Opinion
C087158
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. CRAIG JOSEPH MCILHENNY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62145128)
Defendant Craig Joseph McIlhenny appeals from convictions of multiple crimes arising from domestic violence. A jury found him guilty of attempted premeditated murder and shooting at an inhabited dwelling, and the jury found true related enhancements to both charges for discharging a firearm and causing great bodily injury.
Defendant contends the trial court prejudicially erred in refusing to instruct the jury on the lesser included offense of attempted voluntary manslaughter based on heat of passion. He also claims the court erred in imposing a consecutive term of imprisonment for a great bodily injury resulting in paralysis enhancement, and that the abstract of judgment must be corrected. We modify the judgment as agreed by the parties and otherwise affirm the judgment.
FACTS AND LEGAL PROCEEDINGS
Jessica F., who lives with her parents in Auburn, dated defendant for about two-and-a-half years. She stayed at defendant's residence often. She and defendant used methamphetamine together and defendant was a regular user. At some point during the relationship, defendant "became very obsessive or aggressive that [she] was cheating on him or lying to him about something." Defendant constantly questioned her about his suspicions, accusing her in person, on the phone, and via text messages. As a result, she became "extremely uncomfortable" and she "started spending less time" with him. When she pulled away from the relationship, defendant grew more obsessive and aggressive with her.
On April 23, 2016, defendant came to visit Jessica F. at her parents' residence and spoke to her outside; she asked him to leave. Jessica F.'s mother observed her daughter and defendant "talking animatedly, and then he took off out of there really fast." The mother could not hear the conversation but "was watching because [she] knew that [Jessica F.] was - - was afraid of him, wanted to get away, wanted him to leave her alone."
Defendant returned to the residence late that night and was making noise in the backyard, and Jessica F. went outside and asked him to leave. Defendant continued yelling her name, so she opened her bedroom window and asked him to be quiet. Defendant still would not leave, and shortly after midnight on April 24, 2016, Jessica F. sent him a text message telling him to go home and that they would talk the next day. Earlier text messages between 10:49 and 11:17 p.m. included accusations from defendant, such as "You do me so dirty, and you just keep on" and "You're doing me dirty right now." Jessica F. responded, "I don't deserve any of this. I never cheated or lied to you. I loved you, but I won't let you treat me like this anymore. Good-bye."
Defendant fired each of his two revolvers once into Jessica F.'s bedroom through the window; one bullet hit her in the head and the other bullet hit the wall opposite the window. Jessica F. suffered a gunshot wound to the head, causing paralysis, requiring multiple surgeries and extensive rehabilitation, and causing an ongoing seizure disorder.
Upon his arrest, defendant was interviewed several times after waiving his rights, and he admitted that he had fired both of his revolvers into Jessica F.'s bedroom. During these interviews, defendant admitted he had been smoking methamphetamine earlier in the day. He claimed Jessica F. was romantically involved with a man named Justin who had threatened defendant and his family. He claimed that on the night of the shooting, he suspected someone was in Jessica F.'s bedroom with her. He claimed to have recordings of her with other men and that she was a "pathological nympho." But he admitted, "I know what I did was wrong." Defendant claimed he was hearing voices in his head and was angered by his suspicions about Jessica F. However, defendant also maintained during these interviews that the shooting was an accident. At trial, defendant testified that he was not angry with Jessica F. but he was prepared to kill himself if she refused to let him stay with her at her parents' home. He further testified, "I pulled [the pistols] out of my pockets and was putting them up under my chin, and I must have been squeezing on the trigger, obviously, thinking that they were not cocked and that they went off."
On February 6, 2017, the Placer County District Attorney filed an information charging defendant in count one with attempted premeditated murder in violation of Penal Code sections 187, subdivision (a) and 664 (unless otherwise stated, statutory section references that follow are found in the Penal Code) and in count two with shooting at an inhabited dwelling in violation of section 246. It was further alleged that defendant: (1) personally discharged a firearm that caused great bodily injury during commission of both of these offenses (§ 12022.53, subd. (d)); (2) personally discharged a firearm during commission of both of these offenses (§ 12022.53, subd. (c)); (3) inflicted great bodily injury under circumstances involving domestic violence during commission of both of these offenses (§ 12022.7, subd. (e)); and (4) inflicted great bodily injury that caused paralysis during commission of both of these offenses (§ 12022.7, subd. (b)).
The case was tried to a jury. After the defense had rested its case, and before the prosecutor had called any witnesses in rebuttal, the trial court advised it had thought about "whether there would be any lesser-included offenses necessarily to Count One, attempted murder. And the only possible one could be attempted voluntary manslaughter based on heat of passion." Both defense counsel and the prosecutor stated they would not be requesting that instruction. The trial court conducted its own sua sponte analysis and determined since there was not substantial evidence of any provocation, it was not appropriate to give the instruction.
The jury found defendant guilty on both counts and found true the enhancements alleged as to both counts. The trial court sentenced defendant to life in prison with the possibility of parole on count one plus 25 years to life in prison, consecutive, for the firearm enhancement pursuant to section 12022.53, subdivision (d), plus five years, consecutive, for the great bodily injury enhancement pursuant to section 12022.7, subdivision (b). Defendant was sentenced to serve the upper term of seven years in state prison on count two; however, this term, as well as the terms of imprisonment imposed on the other enhancements, was stayed pursuant to section 654.
DISCUSSION
I
Instructing on Lesser Included Offense
Defendant argues the trial court erred in not instructing the jury on the lesser-included offense of attempted voluntary manslaughter on a heat of passion theory. There was no error.
The trial court has a sua sponte duty to instruct on lesser included offenses in any case where substantial evidence could support a conviction of the lesser charge. (People v. Birks (1998) 19 Cal.4th 108, 118.) This duty exists even where the defense expressly objects to the instruction. (People v. Breverman (1998) 19 Cal.4th 142, 154.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Id. at p. 162.)
"Attempted murder is the attempt to commit an unlawful killing of a human being, or a fetus, with malice aforethought." (People v. Williams (1988) 199 Cal.App.3d 469, 475.) "A killing committed upon a sudden quarrel or heat of passion . . . may negate malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to attempted manslaughter." (Ibid.) To establish attempted voluntary manslaughter under a heat of passion theory, both the objective component of provocation and the subjective component of heat of passion must exist. (People v. Moye (2009) 47 Cal.4th 537, 549-550.) "First, the provocation which incites the killer to act in the heat of passion case must be caused by the victim or reasonably believed by the accused to have been engaged in by the decedent. [Citations.] Second, . . . the provocation must be such as to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.) " '[N]o defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless . . . the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' " (People v. Berry (1976) 18 Cal.3d 509, 515 (Berry).)
The facts in Berry provide an instructive example of an objective provocation. There, the evidence showed "a two-week period of provocatory conduct by [the defendant's] wife . . . [which] could arouse a passion of jealousy, pain and sexual rage in an ordinary man of average disposition such as to cause him to act rashly from this passion." (Berry, supra, 18 Cal.3d at p. 515.) Three days after marrying, the defendant's wife had an affair with another man, repeatedly taunted the defendant about the affair, suggested she might be pregnant with the other man's child, and claimed she was in love with the other man. (Id. at pp. 513-514.) Based on this evidence, our high court held that the trial court erred in failing to instruct the jury on voluntary manslaughter on a heat of passion theory. (Id. at p. 512.)
Defendant contends that the evidence adduced at trial showing that defendant suspected Jessica F. was having sex with other men and that there was a man in her bedroom at the time of the shooting warranted an instruction on attempted voluntary manslaughter based on heat of passion. We conclude that this is evidence of defendant's subjective beliefs not rising to a provocation that would cause an ordinary person of average disposition to act rashly. The evidence presented here is similar to that in People v. Bufarale (1961) 193 Cal.App.2d 551, 557 (Bufarale), where the trial court properly refused instructions on voluntary manslaughter. There, the defendant had an affair for several months with his victim, but she eventually decided to return to her husband. (Id. at pp. 554-556.) A few days later, the defendant and the victim spoke, and he returned later in the day and ran her car off the road, opened her door, and repeatedly stabbed her. (Id. at pp. 562-563.) The defendant claimed he killed her not because of a thinking process, but because of his emotions, over which he had no control. (Id. at p. 560.) The court, however, found the killing was simply an act of vengeance that did not occur as the result of a reasonable provocation. (Id. at p. 562.)
Here, as in Bufarale, the evidence shows that Jessica F. did nothing to provoke defendant within the meaning of the law, and defendant's subjective beliefs were not supported by any other evidence in the record tending to show that they were reasonable. The uncontroverted evidence did not disclose any objectively reasonable basis for defendant's subjective beliefs. Instead, the record shows that defendant admitted that he was a regular methamphetamine user and claimed that he was hearing voices in his head at the time of the shooting, which may have well caused him unreasonable paranoia about Jessica F. Additionally, the record shows that Jessica F. repeatedly denied that she ever cheated or lied to defendant and in the moments before the shooting, tried to pacify him, pleading, "please just go home, and we'll talk about this tomorrow." Her pleas were not a provocation but an ill-fated attempted to deescalate. It cannot be said, reasonably, that the situation that defendant faced was one that would have caused an ordinary person of average disposition to act as he did, even when viewing defendant's own admissions in the light most favorable to him. This is a case of a defendant setting up his own standard of conduct to justify an act of vengeance. (See Berry, supra, 18 Cal.3d at p. 515; Bufarale, supra, 193 Cal.App.2d at p. 557.) As the trial court correctly reasoned, there was "insufficient evidence of any objective provocation by the victim." The trial court, therefore, did not err in refusing to instruct the jury.
II
Stay of Great Bodily Injury Enhancement
Defendant contends, and the Attorney General concedes, the trial court erred in imposing a consecutive term of imprisonment for the great bodily injury resulting in paralysis enhancement pursuant to section 12022.7. We accept the Attorney General's concession.
Defendant was sentenced to life in prison with the possibility of parole on count one plus 25 years to life in prison, consecutive, for the firearm enhancement pursuant to section 12022.53, subdivision (d), plus five years, consecutive, for the great bodily injury enhancement pursuant to section 12022.7, subdivision (b). Section 12022.53, subdivision (f) provides, inter alia, "An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d)." The court should have stayed the five-year enhancement for great bodily injury under section 12022.7 because it imposed a consecutive term for the enhancement under section 12022.53, subdivision (d), for intentionally discharging a firearm with great bodily injury. (People v. Garcia (2017) 7 Cal.App.5th 941, 949.)
DISPOSITION
We modify the judgment to stay the enhancement for great bodily injury. The trial court is directed to prepare an amended abstract of judgment reflecting that the five-year term of imprisonment for the great bodily injury enhancement as stayed. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
HULL, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
DUARTE, J.