beyond a reasonable doubt that Jennings did not kill in the heat of passion.

Second, Jennings's claim is contrary to the plain language of other instructions given in this case. CALCRIM Nos. 103 and 220, the jury instructions on reasonable doubt, reinforced the prosecution's burden by informing the jury, "[a] defendant in a criminal case is presumed to be innocent," and "[t]his presumption requires that the People prove a defendant guilty beyond a reasonable doubt." The jury was also instructed, to convict Jennings of first or second degree murder, the People had to prove he killed with malice and without lawful excuse or justification. (CALCRIM No. 520.) All instructions provided it was the People's burden to prove each element of the case beyond a reasonable doubt.

Third, Jennings contends that some of the provisions of CALCRIM No. 570 are at odds with the law, although the final provision accurately informed the jury regarding the burden of proof. This argument fails because" '[t]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" (People v. Carrington (2009) 47 Cal.4th 145, 192.) In effect, Jennings takes only part of the jury instruction and claims it erroneously shifted the burden of proof, while the other parts do not. His claim lacks merit.

Jennings concedes the concluding paragraph of CALCRIM No. 570 "correctly states ... that it is the prosecution's burden to prove the '[a]bsence of a sudden quarrel or heat of passion' beyond a reasonable doubt ._" However, he argues the prior portion of the instruction, other than the final sentence, "undercuts" the prosecution's burden, "instead focusing on what the defendant is required to establish . . . that he . . . was provoked and acted rashly and under the effect of heat of passion, a provocation which would have caused a person of average disposition to react rashly and without due deliberation."

Finally, Jennings argues the prosecutor's closing argument did not adequately inform the jury of the prosecution's burden. He does not point to any specific arguments made by the prosecutor, nor does he cite any legal authority for his claim. Rather, he perfunctorily asserts the prosecutor focused on actions and statements he made during the murder investigation instead of the People's burden of proof. We do not find Jennings's argument compelling. (People v. Hovarter (2008) 44 Cal.4th 983, 1029 [points not supported by legal argument and citation to authority may be treated as waived].) Even addressing the merits of Jennings's contention, the prosecutor told the jury during closing argument that the burden of proof rested on the People to prove each element beyond a reasonable doubt.

We note that Jennings does not claim prosecutorial misconduct. Moreover, even if he were to claim prosecutorial misconduct, his argument is forfeited on appeal for failure to object because "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." (People v. Thornton (2007) 41 Cal.4th 391, 454.)

Moreover, as stated above, the trial court properly instructed the jury that the burden of proof rested with the People. (CALCRIM Nos. 103, 220, 520, 521, 570.) "The court's instructions, not the prosecution's argument, are determinative ._" (People v. Mayfield (1993) 5 Cal.4th 142, 179.) Jennings cannot demonstrate the prosecutor's argument misled the jury into believing CALCRIM No. 570 impermissibly shifted the burden of proof to Jennings.

C. Any Error was Harmless

Depending upon the basis of the claimed error, instructional error is reviewed under either Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Under the more stringent Chapman standard, which applies to errors of constitutional dimension, reversal is required unless the reviewing court can conclude beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.) Under the Watson standard, which applies to errors of state law, reversal is not required unless it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at p. 836.)

We need not decide whether the Chapman or Watson standard for prejudicial error applies here because even assuming error, it was harmless under either standard.

The jury found the prosecution proved beyond a reasonable doubt Jennings committed first degree murder under the willful, deliberate, and premeditated theory. Courts have held there is no prejudice with respect to some instructional errors regarding voluntary manslaughter when the jury returns a finding of premeditation and deliberation because it is "manifestly inconsistent" with having acted under the heat of passion. (People v. Wharton (1991) 53 Cal.3d 522, 572 (Wharton).)

Jennings claims the error was not harmless because the jury instruction inappropriately shifted the burden to the defense to prove heat of passion. A similar argument was rejected in People v. Franklin (2018) 21 Cal.App.5th 881 (Franklin). In that case, in response to jury inquiry, the trial court erroneously instructed the jury that the burden was on the People to prove heat of passion beyond a reasonable doubt. (Id. at p. 890.) The Franklin court found no prejudice under the Chapman harmless error standard. The erroneous jury instruction was limited to attempted voluntary manslaughter, and the jury found the defendant guilty of deliberate and premeditated attempted murder, thus precluding a finding that the defendant acted under the heat of passion. (Id. at p. 894.)

We point out that in Franklin, the trial court told the jury erroneously that the People had the burden of proving heat of passion (rather than its absence), and the court still found harmless error under Chapman. Here, the court accurately instructed the jury with CALCRIM No. 570. CALCRIM No. 570 told the jury that the burden was on the People to prove Jennings did not act under the heat of passion. Jennings only claims the instruction impermissibly shifted the burden of proof to him in some of its provisions, which we concluded above lacked merit. The instructions were correct and, in any event, Jennings suffered no prejudice.

The California Supreme Court in Wharton, supra, 53 Cal.3d 522 also found the failure to provide the jury with a pinpoint instruction on the heat of passion was harmless under Chapman when the jury found the defendant guilty of willful, premeditated, and deliberate first degree murder. (Id. at p. 572.) Our high court held, "[t]his state of mind, involving planning and deliberate action, is manifestly inconsistent with having acted under the heat of passion ... and clearly demonstrates that defendant was not prejudiced by the failure to give [the] requested instruction." (Id. at p. 572.)

Turning to the facts in this case, the evidence established Jennings was not provoked and did not act under the heat of passion. Jennings was told by several people from the second floor of the motel to put his firearm away because there were children in the area, which resulted in an argument between Jennings and C.F. regarding the firearm. C.F. walked down the stairs to the first floor where Jennings was standing by his car. C.F. asked him why he had a firearm out. C.F. walked toward Jennings with his hands down at his sides. He did not have a firearm and Jennings admitted he did not know whether C.F. had any weapons. C.F. neither verbally nor physically threatened him. Jennings went to the front of his car, pointed the firearm, and shot C.F. from a few feet away. His testimony that C.F. came "charging" toward him is contradicted by the evidence, including the camera footage. The theory he relied on at trial was that he shot C.F. in self-defense. Similarly, defense counsel relied on self-defense in the arguments she made to the jury. The jury was instructed on heat of passion, self-defense, and imperfect self-defense. The jury rejected those theories. There is no reason to believe the use of CALCRIM No. 570 impacted the verdict.

Considering the strength of the evidence, the guilty verdict rendered in this trial was surely unattributable to any alleged error. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Accordingly, we conclude beyond a reasonable doubt the trial court's use of the CALCRIM No. 570 jury instruction regarding heat of passion did not contribute to the verdict.

DISPOSITION

The judgment is affirmed.

WE CONCUR: SMITH, Acting P. J., MEEHAN, J.


Summaries of

People v. Jennings

California Court of Appeals, Fifth District
Jun 14, 2024
No. F085406 (Cal. Ct. App. Jun. 14, 2024)
Case details for

People v. Jennings

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GARY JENNINGS, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Jun 14, 2024

Citations

No. F085406 (Cal. Ct. App. Jun. 14, 2024)