Opinion
D058488
05-18-2012
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD207414)
APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed in part; reversed in part.
In this murder case we reject appellant's argument the trial court was required to give a sua sponte instruction with respect to the impact his voluntary intoxication may have had on his state of mind at the time he killed the victim. Although arguably appellant's intoxication might be relevant with respect to whether, at the time of the murder, he in fact was acting in the heat of passion, such a "pinpoint" instruction does not encompass an element of the crime of murder or a defense, but merely offers the jury guidance with respect to how particular evidence may bear upon guilt or innocence. As such, no instruction on voluntary intoxication was required in the absence of a request by one of the parties.
We also reject appellant's contention his attorney's failure to request such an instruction deprived him of the effective assistance of counsel. Although the instruction appellant asserts might have assisted the jury in finding appellant was in fact acting in the heat of passion at the time of the killing, appellant's heat of passion defense also required that the victim's provocation be sufficient to arouse the passion of a reasonable person. In that context, an instruction which focused on appellant's intoxication could easily undermine his claim the victim's provocation was great enough to enrage a reasonable person. Given those circumstances, counsel could have made a wholly valid tactical decision to avoid emphasis on appellant's intoxication and attempt to focus the jury's attention on evidence of the victim's own mental instability.
FACTUAL AND PROCEDURAL BACKGROUND
1. 1988
In August 1988 Gail S.'s body was discovered by a hiker in a canyon in Balboa Park near the Aerospace Museum. Gail's body was in brush, under a tree and covered by a piece of cardboard. Gail was not wearing underwear or pants, which were recovered near her body; Gail was wearing socks and a bra and other clothing was pulled up near her shoulders.
At the scene in the canyon investigators found four paper tissues near Gail's body. Three of the tissues contained semen from three separate individuals. A fourth semen sample, from a fourth individual, was recovered from Gail's vagina.
An autopsy disclosed Gail had been stabbed twice. One wound to Gail's neck did not hit any blood vessels; a second stab wound above Gail's collar bone severed an artery. Gail also had a ligature wound around her neck, as well as bruising around her neck consistent with manual strangulation. At trial a medical examiner who reviewed the autopsy records concluded Gail likely died from the stab wound to her collar bone, although it was also quite possible she died from strangulation.
In addition to the knife wounds and strangulation, the autopsy also showed Gail had been severely beaten. She suffered blunt force injuries to her face, head and torso. One hand also showed a defensive wound. The medical examiner believed these injuries indicated Gail and her killer had struggled and she fought back.
In addition to injuries suffered at or before the time of death, the autopsy also uncovered postmortem injuries to Gail's upper side and right buttocks. The medical examiner believed these postmortem injuries were consistent with someone dragging Gail's body to the canyon.
No drugs or alcohol were present in Gail's system at the time of death. Although semen was discovered in Gail's vagina, there was no indication she had been the victim of a sexual assault.
Prior to her death Gail had been suffering from mental health issues, including voices she heard and physical outbursts; Gail had been admitted to a psychiatric hospital and was homeless. Three weeks prior to her death, a park employee responsible for cleaning bathrooms found Gail in a bathroom without a shirt. Gail reported a friend had taken her shirt and she was therefore unwilling to leave the bathroom. The employee retrieved a shirt from the park's lost and found and gave it to Gail.
The initial investigation of Gail's death was unsuccessful in identifying and apprehending her killer.
2. 2003-2006
In 2003 DNA was extracted from the semen found in Gail's vagina. In 2005 police matched the DNA from the vaginal semen with a sample defendant and appellant Dwayne Johnson had provided a law enforcement agency.
In 2006 a later sample taken from Johnson was also matched to DNA from Gail's vaginal semen.
Homicide investigators contacted Johnson and he denied any involvement in Gail's death.
3. 2007
In the spring of 2007, Johnson's former wife Adriana Camacho contacted a police investigator and informed him Johnson had admitted to her that he had killed two people. Initially, Johnson did not provide Camacho any details about the killings.
Camacho agreed to surreptitiously record a conversation with Johnson about the killings. In the recorded conversation, Johnson admitted that in the late 1980's he dated a white woman for a couple of weeks, that while they were near a museum in Balboa Park, they got into a fight because Johnson was obsessive and jealous and that he strangled her.
After his conversation with Camacho, Johnson was arrested and interviewed by police investigators. Johnson waived his Fifth Amendment rights and told investigators he met Gail while she was sitting on a bench near the Aerospace Museum. According to Johnson, after talking to Gail the two went to a bathroom where she performed oral sex on him and he had vaginal intercourse with her. Johnson told investigators the sex acts were consensual but, after the sex acts were completed and before Gail had pulled her pants up, he and Gail got into an argument about Gail having a boyfriend.
Johnson recalled that Gail began screaming and yelling and that he grabbed Gail by the throat to stop her from screaming. Johnson admitted that in order to stop Gail from screaming, he also stabbed her with a straight edge pocket knife. After Gail was stabbed, she stopped screaming and Johnson looked outside the restroom; when Johnson returned to Gail, she was lying on her back and he was not sure if she was breathing. Johnson told the investigators he then panicked and ran; he believed he threw the knife in some bushes near the restroom.
Johnson also explained he had difficulty remembering all the details surrounding his fatal encounter with Gail because he had been drinking that day and may also have ingested some cocaine. Johnson did not remember moving Gail's body and believed that he only stabbed her once; he also believed that he only used his hands in strangling Gail. Johnson admitted that when he gets mad he reacts and does not think about the consequences.
4. Trial
Johnson's trial counsel attempted to cast doubt on his guilt by suggesting Gail was killed by one or more of the other individuals whose semen was found on the tissues recovered near Gail's body. In advancing this defense, trial counsel called two mental health experts in an effort to impeach the incriminating statements Johnson made to Camacho and police investigators. The experts testified Johnson suffers from severe neurological and emotional deficits, related in part to a history of substance abuse. The experts opined Johnson has severe memory lapses, is very suggestible and had a history of lying. At trial Johnson's counsel also presented evidence that no blood was found in the park's bathrooms near the time of Gail's death.
The jury found Johnson guilty of second degree murder and found that in committing the murder Johnson used a deadly and dangerous weapon, a knife. Johnson was sentenced to a term of 15 years to life in prison.
DISCUSSION
I
In his initial argument on appeal, Johnson contends the trial court should have given, sua sponte, an instruction advising the jury that it could consider his voluntary intoxication in determining whether he was guilty of manslaughter rather than murder. On this record we find no sua sponte duty to provide such an instruction.
A. Additional Background
The jury was instructed in general on the impact Johnson's voluntary intoxication might have on Johnson's guilt or innocence with a version of CALCRIM No. 625: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation.
"Voluntary intoxication can only negate express malice aforethought, not implied malice aforethought.
"A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.
"You may not consider evidence of voluntary intoxication for any other purpose."
Although Johnson's principal defense was his contention he did not kill Gail, in the alternative his trial counsel asserted that if Johnson did kill Gail it was in the heat of passion. Accordingly, in addition to instructing the jury on murder, the trial court also instructed the jury on voluntary manslaughter committed in the heat of passion with a version of CALCRIM No. 570. The heat of passion instruction stated in part: "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 period 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."
B. Analysis
CALCRIM No. 625, as given to the jury, is an accurate statement of the law and sets forth the limitations on voluntary intoxication imposed by Penal Code section 22 subdivision (b), as amended in 1995. Section 22, subdivision (b) states: "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought."Similarly, the trial court's instruction on manslaughter was also accurate in requiring the jury determine the issue of provocation on an objective basis. (See People v. Steele (2002) 27 Cal.4th 1230, 1254-1255; People v. Oropeza (2007) 151 Cal.App.4th 73, 82-83.)
All further statutory references are to the Penal Code.
The 1995 amendment to section 22 was intended to preclude evidence of voluntary intoxication to negate implied malice aforethought and overrule the holding in People v. Whitfield (1994) 7 Cal.4th 437, 451. (People v. Martin (2000) 78 Cal.App.4th 1107, 1114.) The amendment did not alter the substantive elements of either murder or manslaughter but merely limited the evidence admissible in homicide cases; thus it did not implicate any of Johnson's constitutional rights. (Id. at pp. 1115-1117.)
Because the instructions given were accurate, this is not an instance where, as in People v. Cameron (1994) 30 Cal.App.4th 591, 601, the jury was given a voluntary intoxication instruction which, under the state of the law at that time, was misleading. Notwithstanding the accuracy of the trial court's instructions, we recognize that Johnson's intoxication might be relevant with respect to whether Johnson in fact acted in the heat of passion. (Ibid.) However, the potential relevance of his intoxication to the subjective element of his heat of passion defense did not give rise to a duty to instruct sua sponte. "In [People v.] Saille [(1991) 54 Cal.3d 1103, 1111-1112], we explained that, with the abolition of diminished capacity as a defense, 'Intoxication is now relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state.' [Citation.] An instruction relating intoxication to any mental state is therefore 'now more like the "pinpoint" instructions' that 'are not required to be given sua sponte.' [Citation.] Under Saille, therefore, the court did not have a sua sponte duty to give any instruction on the relevance of intoxication, any more than it had to instruct on the relevance of other evidence. In the absence of instructions, defense counsel could simply argue that defendant did not actually have the necessary mental state due to his intoxication, just as counsel could argue any other inferences from the evidence." (People v. Castillo (1997) 16 Cal.4th 1009, 1014.)
See footnote 1, infra.
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In sum then, the trial court had no sua sponte duty to instruct with respect to the relevance of Johnson's voluntary intoxication.
II
In the alternative, Johnson argues his trial counsel was ineffective in failing to ask for a further voluntary intoxication instruction. We reject this contention as well.
1. General Principles
"An appellant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. [Citations.]
"To establish prejudice, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.] In demonstrating prejudice, the appellant 'must carry his burden of proving prejudice as a "demonstrable reality," not simply speculation as to the effect of the errors or omissions of counsel.' [Citation.]
"In determining whether counsel's performance was deficient, we exercise deferential scrutiny. [Citations.] The appellant must affirmatively show counsel's deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. [Citations.]
"Our Supreme Court recently reiterated the obligations of appellate courts in reviewing claims of ineffective assistance of counsel: ' " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of professional assistance." ' [Citation.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.]" ' [Citation.]
" 'Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances. [Citation.]' [Citation.]" (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1148.)
2. Analysis
As we have noted, in order to reduce a murder to manslaughter based on a heat of passion defense, the jury was required to conclude Gail's behavior would have inflamed the passions of a reasonable person. (CALCRIM No. 570.) "The law does not . . . permit defendant to use himself as the measure of what is adequate provocation to reduce what would otherwise be murder to manslaughter." (People v. Steele, supra, 27 Cal.4th at p. 1255.) Given this limitation on the heat of passion defense, an instruction which, instead of focusing on Gail's conduct, drew the jury's attention to Johnson's intoxication and own mental state could plainly undermine any attempt by counsel to convince the jury that notwithstanding those impairments Johnson's response was reasonable. Thus the face of the record suggests the failure to request a pinpoint intoxication instruction was a reasonable tactical choice.
The other difficulty with Johnson's ineffective assistance of counsel claim is the element of prejudice. The only evidence of provocation on Gail's part was Johnson's statement to investigators that in attacking her he was reacting to her screaming and his desire that she be quiet. Given those circumstances, we have some difficulty concluding that a pinpoint voluntary intoxication instruction would have had any positive bearing on the jury's consideration of whether Johnson's reaction represented the level of emotion expected of a reasonable person.
In sum, the record here will not support an ineffective assistance of counsel claim.
III
The trial court imposed a $10,000 parole revocation fine under the terms of section 1202.45. The fine was stayed until parole was revoked. Johnson points out that section 1202.45 was enacted in 1995 (stats. 1995, ch. 313, § 6) and hence cannot be imposed with respect to Gail's 1988 murder. (People v. Callejas (2000) 85 Cal.App.4th 667, 677-678.) The People agree the fine was unauthorized and should be stricken.
DISPOSITION
The parole revocation fine imposed under section 1202.45 is stricken. The trial court is directed to modify the abstract of judgment accordingly and forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
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BENKE, Acting P. J.
WE CONCUR:
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NARES, J.
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HALLER, J.