Opinion
F072716
03-07-2018
THE PEOPLE, Plaintiff and Respondent, v. BRANDON ANDREW MCDUFFIE, Defendant and Appellant.
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF285271)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
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I. Introduction
Appellant Brandon McDuffie was convicted by a jury of murder (Pen. Code, § 187, subd. (a)) with burglary and robbery special circumstances allegations (§ 190.2, subd. (a)(17)(A) and (G)), first degree residential burglary (§ 459), and robbery (§ 211). On November 6, 2015, the court sentenced McDuffie to a term of life without the possibility of parole for murder, but stayed the sentences for burglary and robbery under section 654.
All further statutory references are to the Penal Code unless otherwise specified.
McDuffie presents three claims in the instant appeal. He asserts that his due process rights were violated by allowing the jury to hear unduly prejudicial statements of his character made by law enforcement officers, that McDuffie's confession should have been suppressed based on improper coercion and that the court erred in denying his request to instruct the jury on voluntary intoxication. For the reasons set forth below, we affirm.
II. Factual and Procedural Background
McDuffie, his girlfriend, Yolanda Freeman, and victim Manuel Alves lived within several blocks of each other in Tulare, California. McDuffie and Freeman would oftentimes walk past Alves's house.
In 2013, McDuffie was celebrating the Fourth of July at Freeman's house. Freeman testified that McDuffie left her house sometime around 3:00 or 4:00 a.m. the next morning.
On July 5, 2013, Alves's adult children went to his house because he was not answering his phone. The door to his house was open and they found his body in the living room. Alves's son observed that items were stolen from the house. Significant amounts of blood were found at the scene, including a pool of blood under Alves's head and blood splatter on the walls. While police were investigating the scene, McDuffie, Freeman and an unidentified man walked past the house three times.
According to the pathologist, Alves died of blunt force trauma that caused bleeding in his brain even though his skull was not fractured. He also had injuries to the back of his head and neck that was caused by something other than a fist. There was a wound on the left side of Alves's neck, however there was not sufficient evidence to determine if the perpetrator attempted to strangle Alves.
Law enforcement obtained the call logs from Alves's cell phone and determined that a two-minute call was placed from his phone to Freeman's phone at 5:28 a.m. on the morning of July 5, 2013. When interviewed, Freeman admitted receiving a call from McDuffie around that time from a phone number she did not recognize. Investigators also geographically isolated "pings" from Alves's cell phone, which indicated that the phone was at McDuffie's house.
A search was conducted of McDuffie's room. A piece of copper wire was found in his bedroom matching a similar piece of copper wiring law enforcement officers found near Alves's body. Property belonging to Alves was found in McDuffie's room. The property included a religious relic, specifically, a metal crown from the Azores, Alves's television and a cell phone. In addition to the property, law enforcement officers found a pair of shorts with blood stains in a dresser drawer with some of the stolen items. The blood stains from the shorts were tested for DNA; the major contributor was Alves, however, tests revealed McDuffie's DNA as well.
McDuffie was arrested on July 6, 2013. When he was arrested, officers found a pearl necklace in his pocket. Alves's daughter identified it as belonging to her mother.
Both Freeman and McDuffie's brother testified that appellant was drinking on the night of July 4, 2013. McDuffie's brother also testified that on the morning of July 5, 2013, McDuffie told him that he might have hurt someone.
III. Discussion
A. Claim One
McDuffie, in his first claim, argues that he was unduly prejudiced by the introduction of character evidence in the form of statements from detectives that should have been, but were not, redacted from a recording. The People admit that the detective's statements should not have been introduced, but contend that McDuffie was not prejudiced by the statements in light of a corrective admonition provided by the trial court.
1. Procedural History
During her trial testimony, Freeman denied making several statements to the police that incriminated McDuffie. Specifically, Freeman denied telling detectives that McDuffie said he was "going to go and get the money from that guy," that he was "in that guy's house," and that "he killed the man." The prosecution played a recording of Freeman's second police interview to introduce her prior inconsistent statements. McDuffie does not challenge the introduction of Freeman's prior statements. However the recording was not redacted and the jury heard the police officers make the comments about McDuffie's character. The officer stated:
"[McDuffie] doesn't care about that man or his family. He doesn't care about them. [¶] ... [¶] He feels bad or I think he feels bad that he is going to jail but I don't think he feels bad about that man or his family. He just doesn't. He was sitting here he was almost laughing about it."
The other officer then interjected, "I believe the exact quote was 'fuck him.'" At this point, defense counsel raised an objection, and the court ordered the stoppage of the recording and excused the jury. Defense counsel explained that comments from the police officers like the ones quoted above were not proper impeachment evidence, but instead were unduly prejudicial statements regarding McDuffie's character and moved for a mistrial or, alternatively, that the interview be excluded. The court denied the motion for mistrial, but agreed the comments from the police officers should not have been presented.
Despite his express disapproval that the statements were not redacted from the recording, the trial judge admonished the jury and allowed the remainder of the unredacted interview to be played. The remaining interview contained several more statements from police officers regarding McDuffie's character, including the officer calling McDuffie a sociopath. The court denied a renewed motion for mistrial. In doing so, it explained, "Hopefully the jury will follow the directions that I give them. I certainly went to great lengths to instruct them how to interpret and process that evidence that was just presented by way of the taped statement of Yolanda Freeman."
The court admonished the jury as follows:
"Ladies and gentlemen, I want to explain for you why I allowed this interview to be played. Because I believe that after hearing—I want to say Yolanda Freeman—after hearing Yolanda Freeman testify, I believe her statement to the officer was different than what she testified to here in court.
"And so I think the jury—you are the fact finders—are entitled to hear not only what she testified here in court, but what she told the officer, and then you can decide which of her statements or her testimony to believe. That's for you to make a finding.
"What I'm concerned about is that this officer, or sergeant, makes references to—about Mr. McDuffie's character in the statement, and that is not something you're to consider. You're not to consider this officer's opinion of Mr. McDuffie's character, about his reaction to the killing of Mr. Alves in this statement with Ms. Freeman.
"The only purpose in this statement of Ms. Freeman being played is for you to consider whether her statement in court was accurate or whether her statement to the officer was accurate. You're free to believe any or both or all.
"Does that make sense to everybody?
"This officer's reference to the character of Mr. McDuffie is not to be considered."
2. Analysis
The People concede that the statements from the police officer commenting on McDuffie's character should have been redacted, and we agree. The question, however, is whether the error was prejudicial.
"'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]' (People v. Haskett (1982) 30 Cal.3d 841, 854.)" (People v. Collins (2010) 49 Cal.4th 175, 198; see People v. Franklin (2016) 248 Cal.App.4th 938, 955.) While "[a] witness's volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice" (People v. Ledesma (2006) 39 Cal.4th 641, 683), "a motion for mistrial should be granted only when '"a party's chances of receiving a fair trial have been irreparably damaged"'" (People v. Ayala (2000) 23 Cal.4th 225, 282). Moreover, it is only in the "exceptional case" that any prejudice from an improperly volunteered statement cannot be cured by the court's appropriate admonition to the jury. (People v. Allen (1978) 77 Cal.App.3d 924, 935; see People v. Navarrete (2010) 181 Cal.App.4th 828, 836 (Navarrete) ["a trial court can almost always cure the prejudice of an improperly volunteered statement by granting a motion to strike and charging the jury with an appropriate curative instruction"].)
McDuffie argues that the admission of the police officer's statements were so prejudicial as to render the trial fundamentally unfair under federal law, and therefore not subject to review for harmlessness. The admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 70 (Estelle); People v. Partida (2005) 37 Cal.4th 428, 439 (Partida).) Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. (Partida, supra, at p. 439; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
We do not find admission of the statements violated McDuffie's federal due process rights. Estelle expressly left open the question whether a state law permitting admission of propensity evidence would violate due process principles. (Estelle, supra, 502 U.S. at p. 75, fn. 5; People v. Falsetta (1999) 21 Cal.4th 903, 913.) McDuffie argues that the jury would have had the same strong emotional reaction to the evidence as the trial judge. The trial judge was clearly frustrated that the prosecutor failed to redact the recording, unnecessarily exposing the jury to the prejudicial statements and potentially introducing error, but not because those statements ultimately rendered the trial unfair. The court specifically found otherwise, denied the motion for mistrial and continued the trial after admonishing the jury to not consider the police officers' statements.
In addition to being frustrated with the prosecution for failing to redact the statements, the court's frustration was exacerbated by the prosecution's continued insistence that the statements were not prejudicial. Upon excusing the jury the court noted, "I'm bothered by this. I don't think this should have come in. It's clearly not impeachment." The prosecution attempted to argue that the statements were not prejudicial and the court interjected, "What planet are you on? There's nothing prejudicial here? I just don't understand [how] you can make that statement." The court explained that it was "angry because you're giving this officer free rein to comment on what he thinks about Mr. McDuffie's character, and that's not impeachment."
The judge also chastised the prosecution for interrupting him, "Why do you interrupt me? Why do you interrupt me?" --------
Despite the court's frustration with the prosecutor, its rulings clearly indicate that it did not find the officers' statements to be so fundamentally unfair as to deny McDuffie a fair trial, and therefore continued the trial after providing an admonition. We agree. The police officers' statements clearly impugned on McDuffie's character, however, there was no reason to believe that the comments elicited such a strong emotional response by the jury to prevent them from performing their duties. The police officers commented that McDuffie lacked remorse for killing Alves. While the jury should not have been presented with the officers' personal views of McDuffie's bad character, the prosecution presented similar argument at closing that the crime was committed based on McDuffie's "selfish desire" to obtain Alves's property. Even if the jury had been presented with improper evidence that officers believed McDuffie lacked remorse, we believe the jury was still capable of making its own objective determination whether McDuffie killed and robbed Alves. The facts of the case indicate as much. Alves was beaten to death and his property taken. No reasonable juror would believe that the perpetrator of the crime possessed empathy for the victim. McDuffie does not argue otherwise. Instead, his defense rested on whether he possessed the requisite intent at the time the crime was committed. McDuffie has not shown that his trial was fundamentally unfair based on the introduction of the comments.
Further, we do not find that McDuffie was prejudiced by the comments when viewed under the test set forth in Watson. (Watson, supra, 46 Cal.2d at p. 836.) Under that standard, an error is harmless unless there is a reasonable likelihood that a different result would have occurred without the admission of such evidence. (People v. Reed (1996) 13 Cal.4th 217, 231) Based on the record before us, there is no reasonable likelihood of a different result taking place without the officer's statements.
First, the court admonished the jurors to disregard the statements. (See Navarrete, supra, 181 Cal.App.4th at pp. 835-836.) "We presume jurors 'generally understand and follow instructions.'" (People v. Myles (2012) 53 Cal.4th 1181, 1212.) The court made clear that the officers' statements about McDuffie's character were not to be considered, and asked if the jury understood. The jury raised no questions. Having reviewed the court's admonishment, we find that the court clearly and properly instructed the jurors not to consider the offending statements.
In addition, the case against McDuffie was extremely strong. The physical evidence alone may have been sufficient to convict McDuffie. Many stolen items from Alves's house were in McDuffie's room or on his person when he was arrested. Records from Alves's phone showed that a call was placed near the time of the killing to Freeman and, afterwards, the phone was traced back to McDuffie's house. Alves's blood was found on shorts in McDuffie's room. In addition, both McDuffie's brother and his girlfriend told the police that he made incriminating statements about his involvement in the murder. Finally, McDuffie's own confession to the police makes it highly unlikely that any juror would have based the decision to convict on character evidence rather than the great weight of admissible evidence presented by the prosecution. Based on the evidence presented, it is inconceivable that the admission of the challenged statement could be prejudicial on the facts of this case. Thus, we find the error harmless under Watson, supra, 46 Cal.2d 818. Indeed, on this record it is clear the error was harmless beyond a reasonable doubt.
B. Claim Two
McDuffie, in his second claim, argues that his confession was obtained through unconstitutionally coercive tactics and the use of the confession violated his privilege against self-incrimination and his federal due process rights under the Fifth and Fourteenth Amendments.
1. Factual and Procedural Background
McDuffie was interviewed by law enforcement on July 8, 2013. At the outset of the interrogation, the detective provided McDuffie a Miranda warning. (Miranda v. Arizona (1966) 384 U.S. 436.) After some questioning, the detective took out Freeman's cell phone and asked if he had called her using Alves's phone. In response, McDuffie explained that members of the South Side Loco Park street gang approached him when he was walking home in the early morning of July 5, 2013, and inquired whether he wanted to purchase the cell phone. He called Freeman to determine whether the phone worked and then purchased it for $10. He also explained that he had already thrown the phone away at a local park. In response, the detective asked how that could be true when they found the phone in his dresser when they searched his residence. McDuffie conceded that the phone was in his dresser. However, he continued to explain to the detective that gang members sold him the phone. The detective explained that based on his story they would get a search warrant to see if the gang members were in possession of other incriminating items from Alves. McDuffie responded that they should not provide the gang members his name as he had previously been the victim of a shooting. The detective described how he was now obligated to investigate the gang members based on McDuffie's testimony.
The detectives then changed the line of questioning and asked whether McDuffie had ever been in Alves's house. McDuffie said he had been in the house years ago when it was owned by someone else, but not recently. Detectives also questioned McDuffie as to whether they would find his DNA in Alves's house or if Alves's DNA would be under his fingernails. McDuffie continued to deny any further involvement in the incident. He then changed his story to state that he was walking down the street and saw gang members coming in and out of Alves's house and they gave him the phone to keep quiet. After several minutes of questioning, McDuffie again changed his story and explained that he confronted Alves outside his house, punched him in the stomach, only to later came back and find Alves dead in his house. He admitted to taking Alves's phone and television, but nothing else. He conceded after further questioning that he also took two fans, a safe, and $100.
After extensive questioning and repeating that he only punched Alves once outside his house, McDuffie then admitted that he punched Alves four or five times, and then, after more questions, 10 times. However, McDuffie explained that he did not remember well because he was so enraged at the time of the incident. McDuffie explained that after the incident, he attempted to mop up his footprints at the scene with bleach and burned the shoes he was wearing. He admitted that he told both Freeman and his brother that he thought he had killed Alves.
At trial, defense counsel moved to exclude the confession as being coerced based on the theory that the interviewing detectives threatened McDuffie's safety by stating they would inform gang members that he implicated them in the murder, which could result in the gang members retaliating against him. Upon reviewing the interrogation, the court found McDuffie's confession to be voluntary and denied the motion.
2. Legal Standard
Both the state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial. (People v. Linton (2013) 56 Cal.4th 1146, 1176 (Linton); see People v. Carrington (2009) 47 Cal.4th 145, 169 (Carrington).) "'A statement is involuntary if it is not the product of "'a rational intellect and free will.'" [Citation.] The test for determining whether a confession is voluntary is whether the defendant's "will was overborne at the time he confessed." [Citation.]'" (People v. McWhorter (2009) 47 Cal.4th 318, 346-347 (McWhorter).)
"'A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it "does not itself compel a finding that a resulting confession is involuntary." [Citation.] The statement and the inducement must be causally linked. [Citation.]' [Citation]." (McWhorter, supra, 47 Cal.4th at p. 347.) A confession is not rendered involuntary by coercive police activity that is not the "'motivating cause'" of the defendant's confession. (Linton, supra, 56 Cal.4th at p. 1176; accord, People v. Williams (1997) 16 Cal.4th 635, 661.)
"The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made." (Carrington, supra, 47 Cal.4th at p. 169.) "Whether a confession was voluntary depends upon the totality of the circumstances." (People v. Scott (2011) 52 Cal.4th 452, 480.) "On appeal, we conduct an independent review of the trial court's legal determination and rely upon the trial court's findings on disputed facts if supported by substantial evidence." (People v. Williams (2010) 49 Cal.4th 405, 425.) The facts surrounding an admission or confession are undisputed to the extent the interview is tape recorded, making the issue subject to our independent review. (McWhorter, supra, 47 Cal.4th at p. 346.)
3. Analysis
Upon review, respondent has shown by a preponderance of the evidence that the threat to investigate McDuffie's story that gang members were involved in the killing was neither coercive nor the motivating cause of McDuffie's confession. At the time of the interrogation, law enforcement had conducted the search of McDuffie's residence and found many stolen items from Alves's house, Alves's phone and McDuffie's bloody shorts. When arrested McDuffie had a pearl necklace in his pocket. Detectives also knew that McDuffie placed a call on Alves's phone to Freeman on the morning of the killing. Based on the fact that McDuffie was in possession of Alves's property, much of the questioning was focused on what other explanation McDuffie had on how he was in possession of the property and bloody clothes if he was not involved in the killing.
During the course of the interview, McDuffie changed his story multiple times. He did not admit that he had called Freeman on Alves's phone, and then explained that he purchased the phone from the gang members, but had already thrown the phone away. The investigators criticized McDuffie for lying because they had found the phone in his dresser. Based on the physical evidence that the detectives were already in possession of, it is clear from the interrogation that the detectives did not believe that McDuffie had purchased the phone from gang members. The detectives only inquired regarding the gang members involvement after McDuffie voluntarily explained that was how he obtained the phone. While the detectives did ask McDuffie whether they should get a search warrant or question the gang members, the detectives explained that they believed McDuffie was lying and that the gang members were not involved. For example, in this exchange, the detective specifically states he believes that McDuffie's story that gang members were involved was not true:
"MCDUFFIE: [Y]eah but still if I got caught with the cellphone that's still possession of stolen property no matter what I'm gonna still get in trouble even if, even if, if they don't like—Later, the officers explained that they did not believe the story about the gang members was true and implored McDuffie to tell the truth:
"Detective: The least of your worries right now is possession of stolen property.
"MCDUFFIE: [Y]eah—
"Detective: Alright because we got crap that shows you all up in that scene, we got crap that shows that scene all up on you, and you got all kinds of crap related to that scene and you are using the phone to call your girlfriend.
"MCDUFFIE: I didn't know whose phone it was ... I didn't they said bro you want to buy this phone for ten dollars that's the cheapest thing I can get right now is the phone for ten dollars.
"Detective: You really want me to go contact a bunch of Southern Gangsters and tell them that they sold you a phone?
"MCDUFFIE: I don't but if you have to, you have to, cause I'm not trying to get in trouble over something that I didn't do. So if you got to do that (OVER TALK) ...
"Detective: (OVER TALK) ... I'm not trying to get—
"Detective: The ironic part about that statement is that might be the most honest thing you've said so far you don't want to get in trouble for something you didn't do and seeing as you didn't buy the phone from these gangsters I can see why you don't want to get in trouble for it.
"MCDUFFIE: [W]hat do you mean I didn't buy the phone?
"Detective: I'm telling you—you are lying."
"Detective: So now you've got a dead man's TV and a dead man's phone. Do you feel like you want to tell us what's going on here please[?]Based on the comments from the detectives, it was apparent that they were not serious about investigating McDuffie's story regarding the involvement of gang members because they did not find his story credible. While there was some discussion that the alleged gang members lived close by, there was no specific information regarding the gang members that were involved or how the detectives could find them. Instead, the questions focused on how McDuffie came in possession of the stolen property and had bloody shorts in his possession if he was not involved in the killing and inside Alves's house. Questioning McDuffie regarding physical evidence in law enforcement possession that placed him at the scene was proper and did not fall into the general categories of interrogation found to be coercive such as threats or violence, direct or implied promises or the exertion of improper influence. Based on our independent review, respondent has shown by a preponderance of the evidence that McDuffie's confession was voluntary as his will was not overborne at the time he confessed. (McWhorter, supra, 47 Cal.4th at pp. 346-347.)
"MCDUFFIE: (Unintelligible)
"Detective: Lets be completely honest I beg you because I've been up so long now, my partner, I mean came to work yesterday 23 hours ago I got to work all right this guy too we're very tired and not that we don't enjoy your stories I mean they are kind of ridiculous and they're kind of funny a little bit because we know what happened all right so you tell us the story about the Mexican Southerners and this that and the other why don't you just tell us what happened please?"
In any event, even if the trial court had erred in this case by failing to find McDuffie's statements involuntary, we would find such error harmless beyond a reasonable doubt for the same reasons described in claim one. (People v. Neal (2003) 31 Cal.4th 63, 86 ["the erroneous denial of [the] defendant's motion to suppress his ... confessions is subject to harmless error analysis under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18"].) During the interrogation, the detectives correctly asserted that they had a strong case against McDuffie based on the physical evidence alone. In addition to the stolen property, cell phone data and DNA testing, both Freeman and McDuffie's brother explained that he had made incriminating statements that he might have killed Alves.
McDuffie argues that the confession was prejudicial because without it there was only indirect evidence that he intended to commit a robbery at the time he killed Alves and, therefore, there would be reasonable doubt that he should have been found guilty on a felony-murder theory. However, even without his confession, Freeman made statements that McDuffie told her he was going to Alves's house to get some money. Freeman also stated that after the killing, McDuffie told her that he attacked Alves when he was searching for items in the house. McDuffie's brother also stated that McDuffie needed money and told him that he was going to "get that guy" and take what he could, even though there was no plan to hurt him.
Based on the physical evidence and statements of other witnesses corroborating the fact that McDuffie intended to rob Alves's house, any error in admitting the confession into evidence was harmless beyond a reasonable doubt.
C. Claim Three
McDuffie, in his final claim, asserts that the court erred in failing to instruct on the lesser included offense of involuntary manslaughter based on unconsciousness caused by voluntary intoxication. McDuffie claims that he had repeatedly told the police that he was unconscious at the time he attacked Alves, and it was error for the court to refuse to give the instruction.
1. Procedural History
At trial, McDuffie requested jury instructions for voluntary intoxication causing unconsciousness: effects on homicide cases (CALCRIM No. 626) and a more general instruction on unconsciousness (CALCRIM No. 3425). While the court noted that McDuffie had stated that he "blacked out" while punching Alves, it denied the request. However, the court did provide a modified version of the instruction on voluntary intoxication as a basis to negate a particular intent or mental state.
2. Legal Standard
If a charged offense includes lesser offenses, the trial court has a sua sponte duty to instruct the jury on the lesser included offenses "'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'" (People v. Eid (2014) 59 Cal.4th 650, 656 (Eid), quoting People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) Without instruction on lesser included offenses, a jury might be tempted to convict the defendant "'"of a greater offense than that established by the evidence"'" or acquit the defendant of the charged offense even though the "'"evidence is sufficient to establish a lesser included offense."'" (Eid, supra, at p. 657, quoting Breverman, supra, at p. 155.) Providing instruction on lesser included offenses protects the jury's "'"truth-ascertainment function"'" by avoiding presenting the jury with "'an "unwarranted all-or-nothing choice,"'" thereby protecting against a verdict contrary to the evidence. (Eid, supra, at p. 657, quoting Breverman, supra, at pp. 155, 161.) The "'obligation to instruct on [lesser included] offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.'" (People v. Valdez (2004) 32 Cal.4th 73, 115 (Valdez), quoting Breverman, supra, at p. 154.)
Thus, "a trial court errs if it fails to instruct, sua sponte, on lesser included offenses that find substantial support in the evidence." (Valdez, supra, 32 Cal.4th at p. 141 (dis. opn. of Chin, J.).) "[S]ubstantial evidence must exist to allow a reasonable jury to find that the defendant is guilty of a lesser but not the greater offense." (Id. at p. 116, citing Breverman, supra, 19 Cal.4th at p. 162.) Substantial evidence is evidence deserving of consideration, "'"'that is, evidence that a reasonable jury could find persuasive.'"'" (Valdez, supra, at p. 116, quoting People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. (People v. Smith (2013) 57 Cal.4th 232, 240; Breverman, supra, 19 Cal.4th at p. 162.) In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. (Breverman, supra, at p. 162; People v. Flannel (1979) 25 Cal.3d 668, 684 (Flannel).)
3. Failure to Provide Instructions
McDuffie contends that he was unconscious when he attacked Alves and that the trial court should have provided instruction on the lesser included offense of involuntary manslaughter based on unconsciousness (see CALCRIM No. 626) and unconsciousness as a defense to forming intent to commit the robbery or burglary (see CALCRIM No. 3425).
Manslaughter, a lesser included offense of murder, is an unlawful killing without malice. (§ 192; People v. Elmore (2014) 59 Cal.4th 121, 133.) Section 192 defines involuntary manslaughter as "the unlawful killing of a human being without malice" during "the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (Id., subd. (b).) "Voluntary intoxication can prevent formation of any specific intent requisite to the offense at issue, but it can never excuse homicide." (People v. Boyer (2006) 38 Cal.4th 412, 469.) "'When a person renders himself or herself unconscious through voluntary intoxication and kills in that state, the killing is attributed to his or her negligence in self-intoxicating to that point, and is treated as involuntary manslaughter.'" (People v. Rangel (2016) 62 Cal.4th 1192, 1227, quoting People v. Ochoa (1998) 19 Cal.4th 353, 423 (Ochoa).)
Unconsciousness does not mean that the actor lies still and unresponsive. (People v. Haley (2004) 34 Cal.4th 283, 313.) Instead, a person is deemed "'unconscious'" if he or she committed the act without being conscious of acting. (Ibid.; see Ochoa, supra, 19 Cal.4th at pp. 423-424.)
McDuffie contends that there was substantial evidence that he was unconscious from the combined effect of alcohol and marijuana at the time he committed the offense. McDuffie, his brother, and Freeman all stated that McDuffie was drinking on the night before the killing. In addition, McDuffie made several statements that he blacked out when he was attacking Alves. Respondent asserts that there was not sufficient evidence to support providing the instruction. There was nothing more than vague statements that he was drinking and smoking marijuana, and his statements that he blacked out are not necessarily because of the influence of drugs, but rather that he was angry.
McDuffie argues his case is similar to People v. Wilson (1967) 66 Cal.2d 749 (Wilson). In Wilson, the defendant and his wife separated. (Id. at p. 752.) His wife decided to throw a party with three men. The defendant was invited to the party, but during his prior interactions with the men he felt terrorized and aggravated. (Id. at pp. 754-755.) He drove to his wife's apartment, forcibly entered with a shotgun and shot his wife and two of the men. (Id. at p. 755.) The defendant was arrested, but did not remember the events surrounding the shootings. (Id. at pp. 755-756.) Based on his testimony that he did not remember committing the acts and was distraught and mentally exhausted by the events leading to the shooting, it was error not to instruct the jury on the legal effect of unconsciousness. (Id. at pp. 762-763.)
There are two important distinctions between Wilson and the instant case. Wilson was decided using a more liberal standard for determining whether sufficient evidence warranted instructions on unconsciousness. The courts were required to provide instructions even if "'[t]he fact that the evidence may not be of a character to inspire belief ....'" (People v. Carmen (1951) 36 Cal.2d 768, 773, italics omitted.) "'However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.'" (Ibid., italics omitted.) However, the California Supreme Court in Flannel established a higher standard that instructions are only required upon a showing of substantial evidence. (Flannel, supra, 25 Cal.3d at p. 684, fn. 12 ["To the extent that a decision of any court interprets these cases to require instructions without evidence substantial enough to merit consideration, it is disapproved."]; see Breverman, supra, 19 Cal.4th at p. 162 ["'any evidence, no matter how weak' will not justify instructions on a lesser included offense"].)
More recent California Supreme Court cases have found that a defendant's inability to recall the event was not sufficiently substantial to deserve consideration and warrant an unconsciousness instruction. (People v. Rogers (2006) 39 Cal.4th 826, 888, relying on People v. Froom (1980) 108 Cal.App.3d 820, 829-830 [evidence the defendant was forgetful and told a psychiatrist he "'awakened'" after the crime was committed did not entitle the defendant to an unconsciousness instruction]; People v. Heffington (1973) 32 Cal.App.3d 1, 10 [there is no "ineluctable rule" that a defendant's inability to remember supplies an evidentiary foundation for an unconsciousness instruction]; cf. People v. Coston (1947) 82 Cal.App.2d 23, 40 ["a defendant's mere statement of forgetfulness, unsupported by any other evidence, is at most very little evidence of unconsciousness at the time of performing a particular act"].)
Second, the factual scenario of Wilson is different than this case. Wilson did not involve voluntary intoxication; whereas here, McDuffie presented evidence that his drinking and drug use may have combined to cause unconsciousness. We must determine whether the evidence was sufficiently substantial so as to persuade a reasonable juror that McDuffie was unconscious.
Based on the totality of the circumstances surrounding the murder, there was sufficient evidence McDuffie was unconscious or otherwise unaware of his actions as to warrant the instructions. Even if McDuffie's testimony lacked credibility, it was not the province of the trial court to evaluate the credibility of his testimony and deny providing instructions on such grounds. (Breverman, supra, 19 Cal.4th at p. 162; Flannel, supra, 25 Cal.3d at p. 684.) There was evidence of drug and alcohol use before the killing, and he stated that he did not remember the events during the killing. Based on the evidence of unconsciousness presented by McDuffie, the trial court had a duty to instruct the jury on the defense and allow the jury to reach its verdict in light of the evidence presented. The court erred in denying McDuffie's motion to instruct the jury with CALCRIM Nos. 626 and 3425.
4. Harmless Error
Even if the trial court failed to provide the instructions on the lesser included offenses, reversal is only required if the error harmed McDuffie.
The test for whether a federal constitutional error was harmless depends on the procedural posture of the case. In Davis v. Ayala (2015) ___ U.S. ___ [135 S.Ct. 2187, 2197], the United States Supreme Court reaffirmed that the standard of review for harmlessness on direct appeal is whether the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24 (Chapman).) This is known as the Chapman harmless error standard. (Brecht v. Abrahamson (1993) 507 U.S. 619, 622-623 [comparing Chapman standard to the less onerous standard applicable to federal habeas review whether the error had a substantial and injurious effect or influence in determining the jury's verdict].) Stated differently, reversal is required if there is a reasonable possibility that the error might have contributed to the verdict. (Chapman, supra, at p. 24; People v. Aranda (2012) 55 Cal.4th 342, 367.)
Alternatively, California is free to apply its own harmless error rule to violations of state law that do not implicate federal safeguards. (Cooper v. California (1967) 386 U.S. 58, 62; People v. Blackburn (2015) 61 Cal.4th 1113, 1132 (Blackburn).) California's harmless error rule is set forth in article VI, section 13 of the California Constitution. (Blackburn, supra, at p. 1132.) It states that trial error does not merit reversal of a judgment unless "the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; see People v. Lightsey (2012) 54 Cal.4th 668, 699.) The California Supreme Court has interpreted the standard to require the appellant to demonstrate that it is reasonably probable a result more favorable to the appellant would have occurred absent the error, and is referred to as the Watson harmless error standard. (Watson, supra, 46 Cal.2d at p. 837; Blackburn, supra, at p. 1132.)
With regard to the instant claims, the California Supreme Court has found that "'the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone ...' and, ... 'subject ... to the Watson harmless error test.'" (Blackburn, supra, 61 Cal.4th at pp. 1135-1136, quoting Breverman, supra, 19 Cal.4th at pp. 165, 171.) Rather than determining whether there was substantial evidence to support giving the instruction, under Watson the reviewing court is to take an entirely different view of the evidence and determine not what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error. (People v. Moye (2009) 47 Cal.4th 537, 556 (Moye).)
The court may compare the relative strength of the evidence supporting the existing judgment to that supporting a different outcome to determine if there is a reasonable probability the error affected the result. Application of the Watson standard of appellate review may "'disclose that, though error occurred, it was harmless.'" (Moye, supra, 47 Cal.4th at p. 556.)
Here, it was not reasonably probable that McDuffie would have succeeded in convincing a jury he was unconscious had the instruction been provided. The jury was presented evidence that McDuffie was drinking earlier that night. McDuffie also stated that he smoked marijuana and was "really high." However, none of the witnesses provided evidence that McDuffie displayed outward signs of the effects of alcohol or drugs, especially to the point where he may not have been conscious of his actions.
During his interrogation, McDuffie provided several statements that he was not aware of his actions during the confrontation with Alves. McDuffie explained, "I just got mad at him and I was tired of it and went over there to confront him and he started acting dumb with me and got me more even angrier and then I guess I just blacked out and then when I realized what I—when I seen what happened where he was at I just took off running." When asked how many time he hit Alves, McDuffie repeated that he was unable to remember, "Um no ... really blacked out so I don't really remember if I ... how many times that I really punched him. Like you say I really had some white rage cause like constantly for two years straight— [¶] ... [¶] ... kept on getting on my nerves" and "I don't really know what happened I just blacked out on him cause I had so much anger." Although McDuffie explained that he did not remember attacking Alves, he did recall specific details of Alves's house and his actions in the house. He described how he looked in a china cabinet, he went in the garage and played with Alves's dog and started up his motorcycle, and then proceeded to go through the bedrooms of the house. He went through the drawers in the bedrooms and opened a safe in the master bedroom where he found Alves's wallet. Finally, he found bleach and attempted to mop up his footprints on the floor, and burned his shoes.
Jurors likely would not be able to look past the fact that there was no evidence that McDuffie presented outward signs of intoxication or abnormal behavior prior to the incident. Witnesses did not observe McDuffie manifest any common, physically observable signs of intoxication such as slurred speech, loss of balance or general lack of motor control. More importantly, McDuffie explains his alleged unconsciousness was due to blinding anger, not intoxication. His explanation that he was unconscious and did not remember his involvement in the attack appear self-serving, especially since he was able to clearly recall how he searched and robbed Alves's house after the fact. Alternatively, rather than asserting that he was unconscious based on voluntary intoxication at the time of the killing, McDuffie argues that he was blinded with rage and lacked the intent to rob Alves at the time of the killing. As such, he asserts the killing did not occur during the commission of a felony as required under the felony-murder rule. Despite his contentions that he killed Alves due to anger, he had made statements prior to the killing that he was going to attempt to get money from Alves. It is not reasonably probable that jurors would believe he had the intent to rob prior to the killing and after the killing, but not during the commission of the killing. Accordingly, it is not reasonably probable the jury would have found that McDuffie was unconscious from voluntary intoxication at the time of the killing and the failure to provide the instruction was harmless.
Likewise, the failure to instruct on CALCRIM No. 3425 with regard to unconsciousness with regard to the robbery or burglary charges was also harmless. McDuffie's statements that he blacked out and did not remember were focused on the attack on Alves. He provided significant detail that, after he regained consciousness, he searched and stole property from the house. Reasonable jurors would find it reasonably probable that McDuffie was conscious of his actions during the robbery. As such, the failure to provide the instruction was harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.