Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS041858
Bamattre-Manoukian, ACTING P.J.
Defendant Kevin Jones was charged by information filed November 10, 2004, with murder (Pen. Code, § 187), and assault by a life prisoner with a deadly weapon (§ 4500). The information further alleged that defendant had four prior felony convictions that qualified as strikes. (§ 1170.12, subd. (c)(2).) On October 5, 2005, defendant waived his right to a jury trial on condition that the prosecution dismiss the section 4500 count and not seek the death penalty.
Further statutory references are to the Penal Code.
The court trial began on April 14, 2006, and continued on May 12, 2006. The parties stipulated that on July 30, 2003, defendant was an inmate at C.T.F. Soledad, assigned to cell 307 in the Y-wing, serving a life sentence. The parties further stipulated that the victim, Lawrence Adams, was pronounced dead at 1:05 p.m. on July 30, 2003, by Dr. Den.
Juan Perry testified that on July 30, 2003, he was an inmate porter in the Y-wing. When he walked past cell 307 on the third tier not long after noon, defendant was standing by the cell door. Defendant got his attention and told him to get help, that it was an emergency. Perry ran downstairs and told Officer Walter that defendant wanted him and that it was important.
Correctional Officer Donald Hawkins testified that he was assigned to Y-wing on the morning of July 30, 2003, with Officer Walter. Starting at 7:30 a.m., most inmates were individually let out to go to prison jobs, classes, or the exercise yard. The inmates returned at 11:30 a.m., were locked back in their cells, and Hawkins and Walter checked all the locks. Around 12:40 p.m., an inmate porter told Walter that there was an emergency in cell 307. Hawkins had not heard anyone banging on a cell door. When he went to cell 307, he unlocked it and defendant stepped out. Defendant said, “ ‘Where you been? I’ve been banging for 30 minutes.’ ” Hawkins then saw an unfamiliar inmate lying motionless on the floor of the cell with water around him but no noticeable injuries. Defendant said, “ ‘I only hit him once. He started hitting on me.’ ” Walter came to the cell, said “ ‘It looks like a seizure,’ ” and called for medical personnel. Lieutenant Gonzales arrived and told Hawkins to handcuff defendant and take him to a holding cell. Hawkins did so and searched defendant, but found no contraband.
Correctional Officer Daryl Walter testified that on July 30, 2003, defendant had a cellmate named Sailor. When inmates return to the wing around 11:30 a.m., they are not required to show their ID, but an officer is at the entrance of the wing who is supposed to preclude entrance to anybody who does not belong there. At 12:42 p.m., inmate porter Perry informed Walter that there was a medical emergency in cell 307. Perry did not say that there was a “man down,” which is what inmates are told at their orientation to say if there is a medical emergency such as a heart attack or stroke. Walter had not heard any unusual noises in the wing; the wing had been quiet. When Walter went up to the third tier, he heard somebody yelling and kicking at the door of cell 307. He saw Officer Hawkins open the cell door and talk to defendant. He could tell something was wrong, so he went to investigate. He found inmate Adams lying on the floor of the cell, face up, motionless, and with his eyes closed. Both Adams and defendant had water all over them. Walter asked defendant what happened, and defendant responded, “ ‘He fell out and I couldn’t wake him.’ ” Defendant also said something like “ ‘I only hit him once,’ ” but Walter thought defendant was just joking. He checked defendant’s hands, head, and torso, and saw no scratches, injuries or marks on him, and then called for medical assistance. After Lieutenant Gonzales arrived and determined that it was a possible homicide, Walter secured the cell.
Correctional Officer Rochelle Weengo testified that on July 30, 2003, she responded to the report of a man down in cell 307 with Lieutenant Gonzales. Inmate Adams was lying on the floor, and somebody said that he was not breathing. He was wearing sweatpants, but he did not have a shirt on and was barefoot. His legs were out straight and his arms were neatly tucked in towards his body, with his hands facing his legs, so it looked as though he had been positioned. Defendant was pacing back and forth, ranting and raving, and sweating. In addition, one side of his body was soaking wet. When Weengo and Gonzales asked defendant what happened, defendant kept repeating, “ ‘I only hit him once.’ ” “ ‘He just passed out.’ ”
Registered nurse Margaret Wyhoney testified that on July 30, 2003, defendant was brought to the prison clinic, and she examined him around 5:00 p.m. He had mucus coming from his nose but no injuries, bruises, or abrasions.
Inmate Kevin Jackson testified that on July 30, 2003, Adams, whose nickname was Trey 21 or 321, was his cellmate in the G-wing. That morning, Jackson spent time with Adams and defendant in the yard. Adams got in the G-wing line to go back inside at 11:30 a.m., but he did not return to his cell. The last time Jackson saw Adams, he was wearing a sweatshirt and tennis shoes.
John Hain, M.D., testified that he performed the autopsy on Adams around 9:00 a.m. on August 1, 2003. In his opinion, the cause of Adams’s death was asphyxia due to strangulation. Dr. Hain found broken capillaries on the inside of Adams’s eye lids, bite mark hemorrhages on the tip of his tongue, a small circular abrasion on top of the bony prominence of the end of his right collar bone, bruising within the muscles of the front of his neck, broken cartilage in the right front of the neck just below his larynx, and bruising on the left side of the neck. Adams’s neck injuries are typically the result of either manual strangulation with the thumbs or by a choke hold. It is unlikely that he died as a result of a single blow to the neck.
C.T.F. Investigative Officer David Doglietto testified that on July 30, 2003, around 5:00 p.m., he took the photographs of defendant that were admitted into evidence as People’s exhibit No. 5.
Registered nurse Manuel Banaag testified that on July 30, 2003, around 12:40 p.m., he and two other nurses responded to the report of a medical emergency in cell 307. They found an inmate lying face up on the wet floor of the cell, not breathing. The inmate was wearing jogging pants that had a wet stain, but no shirt. The nurses checked for a pulse and did not find one. They attempted C.P.R. and used an automatic external fibrillator (A.E.) for about five minutes, until a doctor arrived to assess the situation. They continued to attempt C.P.R. and deliver oxygen to the inmate while he was taken by gurney to the infirmary. He was pronounced dead without ever showing any signs of life.
Medical Technical Assistant Randy Kell testified that on July 30, 2003, around 12:40 p.m., he responded with Dr. Den to the reported possible death in cell 307. He assisted in efforts to revive an inmate, but the A.E. never detected a heart rhythm.
District Attorney Investigator Allen Rowe testified on behalf of the defense that he examined cell 307 around 1:05 p.m., on July 30, 2003. He observed a fluorescent light fixture hanging at an angle on the wall below the upper bunk and pieces of a broken fluorescent light bulb lying on the lower bunk. When Rowe interviewed defendant around 4:30 p.m., he was crying.
Defendant testified in his own behalf that he knew Adams as Trey 21, and considered him a friend. In the yard, on the morning of July 30, 2003, Adams was upset that somebody had taken his lunch, and he asked defendant his opinion of it. Adams did not like defendant’s answer, and became upset with him, so defendant ended the conversation. Defendant returned to his cell from the yard around noon, but his cell mate remained at work. Defendant closed his cell door, turned on the television, and wiped his face with a wash rag. As he was bent over, hanging up the wash rag underneath his bunk, he was hit from behind, causing his head to hit the wall and his hand to hit the fluorescent wall light, breaking it. He went face down on his bunk and continued to get beat on his head, back, and arms. He lost consciousness, but was awakened by another blow. In order to protect himself he took one swing backwards, but he cannot remember if he hit his assailant. When defendant got up from his bed, Adams was lying on his back on the cell floor, unconscious.
Defendant banged on his cell door and yelled, “It’s an emergency,” trying to get an officer, but nobody responded. He did not yell, “man down,” because he was never told to do so when there is a medical emergency. He tried to arouse Adams by pouring water on him, but it did not work. He moved Adams a little in order to give himself room to check for breathing and a pulse, but he did not feel anything. He did not put his arm around Adams’s neck or grab his throat with his hands; he had no reason to kill Adams. He was finally able to get the attention of an inmate after about 15 or 20 minutes, but a correctional officer did not respond for another 15 or 20 minutes. When Officer Hawkins asked him what happened, he said “I only hit him once. He started hitting on me.” He does not remember saying to Officer Walter, “he fell out and I couldn’t wake him.”
Defendant reported that, as a result of the attack, his ribs and head hurt. He also sustained a cut on a finger. He was given medication for the pain and had x-rays taken of his ribs, and then was put on suicide watch. Some officers took photographs of him the next day. Defendant admitted that he was convicted of first degree murder and three counts of first degree burglary in 1990.
In rebuttal, Investigator Rowe testified that he interviewed defendant about three hours after the incident. Defendant was Mirandized and waived his rights. Rowe told defendant that Adams was dead, and defendant began crying. He said that as he was hanging up his clothes, his cell door opened and an unknown inmate came in and attacked him. He swung back and hit his assailant once, causing the assailant to fall on his back to the floor. It was then that defendant realized that his assailant was Adams. When Rowe attempted to speak to defendant about the incident again on August 4, 2003, defendant refused to do so, except to say that his previous statement was accurate. When Rowe told defendant that the scenario he gave was not true, defendant said that he could not remember what he said because he was insane at the time he made the statement. Defendant was on suicide watch at the time the photographs were taken of him.
The court found defendant to be not credible. Defendant testified that he was in his cell alone for a long time before some unknown person showed up, but he and Adams were locked inside defendant’s cell, so defendant had to know who was in the cell with him. Defendant told Rowe that he hit his assailant, causing the assailant to fall to the floor, but defendant testified that he swung backwards, did not know whether he hit his assailant, and did not discover Adams on the floor until he got up from his bed. Dr. Hain testified that Adams had been strangled, but defendant had no explanation for how that might have happened. Defendant testified that he was knocked unconscious, but nurse Wyhoney testified that she found no injuries, bruises, or abrasions on him.
The court stated: “The Court is convinced well beyond a reasonable doubt that the defendant strangled the victim. The People have the burden of proving premeditation and deliberation; they have not done that. The first degree murder aspect therefore fails. The People have the burden of showing that there was no provocation that might have served to reduce the offense from murder to voluntary manslaughter. They have failed to prove that. While I’m thoroughly convinced that the defendant unlawfully killed the victim intentionally, I cannot say that there was no provocation, because there’s no evidence whatsoever on that issue. [¶] I therefore find the defendant guilty of voluntary manslaughter. I find that he killed the victim unlawfully and intentionally. And since the killing is neither lawful nor excusable, it is manslaughter, voluntary.” The court also found true the allegations that defendant had four prior felony convictions that qualified as strikes.
On October 25, 2006, the court denied defendant’s request to strike one or more of defendant’s strikes, and sentenced him to 25 years to life, the term to be served consecutive to the term he was already serving.
Defendant filed a notice of appeal on October 26, 2006, and we appointed counsel to represent him in this court. Appointed counsel filed an opening brief which states the case and facts but raises no issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. Defendant has exercised that right by submitting a letter that was filed in this court on August 15, 2007. In the letter defendant explains how prison cell doors are locked and states that he asked his trial counsel “to take a polygraph test” to show that he was being truthful, but counsel admittedly told him that the results were not admissible in court. Defendant refers to evidence about his and Adams’s backgrounds that was not presented during the trial. Defendant contends that the homicide was justified, as he reasonably believed in the need to defend himself. However, defendant’s contentions do not explain how Adams’s death by strangulation could have occurred.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal
The judgment is affirmed.
WE CONCUR:
MIHARA, J., MCADAMS, J.