Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. NA068115, Tomson T. Ong, Judge. Affirmed.
Kenneth H. Lewis for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Michael Kaempf was convicted of the second degree murder of Michelle Anderson (Pen. Code, § 187) with firearm enhancements also found true (§ 12022.53, subds. (b)-(d)). Kaempf argues on appeal that there is insufficient evidence to support the murder conviction; that his exculpatory statements made at the time of arrest should have been admitted through police testimony under exceptions to the hearsay rule; that the trial court abused its discretion under Evidence Code section 352 to permit a photograph of the victim and her daughter to be shown in court; that the trial court should not have instructed the jury with CALJIC No. 5.54; and that section 12022.53, subdivision (d) is unconstitutional. We affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Kaempf and Anderson had a volatile and intermittent romantic relationship. On November 11, 2005, Kaempf came to the motel where Anderson was staying. Video cameras recorded him entering Anderson’s room and leaving approximately 7 minutes later. The resident of the room adjacent to Anderson’s, Kameo Longoria, heard a loud, profane argument coming from Anderson’s room. Longoria heard what “sounded like domestic violence or some kind of scuffle:” a man called a woman, “bitch,” the woman said, “Leave me alone, motherfucker, and get out.” Then Longoria heard three loud booms.
Longoria heard a woman cry out that she had been shot and needed help. Longoria looked out the window and saw Anderson badly injured and spurting blood. She opened the door and Anderson fell in the doorway. As Longoria attempted to aid and comfort Anderson, she saw a man who she believed to be Kaempf leaving Anderson’s room. Security camera footage showed Kaempf leaving the room before Anderson emerged, then re-entering the room briefly before he drove away. Several witnesses wrote down the license plate number of that car. Anderson had been shot three times and died of her injuries.
The license plate number the witness noted belonged to a car registered to Kaempf’s father. Police talked with Kaempf’s father, who reported that Kaempf was very angry at Anderson; he feared that Kaempf might hurt her. Kaempf was arrested in Temecula several days later. On his return to Los Angeles in police custody, he spontaneously declared that Anderson wanted money for drugs, that she pulled a gun on him, and that in a struggle over the gun it discharged. The gun was never found.
Kaempf was charged with murder. At trial, he testified that on the date of the shooting he was visiting Anderson at the motel. According to Kaempf, Anderson asked Kaempf if he had drugs, but he did not. She was upset, kept asking him “What’s up?” and was busy with a task involving phone numbers. The next thing he knew, Kaempf testified, Anderson was pointing a gun at him. He called her a “bitch” and told her to put the gun away. Anderson told him to get out. Kaempf described a struggle as he attempted to get away, and the gun discharging: “My first instinct was to get around her and get out the door. In doing so, I pushed the weapon away again. I kind of struggled with her over it, and in doing so, it started discharging. I wasn’t sure what was going on at that point except for I was fearing for my life. . . . [¶] Next thing I did was get out the door. I got out the door and realized that I left my car keys behind and she exited the door. I went back for my car keys and I seen her collapsed, and at that point, I left.”
The People presented evidence that a firearm of the type used in the shooting was semiautomatic, not a machine gun, and that it could only discharge one round with each pull of the trigger.
Kaempf was convicted of murder, and the jury found the firearm allegations true. He appeals.
DISCUSSION
I. Sufficiency of the Evidence of Second Degree Murder
Kaempf argues that there was insufficient evidence that he committed second degree murder and that his offense was at most voluntary manslaughter. The criminal act of killing another human being constitutes either murder or manslaughter, depending on whether the element of malice is present: “The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice.” (People v. Rios (2000) 23 Cal.4th 450, 460.) Malice is negated when the “killer is so provoked by the acts of the victim that he strikes out in the heat of passion, an emotion that obliterates reason that would prevail in the mind of a reasonable person,” and the resulting crime is manslaughter rather than second degree murder. (People v. Johnston (2003) 113 Cal.App.4th 1299, 1311.)
Relying heavily on the fact that witnesses reported an argument preceding the shooting and on his own account of what occurred, Kaempf asserts that “[i]t is very clear” that there was a sudden quarrel between Kaempf and Anderson and that when she pointed the gun at him and called him a “motherfucker” it “was the flash point that turned into the killing of the decedent.” Surely the jury could have understood the evidence in this way. Accordingly, Kaempf was entitled to the voluntary manslaughter and heat of passion instructions that he requested and that were given. But the evidence did not compel the jury to find the facts in the manner Kaempf argues. The jury did not have to believe that Kaempf acted in the heat of passion at all. Kaempf did not testify that he acted in the heat of passion—he claimed he was afraid for his life and that the gun went off accidentally as he struggled for it. He never claimed to have been moved by the exchange of angry words before the gun was fired, let alone to have lost control of his reason due to a sudden quarrel. To conclude that Kaempf acted in the heat of passion would have required the jury not only to reject his account of the shooting—which it obviously did—but also to conclude that Kaempf lied about one defense to the shooting but actually had another, true defense that he concealed from the jury in order to lie about self-defense.
Moreover, even if the jury did conclude that Kaempf did act in the heat of passion, the jury was not required by the evidence to conclude that the argument was one that would create a heat of passion so as to cause Kaempf’s reason to be “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 passion rather than from judgment.” (CALJIC No. 8.42.) Even accepting Kaempf’s appellate description of events leading up to the shooting, it would not be unreasonable to conclude that if an ordinary person saw someone point a gun at him and call him a “motherfucker,” that ordinary person would not lose all control of reason, seize the gun, and shoot the other person three times.
The jury could have concluded beyond a reasonable doubt from the evidence presented that Kaempf, obsessed with Anderson, killed her intentionally and with the requisite malice. Kaempf, a methamphetamine user, fell abruptly for Anderson upon meeting her, and allowed her to stay with him as soon as they met. Kaempf shared drugs with Anderson, bought her clothes, and “took care of her.” Approximately two weeks into their relationship, Kaempf learned that Anderson was a prostitute. The relationship ended shortly thereafter. Thereafter, Kaempf became obsessed with Anderson, using cameras at his car wash to catch her plying her trade, seeking her out for days on end, following her to tell her that he loved her, and attempting to restart the relationship. Kaempf’s father said that Kaempf was “very mad” at Anderson, that he “probably hit her,” and “probably hurt her,” and that he hoped that Kaempf “didn’t kill her.” After Kaempf sought Anderson out at the hotel, Anderson told him to leave her room; then the gun was fired three times, which required three separate pulls on the trigger. Kaempf fled to a casino in another county and did not turn himself in for several days. A reasonable jury could have concluded from this evidence that Kaempf killed Anderson with malice beyond a reasonable doubt. The evidence was sufficient to support the second-degree murder conviction. (People v. Brown (1984) 150 Cal.App.3d 968, 970 [“When a jury’s verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion”].)
II. Admissibility of Kaempf’s Exculpatory Statements
According to Kaempf, he made this statement to police spontaneously after his arrest: “When I got to the motel, I was there for only about five minutes. We were the only ones there. We used some meth and I was watching the television and she was all worked up cause she had lost her phone book. She just kept saying, ‘what’s up.’. . . The next thing I knew she was pointing a gun at me. I told her, ‘Man, don’t point that thing at me[’] and I pushed it away from me. Then she pointed it at me again and was asking me for money. She was trying to rob me. Then we struggled over the gun and the next thing I knew it went off. I got scared and ran out of there. I didn’t want to stick around after that happened.” Kaempf argues that his statements at the time of his arrest should have been admitted pursuant to Evidence Code sections 1240 or 1250, thus permitting him to introduce his account of the shooting without testifying.
The trial court did not err in concluding that the statement did not qualify as a spontaneous declaration under Evidence Code section 1240. Section 1240 creates an exception to the hearsay rule for statements that narrate, describe, or explain an event perceived by the declarant provided that the statement “[w]as made spontaneously while the declarant was under the stress of excitement caused by such perception.” For the statement to be spontaneous, it “must have been [made] before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance.” (Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468.) Here, the statement was made five days after the shooting by an adult male who spent at least some of the intervening time with a companion at a casino. Nothing suggested that he remained in a state of excitement for five days after the shooting such that the post-arrest statements to police could be considered a spontaneous utterance made under the stress of the shooting. The trial court’s conclusion that the spontaneous utterance exception to the hearsay rule had not been established was supported by a preponderance of the evidence. (People v. Tewksbury (1976) 15 Cal.3d 953, 966, fn. 13; see also People v. Poggi (1988) 45 Cal.3d 306, 318 [whether the requirements of Evidence Code section 1240 are satisfied is largely a question of fact, although the court necessarily exercises some discretion in making that determination].)
The present case is nothing like the cases on which Kaempf relies to establish that declarations made up to two days later have been considered spontaneous by the courts. In one of those cases, People v. Trimble (1992) 5 Cal.App.4th 1225, a one and one-half-year-old child described to her aunt how her father punched her mother in the face and cut her feet off with a knife two days after the mutilation took place. Because the little girl made this report as soon as she was left alone with her aunt away from her father, and obviously remained in a state of extreme agitation when she disclosed that she witnessed her father mutilate her mother, the statement was considered to be a spontaneous utterance. In In re Emilye A. (1992) 9 Cal.App.4th 1695, a two and one-half-year-old child described to her mother exactly how her father had sexually molested her two days after the fact when the mother accidentally aggravated the injury; the little girl had referred to the injury to another caregiver earlier that day. Not only does neither of these decisions purport to establish a rule that statements remain spontaneous despite the passage of multiple days since the stress-inducing incident, but they are factually so very different from the present matter that they are of little value in our analysis. Kaempf is an adult, not a toddler; he had five days after the shooting to recover and reflect; and he was not implicating his father in heinous crimes, but attempting to exculpate himself from one. These declarations by young children under circumstances in which it was doubtful that they would have been able to or reflect on or falsify their descriptions of events are not comparable to the facts of this case.
Kaempf tries to avoid the obvious problem of the intervening multiple days he had to compose himself, reflect, and develop his account of events by arguing that the statement he made was spontaneous because it occurred during the stress and shock of the initial arrest and jailing process. Evidence Code section 1240 is not a hearsay exception for any statement made on any subject when a declarant is experiencing stress. The statute specifically requires that the “stress of excitement” in question be caused by an act or event that the declarant perceived: the statement has to describe an act, condition, or event perceived by the declarant, and it has to be made “spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evid. Code, § 1240, italics added; see also Showalter v. Western Pacific R.R. Co., supra, 16 Cal.2d at p. 468 [“utterance must relate to the circumstance of” the occurrence that caused the nervous excitement].) Subsequent stress at the time of arrest cannot render spontaneous statements about an entirely distinct event. The trial court did not abuse its discretion in concluding that the statements made to the police five days after the shooting did not constitute a spontaneous statement within the meaning of Evidence Code section 1240.
With respect to the state of mind exception in Evidence Code section 1250, we review the trial court’s ruling for an abuse of discretion. (People v. Ortiz (1995) 38 Cal.App.4th 377, 386.) Evidence Code section 1250 makes an exception to the hearsay rule for evidence of a statement of a declarant’s then-existing state of mind, including statements of intent, plan, motive, design, or mental feeling, when the evidence is offered to prove state of mind or to prove or explain a declarant’s acts or conduct. (Evid. Code, § 1250, subd. (a).) The exception has a significant caveat, however: it “does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.” (Evid. Code, § 1250, subd. (b).) As the Law Revision Comments to this section note, the section “does not permit a statement of memory or belief to be used to prove the fact remembered or believed. This limitation is necessary to preserve the hearsay rule. Any statement of a past event is, of course, a statement of the declarant’s then existing state of mind—his memory or belief—concerning the past event. If the evidence of that state of mind—the statement of memory—were admissible to show that the fact remembered or believed actually occurred, any statement narrating a past event would be, by a process of circuitous reasoning, admissible to prove that the event occurred.” (Cal. Law Revision Com. com., West’s Cal. Evid. Code (2007 ed.) foll. § 1250, p. 254.)
Here, the trial court did not abuse its discretion when it ruled that the statement did not go to state of mind. The statement did not particularly relate to Kaempf’s state of mind—it was his self-serving account of the events that transpired, which he acknowledges he wanted to put before the jury without testifying and therefore without being subjected to cross-examination. Evidence Code section 1250, subdivision (b) prohibits use of statements admitted as evidence of state of mind for the purpose of proving the facts remembered or believed. The trial court did not abuse its discretion in concluding that the statement was hearsay not subject to the state of mind exception.
III. Photograph Displayed to Jury
Over Kaempf’s objection under Evidence Code section 352, the trial court permitted the prosecution to show a photograph of the decedent with her child to witnesses in order to identify the decedent. The prosecutor explained that it was the only photograph he had that did not depict the decedent with injuries, and that using a photograph of “bloody people to identify is not appropriate.” The trial court observed that it had already been disclosed that the decedent had a daughter, that this was the “cleanest photograph,” this was “the only one,” and that “it probably is not a good idea to show the defendant’s father a bloody picture of the decedent, that would be even more inflammatory . . . .” The court considered whether there was a way to use the photograph so as to exclude the daughter, but concluded that there was no way to crop the photograph effectively. The trial court concluded that the probative value of the photograph outweighed any unfair or undue prejudice, and allowed the photograph to be marked for identification and used at trial. Subsequently, a substitute photograph was located and the photograph of the decedent and her daughter was not admitted into evidence.
Kaempf’s entire argument is that allowing the photograph of the decedent and her child into the trial “was meant to inflame the jury,” “tend[ed] to evoke an emotional bias against the defendant” because he killed the mother of a young child, and “tip[ped] the balance against the defendant in the minds of the jury.” He also questions whether the image could have been altered to remove the child.
We find no abuse of discretion here. (People v. Valdez (2004) 32 Cal.4th 73, 108.) First of all, the photograph was never admitted into evidence, and Kaempf has not established that the jury ever saw the image, so he has not demonstrated that this purported prejudice actually occurred. Second, as the trial court remarked, the jury already knew that the decedent had a daughter, so any glimpses of the photograph would not have told the jury anything new. Third, when the trial court made this decision, it was deciding between using a bloody photograph of the decedent for identification and using a photograph that included the already-disclosed daughter, as the court did not believe that the photograph could be easily altered. Permitting the use of the photograph under these conditions was not an abuse of discretion.
In the reply brief, Kaempf’s counsel states that he has interviewed trial counsel, “who insists that some members of the jury saw the picture when it was shown to the witness in open court.” Kaempf’s counsel offers to obtain a declaration from trial counsel to that effect. This factual assertion obviously goes beyond the record in this case, but even if we were to assume the statement to be true, it would not change the outcome of our analysis in light of the information already known to the jury and the photographs available at the time of the trial court’s ruling.
IV. Self-Defense Instruction
Kaempf argues that it was error to give the jury instruction designed to protect a defendant—CALJIC No. 5.54, which informs jurors that even an aggressor may be found to act in self-defense under certain conditions. According to Kaempf, this instruction was prejudicial because it suggested to the jury that he started the fight. The trial court gave this instruction in case the jury believed that Kaempf brought the gun into the hotel room but did not initially use it, and that they believed that he used the gun when a struggle broke out—in that event, the jury would be apprised of how to analyze the question of whether Kaempf was acting in self-defense. This was a reasonable jury instruction on the evidence presented: a jury could easily have disbelieved Kaempf’s testimony that Anderson was the aggressor, instead concluding that Kaempf initiated the conflict, but nonetheless believed that Kaempf either attempted to withdraw from the altercation or was confronted with a sudden and deadly counter assault. We see no error in this instruction.
Even if there was an error in giving the instruction, moreover, the error would be harmless in light of the trial court’s use of CALJIC No. 17.31. CALJIC No. 17.31 tells the jury that the purpose of the instructions is to inform the jury of the applicable law and that “[w]hether some instructions apply will depend upon what you find to be the facts.” Specifically, the instruction disclaims any judicial intent to express an opinion on the facts by virtue of giving instructions, and instructs the jury to “[d]isregard any instruction which applies to facts determined by you not to exist.” (CALJIC No. 17.31.) We must presume that the jury followed the instructions given. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)
V. Section 12022.53, Subdivision (d)
Kaempf contends that the sentence enhancement under section 12022.53, subdivision (d) is unconstitutional because it violates the ban on cruel and unusual punishment, the federal and state equal protection clauses, and section 654.
For a punishment to be cruel and unusual under the Eighth Amendment, it must be grossly disproportionate to the offender and offense. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) A punishment is cruel or unusual under the California Constitution (Cal. Const., art. I, § 17) if it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. [Footnote.]” (In re Lynch (1972) 8 Cal.3d 410, 424.) “The main technique of analysis under California law is to consider the nature both of the offense and of the offender. [Citation.] The nature of the offense is viewed both in the abstract and in the totality of circumstances surrounding its actual commission; the nature of the offender focuses on the particular person before the court, the inquiry being whether the punishment is grossly disproportionate to the defendant’s individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind.” (People v. Martinez (1999) 76 Cal.App.4th 489, 494 (Martinez).)
Kaempf argues that the statute is unconstitutional on its face because it arbitrarily imposes severe punishment for the use of firearms but not other deadly weapons. He further complains that the sentence for the firearm enhancement exceeds his sentence for the underlying second degree murder conviction. It is well-established that these objections do not establish cruel or unusual punishment. “[T]he Legislature determined in enacting section 12022.53 that the use of firearms in commission of the designated felonies is such a danger that, ‘substantially longer prison sentences must be imposed . . . in order to protect our citizens and to deter violent crime.’ The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives.” (Martinez, supra, 76 Cal.App.4th at pp. 497-498.) The same legislative purpose undermines Kaempf’s complaint that the statute is unconstitutional because the enhancement imposes the same punishment when imposed in connection with a first degree murder as when imposed in conjunction with a second degree murder. The enhancement is intended to punish offenses committed with a firearm more harshly than those committed by other means, and the fact that it does not vary by the underlying offense is consistent with that goal. We agree with the Martinez court that these distinctions do not render the statute cruel or unusual punishment.
Kaempf also argues that section 12022.53 is unconstitutional because “it does not take into account gradation of culpability or mitigating factors and is totally mandatory.” Again, these contentions have previously been considered and rejected. As the Martinez court noted, it is not accurate to allege that the statute does not recognize gradations of culpability. “Section 12022.53 as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes. The section is limited, in the first place, to convictions of certain very serious felonies. The statute then sets forth three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies: 10 years if the defendant merely used a firearm, 20 years if the defendant personally and intentionally discharged it, and 25 years to life if the defendant’s intentional discharge of the firearm proximately caused great bodily injury.” (Martinez, supra, 76 Cal.App.4th at p. 495.) The statute as a whole does recognize different gradations of culpability depending on how a firearm is employed. (Ibid.)
The mandatory nature of the enhancement is similarly insignificant. “[T]he fact that the 25-to-life term is mandatory merely reflects the Legislature’s zero-tolerance toward the use and discharge of firearms during the commission of a crime. It does not render the penalties excessive as a matter of law in every case. As the United States Supreme Court has stated, ‘There can be no serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so simply because it is “mandatory.”’ [Citation.]” (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214.)
Kaempf contends that the enhancement of 25 years to life is cruel and unusual as applied to him because he is 39 years of age, with no prior criminal record; he had a personal relationship with the decedent and argued with her before her death; the gun he used was never found; and he was convicted of second degree murder rather than first degree murder. This is the entirety of his argument about the nature of the offender; Kaempf does not even attempt to argue how these facts establish that it is cruel and unusual punishment to sentence him to 40 years to life in prison—25 of which are attributable to the section 12022.53, subdivision (d) enhancement. “Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.” (Martinez, supra, 76 Cal.App.4th at p. 496.) The evidence here supports the conclusion that Kaempf sought out his former girlfriend, argued with her, refused to leave her hotel room when she told him to leave, then shot her three times; that he rendered no aid, either immediately or when he returned to the motel room; and that he left her to die. His lack of a criminal record is not determinative, nor is his age. (Id. at p. 497.) Kaempf has not demonstrated that the imposition of the sentence enhancement under section 12022.53, subdivision (d) was grossly disproportionate to his individual culpability or amounted to cruel and unusual punishment.
Kaempf restates his argument as an equal protection claim, but that, too, has been rejected by California courts. He claims that it is a violation of equal protection to impose a substantially longer sentence on a person who uses a gun versus another deadly weapon to kill someone. A violation of equal protection occurs when the state adopts a classification that affects similarly situated groups or individuals in an unequal manner. (People v. Alvarez (2001) 88 Cal.App.4th 1110, 1114-1115.) As the Alvarez court observed, even when applying the most stringent test for the constitutionality of section 12022.53, “subdivision (d) of that section meets the strict scrutiny test in that there are compelling state interests for the provision and such interests could not be addressed by less restrictive means. The provision only applies to certain specified serious felonies committed by use of a firearm, and the length of the sentence is based on the gravity of the harm.” (Alvarez, at p. 1118.) “[T]he distinction between the firearm enhancement under section 12022.53, subdivision (d), and other less harsh enhancements punishing offenders for using weapons, is justified and does not violate defendant’s equal protection rights. Section 12022.53, subdivision (d) targets more serious offenses than those included in the other enhancement provisions.” (Alvarez, at pp. 1118-1119.)
Finally, section 654 does not preclude the imposition of a single firearms enhancement to an offense committed by the use of firearms unless firearms use is an element of the offense when considered in the abstract. (People v. Sanders (2003) 111 Cal.App.4th 1371, 1375.) Because firearms use is not an element of murder—although this specific case did involve the use of a firearm—the enhancement under section 12022.53, subdivision (d) does not violate section 654.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.