Opinion
G053706
03-27-2018
THE PEOPLE, Plaintiff and Respondent, v. RANDY LEE PARKERSON, Defendant and Appellant.
Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn, Peter Quon, Jr., and Amanda Casillas, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14NF4270) OPINION Appeal from a judgment of the Superior Court of Orange County, Glenda Sanders, Judge. Affirmed. Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn, Peter Quon, Jr., and Amanda Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Randy Lee Parkerson strangled Zoraida Reyes to death while they were having sex in the back of his car. At trial, appellant claimed Reyes wanted him to choke her to enhance her sexual stimulation, and her death was just an accident. Despite this, the jury convicted him of second degree implied malice murder. On appeal, he contends reversal is required because the jury's instructions on his accident defense and the lesser included offense of involuntary manslaughter were flawed. We disagree and affirm the judgment.
FACTS
Reyes was a transgender woman. On June 12, 2014, her lifeless body was found in the dirt behind a Dairy Queen restaurant in Anaheim. Her bra was down around her waist, and her underwear was at her ankles, but except for some possible bruising around her left eye, she did not have any premortem injuries. The police did not know the circumstances surrounding Reyes' death until they spoke with appellant four months later, in October 2014.
During his police interview, appellant said he went on a prolonged methamphetamine binge after losing his job in early June of 2014. The drug use made him crave sex with transgender women, and on June 10, he met Reyes through an online website. Reyes agreed to give appellant a "blow job" for $10 and told him where to meet her in Santa Ana.
Appellant drove to the specified location and met Reyes as planned. He told police he could not remember exactly where the meeting occurred, but there were businesses and houses in the area, and across the street from where he parked, there were people outside. Undeterred by that, he received oral sex from Reyes in his car. Then he asked Reyes for anal sex. According to appellant, Reyes agreed to let him anally penetrate her, so they started doing it "doggie style" in the back seat of the car.
During the intercourse, Reyes told appellant she wanted to be choked, and appellant obliged. He wrapped his right arm around her neck and squeezed it between his bicep and forearm. At various times after that, Reyes made gagging sounds and grabbed appellant's arm, which "freak[ed appellant] out" because he thought he was hurting her. In fact, each time that happened, appellant momentarily released his arm from around Reyes's neck. However, she told him to keep choking her, and he complied because he was "caught up in the moment."
As appellant was reaching his sexual climax, Reyes' knees gave out and the full weight of his body came down on her back. He continued to choke and thrust into her as she lay face down on the back seat. When he finished, he realized Reyes was not moving or breathing. He was very scared and didn't know what to do. During his police interview, he insisted he was not into rough sex and had no intention to hurt, much less kill, Reyes.
However, at the time, he was not thinking straight because he was so hopped up on methamphetamine. So instead of calling the police and explaining the situation to them, he pulled Reyes' dead body onto the floorboard of his car, threw a sweater over her, and drove to a motel near his home in Anaheim. According to appellant, it was still light outside at that time, but he removed Reyes from the backseat of his car and put her in his trunk. Then he drove home and anxiously contemplated his next move. Paranoid the police were on to him, he got a motel room in Anaheim for the night. The next day, he drove to Temecula and considered leaving Reyes in a wooded area. Instead he drove back to Anaheim and dumped her body behind the Dairy Queen on State College Boulevard.
After that, appellant drove to Las Vegas and stayed there for about a week. He was at large for several months before the police finally arrested him. During that time, appellant conducted numerous searches on his phone for news about Reyes' death, the legal distinction between murder and manslaughter, and how oil can be used to mask bloodstains. Although he told investigators he did not intend to kill Reyes, he assumed he was going to have to spend the rest of his life in prison for what he did to her.
At trial, the medical examiner who conducted Reyes' autopsy testified she died from asphyxiation. She explained that when a person's carotid arteries are compressed, the oxygen supply to their brain is restricted, and they will generally lose consciousness in about 10 to 30 seconds. And if pressure to the arteries is maintained, they will die within 3 to 6 minutes. The medical examiner also talked about the practice of erotic asphyxiation, in which choking is used to increase the euphoria of sexual activity. She said the practice can be dangerous because if the choking continues after the person becomes unconscious it can be fatal.
In closing argument, the prosecutor conceded there was insufficient evidence to prove appellant had the specific intent to kill Reyes, and therefore he could not be convicted of first degree murder. However, the prosecutor posited appellant was guilty of second degree implied malice murder because, by choking Reyes during their sexual activity - particularly after she passed out - he acted in conscious disregard for her life. The defense disputed this. It argued appellant was merely a pawn in Reyes' dangerous game of erotic asphyxiation, and he was not guilty of anything because her death was an accident. The jury rejected appellant's accident defense and convicted him of second degree murder. He was sentenced to 15 years to life in prison for his actions.
DISCUSSION
Appellant contends the jury instructions on the defense of accident and the lesser included offense of involuntary manslaughter were factually inapt, legally incorrect and highly prejudicial. For the reasons explained below, we disagree.
Respondent claims appellant forfeited his right to challenge these instructions because his attorney acquiesced to them in the trial court. However, because appellant alleges the court's instructional errors infringed his substantial rights and his attorney was ineffective for failing to contest them, we will consider his instructional claims on their merits. (Pen. Code, § 1259; People v. Vega (2015) 236 Cal.App.4th 484, 495; People v. Williams (2000) 78 Cal.App.4th 1118, 1126.)
Involuntary Manslaughter
Involuntary manslaughter is a lesser included offense of murder. (People v. Rios (2000) 23 Cal.4th 450, 460.) In differentiating between these crimes, the trial court told the jury, "An unlawful killing caused by [a] willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is murder. An unlawful killing resulting from [a] willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter." The court then instructed the jury on two theories of involuntary manslaughter. It explained appellant was guilty of that offense if, acting with criminal negligence, he caused Reyes' death during a misdemeanor offense or while he was committing a lawful act in an unlawful manner. (See Pen. Code, § 192, subd. (b).) The court identified the subject misdemeanor as lewd conduct in public and the lawful act as sexual intercourse. Appellant challenges both of these theories.
Regarding the misdemeanor manslaughter theory of involuntary manslaughter, appellant contends there was not a sufficient factual basis to permit the jury to find he killed Reyes while committing a lewd act in public because no one else was present when they were having sex in the back of his car, and the lewd act, i.e., anal intercourse, was not the cause of Reyes' death. He submits that rather than identifying lewd public conduct as the predicate offense for misdemeanor manslaughter, the court should have identified the crime of simple battery, which is what occurred when he continued to choke Reyes after she became unconscious and which is what actually caused her to die. We do not believe the trial court erred in using lewd public conduct as the basis for the misdemeanor manslaughter theory of culpability.
Committing a lewd act in public is a form of disorderly conduct. (Pen. Code, § 647, subd. (a).) The crime occurs when a person engages in lewd conduct in a public place under circumstances in which he "knows or should know of the presence of persons who may be offended by the conduct." (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 244.) Thus, as this court has explained, the crime "can include risqué, consensual touching that is open to public view, not because the parties specifically intended that others watch, but rather as a result of the participants' sheer recklessness. An example of such lewd conduct is a couple engaging in a sexual encounter in a public restroom or in a parked car." (People v. Honan (2010) 186 Cal.App.4th 175, 181.)
In this case, appellant told the police he did not know exactly where he met Reyes in Santa Ana. However, he admitted they had sex in his car on a public street while it was still light outside. And not only were there businesses and houses in the area, there were people outside right across the street from where they were parked. Based on this evidence, the jury could reasonably infer people were present when appellant and Reyes were having sex. (See People v. Lake (2007) 156 Cal.App.4th Supp. 1, 9 [presence requirement is met when the defendant knew or reasonably should have known someone was likely to be present during the lewd act].)
As for the causation requirement, it is true that, strictly speaking, Reyes died from choking and not the lewd act of anal intercourse. However, according to the defense, the only reason the choking occurred was to make the intercourse more pleasurable. The choking was therefore part and parcel of the lewd conduct; it was not something that took place separate and apart from the lewd conduct or was unrelated to the intercourse. Given the physical, spatial and temporal concurrence of the lewd conduct and the choking, there was no reason to differentiate between them for purposes of the causation requirement. Accordingly, no error occurred by identifying lewd conduct in public as the predicate offense for the misdemeanor manslaughter theory. (See generally People v. Cox (2000) 23 Cal.4th 665, 675 [in determining whether an offense may form the basis for a conviction of involuntary manslaughter under the misdemeanor manslaughter theory, courts must examine the offense under the specific circumstances in which it was carried out]; People v. Butler (2010) 187 Cal.App.4th 998, 1008 [defendant is liable for involuntary manslaughter when he commits a misdemeanor in a manner that is dangerous to human life].)
Appellant makes a related argument in contesting the jury instructions on the lawful act theory of involuntary manslaughter. In his view, the trial court should have identified choking, not sexual intercourse, as the lawful act in question because, again, the choking is what technically caused Reyes' death. However, the choking was clearly not lawful after Reyes' became unconscious, and as we have explained, the intercourse and choking were so inseparably intertwined there was no need to draw a distinction between them. We are satisfied the trial court's instructions on involuntary manslaughter were both legally correct and supported by the evidence that was adduced at trial.
As a matter of fact, during his closing argument the prosecutor contended "every element" of involuntary manslaughter was met in this case. However, he asserted appellant's conduct transcended criminal negligence, the mental state required for involuntary manslaughter, and reflected a conscious disregard for human life, the mental state required for implied malice murder. By convicting appellant of second degree murder, the jury demonstrated their agreement with this assessment. Their verdict shows that any error in the wording of the involuntary manslaughter instructions was harmless because even though appellant's actions met the criteria for that offense, the jury was convinced beyond a reasonable doubt the elements of the greater offense were proven. (People v. Lee (1999) 20 Cal.4th 47, 60-66 [lack of any instructions on the misdemeanor manslaughter theory of involuntary manslaughter was harmless error because the jury determined the defendant acted with malice]; cf. People v. Coddington (2000) 23 Cal.4th 529, 593, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [trial court's error in failing to instruct on second degree implied malice murder deemed harmless where the jury found the defendant's killings were premeditated].)
In assessing the potential prejudice of the alleged errors pertaining to the lesser included offense of involuntary manslaughter, it is also worth noting that defense counsel did not urge the jury to convict appellant of that offense. Instead, he took an all-or-nothing approach to the case and maintained appellant was not guilty of anything because Reyes' death was simply an accident. For this reason as well, we are convinced the supposed errors in the jury's instructions on involuntary manslaughter were manifestly harmless. (See People v. Nakai (2010) 183 Cal.App.4th 499, 511-512 [any error in failing to instruct on the lesser included offense was harmless in light of the defendant's position he was not guilty of any crime].)
The Defense of Accident
Appellant contends the trial court's accident instruction was prejudicially flawed because it referenced ordinary negligence as opposed to criminal negligence. Again, we disagree.
The jury was instructed defendant was not guilty of murder or involuntary manslaughter if he killed Reyes as a result of an accident. The court explained the accident defense applied if, among other things, "The defendant was acting with usual and ordinary caution." It further stated, "A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was not excused" by accident. Under these instructions, the prosecution only had to show appellant's conduct amounted to ordinary negligence in order to negate his accident defense.
Appellant contends this was error because outside the context of vehicular manslaughter, a person cannot be convicted of involuntary manslaughter unless his actions constitute criminal negligence, i.e., reckless misconduct. Therefore, the prosecution should have been required to prove he acted with criminal negligence in order to disprove his accident theory. This may be true, but the jury was instructed it could only return a verdict of second degree murder if it believed appellant's actions evidenced a conscious disregard for Reyes' life. This is a higher degree of culpability than ordinary negligence or criminal negligence. Thus, by convicting appellant of second degree murder, the jury necessarily determined his conduct exceeded criminal negligence and his actions were no accident. (See People v. Anderson (2011) 51 Cal.4th 989, 997 [the defense of accident is generally encompassed in the instructions pertaining to the charged offenses].) As such, any error in the trial court's accident instruction was harmless under any standard of review. (See People v. Jones (1991) 234 Cal.App.3d 1303, 1313-1316, disapproved of on other grounds in People v. Anderson, supra, 51 Cal.4th at p. 998, fn. 3 [failure to instruct on the defense of accident was not prejudicial where the jury found the defendant acted with malice]; cf. People v. Wooten (1996) 44 Cal.App.4th 1834, 1849 [alleged error in failing to instruct the jury on a claim of right defense was harmless because the factual question posed by the defense was necessarily resolved adversely to the defendant under other instructions].)
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.