Opinion
E066223
11-22-2017
THE PEOPLE, Plaintiff and Respondent, v. DANTIJER DOMENICK POWELL, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, and Eric A. Swenson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVA1400156) OPINION APPEAL from the Superior Court of San Bernardino County. Shahla Sabet, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Dantijer Domenick Powell was charged with first degree murder but a jury convicted him of the lesser included offense of voluntary manslaughter. (Pen. Code, § 192, (a).) The jury also found true that defendant used a knife during the commission of the offense. (§ 12022.7, subd. (b)(1).) The court sentenced defendant to 12 years in prison: the aggravated term of 11 years for voluntary manslaughter plus one consecutive year for the use of a knife.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant and the victim, Domonique Newburn, were involved in a sexual relationship that began when defendant was 14 years old and Newburn was an adult, 10 years older. After defendant turned 18 in June 2013, he told Newburn he had a girlfriend who might be pregnant. In August 2013, when Newburn asked defendant to come to her apartment for a sexual encounter, they argued. In a struggle over a knife, defendant fatally stabbed Newburn.
Newburn, a transgender woman, was also known as Daymond Watford.
On appeal, defendant argues the trial court erred by not instructing the jury with CALCRIM No. 580 on the lesser included offense of involuntary manslaughter: "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." (§ 192, subd. (b).) We conclude there is not substantial evidence to support the conclusion that defendant acted without implied malice or intent to kill when he responded to an attack initiated by the victim. His self-serving statements about his intent are not enough to mitigate the element of malice. We affirm the judgment.
II
STATEMENT OF FACTS
"We review the trial court's failure to instruct on a lesser included offense de novo (see People v. Licas (2007) 41 Cal.4th 362, 367; People v. Manriquez (2005) 37 Cal.4th 547, 581) considering the evidence in the light most favorable to the defendant (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137; People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5.)" (People v. Brothers (2015) 236 Cal.App.4th 24, 30.)
Prosecution Case
Newburn lived in an apartment in Fontana. Shortly before Newburn's death, defendant and Newburn had exchanged text messages in which Newburn asked defendant to come to her apartment to have sex.
On August 20, 2013, at around 3:30 p.m., Newburn's neighbor, Kisha D., her daughter, Sabrina M., and Kisha's boyfriend were home when they heard Newburn screaming for help. While Sabrina investigated, Kisha called 911. Sabrina observed defendant going back and forth from Newburn's car to the apartment, loading luggage, a heavy metal item, and a television. Defendant also took off his shirt and had blood on his arm. When Kisha asked defendant if "everything was all right," defendant was calm and acted as though nothing was wrong. Defendant eventually drove away in Newburn's car, a black Mercedes Benz.
Another neighbor saw defendant loading the car and tossing a bag in the trash. He recognized defendant as someone who had been living in Newburn's apartment.
Officer Moreno responded to the scene and, entering the apartment, he saw damage to the wall and blood on the wall and the floor. Moreno immediately noticed Newburn dead and "face down in a pool of blood." The apartment was in disarray from an apparent altercation.
Detective Anderson observed blood in the entryway, on the wall directly in front of the door opening, and also on the ground. The apartment had been "ransacked" and there appeared to have been a struggle. Anderson testified it looked "as if somebody was panicking and wasn't thinking about their actions." There was damage to the drywall and to the bedroom door and blood everywhere—on the furniture, the couch and the pillow, the television, in the bathroom, and on the wall. A bloody handprint was located on the door. "The blood was so heavy and saturated" that, at first, Anderson could not determine the cause of death. One of Newburn's acrylic fingernails was on the ground. A television and television stand appeared to have been moved to block the hallway. A second television was missing from the bedroom.
During the search, police officers located a knife handle, missing a blade. They also found a man's bloody tank top in the bathroom. Newburn's missing vehicle was recovered in San Bernardino.
Later that day, Michael M. was waiting for the bus when defendant drove up and asked Michael to dispose of Newburn's wallet. Michael took the wallet, put it in a trash can, and waited for defendant to drive away before retrieving it. After attempting to contact Newburn via Facebook, Michael then gave the wallet to his mother who passed it on to the police.
When the Fontana police department received an anonymous tip naming defendant as a suspect, the officers responded to his residence and found a television with dried blood on it. Defendant's palm print matched a palm print taken from the television and a palm print found at the crime scene.
Defendant was arrested in Missouri in January 2014.
The Autopsy Evidence
Dr. Hutchins, a coroner's forensic pathologist, performed Newburn's autopsy. He identified Newburn as male transitioning to female. Newburn weighed 194.57 pounds. The cause of death was 10 stab wounds, four of them "fatal or potentially fatal," including one behind an ear that penetrated the skull bone, one on the cheek that penetrated to the jaw bone, one which severed the jugular vein and carotid artery, two of which injured the liver, and other wounds across the body. Hutchins also noted an incision on Newburn's hand that was "consistent with a defensive wound."
Defense Case
Defendant testified he turned 18 years old in June 2013. In August 2013, he was entering his senior year of high school. When defendant was 14 years old, he met Newburn, who performed oral sex on him in her car. It was defendant's first sexual encounter. He did not know for a month or two that defendant was a transsexual female. Their sexual relationship continued for several years. Defendant lived with his father intermittently but often stayed with Newburn, who bought him games, food, haircuts, shoes, and clothes in exchange for sex. In June 2013, defendant started dating Jamie C.
On August 19, 2013, Newburn texted defendant requesting he come to her apartment for sex. Defendant did not respond because he was with Jamie. When defendant arrived after school the next day, Newburn was out buying food. When Newburn returned home, she became angry because defendant said he did not want to eat and she accused defendant of wasting her money. They argued and defendant went into the bedroom to play a video game alone. Jamie called defendant's cell phone and defendant told her he loved her and he would see her later.
Newburn came in the bedroom and confronted defendant about the phone conversation. Defendant initially lied about who he was speaking to but Newburn said she knew he had a girlfriend. They continued to argue and defendant asked to be taken home. Newburn refused and insisted defendant choose between her and Jamie. Defendant told Newburn he loved her but Jamie could be pregnant and he wanted to be responsible. Newburn "got madder" and again refused to drive defendant home.
As defendant began to gather up his belongings, Newburn returned to the bedroom wielding a knife, swinging it above her head and down. Defendant raised his hands in defense and ran from the bedroom. Newburn chased defendant and swung the knife at him. This time, defendant grabbed her wrist, "trying to get her to drop the knife." Defendant weighed 145 pounds at that time. While struggling with Newburn, defendant successfully grabbed the knife with his right hand and pushed Newburn away with his left hand and stabbed her in the stomach or abdomen.
Defendant was so scared he did not remember how many times he actually stabbed Newburn who continued to threaten him. He finally stopped when he felt safe and Newburn appeared to be dead.
Defendant claimed he was shocked and scared but that he cared about Newburn and, in trying to protect himself, he did not intend to stab or kill her. Defendant insisted he was not the aggressor but he had reacted to being attacked.
After cleaning up in the bathroom, defendant loaded his belongings, including the television and the Xbox, which he claimed Newburn had bought for him, into Newburn's car.
When defendant arrived home, defendant's father told him he needed to leave. After having his wounds treated at a hospital, defendant took a bus to Missouri with Jamie.
III
INVOLUNTARY MANSLAUGHTER
Defendant was originally charged with one count of murder pursuant to section 187, subdivision (a). The court gave jury instructions on self-defense (CALCRIM Nos. 505, 571, 3474) and the lesser included offenses of second degree murder and voluntary manslaughter (CALCRIM Nos. 500, 520, 521, 522, and 570). Defense counsel requested the trial court also instruct the jury on the additional lesser included offense of involuntary manslaughter. (CALCRIM No. 580.) Defense counsel argued that defendant had testified that, during the struggle with Newburn, he was "swinging the knife, not really knowing, just kind of swinging it wildly," in a manner that could be deemed "criminal negligence," absent the intent to kill, necessitating the involuntary manslaughter alternative.
The trial court recited on the record the elements of involuntary manslaughter: defendant had committed a crime with criminal negligence and defendant's acts unlawfully caused the death of another person. The trial court declined to give the instruction on involuntary manslaughter, reasoning that, ". . . let's assume somebody pulled a knife on you. And you pick up the knife and you wave it around stabbing ten times. Four of those are fatal and one is to the jugular. I don't think so."
In declining to give the involuntary manslaughter instruction, the trial court focused on there being 10 stab wounds, four of which were fatal. We agree with the trial court that the circumstances in this case did not warrant the requested instruction.
Standard of Review
We conduct a de novo review. (People v. Brothers, supra, 236 Cal.App.4th at p. 30.) A trial court must instruct the jury on the theory of involuntary manslaughter when it is supported by substantial evidence that a reasonable jury could convict the defendant of the lesser crime. (People v. Edwards (1985) 39 Cal.3d 107, 116; People v. Geiger (1984) 35 Cal.3d 510, 519; People v. Wickersham (1982) 32 Cal.3d 307, 325.) The trial court may not weigh the credibility of a witness. (People v. Flannel (1979) 25 Cal.3d 668, 684; People v. Carmen (1951) 36 Cal.2d 768, 773-734.) Any doubts about the sufficiency of the evidence to support the requested instruction should be resolved in favor of the defendant. (Flannel, at p. 685.)
Involuntary Manslaughter
"Murder is defined as 'the unlawful killing of a human being, or a fetus, with malice aforethought.' ([§ 187, subd. (a)].) Malice aforethought 'may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' (§ 188.) . . . [Citations.] '[Our Supreme Court has] interpreted implied malice as having "both a physical and a mental component. The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' [Citation.] The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.' [Citation.]" [Citation.]' [Citations.]" (People v. Bryant (2013) 56 Cal.4th 959, 964-965.)
Both voluntary and involuntary manslaughter are lesser included offenses of murder. (People v. Thomas (2012) 53 Cal.4th 771, 813-814.) "A defendant commits voluntary manslaughter when a homicide that is committed either with intent to kill or with conscious disregard for life [implied malice]—and therefore would normally constitute murder—is nevertheless reduced or mitigated to manslaughter." (People v. Bryant, supra, 56 Cal.4th at p. 968.) The mitigating circumstances will involve some form of provocation or unreasonable self-defense. (Ibid.) Involuntary manslaughter, in contrast, is defined by statute as a killing, without intent or implied malice, which occurs "in 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." (§ 192, subd. (b).)
A trial court must instruct on "involuntary manslaughter as a lesser included offense of murder where 'there is substantial evidence that defendant committed the lesser included offense, which, if accepted by the trier of fact, would exculpate the defendant from guilt of the greater offense.'" (People v. Turk, supra, 164 Cal.App.4th at p. 1371, quoting People v. Cook (2006) 39 Cal.4th 566, 596.) Therefore, if the evidence presents a "material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter violates the defendant's constitutional right to have the jury determine every material issue." (Cook, at p. 596; People v. Brothers, supra, 236 Cal.App.4th at p. 35; People v. Ray (1975) 14 Cal.3d 20; People v. Turk, supra, 164 Cal.App.4th at p. 1361.)
Here, the issue of defendant's implied malice or the intent to kill were questions for the jury. We agree with the jury's finding of voluntary manslaughter in that substantial evidence showed defendant possessed implied malice or the intent to kill during his struggle with Newburn but which was mitigated by provocation or unreasonable self-defense. (People v. Bryant, supra, 56 Cal.4th at p. 968.) We cannot conclude that defendant lacked intent or acted without conscious disregard of the risk to human life, such as would support an instruction on involuntary manslaughter. As discussed below, there was substantial evidence that defendant acted with implied malice based on the violent and sustained nature of his attack.
Defendant argues that he believed he was in mortal danger. On the day of her death, Newburn had pressured defendant to have sex and he had refused while chatting with his new girlfriend on the phone and telling Jamie he loved her. Newburn confronted defendant, threatening him with a knife. Defendant may have been afraid that Newburn would be jealous and angry enough to try to kill him. Defendant attempted repeatedly to escape the apartment and testified that he only stabbed Newburn to stop the attack but he never intended to kill her. The chaotic crime scene and the "ransacked" apartment seemed to corroborate defendant's testimony that he panicked. Defendant contends that substantial evidence supported the involuntary manslaughter instruction.
Ultimately, however, the sustained violence of the attack would not have allowed the jury to find that defendant acted without implied malice and conscious disregard of the risk to human life. Defendant's level of force was not objectively reasonable. When Newburn attacked defendant in the bedroom and a struggle ensued, defendant gained possession of the knife and stabbed Newburn repeatedly as she screamed for help. The 10 stab wounds penetrated bone and liver and severed the jugular vein and carotid artery.
Defendant claimed he could not remember many of the specific details of the stabbing because he was scared, panicked, and not thinking clearly. It is scarcely credible that defendant could have been unaware of the risk of death or serious injury from multiple extreme strikes. Nevertheless, even if defendant may not have intended to kill Newburn, he surely intended to cause her harm. The number and nature of the knife wounds permit virtually no other conclusion. (People v. Avila (2009) 46 Cal.4th 680, 701-702 [intent to kill]; People v. Gonzales (2005) 126 Cal.App.4th 1539, 1552 [intent to kill]; People v. Brothers, supra, 236 Cal.App.4th at p. 35 [implied malice and danger to human life].)
Additionally, defendant's post-offense conduct displayed his culpable mental state. (People v. Thompson (2010) 49 Cal.4th 79, 113.) Defendant did not seek medical assistance for Newburn. Instead, he packed up the property he claimed was his and stole her car, disposing of her wallet as he fled the scene. Then he left the state to elude arrest.
Finally, based on these circumstances, we agree there is no reasonable probability defendant would have achieved a better outcome if the jury had been instructed on involuntary manslaughter. (People v. Breverman (1998) 19 Cal.4th 142,178.) The record does not offer substantial evidence that defendant acted without implied malice, warranting the involuntary manslaughter instruction. The trial court's refusal to instruct with CALCRIM No. 580 was not prejudicial error.
IV
DISPOSITION
The trial court did not err in refusing to give CALCRIM No. 580. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.