Opinion
E049513 Super.Ct.No. FSB059862
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANK MARTINEZ, Defendant and Appellant.
Dacia A. Burz, 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, James D. Dutton and Michael T. Murphy, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed.
Dacia A. Burz, 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, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
In this direct appeal from a jury conviction, defendant and appellant Frank Martinez contends a reversal and new trial are warranted because the trial court prejudicially failed to instruct the jury on voluntary manslaughter as a lesser included offense to murder. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At trial, the only eyewitness to the murder was defendant's former girlfriend, Patricia Perez. The murder victim was Anthony Cunningham (the victim), who was a friend to Perez and her family. He came to her home several times a week. In a recorded interview with police on the day of the murder, which was played for the jury at trial, Perez told an investigating officer she lived with her five sons, and defendant was the father of the two youngest boys. She had broken up with defendant about four months earlier, but he continued to come to her home several times a week to see the children. He had also been harassing her and trying to re-establish their prior relationship. Defendant was jealous of the victim and thought he was Perez's new boyfriend. Perez said she was not romantically involved with the victim. The victim had a girlfriend. Defendant also disliked the victim because he was Black.
On January 7, 2007, Perez went to the store. When she returned, the victim's car was parked in her driveway. The victim, his baby daughter, and some of her sons were in the front yard. They went inside, and the victim and one of her sons went into the master bedroom to play a video game. She told them to get out of her room because she was afraid defendant would come over and cause trouble. Her son left, but the victim remained in her room with his baby daughter.
Perez was standing by the bedroom door, and the victim was about to leave. Defendant suddenly ran into the bedroom with a baseball bat and began striking the victim on the head with the bat. The victim did nothing to provoke the attack. Perez grabbed the victim's baby and was telling defendant to stop and to get out of her house. The victim fell to the floor but defendant continued to strike him with the bat. During the attack, defendant said, "I told you not to be at my house." After the attack, defendant took the victim's cell phone and was looking for the victim's car keys. He asked Perez, "Where are the keys at?"
Perez had her son Robert call the police. Her son Anthony saw defendant riding away from the home on a mountain bike taken from their garage. Defendant was carrying a stick or bat. When he went outside to make sure the ambulance knew where to stop, he noticed a window on the victim's car had been broken.
A medical examiner testified the victim had been hit several times in the head with considerable force and had a skull fracture so severe that brain tissue came out through the laceration. He died from blunt head trauma.
Defendant was later arrested in Oregon.
Defendant was charged with the following serious and violent felonies (Pen. Code, §§ 1192.7, subd. (c), 667.5, subd. (c)): count 1, first degree murder (§ 187, subd. (a)); count 2, first degree residential robbery (§ 211); and count 3, first degree residential burglary (§ 459).
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found defendant guilty of all three charges and concluded the murder was in the first degree. In a bifurcated proceeding, the trial court found the prior conviction allegations true. The trial court sentenced defendant to an indeterminate term of 50 years to life on count 1. The total sentence for the remaining counts was a determinate terms of 20 years.
DISCUSSION
Despite earlier statements to the contrary, Perez testified at trial on direct examination she did not recognize the murderer because he was wearing a hooded sweatshirt. During cross-examination, Perez testified she was under the influence of methamphetamine when the murder occurred. She said she used methamphetamine throughout the day and might not have slept the night before. Although she claimed she has been clean for two years, she said the only thing that mattered at the time was getting the next high. When the murderer entered the master bedroom, Perez testified she and the victim were taking turns ingesting methamphetamine through a pipe. One would hold the victim's baby daughter, while the other would use the pipe. She hid the pipe so police would not find it when they arrived. Perez's testimony in this regard is contrary to the earlier account of the murder she made to police on the date of the incident, which, as noted ante, was recorded and played for the jury.
Relying on Perez's testimony during cross-examination, defense counsel requested a voluntary manslaughter instruction based on "provocation by the victim," stating the victim was "[s]itting there doing methamphetamine in the house while [defendant's] babies are there." In response to the argument, the trial court said, "I don't really see that as provocation in the objective prong of that analysis. [¶] Furthermore, the problem with that theory is there is no evidence[.] [¶] . . . [¶] . . . that he knew there was methamphetamine going on." "[T]he instruction requires the jury to conclude that the defendant acted under the direct and immediate influence of provocation. There is no evidence of that." The trial court denied the request for the instruction.
Citing evidence of his prior antagonistic relationship with the victim, defendant argues the trial court was wrong to deny his request for an instruction on heat of passion. Defendant believes the jury could have inferred he did not have a preconceived plan to murder the victim with the baseball bat but merely went to the Perez residence to confront the victim and force him out of the home. According to defendant, the jury could have further inferred from Perez's testimony that the victim was holding the methamphetamine pipe when defendant entered the room. He would also have known they were using the drug, because the room would have contained smoke and the smell of the methamphetamine. Thus, the jury could have concluded he was provoked to act rashly and in a rage by the "unexpected and alarming scene of [the victim] and Perez getting high together on methamphetamine in reckless disregard of the risk and danger to the safety" of his two young children who were in the home.
Trial courts have a sua sponte duty to instruct on the general principles of law that are closely and openly connected with the facts of the case, and this duty includes " 'giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present. [Citation.]' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)However, trial courts are not required to instruct on lesser included offenses where the supporting evidence is minimal and insubstantial. (People v. Greenberger (1997) 58 Cal.App.4th 298, 379.)
Defendant was charged with murder, which is "the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "[M]alice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. [¶] When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought." (§ 188.)
Voluntary manslaughter is "the unlawful killing of a human being without malice" and "upon a sudden quarrel or heat of passion." (§ 192, subd. (a).) Because a "sudden quarrel" or "heat of passion" reduces an intentional, unlawful killing from murder to voluntary manslaughter "by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter . . . is considered a lesser necessarily included offense of intentional murder [citation]." (Breverman, supra, 19 Cal.4th at p. 154.) "Sudden quarrel" and "heat of passion" are " 'theories of partial exculpation' " and are not elements of voluntary manslaughter "that must be affirmatively proven." (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) To the contrary, the prosecution in some cases "may have to prove the absence of provocation . . . in order to establish the malice element of murder." (People v. Rios (2000) 23 Cal.4th 450, 454.) "[U]nless the People's own evidence suggests that the killing may have been provoked . . . , it is the defendant's obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt of murder. (§ 189.5, subd. (a); [citations]." (Id. at pp. 461-462.)
"A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.] [¶] ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' '' [Citations.] '[T]he factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]' " (Moye, supra, 47 Cal.4th at pp. 549-550.)
"To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. [Citation.] 'Heat of passion arises when "at the time of the killing, the reason of the accused was 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 such passion rather than from judgment." [Citations.]' [Citation.] " 'However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter. . . ." [Citation.]' " (Moye, supra, 47 Cal.4th at p. 550.)
Based on our review of the testimony presented at trial, it is our view the evidence to support defendant's heat of passion theory of voluntary manslaughter was minimal or insubstantial and, therefore, insufficient to require an instruction to the jury. In and of itself, the testimony by Perez indicating she and the victim were using methamphetamine when defendant entered the room with the baseball bat is not enough to constitute legally sufficient provocation, which would cause an ordinary, reasonable person to kill someone in the heat of passion. As defendant suggests in his argument, it is true most reasonable people would find it "alarming" whenever an illegal drug such as methamphetamine is being used in a home where children are present. Even assuming the jury believed Perez's testimony and inferred defendant realized Perez and the victim were smoking methamphetamine together when he entered the room with the baseball bat, it cannot be said this would cause a reasonable person to kill someone in the heat of passion. There is nothing to indicate defendant's young children were in any immediate or specific danger. They were not present in the room with Perez and the victim. To the contrary, the evidence indicates defendant's young sons were in another bedroom of the home with Perez's two oldest sons, who were teenagers. The bedroom door was closed, and the children were all watching television.
Based on the assumptions discussed above, it is also our view that the cited testimony by Perez only constitutes minimal and insubstantial evidence to support the subjective component of a heat of passion theory of voluntary manslaughter. As defendant suggests, it is true the jury could infer defendant knew Perez was using methamphetamine, as there was evidence they previously lived together and had been involved with one another for several years. He also made frequent visits to the residence. It is also true, as defendant mentions, there was evidence defendant had previously tried to take his children away from Perez, but there is nothing to indicate this was because he strongly disapproved of her drug use. In contrast to the evidence of defendant's jealousy of the victim's relationship with Perez, we were unable to locate any direct or circumstantial evidence relevant to defendant's subjective state of mind about methamphetamine use by Perez and/or the victim. As defendant contends, it could be said a reasonable person would strongly disapprove of illegal drug use in a home where children are present. However, we do not know based on the evidence in the record whether defendant disapproved of illegal drug use. Thus, we cannot say it would be reasonable for a jury to infer defendant was actually provoked to act murderously because he was passionately opposed to illegal drug use by the victim and Perez in the home where his children were living.
By contrast, there was an abundance of evidence from which the jury could conclude defendant was profoundly jealous of the victim and acted with deliberateness and malice because he believed the victim was romantically involved with Perez. Perez told an investigator defendant was frequently at her home to see his children and would try to get back together with her. He was always asking her in an accusing manner whether she had a sexual relationship with the victim. Perez also said defendant did not like the victim because he was Black. Shortly before the murder, there had been a confrontation between defendant and the victim in Perez's home. Defendant called the victim a "nigger" and told the victim to "stay out of my business." Prior to the attack, a neighbor saw defendant riding a bicycle up and down the street. He appeared upset and was focused on the Perez residence. At first he was not carrying anything, but later the neighbor noticed he had a baseball bat with him. During the attack, Perez told the investigator defendant said, "I told you not to be at my house." In other words, convincing evidence was presented by the prosecution at trial to demonstrate defendant was motivated by revenge and jealousy when he went after the victim with the baseball bat.
Based on the foregoing, we cannot conclude the trial court erroneously declined to instruct the jury on the heat of passion theory of voluntary manslaughter. Because we conclude there was no instructional error, we also reject defendant's contention the trial court prejudicially violated his constitutional rights when it failed to instruct the jury on a heat of passion theory of voluntary manslaughter.
During oral argument, defendant argued there was evidence of sufficient provocation to justify a voluntary manslaughter instruction based on People v. Najera (2006) 138 Cal.App.4th 212 (Najera), and a nonpublished case from the First Appellate District, Division Four, which is currently before our Supreme Court (People v. Beltran (Mar. 30, 2011, A124392) [nonpub.opn.], review granted June 15, 2011, S192644 (Beltran)). In Beltran, the defendant argued the jury instruction given on the degree of provocation necessary to negate malice and reduce the degree of homicide to voluntary manslaughter was ambiguous. The appellate court agreed with the defendant. According to the appellate court, the instruction was ambiguous because it allowed jurors to consider whether the provocation would cause an average person to actually commit a homicide rather than the established standard, which is whether the provocation is sufficient to cause a reasonable person to act from passion rather than judgment. The Beltran decision was based in large part on dictum found in the Najera case. Although we reviewed these authorities in response to counsel's oral argument, they do not change our analysis or conclusion in this case.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur: HOLLENHORST J. McKINSTER J.