Opinion
D074037
08-21-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER BRANDON LEE, Defendant and Appellant.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FMB1400414) APPEAL from a judgment of the Superior Court of San Bernardino County, J. David Mazurek, Judge. Affirmed. Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
Christopher Brandon Lee admitted killing Erin C., with whom he was having an extramarital affair, but claimed that he killed her in a fit of rage after she admitted molesting his young daughter. A jury convicted him of first degree murder (Pen. Code, § 187, subd. (a)) and found true the allegation that he killed Erin by means of lying in wait (§ 190.2, subd. (a)(15)). The trial court sentenced him to life in prison without parole.
Undesignated statutory references are to the Penal Code.
Lee appeals, contending the trial court erred in instructing the jury with CALCRIM No. 522 (provocation), as written, in combination with CALCRIM No. 570 (voluntary manslaughter based on sudden quarrel or heat of passion) because CALCRIM No. 522 is ambiguous and misleading when read in the context of the definition of provocation given in CALCRIM No. 570. He claims that had the jury been more fully instructed it could have found that he did not premeditate and deliberate the killing and convicted him of second degree murder, rather than first degree murder. We disagree and affirm the judgment.
FACTUAL BACKGROUND
Lee and Erin's Extramarital Affair
Erin and her husband Jonathan C., a member of the United States Marine Corps, lived in a military housing apartment building in California. Lee, another Marine, his wife N., and their daughter lived next door to Erin and Jonathan. Conor M., another Marine, and his wife Aisling lived downstairs. Aisling and Erin sometimes watched Lee and N.'s daughter for them. No one ever raised a concern about Erin's interaction with the child. Lee was due to be discharged from the Marines in June or July 2014 and planned to move back to Alaska.
All date references are to 2014.
In February Aisling saw Lee and Erin kissing. Lee later showed Aisling a hidden "secret texting app" on his phone that he used to communicate with Erin. In April Jonathan learned about the affair from Aisling and N. Jonathan confronted Lee about the affair—he told Lee that he did not "wanna see him around Erin again." That same month, Erin learned that she was pregnant.
Lee's Comments About Murder and Body Disposal
Aisling testified that Lee discussed murder "[m]ore than I can count." She also remembered Lee talked about hiding a body in the desert. Lee mentioned killing people to Conor, who found the discussion "[e]xtremely odd" because it was not something they regularly discussed. When Conor asked Lee about the person he wanted to kill, Lee said, "Don't worry about it." A few weeks before Erin's disappearance, Lee told Conor that "if you put a body in [a fire with tires] it will disintegrate" and "they wouldn't be able to find anything."
Sometime in June Lee asked Andrew J., another Marine, about nearby chloride plants. They discussed whether and how a body might be destroyed by chemicals there and whether there were security cameras. Johnson did not find the conversation unusual because he and Lee had been desensitized by their experiences in Afghanistan. At one point, Lee mentioned the "benefits of hiding a body in a vertical position so ground-penetrating radar wouldn't be able to see the outline of the body."
Events Before Erin's Disappearance
Erin told her friend Jessica T. that she was in an intimate relationship with Lee. Erin also disclosed that she loved Lee more than she loved her husband. At some point after disclosing the affair, Erin told Jessica that she was pregnant and that she had told Lee that he was the baby's father. Erin told Jessica that she would divorce Jonathan and hoped that she would be able to stay with Lee.
On June 25 Erin told Jessica about Lee's surprise for her—a day trip to the desert. During their conversation, Jessica and Erin also discussed Erin's mother's visit, which was planned for the following week.
Erin's Disappearance
On June 28 Jonathan woke up as Erin was leaving the apartment. She had previously told him that she was going to visit Joshua Tree National Park to "scope out some trails" for when her mom came to visit. Erin also called Jessica and said she was about to leave the house for her "special date" with Lee. Erin explained that she would meet Lee and that they would go to the desert together. When Erin had not returned home that afternoon Jonathan called and texted her, but received no response. Jonathan called the police the following morning.
The Investigation into Erin's Disappearance
The next day, police located Erin's car in the desert, 20 to 30 miles east of the military base. There were shoe prints leading from the driver's side of the car toward a tire impression. While the police searched for Erin, Jonathan examined Erin's laptop and learned that she was looking at places to live in Alaska. Lee was from Alaska.
When police contacted Lee at his apartment he denied knowing Erin and said he had never spoken to her beyond a quick greeting. Police later questioned Lee about Erin's disappearance. Lee denied ever having sexual intercourse with Erin. He told the investigators that on June 28 he went coyote hunting near Gold Crown Road. He denied seeing Erin that day.
Discovery of Erin's Body
A professional cave explorer worked with a rescue team to search for Erin. The rescue team found Erin's badly decomposed body in a mineshaft. From the shaft the police retrieved her body, two military-type water jugs, a propane tank attached to a length of rope or cord typically used for rock climbing, a tire, a homemade torch, and a bottle of Sprite.
Around Erin's neck was a garrote, a strangulation device made out of two rebar handles and paracord. Erin had several skull fractures. One fracture occurred before or at the time death. The others were inflicted postmortem. Erin also had fractures to her left collarbone and a left rib that had been inflicted at or around the time of death. Lee's DNA was found on the shirt used for the torch. Lee and Erin's DNA were found on the Sprite bottle.
Lee's Arrest and Trial Testimony
Lee was arrested in Alaska. Inside his car was a garrote, two spools of paracord, and blue climbing rope. The paracord matched the cord found around Erin's neck.
Lee admitted having a sexual affair with Erin. He wanted to "salvage" his marriage, but did not want to give up the relationship he had with Erin. Erin would sometimes babysit for Lee and N. On one occasion before N. found out about Lee's affair with Erin, N. pointed out to Lee that their daughter's vagina appeared swollen and said she thought that Erin might be molesting their daughter.
Lee testified that on June 28 he and Erin were supposed to go on a hunting trip to talk about their situation. He invited other people, but none could join them. He also planned to blow up a mineshaft using tires to heat up a propane tank to the point it would explode. He had two five-gallon jugs filled with a mixture of gasoline and diesel fuel, a propane tank, and a torch he had made with a piece of wood and a T-shirt. Lee threw the tires into the mine, poured in the fuel mixture, tossed the containers down and lowered the propane tank down the mine as far as he could and let it drop. He then realized that he had not doused his torch with gasoline, and that he had poured all the gas down the mine, so he threw the torch down and gave up on detonating the mineshaft.
At some point, Lee asked Erin if she had molested his daughter. Lee testified that when Erin responded "yes" he felt like someone had "driven a red hot knife through [his] heart." He picked up the garrote that had been tossed in the back of the Jeep with everything else. He "felt so much hate, so much rage. And I grabbed it and I stood up, and she had turned around at some point. . . . I couldn't think straight. I just felt so much hatred. And I came up behind her, and I put it around her neck and [my] training took over then. I turned around, and I started pulling and I was pulling and I couldn't pull tight enough because I was just so angry." When he realized that Erin was dead he used the garrote to drag her body to the edge of the mineshaft and pushed her inside.
Lee testified that when he returned from his third deployment he was "in a really bad place," drinking a lot and played "Russian Roulette" with his revolver because he wanted to kill himself. Lee stated that he played Russian roulette "a lot" and did so before he killed Erin. He claimed that when he spoke to his friends about body disposal that he was not planning to dispose of a body.
DISCUSSION
A. Additional Background
The trial court instructed the jury that murder and manslaughter are types of homicide and that manslaughter is a lesser included offense to murder. (CALCRIM No. 500.). CALCRIM No. 520 told jurors that Lee was charged with murder and specified that the People were required to prove: (1) Lee committed an act that caused the death of another person; and (2) when Lee acted, he had a state of mind called malice aforethought. The instruction further provided: "If you decide that the defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in CALCRIM number 521."
CALCRIM No. 521 informed jurors: "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused death. [¶] . . . [¶] The defendant is guilty of first degree murder if the People have proved that the defendant murdered while lying in wait or immediately thereafter. The defendant murdered by lying in wait if: [¶] (1.) He concealed his purpose from the person killed; [¶] 2. He waited and watched for an opportunity to act; [¶] AND [¶] 3. Then, from a position of advantage, he intended to and did make a surprise attack on the person killed." The jury was also instructed with CALCRIM No. 522 that "[p]rovocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter." CALCRIM No. 570 informed jurors that: "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: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can 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. 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 has passed between the provocation and the killing for an ordinary person of average disposition to 'cool off' and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary 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."
B. Legal Principles
In criminal cases, the trial court has a sua sponte duty to instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) We independently review the correctness and adequacy of the trial court's instructions, examining whether the court " 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In reviewing a claim that the court's instructions are misleading, we inquire whether there is a reasonable likelihood the jury understood the challenged instructions in the manner defendant argues. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.) "We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions." (Ibid.) Although a trial court has a duty to adequately instruct on the law, "it has no duty to give clarifying or amplifying instructions absent a request." (Id. at p. 1331.) Pinpoint instructions—instructions that relate particular facts to a legal issue in the case—are required to be given on request if there is substantial evidence to support the theory. (People v. Nelson (2016) 1 Cal.5th 513, 542.)
C. Analysis
Lee contends that the pattern instructions provided to the jury defined provocation in the context of reducing murder to voluntary manslaughter and that the test for determining whether sufficient provocation existed in this context was an objective one. (CALCRIM No. 570.) Lee argues that the trial court never instructed the jury that a subjective test applies to provocation as a basis to reduce malice murder from first to second degree. Thus, he claims that the pattern instructions are confusing, misleading, and incomplete. Lee argues that giving these inaccurate and misleading instructions affected his substantial rights so that we should reach the merits of his claim even though defense counsel did not request clarification of the instructions. Lee acknowledges that our colleagues in People v. Jones (2014) 223 Cal.App.4th 995 (Jones) rejected an identical challenge. He concedes that the court's reasoning in Jones "is correct, [but claims] it . . . unrealistically gauges the ability of a lay jury to formulate the court's reasoning as its own."
Lee correctly argues that a subjective test applies to provocation as a basis to reduce malice murder from first degree to second degree. This test "inquires whether the defendant in fact committed the act because he was provoked. The rationale is that provocation may negate the elements of premeditation, deliberateness and willfulness that are required for that degree of the crime." (Jones, supra, 223 Cal.App.4th at p. 1000.) "[M]ore is required to reduce malice murder to voluntary manslaughter. For that, an objective test also applies: the provocation must be so great that, in the words of CALCRIM No. 570, it 'would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.' " (Id. at pp. 1000-1001.)
In Jones, the jury received the same instructions at issue here—CALCRIM Nos. 520, 521, 522, and 570. (Jones, supra, 223 Cal.App.4th at p. 999.) The defendant "argue[d] that these pattern instructions were likely to have misled the jury into concluding that the objective test applies both for reduction of first to second degree murder as well as from murder to manslaughter." (Id. at p. 1001.) The Jones court rejected this argument because these instructions "accurately inform[ed] the jury what is required for first degree murder, and that if the defendant's action was in fact the result of provocation, that level of crime was not committed. CALCRIM Nos. 521 and 522, taken together, informed jurors that 'provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.' [Citation.] As the jury also was instructed, a reduction of murder to voluntary manslaughter requires more." (Id. at p. 1001.) The Jones court further concluded that defendant was arguing for a pinpoint instruction that informed the jury that the objective test did not apply to reduce the degree of murder, a claim defendant forfeited by failing to raise it in the trial court. (Ibid.)
We agree with the Jones court that CALCRIM Nos. 521, 522, and 570 correctly set forth the law. Accordingly, the trial court had no sua sponte duty to instruct further. Lee's argument that the jury should have been instructed on how a subjective standard for provocation could negate the elements of premeditation and deliberation amounts to a request for a pinpoint instruction because it relates particular facts (evidence of provocation) to an element of the charged offense (premeditation and deliberation). (People v. Nelson, supra, 1 Cal.5th at pp. 541-542.) "Once the trial court adequately instructs the jury on the law, it has no duty to give clarifying or amplifying instructions absent a request." (People v. Hernandez, supra, 183 Cal.App.4th at p. 1331.) Here, defense counsel did not object to the instructions, did not argue that the instructions were misleading or incomplete, nor did he request a pinpoint instruction. Thus, Lee forfeited his challenge to the instructions. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 474-475 [because the jury was correctly instructed, there was no error affecting defendant's substantial rights].)
Assuming arguendo that the pattern instructions were erroneous as Lee claims, he suffered no prejudice under either the harmless beyond a reasonable doubt standard (Chapman v. California (1967) 386 U.S. 18, 24) or the reasonable probability of different verdict standard (People v. Watson (1956) 46 Cal.2d 818, 836-837).
Lee was charged with murder. CALCRIM No. 521 presented the jury with two theories of first degree murder: premeditation and deliberation, and lying in wait. The jury also decided a lying-in-wait special circumstance allegation. The elements of first degree murder by lying in wait and the elements of a lying-in-wait special circumstance allegation overlap. However, the lying-in-wait special circumstance allegation also required a finding of a specific intent to kill, whereas first degree murder by lying in wait does not. (People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 309.) The prosecutor pointed out this difference to the jury and asked that it find Lee guilty of first degree murder and find true the lying-in-wait special circumstance. Defense counsel did not argue the degrees of murder or assert that Lee had committed second degree murder; rather, he claimed that the evidence did not support a first degree murder conviction or the lying-in-wait special circumstance and that Lee was guilty of voluntary manslaughter.
" 'The lying-in-wait special circumstance requires "an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage . . . ." ' " (People v. Moon (2005) 37 Cal.4th 1, 22.)
The jury rejected the defense argument. It returned a guilty verdict of first degree murder and found true the lying-in-wait special circumstance, including the additional intent-to-kill element required for that allegation. Thus, the jury necessarily would have also found Lee guilty of murder by lying in wait, which is first degree murder. (§ 189.) " '[L]ying in wait "[is] the functional equivalent of proof of premeditation, deliberation, and intent to kill." ' " (People v. Wright (2015) 242 Cal.App.4th 1461, 1496.) Significantly, the instructions on provocation are irrelevant to first degree murder by lying in wait. Accordingly, any assumed errors in the provocation instructions pertaining to second degree murder did not impact the jury's first degree murder verdict. (See People v. Cruz (2008) 44 Cal.4th 636, 665 [a lying-in-wait special circumstance finding renders the failure to instruct on provocation/heat of passion manslaughter harmless error]; Wright, at pp. 1496-1497 [error in failing to give instruction on provocation as basis for reduction of murder from first to second degree was harmless based on true finding for lying-in-wait special circumstance].)
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.