Opinion
2d Crim. No. B227678
08-22-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK ARTHUR MORTON, Defendant and Appellant.
Mark G. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Stacy S. Schwartz, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1312286)
(Santa Barbara County)
Mark Arthur Morton appeals from the judgment entered after his conviction by a jury of first degree murder (Pen. Code, §§ 187, 189), first degree residential burglary (§§ 459, 460), and second degree robbery. (§§ 211, 212.5.) As to the murder conviction, the jury found true (1) an allegation that appellant had been armed with a deadly weapon (§ 12022, subd. (b)(1)), and (2) a special circumstance allegation that appellant had intentionally killed the victim by means of lying in wait. (§ 190.2, subd. (a)(15).) For the murder, the trial court sentenced appellant to an indeterminate term of life without the possibility of parole plus one year for the armed allegation. For the burglary and robbery, the trial court sentenced appellant to determinate upper terms but stayed execution of the sentences pursuant to section 654. The court imposed a parole revocation restitution fine of $10,000, which was suspended unless parole is revoked. (§ 1202.45.)
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the trial court erroneously (1) admitted crime scene and autopsy photographs, (2) failed to instruct sua sponte on the lesser included offense of voluntary manslaughter and on the affirmative defense of self-defense, (3) gave a flight instruction that was unsupported by the evidence, (4) failed to award him credit for 419 days of actual time served in presentence custody, and (5) imposed an unauthorized parole revocation restitution fine. Only contentions (4) and (5) have merit. We modify the judgment to strike the fine and to award appellant credit for his presentence custody. As modified, we affirm.
Facts
On July 13, 2009, the body of Stephen Tannenbaum was discovered in the bedroom of his residence in Santa Maria. Dr. Robert Anthony, who performed an autopsy, observed at least 18 head lacerations. Tannenbaum's nose was fractured and a large section of his skull was either "gone or broken into little pieces." The cause of death was blunt force trauma to the skull and brain. Dr. Anthony opined that a blunt object had struck Tannenbaum's head at least 18 times.
On July 13, 2009, Douglas Irlbeck attempted to use Tannenbaum's credit card at a Wal-Mart store. Irlbeck was arrested. After questioning Irlbeck, the police obtained a warrant for appellant's arrest. On July 17, 2009, appellant was arrested in a "homeless transient type camp on the outskirts" of Simi Valley.
After his arrest, appellant was interrogated by the police. The interrogation was recorded. Appellant said that he went to Tannenbaum's residence to "score some dope." Appellant and Tannenbaum argued "over some money that was owed." Tannenbaum attacked appellant with a 12-inch long wooden bat. Appellant took "the bat away from Mr. Tannenbaum and . . . struck back in self-defense." Appellant initially said that he had struck Tannenbaum two or three times. "At some point he slightly modified his statement only to offer that he struck him two or three times with a bat, and then may have punched him one or two times, but nothing more than that." Appellant said that he had left the bat at the residence, but the police did not find it there. Appellant admitted taking Tannenbaum's wallet.
In his residence, Tannenbaum had installed a video surveillance system. The system recorded the incident involving appellant and Tannenbaum. An edited version of the recording was played for the jury.
A detective described the unedited video recording as follows: Tannenbaum leaves his residence, and appellant enters about 16 minutes later. Appellant backs into the bathroom while holding "a cylindrical type object" that is 8 to 12 inches long. Tannenbaum returns about three minutes later. He walks by the bathroom, "immediately turns, and you can . . . see him kind of squatting backwards and putting his hands up in a defensive . . . posture." Tannenbaum falls backward and appellant "lunge[s] forward out of the bathroom kind of in a[n] . . . aggressive stance moving forward, and you can see a striking motion." Tannenbaum does not have a weapon in his hands and does not make "any aggressive movements" toward appellant. Appellant and Tannenbaum "both move forward into the bedroom out of view of the camera." They remain out of view for 14 minutes. Appellant then "calmly walks out of the bedroom" and remains in the residence for an additional 33 minutes before leaving through the front door.
Photographs
Appellant contends that the trial court abused its discretion in admitting "gruesome crime scene and autopsy photographs of the victim . . . that showed extensive damage to his head." Appellant argues that the trial court should have excluded the photographs pursuant to Evidence Code section 352 because they were "cumulative with other evidence . . . and their probative value was far outweighed by the prejudicial effect."
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The photographs in question are People's Exhibits 5, 10, and 11. Exhibit 5 is a photograph of Tannenbaum's body as it was found at the crime scene. The photograph shows the left side of Tannenbaum's head and his left shoulder. The head and shoulder are covered with dried blood, and deep scalp wounds are visible. Exhibit 10 consists of two photographs taken during the autopsy before the body was cleaned and washed. The photographs show different frontal views of Tannenbaum's head. Dr. Anthony, who performed the autopsy, testified that one photograph shows skin that "has been lacerated and torn so that there's been intense bleeding and bruising." The photograph also shows that a "portion of the skull has been fractured and then driven down onto the surface of the brain." The second photograph in Exhibit 10 shows "marked swelling of the right eye," "lacerations . . . in the actual skin with secondary bleeding," and a "flattening and a depression" of the left side of the skull. Exhibit 11 is a photograph of Tannenbaum's scalp after his hair had been shaved during the autopsy. The photograph shows lacerations, tears, and "bleeding beneath the surface of the skin as a result of the impacts."
The trial court did not abuse its discretion in admitting the photographs. "When conditions depicted in photographic evidence are relevant to the prosecution's case, it is 'not obliged to prove these details solely from the testimony of live witnesses, and the jury was entitled to see how the physical details of the scene and body supported the prosecution theory' of the crimes. [Citations.]" (People v. Davis (2009) 46 Cal.4th 539, 615.) Here, the photographs "reflect the viciousness and strength of the assault, which is relevant to prove that [appellant] acted with malice and sought to ensure the victim was dead." (People v. Lewis (2009) 46 Cal.4th 1255, 1283.) The photographs refute appellant's statement to the police that, while acting in self-defense, he "struck [Tannenbaum] two or three times with a bat, and then may have punched him one or two times, but nothing more than that." "In addition, in light of Dr. [Anthony's] detailed description of the damage inflicted upon the victim's [head], 'the photographs Ibid.)were not so gruesome as to have impermissibly swayed the jury.' [Citation.]" (Ibid.)
Appellant argues that the trial court failed to properly exercise its discretion because it did not expressly weigh the prejudicial impact of the photographs against their probative value. " '[A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing function under Evidence Code section 352.' [Citation.] The record reflects that the court was aware of and performed its duty to balance the probative value of this evidence against its prejudicial effect." (People v. Lewis, supra, 46 Cal.4th at p. 1285.) Indeed, the court cited the Lewis case as authority for admitting the photographs.
"With respect to [appellant's] claims of constitutional error, we note that '[t]he "routine application of state evidentiary law does not implicate [a] defendant's constitutional rights." [Citation.]' [Citation.]" (People v. Lewis, supra, 46 Cal.4th at p. 1284.)
Voluntary Manslaughter Instruction
Appellant contends that the trial court erroneously failed to instruct sua sponte "on the lesser included offense within murder of voluntary manslaughter under a sudden quarrel or heat of passion theory" and "under an imperfect self-defense theory." "Manslaughter . . . is an unlawful killing without malice. [Citations.] Malice is presumptively absent when a defendant kills 'upon a sudden quarrel or heat of passion' (§ 192, subd. (a)), provided that the provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment. [Citation.] Similarly, when a defendant kills in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury, the doctrine of 'imperfect self-defense' applies to reduce the killing from murder to voluntary manslaughter. [Citations.]" (People v. Cruz (2008) 44 Cal.4th 636, 664.)
"[A] trial court must instruct on provocation/heat of passion as a theory of manslaughter, if supported by substantial evidence . . . . [Citations.] The same sua sponte instructional obligation applies to unreasonable/imperfect self-defense . . . . [Citation.] However, the 'substantial' evidence required to trigger the duty to instruct on such lesser offenses is not merely 'any evidence . . . no matter how weak' . . . , but rather ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Cruz, supra, 44 Cal.4th at p. 664.) "A trial court should not . . . measure the substantiality of the evidence by undertaking to weigh the credibility of the witnesses, a task exclusively relegated to the jury." (People v. Flannel (1979) 25 Cal.3d 668, 684, overruled on other grounds in In re Christian S. (1994) 7 Cal.4th 768, 777.)
Based on People v. Hendricks (1988) 44 Cal.3d 635, we conclude that neither the provocation/heat of passion theory nor the unreasonable/imperfect self-defense theory was supported by substantial evidence. In Hendricks the defendant claimed that the trial court had erroneously refused to instruct on involuntary manslaughter. Involuntary manslaughter is an unintentional killing, and in a tape-recorded statement the defendant had denied that he had intended to kill the two victims. Our Supreme Court upheld the trial court's ruling because the "physical evidence" established that the defendant had shot the victims multiple times at point-blank range. ( Id., at p. 643.) The Supreme Court declared, "In light of this evidence, defendant's self-serving tape-recorded statements denying an intent to kill cannot be deemed substantial in character." (Ibid.)
Here, appellant's self-serving recorded statements also cannot be deemed substantial in character. Appellant said that, during an argument, Tannenbaum had attacked him with a bat and he had fought back in self-defense. But, as in Hendricks, the physical evidence establishes otherwise. The physical evidence is the video recording, which shows that appellant launched a surprise, unprovoked attack against an unarmed Tannenbaum.
Even if heat of passion and imperfect self-defense theories had been supported by substantial evidence, the trial court's error in failing to instruct on these theories would have been harmless in view of the video recording and the jury's special circumstance finding that appellant had intentionally killed Tannenbaum by means of lying in wait. The "special circumstance finding[] . . . negate[s] any possibility that [appellant] was prejudiced from the failure to instruct on provocation/heat of passion or unreasonable [imperfect] self-defense theories of manslaughter." (People v. Cruz, supra, 44 Cal.4th at p. 665.) The trial court instructed the jury: "A person commits a murder by means of lying in wait if: [¶] 1. He or she concealed his or her purpose from the person killed; [¶] 2. He or she waited and watched for an opportunity to act;
3. Then he or she made a surprise attack on the person killed from a position of advantage; [¶] AND [¶] 4. He or she intended to kill the person by taking the person by surprise." (1CT 144) The court further instructed: "The lying in wait does not need to continue for any particular period of time, but its duration must be substantial and must show a state of mind equivalent to deliberation or premeditation."
Instruction on Affirmative Defense of Self-Defense
Appellant contends that the trial court erroneously failed to instruct sua sponte on the affirmative defense of self-defense (perfect self-defense). "A trial court is required to instruct sua sponte on any defense, including self-defense, only when there is substantial evidence supporting the defense, and the defendant is either relying on the defense or the defense is not inconsistent with the defendant's theory of the case. [Citation.]" (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.)
For the same reason that substantial evidence does not support a theory of imperfect self-defense, it also does not support a theory of perfect self-defense. Moreover, any error in failing to instruct on perfect self-defense would have been harmless in view of the video recording and the lying-in-wait special circumstance finding.
Flight Instruction
Appellant contends that the trial court erroneously gave the following instruction on flight: "If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt." Appellant argues that the instruction was unwarranted because it was without evidentiary support.
"[A] flight instruction 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' [Citation.] ' "[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." ' [Citations.] Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.' [Citation.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
Because appellant did not object to the flight instruction, he forfeited his claim that the instruction was erroneously given. (People v. Stone (2008) 160 Cal.App.4th 323, 331.) Even if appellant had preserved the issue for appeal, any error in giving the flight instruction would have been harmless beyond a reasonable doubt in view of the overwhelming evidence of appellant's guilt.
Presentence Custody Credits
Appellant argues, and the People concede, that the trial court erroneously failed to award him credit for 419 days of actual time served in presentence custody. We accept the concession. Section 2900.5 provides: "In all felony . . . convictions, either by plea or by verdict, when the defendant has been in custody, . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment . . . ." "A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. [Citation.]" (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
Parole Revocation Restitution Fine
"Section 1202.45 . . . requires assessment of a parole revocation restitution fine '[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole.' " (People v. Brasure (2008) 42 Cal.4th 1037, 1075.) Appellant contends that the $10,000 parole revocation restitution fine was unauthorized because his indeterminate sentence for murder does not allow for parole. The People, on the other hand, contend that the fine was required because appellant's determinate sentences for burglary and robbery include a period of parole.
In People v. Brasure, supra, 42 Cal.4th at page 1075, our Supreme Court held that when a defendant is sentenced to death or life imprisonment without the possibility of parole and is also sentenced to a determinate prison term under section 1170, a parole revocation restitution fine is required because the determinate sentence includes a period of parole. This is so even though the defendant "is unlikely ever to serve any part of the parole period on his determinate sentence." ( Ibid. )
Appellant argues that the Brasure holding is inapplicable here because the determinate terms were stayed pursuant to section 654. We agree. In Brasure, "[e]xecution of sentence on counts 2, 3, 4 and 8 was stayed pursuant to section 654." (People v. Brasure, supra, 42 Cal.4th at p. 1049.) Our Supreme Court concluded that a parole revocation restitution fine was required as to the counts for which the execution of sentence was not stayed: "Defendant here, in addition to his death sentence, was sentenced (for counts 5, 6, 7, 9, 10, 11 and 12) to a determinate prison term under section 1170. Section 3000, subdivision (a)(1) provides that such a term 'shall include a period of parole.' . . . The fine was therefore required, though by statute and the court's order it was suspended unless and until defendant was released on parole and his parole was revoked. [Citation.]" ( Id. , at p. 1075.)
Section 654 precludes "multiple punishments for a single act or indivisible course of conduct. [Citation.]' [Citation.]" (People v. Coleman (1989) 48 Cal.3d 112, 162.)
People v. McWhorter (2009) 47 Cal.4th 318, decided 18 months after Brasure, supports our interpretation of Brasure as not requiring a parole revocation restitution fine where the determinate terms have been stayed pursuant to section 654. In McWhorter the defendant was convicted of two counts of first degree murder. The jury found true a special circumstance allegation that the murders had been committed during the commission of a robbery. (§ 190.2, subd. (a)(17)(A).) Defendant was also convicted of the underlying robbery. The trial court imposed the death sentence for the murders. The McWhorter opinion does not specify how the trial court dealt with the robbery conviction. But the court was compelled to impose a determinate sentence for that conviction and stay its execution pursuant to section 654. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 708-709, disapproved on other grounds in People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, fn. 8.)
In McWhorter our Supreme Court struck a parole revocation restitution fine imposed by the trial court: "Defendant last claims that because his sentence did not include a period of parole, the trial court erred in imposing and then staying a $200 parole revocation restitution fine pursuant to section 1202.45. He is correct. [Citation.] Respondent has conceded the point. We shall therefore order the fine stricken and the judgment modified to so reflect." (People v. McWhorter, supra, 47 Cal.4th at p. 380.) As appellant observes in his reply brief: "The only apparent distinction [between Brasure and McWhorter]is that the parole revocation fine upheld in Brasure was appended to an unstayed determinate sentence, while the parole revocation fine stricken in McWhorter was appended to a sentence . . . necessarily stayed under Penal Code section 654 . . . ."
Disposition
The judgment is modified to strike the parole revocation restitution fine (§ 1202.45) and to award appellant credit for 419 days of actual time served in presentence custody (§ 2900.5). As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P.J.
COFFEE, J.
James F. Iwasko, Judge
Superior Court County of Santa Barbara
Mark G. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Stacy S. Schwartz, Deputy Attorney General, for Plaintiff and Respondent.