Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCS207360, William H. McAdam, Judge. Affirmed.
O'ROURKE, J.
A jury convicted Carlos Jaimez Reyes of attempted murder of his cohabitant and her daughter (Pen. Code, §§ 187, subd. (a), 664, counts 1 and 2); assault with caustic chemicals (§ 244, counts 3 and 4); attempt to burn a structure (§ 455, count 5); making criminal threats (§ 422, counts 6 and 7); and child abuse likely to produce great bodily injury or death (§273a, subd. (a), counts 8-10). The court sentenced Reyes to 14 years in prison.
Further statutory references are to the Penal Code unless otherwise specified. In a motion for new trial brought under section 1181, subdivision (6), the court struck a jury finding that the counts 1 and 2 convictions were willful, deliberate and premeditated.
Reyes challenges his conviction for attempted murder of his cohabitant, contending that the trial court erroneously failed to instruct in the language of CALCRIM No. 603 regarding heat of passion. He requests that we review the sealed materials the trial court reviewed pursuant to his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), to determine if there are additional discoverable materials in the police files. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Maria Urias testified that on December 27, 2006, she and Reyes, her cohabitant, got into an argument. They yelled at each other for approximately 20 minutes. She told him to leave the apartment and that she wanted to end their relationship. He said, "Look what I am going to do." He went downstairs and returned with a gallon of gasoline, which he poured over Urias. Urias shouted for her daughter, Wendy. Reyes poured gasoline over Wendy, who tried to elude him. Urias told Wendy to call the police. Reyes ran downstairs and returned with a cigarette lighter. He showed it to Urias, who became scared as he threatened to burn Urias and Wendy. Reyes threw the lighter at Urias and left. He stood at the gate drinking beers. He started to light matches and throw them on the ground near the garage. Shortly afterwards the police arrived and arrested Reyes. Urias also testified she and Reyes "would always fight and [she] would kick him out. [She] always said that, but [she] knew that he would never leave." They always ended up staying together.
Wendy testified she was in her bedroom and heard her mother screaming. She came out of the room and her mother said she and Wendy were leaving the apartment because Reyes had said he would burn it down. Reyes ran upstairs, threw gas on her mother and on Wendy's head and shoulders, and screamed that he was going to burn them. He was angry and pushed the bedroom door as Wendy tried to close it. Wendy called the police. She could see from her window that Reyes and Urias were arguing. He held a cigarette lighter above the level of his head and said he was going to burn the house down.
Chula Vista Police Officer Jason Deaner testified he responded to a call to Reyes's apartment at approximately 9:30 that night. He detained Reyes, who had a cigarette lighter in his pocket. As soon as Deaner entered the apartment he experienced "the overpowering smell of gasoline." He saw gasoline on the top of the stairs and on the carpet of the stairs. "At the base of the stairs there was what appeared to be like a stain. ... You could see some fluid that had come down the stairs and was at the base of the stairwell." He saw a broken match stick and he became concerned because "it indicated to [him] that somebody may have attempted to strike that match with gas everywhere."
Chula Vista Police Officer Roman Granados testified that on that night he spoke to Urias, who stated she and Reyes had argued earlier that night, and she told Reyes their relationship was over. Reyes responded to this effect: "If you're going to leave me, I'm going to burn you and the whole house down." Chula Vista Police Officer James Horst testified that at the crime scene he photographed and collected evidence on the apartment floor including two matchsticks, one intact and the other spent.
DISCUSSION
Reyes contends that although substantial evidence supported instruction with CALCRIM No. 603 regarding heat of passion, the trial court erroneously failed to give it sua sponte, notwithstanding that an element of attempted murder is that there be an absence of heat of passion, and voluntary manslaughter is a lesser included offense of attempted voluntary manslaughter.
CALCRIM No. 603 provides:
"In determining whether, based on the entire record, a reasonable trier of fact could conclude that the People proved the existence of an element of an offense beyond a reasonable doubt, a reviewing court considers the evidence in a light most favorable to the judgment and presumes the existence of every fact that could reasonably be deduced from the evidence." (People v. Lee (1999) 20 Cal.4th 47, 58 (Lee).)
Even if a defendant does not request it, a trial court must instruct on lesser included offenses whenever substantial evidence raises a question that the elements of the lesser included offense are present. (People v. Lewis (2001) 25 Cal.4th 610, 645.) Substantial evidence in this context is evidence from which a jury could conclude that the lesser offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Conversely, if there is no substantial evidence to support the lesser included offense instruction, the trial court has no duty to instruct on it. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
On appeal, we review independently the question of whether the trial court failed to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th at p. 1215 (Cole).) Voluntary manslaughter is a lesser included offense of murder. (People v. Lewis, supra, 25 Cal.4th at p. 645.) One form of voluntary manslaughter is defined as the unlawful killing of a human being without malice aforethought "upon a sudden quarrel or heat of passion." (§192, subd. (a).) "The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or b[y] conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] 'Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." ' " (Lee, supra, 20 Cal.4th at p. 59.) "Adequate provocation and heat of passion must be affirmatively demonstrated." (Id. at p. 60.)
At trial, the following exchange regarding the jury instruction took place:
[Prosecutor:] Judge, I do think we should put on the record one possible [lesser-included offense] of attempted murder as attempted voluntary manslaughter. I don't think [defense counsel] was asking that. But I think we should make a record about it, in any event. [¶] It is [CALCRIM No.] 603. And I didn't think about it until the court was going through their reading it to the jury. [¶] But of course, it requires heat of passion that would at least arguably rise in the reasonable person. And I don't think there is evidence of that to support that [lesser-included offense]. [¶] But I want to the record to show that court considered or that [defense counsel] considered.
[The Court:] [Defense counsel,] are you requesting that I give that instruction?
[Defense counsel:] Since attempted voluntary manslaughter requires one of the elements that the provocation would have caused an ordinary person of average disposition to act rashly, that is, from passion rather than judgment, I believe that that element would not be supported by the defense that is being proffered here. [¶] And I did not ask for it because I did not believe that the court would find that the jury could find that the ordinary person of average disposition would have found — would have been — would have responded from heat of passion."
The next day, the trial court ruled as follows: "I gave very careful consideration as to the issues as to whether or not an attempted manslaughter instruction should have [been] given. [¶] My analysis of the evidence was such that there was insufficient evidence raised to present that issue to the jury. Therefore, I declined to give [it]."
We reject the contention the court erred by declining to instruct regarding heat of passion. As a preliminary matter, any claim of error is forfeited because defense counsel did not object to the court's decision to decline to instruct regarding heat of passion. (People v. Bolin (1998) 18 Cal.4th 297, 326.) The record shows that the trial court specifically asked defendant's counsel if he was requesting the heat of passion instruction and he declined it, saying, "that element would not be supported by the defense that is being proffered here."
In any event, on the merits, there was no instructional error. Reyes concedes in his opening brief that at trial, "The defense did not deny the incident occurred, but focused on [Reyes's] inability to form the requisite intent to kill element in the attempted murder charges. [¶] [He] suffered from paranoid delusions. For several years, he believed that 'they' were constantly spying on him and his family with hidden cameras in their apartment, on the Intenet through laptop computers, and from satellites. Because [Urias] did not share these beliefs, they often fought."
The facts of this case are remarkably similar to those in Cole, supra, in which the California Supreme Court ruled, "The record does not contain substantial evidence to support a voluntary manslaughter instruction on the theory that defendant acted in the heat of passion after an argument with [his cohabitant]. Evidence that defendant was intoxicated and jealous, and his taped statement to the police that he went 'berserk' after [his cohabitant] said she would put a 'butcher knife in your ass,' may have satisfied the subjective element of heat of passion. [Citation.] 'But it does not satisfy the objective, reasonable person requirement, which requires provocation by the victim.' [Citation.] ' "To satisfy the objective or 'reasonable person' element... of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " ' [Citations.] Such evidence was lacking. While defendant and [his cohabitant] had argued, [his cohabitant] was in bed when defendant began his physical assault by pouring gasoline on her. Furthermore, between defendant and [his cohabitant], bickering, yelling, and cursing were the norm. Their conduct that evening apparently was no different than the many other occasions on which they had argued in their five-year relationship." (Cole, supra, 33 Cal.4th at p. 1216.)
Here, Reyes might have satisfied the subjective element of heat of passion based on his claim he suffered from paranoid delusions. However, he did not meet the objective element. Reyes and his cohabitant had argued frequently, and although she previously threatened to leave him, she never carried out her threat. Despite Reyes's many years of paranoid delusions, he never responded to Urias's previous threats by throwing gasoline on her inside the apartment, holding up a cigarette lighter and lighting matches above her head and inside the apartment where the carpet had been soaked with gasoline. Under these circumstances, we conclude that a person of average disposition would not have responded as Reyes did to similar threats from a cohabitant.
Accordingly, the trial court did not err in declining to instruct regarding heat of passion.
Separately, we note that it is reasonably inferable from the record that between the time Reyes left the bedroom, ran downstairs to get the gasoline and returned upstairs, sufficient time had passed to have permitted him to cool off and regain clear reasoning and judgment; therefore, he did not act out of heat of passion, and the attempted murder would not be reduced to attempted voluntary manslaughter. (CALCRIM No. 603.) Thus even if there was instructional error, Reyes would not be able to show prejudice on appeal.
II.
Reyes asks us to independently review the trial court's ruling on the Pitchess motion regarding James Deaner of the Chula Vista Police Department. The Attorney General does not oppose our review.
In Pitchess, the California Supreme Court held that "a criminal defendant has a limited right to discovery of peace officer personnel records in order to ensure 'a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.' " (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1038, fn. 3 (Alford), quoting Pitchess, supra, 11 Cal.3d. at p. 535.) Based on the accused's need for disclosure as well as an officer's privacy expectations, and to prevent abuses, the Legislature codified the court's decision in Pitchess and set out procedures designed to implement the court's discovery rule. (Pen. Code, §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047; see People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc); Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) Under these procedures, a defendant, by written motion, may obtain information contained in a peace or custodial officer's personnel records by providing certain identifying information, a declaration setting out good cause for disclosure, and a showing of materiality to the subject matter of the pending litigation. (Evid. Code, § 1043, subds. (a), (b)(2), (b)(3); Mooc, at p. 1226.) When presented with such a motion, the trial court rules as to whether there is good cause for disclosure. (Evid. Code, §§ 1043, 1045.) If the court finds the defendant has made the requisite good cause showing, the custodian of the officer's records should bring to the court all "potentially relevant" documents and, in camera outside the presence of the defense or prosecution, the trial court determines whether any of the records are to be disclosed. (Mooc, at p. 1226.)
In determining relevance, the court examines the information in chambers in conformity with Evidence Code section 915, which governs disclosure of information on a claim of privilege and permits in camera review when the court cannot rule on the claim without requiring disclosure of the assertedly privileged information. (Evid. Code, §§ 915, 1045, subd. (b).) During the in camera inspection, the court must exclude from disclosure (1) complaints concerning conduct occurring more than five years before the event that is the subject of the litigation in which Pitchess disclosure is sought, (2) the "conclusions of any officer investigating a complaint," and (3) facts "so remote as to make disclosure of little or no practical benefit." (Evid. Code, § 1045, subd. (b); Warrick, supra, 35 Cal.4th at p. 1019.)
If the court rules in favor of disclosing confidential information, which ordinarily involves revealing only the name, address and telephone number of any prior complainants and witnesses and the dates of the incidents in question (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84; Warrick, supra, 35 Cal.4th at p. 1019), section 1045 mandates entry of a protective order providing that the information "disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law." (Evid. Code, § 1045, subd. (e); Alford, supra, 29 Cal.4th at pp. 1037-1039.) We review the trial court's disclosure ruling for abuse of discretion. (People v. Samayoa (1997) 15 Cal.4th 795, 827.)
Following the trial court's review of Deaner's personnel files produced by the officials of the Chula Vista Police Department, the trial court ordered one item disclosed to the defense. We have reviewed Deaner's entire personnel file and conclude, as the trial court did, that it does not contain any additional information discoverable under Pitchess.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.
"An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion.
"The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if:
"1. The defendant took at least one direct but ineffective step toward killing a person;
"2. The defendant intended to kill that person;
"3. The defendant attempted the killing because [he] was provoked;
"4. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment;
"AND
"5. The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant's reasoning or judgment.
"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.
"In order for heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up [his] own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.
"[If enough time passed between the provocation and the attempted killing for a person of average disposition to 'cool off' and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis.]
"The People have the burden of proving beyond a reasonable doubt that the defendant did not attempt to kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted voluntary manslaughter."