Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB008276, William Jefferson Powell IV, Judge.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendant Ernest Junior Maea appeals from his conviction of second degree murder (Pen. Code, 187, subd. (a); count 1) and attempted murder (§§ 664, 187, subd. (a); count 2) with associated enhancements. Defendant contends: (1) the trial court erred in failing to instruct the jury sua sponte on voluntary manslaughter based on theories of sudden quarrel or heat of passion and imperfect self-defense, and (2) the trial court abused its discretion in admitting the death certificate into evidence because it contained information that was more prejudicial than probative. We find no prejudicial error, and we affirm.
All further statutory references are to the Penal Code unless otherwise noted.
II. FACTS AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
On May 17, 2006, Kevin McClennon visited the home of Faasauvale Sele in Twentynine Palms; Kevin had been drinking. At one point, while Sele was talking on the telephone, Kevin passed him a note offering to be the godfather to Sele’s child. The note upset Sele, and he and Kevin got into a fistfight. After the fight, Kevin, who appeared to have a broken nose, got into his van as if to leave, and he and Sele were “talking trash” to each other. Sele challenged Kevin to fight, but Kevin refused to get out of the van. Kevin drove the van more than once toward the house as if he was going to hit it. Sele threw a large planter at the van; the planter broke from the impact. Kevin finally drove away.
For clarity and convenience, and not intending any disrespect, we will use first names to refer to persons who share last names with other witnesses.
Later that day, Kevin telephoned defendant at defendant’s work. When defendant returned home, he told his girlfriend, Lashara McClennon, who was also Kevin’s daughter, about the fight. Defendant said he was going to talk to Sele.
Sometime after 11:00 p.m. on May 17, 2006, Sele agreed to go to Banning with Majadi Morgan to get some methamphetamine. Just as they were leaving, defendant knocked on the door. Morgan balled up his fist as if to take a swing, but he did not actually swing his fist at defendant. Sele said it was “cool, ” and he and Morgan went outside with defendant. Morgan sat on the hood of his car, while defendant and Sele talked a few feet away. Defendant wanted to know what the fight with Kevin had been about. Morgan testified that the men laughed and joked about the situation and how stupid it was. Sele apologized for what had happened.
Morgan got into his car to listen to some music, while defendant and Sele continued to talk outside. Morgan thought he heard defendant say, “All right, homie. I’ll get at you tomorrow. I’m going to talk to him about what happened today.” Sele replied, “All right.” Sele suddenly yelled “no” loudly. Morgan saw defendant point a gun at Sele and shoot him twice. Defendant then turned the gun on Morgan and shot him three times through the back window of the car. Morgan testified that nothing about the circumstances leading to the shooting had been aggressive or negative, and he had seen no struggle between Sele and defendant. Neither Morgan nor Sele had a gun that night, and Morgan had never seen Sele with a gun.
Sele died from a bullet wound to the left upper chest; he had also been shot in the left shoulder. The pathologist testified that, because there was no soot or stippling present, the shots had been fired from at least one to two feet away. Morgan was shot three times but survived. A deputy testified that based on trajectory analysis of the shots fired into Morgan’s car, the shooter was located near the right rear quarter panel of the vehicle when the shots were fired. Before he died, Sele told his mother’s boyfriend that defendant had been the shooter.
Kevin and his wife arrived at Sele’s house while the police and paramedics were there. Kevin began yelling at Morgan and told him to “shut up, ” or he knew what he was going to get. Morgan took that to be a threat. Because of the threat and because he was on parole, Morgan was not entirely truthful with the police at first. However, after he was released from the hospital, he identified defendant as the shooter.
In a search of defendant’s apartment, police found an empty gun case inside a cooler on the kitchen floor. The police obtained a serial number from the case and determined that the gun with that serial number had been reported stolen in 2006. The registered owner of the gun lived about two blocks from Sele’s house, and the owner suspected Sele of the theft. No gun was recovered.
Gunshot residue (GSR) tests were done on defendant, Kevin, Sele, and Morgan. The tests were negative for Kevin and Morgan. Two GSR particles were found on Sele’s left hand and none on his right hand. One GSR particle was found on defendant’s left hand and none on the right hand. The deputy concluded the tests showed that Sele and defendant might have discharged a firearm, handled a firearm, been in close proximity to a discharging firearm, or contacted a surface containing GSR.
B. Defense Evidence
Kevin testified that Sele had become upset and angry when Kevin passed him a note offering to be the godfather to Sele’s child, and Sele punched Kevin in the face. Kevin got in his van while he and Sele exchanged “a few cusses and whatnot.” Kevin pretended to try to drive his van into Sele’s house. Sele came out with a hammer and threw it at Kevin’s van, but missed. As Kevin was leaving, Sele called, “I’ll shoot up your fucking houses.”
Kevin called defendant at work at about 8:00 p.m. and asked what time defendant was getting off. Kevin said he had just got into a fight with Sele, and defendant “kind of laughed, said, ‘Are you all right?’” Kevin told defendant Sele had “said he was going to shoot up the fucking houses and shit, ” and defendant said he would be there. Kevin said defendant appeared to take the matter as a joke.
After defendant arrived at home, Kevin saw him just as he was about to leave again; defendant said he was going to have a talk with Sele. Kevin told defendant he did not need to talk to Sele, but defendant “sort of grinned a little bit more and then he just left.” Kevin did not see defendant with a gun. Kevin considered Sele a friend, although they had had lots of arguments and “push and shove matches.”
Defendant testified he knew Sele through Kevin. Defendant denied he owned a gun. Sele had once tried to sell him a sawed-off.22-caliber rifle. A few weeks before the shooting, Sele had brought a cooler to defendant’s apartment for defendant to soak meat in for a barbecue. After the barbecue, defendant put the cooler in his kitchen, but he did not look inside it. Sele never asked defendant to return the cooler.
On May 17, 2006, defendant worked as a chef at a barbecue restaurant in Rancho Mirage; he usually got off work at 2:00 a.m. That day, his boss told him he had an emergency telephone call, which was the only type of call he could take at work. The call was from Kevin, who told defendant he (Kevin) had been “jumped” by Sele and had a “busted nose.” Kevin also said Sele had threatened to shoot up their houses. Defendant told his boss he had to go home because of a family emergency, and he left work at 9:00 or 9:30 p.m. and drove home, arriving at about 10:45 p.m.
Shortly after he got home, Kevin arrived with his nose “all busted up” and with blood on his shirt. Kevin, who appeared to be drunk, repeated his earlier story. Defendant testified, “I told Kevin since I don’t have a problem with [Sele] and we are cool, that I’ll go over and talk to him and see if he’s got problems, or if he is really going to shoot up the houses, or if Kevin just heard that because he is drunk. Just to make sure that there is no problem.”
Defendant testified that he did not have a gun with him when he drove to Sele’s house. When defendant arrived at the house at about 11:00 p.m., no lights were on. He backed into the driveway to park because his reverse gear sometimes got stuck. He first knocked on the carport door, but no one answered. He then knocked on the front door. Finally, he heard someone opening the carport door. Morgan opened the door and started to swing at him. Defendant stepped to the side, and Morgan stumbled out the door. Sele appeared at the door and told Morgan, “it’s cool. He’s the homie.” Defendant told Sele they needed to talk. Morgan went to his car and got in; defendant and Sele walked to the driver’s side of defendant’s car, where they started talking. Sele told defendant there had been a misunderstanding with Kevin, but that “everything [was] cool, ” and there were not going to be any more problems.
Defendant testified that someone had told him that Sele had “threatened to come shoot up our houses including my nieces and nephews’ house, my house, Kevin’s house, ” but Sele denied that was going to happen. Sele asked defendant if they were cool, and defendant said “no, we’re not, ” and chopped Sele in the neck “enough to make him stutter.” Sele stepped back, choking, and could not breathe. Defendant was getting ready to swing again when Sele pulled a pistol from under his shirt. Sele yelled, “hey” like he was trying to get Morgan’s attention, and Morgan started coming out of the car.
Defendant testified that he and Sele wrestled, and the gun went off. Sele “started to go down a little bit” and stumbled forward toward defendant. Defendant pushed him, and the gun went off again. He saw Morgan out of the car, and he grabbed the gun out of Sele’s hand and pointed it toward Morgan. Morgan “bolt[ed] off”; defendant shot into Morgan’s car, and Morgan got into the car. Defendant did not know if Morgan was holding anything in his hand. Defendant knew at least one bullet had hit Sele, but he did not know if he had hit Morgan. Defendant got into his car and drove away. He left the car in front of a school and walked home through the desert.
C. Verdicts and Sentence
The jury found defendant guilty of second degree murder in count 1 (§ 187, subd. (a)) and of attempted murder without premeditation or deliberation in count 2 (§§ 664, 187, subd. (a).) The jury also found firearm use allegations true as to each count. (§§ 12022.53, subd. (b), (d).)
The trial court sentenced defendant to a total term of 59 years to life.
III. DISCUSSION
A. Failure to Instruct on Voluntary Manslaughter
Defendant contends the trial court erred in failing to instruct the jury sua sponte on voluntary manslaughter. Specifically, he argues that the evidence presented at trial would have supported instructions on the theories of sudden quarrel or heat of passion and imperfect self-defense.
1. Additional Facts
The trial court instructed the jury on the general principles of homicide (CALCRIM No. 500), justifiable homicide based on self-defense or defense of another (CALCRIM No. 505), the elements of murder with malice aforethought (CALCRIM No. 520), and the degrees of murder (CALCRIM No. 521) Neither party requested instructions on voluntary manslaughter.
2. Standard of Review
We apply a de novo standard of review to the trial court’s failure to instruct on an assertedly lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.)
3. Analysis
The trial court has a duty to instruct the jury sua sponte on a lesser included offense when there is substantial evidence in the record from which a reasonable jury could find that the lesser, but not the greater, offense was committed. (People v. Moye (2009) 47 Cal.4th 537, 548-549.) Voluntary manslaughter is a lesser included offense of murder. (People v. Lasko (2000) 23 Cal.4th 101, 111.) A defendant who intentionally commits an unlawful killing without malice aforethought is guilty of the lesser included offense of voluntary manslaughter if he acts in a sudden quarrel or heat of passion or in unreasonable self-defense. (Id. at p. 108.)
a. Heat of passion theory
To trigger the trial court’s duty to instruct on voluntary manslaughter under a heat of passion theory, there must be substantial evidence of both provocation and heat of passion. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) The ‘“heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances....’” (Ibid.)
Voluntary manslaughter committed under a heat of passion has both an objective and a subjective component. (People v. Moye, supra, 47 Cal.4th at p. 549.) The objective component requires that the heat of passion arises from sufficient provocation, that is, the provocation must be such as to cause an ordinary person of average disposition to act rashly or without due deliberation or reflection. (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.) The subjective component requires that the defendant was “under ‘the actual influence of a strong passion’ induced by [adequate] provocation.” (People v. Moye, supra, at p. 550.)
In People v. Moye, the defendant and the victim had fought the night before, but the defendant testified he had calmed down at the time of the fatal confrontation and had been looking for the victim to patch things up. (People v. Moye, supra, 47 Cal.4th at p. 554.) On appeal, the court held the trial court had not erred in refusing to instruct on a heat of passion theory of manslaughter because evidence that the defendant was under “‘the actual influence of a strong passion’” was lacking. (Id. at p. 553.) Here, defendant testified that after he arrived at home, Kevin came to the house with a “busted up” nose and bloody shirt and repeated the earlier story about a fight with Sele. Defendant testified, “I told Kevin since I don’t have a problem with [Sele] and we are cool, that I’ll go over and talk to him and see if he’s got problems, or if he is really going to shoot up the houses, or if Kevin just heard that because he is drunk. Just to make sure that there is no problem.” Kevin testified that when he told defendant about his fight with Sele, defendant’s response was to laugh and treat it like a joke. Thus, even if we accept, for purposes of argument, that Kevin’s story about Sele’s threat was sufficient provocation for defendant’s subsequent actions, defendant’s own testimony showed that he was not actually under the influence of a strong passion when he went to Sele’s house.
b. Imperfect self-defense
“An honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.” (People v. Flannel (1979) 25 Cal.3d 668, 674, italics omitted, superseded by statute on another ground as stated in In re Christian S. (1994) 7 Cal.4th 768, 777.) The imperfect self-defense theory applies “only when the defendant has an actual belief in the need for self-defense and only when the defendant fears immediate harm that ‘“‘must be instantly dealt with.’”’ [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 883.) The trial court must instruct on that theory “‘whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.’ [Citation.]” (Ibid.)
Defendant contends the evidence was sufficient to support an instruction on imperfect self-defense under two theories. First, he argues the jury could conclude that Sele’s threat to shoot up Kevin’s houses led defendant to believe Sele “was creating an imminent danger of death or great bodily injury.” Defendant further argues that, if the jury believed the evidence that he had taken a gun to Sele’s house, the jury could have further found that defendant unreasonably believed the use of deadly force was necessary to defend against Sele’s threat. We disagree with defendant’s argument. Nothing about the purported threat conveyed any immediate danger of bodily harm. (People v. Rogers, supra, 39 Cal.4th at p. 883.)
Defendant’s second theory of imperfect self-defense is based on his testimony that he hit Sele in the neck, and Sele then produced a gun; defendant claimed he was shocked to see the gun and feared Sele was going to shoot him. They struggled over the gun, and Sele shot himself in the struggle. Defendant argues the jury could have concluded he unreasonably believed he needed to take the gun and shoot Sele to defend himself. “However, a defendant who—through his own wrongful conduct, such as initiating a physical assault or committing a felony—has created circumstances under which his adversary’s attack or pursuit is legally justified may not invoke unreasonable self-defense. [Citations.]” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 834 (Szadziewicz).)
In People v. Seaton (2001) 26 Cal.4th 598, the Supreme Court found no error in the trial court’s denial of the defendant’s request for an instruction on imperfect self-defense. The defendant testified that he struck the victim with his fist, and the victim then wielded a hammer. The defendant asserted he then seized the hammer and attacked the victim with it in an effort to protect himself. The Supreme Court held, however, that because the “defendant’s testimony showed him to be the initial aggressor and the victim’s response legally justified, defendant could not rely on unreasonable self-defense as a ground for voluntary manslaughter. [Citation.]” (Id. at p. 664.)
Imperfect self-defense may be established if the victim used unlawful force against the defendant “even when the defendant set in motion the chain of events that led the victim to attack the defendant.” (People v. Genovese (2008) 168 Cal.App.4th 817, 830.) (See, e.g., People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179-1180 [the jury should have been instructed on imperfect self-defense when the victim began to choke the defendant, and the defendant produced a gun and shot the victim]; People v. Randle (2005) 35 Cal.4th 987, 1002-1003 [the jury should have been instructed on imperfect self-defense when the victim chased the defendant and his accomplice who had been burglarizing a car and began to beat the accomplice, and the defendant pulled out a gun and shot the victim], overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.)
As noted above, however, imperfect self-defense does not apply when the defendant created circumstances under which the victim was legally justified in defending himself against the defendant, such as when the defendant was the initial aggressor. (People v. Seaton, supra, 26 Cal.4th at p. 664.) Here, defendant “socked” or “chopped” Sele in the neck “enough to make him stutter.” Sele was “choking” and “c[ouldn’t] breathe, ” and defendant was preparing to swing again when Sele pulled out the gun. We conclude that the evidence in the record did not support an instruction on voluntary manslaughter.
Defendant argues that, because the trial court instructed the jury on self-defense, it should also have instructed the jury on imperfect self-defense. As defendant points out, the Bench Notes for CALCRIM No. 571 state, “Most courts hold that an instruction on imperfect self-defense is required in every case in which a court instructs on perfect self-defense. If there is substantial evidence of a defendant’s belief in the need for self-defense, there will always be substantial evidence to support an imperfect self-defense instruction because the reasonableness of that belief will always be at issue. [Citations.]” Here, the trial court instructed the jury on perfect self-defense.
In Szadziewicz, as in this case, the trial court instructed the jury on self-defense but not on imperfect self-defense. (Szadziewicz, supra, 161 Cal.App.4th at p. 834.) On appeal, the court stated that the “windfall” to the defendant of the instruction on self-defense “did not entitle him to an additional instruction on imperfect self-defense” when the evidence arguably did not support either theory. We agree that defendant was not entitled to an additional instruction on imperfect self-defense.
B. Admission of Death Certificate
Defendant contends the trial court abused its discretion in admitting the death certificate into evidence because it contained information that was more prejudicial than probative.
1. Additional Background
Dr. Steven Trenkle, the forensic pathologist who performed the autopsy on Sele, testified that the cause of death was a gunshot wound to the chest. Dr. Trenkle identified the certified copy of Sele’s death certificate and testified it was a memorialization of the results of the autopsy. The portion of the death certificate that called for a “Descri[ption of] how injury occurred (Events which resulted in injury)” stated “Gunshot wound to chest by Assailant(s).” (Capitalization omitted.)
Defendant’s counsel objected to the admission of the death certificate into evidence on the grounds that defendant was not disputing Sele had died, and the death certificate was unduly prejudicial because it stated the conclusion that Sele had been shot by “assailants.” The trial court overruled the objection, explaining, “I don’t see that the indication of—cause of death with the descriptor regarding multiple assailant or assailants I think it says, is unduly prejudicial nor do I think it takes away the role of the jury by suggesting to them that this was an assault or characterizes the defendant as an assailant. That is merely the opinion of one witness who was here who testified who was subject to cross examination on that issue. It is a certified government document. [¶] Should the jury even—assuming for the sake of argument—read every single word and letter on that document, I still don’t think it rises to the level of being unduly prejudicial under [section] 352.” The trial court overruled the defense objection, and the death certificate was admitted into evidence.
2. Analysis
Even if we assume for purposes of argument that the admission of the document was error, in that the cause of death was not disputed, the error was harmless. A judgment shall not be set aside by reason of error in the admission of evidence unless this court concludes the error resulted in a miscarriage of justice. (Evid. Code, § 353, subd. (b).) It was undisputed that Sele was shot during an altercation with defendant, although the parties disagreed as to the specific circumstances of that altercation. The jury heard the testimony of 23 witnesses over five days of trial, and more than 60 exhibits were admitted into evidence. It is simply inconceivable that a single word in a single exhibit led to a miscarriage of justice in defendant’s trial.
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., MCKINSTER, J.