Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Bernardino County No. FVI019744, Jon D. Ferguson, Judge. Affirmed.
McCONNELL, P. J.
James Clifford Smith appeals his conviction of second degree murder (Pen. Code, § 187, subd. (a)) involving the personal and intentional firing of a handgun that caused great bodily injury and death to his son (§ 12022.53, subd. (d)). The court sentenced Smith to a total term of 40 years to life composed of 15 years to life for the second degree murder conviction, and a consecutive term of 25 years to life for the firearm enhancement.
All statutory references are to the Penal Code unless otherwise specified.
Smith contends the trial court failed to sua sponte instruct on the lesser included offense of involuntary manslaughter, and the prosecutor committed misconduct by misrepresenting the requirements for a voluntary manslaughter conviction. We affirm the judgment.
FACTS
In August 2004, Smith lived with his wife, Daisy Smith (Daisy), and their 20-year-old son, Joshua Smith (Joshua). Smith had a number of health problems. In 1985, he had been injured while working as a deputy sheriff, which resulted in an injury to his kneecap, loss of 35 percent of the nerves in his right arm, and his retirement in 1988. Beginning in 1996, he suffered heart problems. In 2002, Smith had a heart attack in February; he was diagnosed as diabetic in March; and he was diagnosed in June as having Bell's palsy, which resulted in paralysis on the right side of his face.
Daisy also had health problems. In early 2003, Daisy had a brain aneurysm. At first, she could not recognize family members. After being released from the hospital, she spent four to six weeks in a rehabilitation facility. Smith decided to bring Daisy home although he was advised it would be better to place her in a care facility. Initially, Daisy could not dress or bathe herself or remember Smith was her husband. After about six months, she could recognize family members and do small tasks, but she suffered a permanent loss of her short-term memory.
Smith was stressed by taking care of Daisy, and he sought psychiatric treatment and took antidepressant and antianxiety drugs. His daughter-in-law assisted him for awhile, but in November 2003, she told Smith she could not help anymore because she had to attend to her own mother.
Joshua decided to take off a year from school to help with his mother. According to Smith, Joshua helped for a couple of days, found he was not able to "handle" Daisy and quit. Smith and Joshua had an "[o]ff and on" relationship. At some point in 2004, Joshua slammed a kitchen drawer on Smith's hand. Smith believed Joshua did it deliberately and responded by slapping Joshua. Joshua punched Smith in the face, causing a bloody nose. Smith punched back. According to statements Smith made in an interview at the sheriff's department, Smith told Joshua, "I'm not gonna let anybody kick my ass in my own house. It ain't gonna happen." He warned Joshua the "next time you do this, I'm gonna grab . . . a knife, a . . . bottle, gun, whatever I can and I'm gonna defend myself."
Joshua apologized a day or two later. Joshua talked to his older brother Michael Smith (Michael) about the incident. Michael testified Joshua and Smith had different versions of it. Michael told Joshua that Smith did not respect them as adults and that Joshua should defend himself physically if required.
On August 27, 2004, Smith shot Joshua in the chest at close range, inflicting a wound that caused Joshua to die within minutes. Smith's neighbor heard the gunshot. In the past, she had heard arguing from Smith's house, but she did not hear any arguing that day.
Smith dialed 911, stated "I shot my son" and requested an ambulance. On the tape, Daisy is heard asking Smith why he shot Joshua. Smith responds, "Cuz he attacked me. He attacked me in the (inaudible), he attacked me in the hallway, then he comes in through the front door and attacked me here." Smith told her he "didn't want to do it," he was "tired of him beating me up" and he was "[f]ed up with it."
A deputy sheriff who arrived at the scene recorded his conversation with Smith. Smith stated Joshua had attacked him about six months earlier and at that time Smith told him, "You jump me again I'm . . . gonna shoot your ass." When Joshua came home about 1:30 p.m. on the day of the shooting, Daisy was sleeping in the bedroom while Smith was in his office. Smith complained to Joshua about slamming the door. Joshua attacked him, hitting him once on the top of the head. He then knocked Smith down in the hallway, straddled his chest, and hit him while saying "fuck you" and "I'm tired of living here." At some point, Joshua got up and went out the front door. Smith retrieved his gun and was trying to shut the door when Joshua, trying to enter the house, knocked Smith down. Smith said, "get out or I'll shoot." Joshua "said 'fuck you' . . . so [Smith] shot him."
At trial, Smith testified that Joshua slammed the front door and banged kitchen cupboards when he came home. Smith hid in his office to avoid a confrontation but opened it when Joshua pounded loudly three times on the office door. Smith complained to Joshua about the noise and the two argued. Joshua was screaming "right in [Smith's] face" so Smith pushed him away. Joshua swung at Smith, hitting him on the top of the head. Smith fell to the floor in the office, and Joshua tried to hit him but walked away when Smith's underwear opened. Smith tried to get by Joshua in the hallway, but Joshua tripped or spun him around, knocked him to the floor, straddled him and swung 10 to 15 times at him. Smith was able to fend off the blows with his arms until Daisy came screaming out from the bedroom, ending the confrontation.
Smith testified he was wearing only his underwear because he had just awakened from a nap.
After Joshua left, Smith decided to get his gun. Retrieving the gun required him to go into the master bedroom, retrieve the keys to a safe from a dresser, open a closet and unlock the safe where the gun was kept. This took Smith about 30 to 40 seconds. Smith testified he retrieved the gun "to scare [Joshua] out of the house" and he had no intent to use it. When he came out of the hallway, Daisy was "crying and in tears," and cowering in front of Joshua who was "going berserk." Smith was angry and afraid for both himself and for Daisy.
Smith showed the gun to Joshua and told him, "Get the fuck out of my house." Joshua twice swung at Smith. Smith fired as he was avoiding the second punch. He made a conscious decision to fire the gun. After Smith fired the gun, Joshua said, "You shot me" and he fell to the floor.
The autopsy indicated the bullet went through Joshua's aorta and right lung and death occurred within minutes. Joshua had injuries on his hands that were consistent with hitting a hard surface like wood, metal or drywall rather than a person. If Joshua had struck a person, that individual most likely would have suffered an injury. When he was arrested, Smith had only a small area of redness in the middle of his chest. Otherwise Smith had no bruises or other injuries consistent with having been hit by Joshua. At trial, Smith testified he had sore muscles.
A criminalist testified that the stippling pattern around the gunshot wound indicated the gun was fired from a distance of between six inches and two feet, most probably at a distance of about one foot. At this close range, if Joshua was swinging at Smith, as he had testified, there would be stippling on Joshua's arm and there was none.
DISCUSSION
I
Involuntary Manslaughter
Smith contends the trial court erred in failing to sua sponte instruct on the lesser included offense of involuntary manslaughter.
A trial court has a duty to instruct the jury on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present. (People v. Birks (1998) 19 Cal.4th 108, 117.) "However, a trial judge need not instruct the jury as to all lesser included offenses, just those that find substantial support in the evidence." (People v. Haley (2004) 34 Cal.4th 283, 312.) 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." (People v. Breverman (1998) 19 Cal.4th 142, 162.) In other words, if no rational jury could find the defendant guilty of the lesser included offense based on the evidence, then it is proper to refuse instructions on a lesser offense. (Haley, supra, at p. 313.)
Under section 192 involuntary manslaughter is: ". . . the unlawful killing of a human being without malice . . . [¶] . . . [¶] (b) . . . in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. . . ."
To support his claim that the evidence supported an involuntary manslaughter conviction, Smith focuses on his testimony that he did not intend to kill Joshua and that "the gun discharged" as Joshua was attempting to hit him. He argues this evidence shows he "did not make a conscious choice to shoot the gun, but it discharged as he was avoiding one or more punches thrown by Joshua." Therefore, he argues, there was sufficient evidence to support an involuntary manslaughter conviction either on the theory that he "as a former police officer was not exercising due caution and circumspection in his handling of the gun" or that "he was committing a dangerous misdemeanor by his handling of the gun" and had no harmful intent.
While it is true that the evidence of an accidental discharge of a gun during a physical struggle may warrant an involuntary manslaughter instruction (see People v. Lee (1999) 20 Cal.4th 47, 61-62), the evidence in this case does not show an accidental discharge. The testimony quoted by Smith suggesting the gun accidentally discharged during a struggle with Joshua ignores his repeated testimony stating the shooting was intentional. He testified during cross-examination that during the final confrontation when Joshua attempted to hit him a second time that he "pulled the gun up and pulled the trigger." (Italics added.) He testified that although he did not remember pulling the trigger, he "made the decision to shoot him, [he] pulled the gun up, and [he] intended to shoot him." (Italics added.) When pointedly asked if he intended to shoot Joshua, Smith answered, "Yes." On redirect, Smith testified that when Joshua was trying to hit him, he "had a conscious thought to pull the trigger and end this thing." (Italics added.) When his counsel asked for clarification, Smith answered, "[M]y intent was not to kill him. I didn't want to kill my son. But he's hitting me and attacking me at that moment, and I didn't know how to stop it. He'd already attacked me twice. And so I pulled the trigger. I don't remember pulling the trigger, but I know I did. I remember making a conscious thought to -- to shoot him." (Italics added.) In other words, Smith testified this was an intentional, not accidental, shooting.
The trial court properly did not instruct on involuntary manslaughter.
II
Prosecutorial Misconduct
Smith contends the prosecutor committed misconduct during closing argument by misrepresenting the requirements for voluntary manslaughter based on heat of passion.
Voluntary manslaughter includes a killing "upon a sudden quarrel or heat of passion." (§ 192, subd. (a).) Although the Penal Code "refers to 'sudden quarrel or heat of passion,' the factor which distinguishes the 'heat of passion' form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be 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." ' " (People v. Lee, supra, 20 Cal.4th 47, 59.) "Thus, '[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively.' " (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
During closing argument, after quoting from the instructions on heat of passion, the prosecutor argued:
"You come home one day and you see, you find or you hear your child being molested by a child molester; you take your gun, you walk up to that guy, and you shoot him. It's murder with a discount. Because any ordinarily reasonable person may have done that, because it has aroused your passion. You're so upset, you're so upset at this point that you just saw somebody doing this horrible, horrible crime to your child, and we all say, yeah, we could see you doing that. It's murder with a discount because of that passion because of what you just witnessed, and we say, yeah, we can see why you did that.
"We don't have that here. There was no heat of passion. We're not going to sit back and say, Mr. Smith, you know what? Yeah, we can understand why you shot him, because all of us would have done that too.
"Heat of passion, ordinarily reasonable person. It's different.
"A defendant — and this is big too 'is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused,' because he was angry, he was upset.
"No. It's the ordinarily reasonable person. Would you have gotten a gun and confronted your son and shot him? And that's the standard. It's not his personal standard." (Italics added.)
The defense argument focused on Smith's emotional state, how Smith was "was out of gas," "out of hope," "at the bottom" and was "an emotional wreck." Defense counsel argued Smith believed he needed to defend himself and his wife from Joshua, and, given Smith's emotional state and how it affected his perceptions, the evidence showed the offense Smith committed was not murder but voluntary manslaughter, based on an imperfect self-defense theory.
In response, the prosecutor argued:
" Are we giving people a license to kill because they have problems at home, because they're depressed, because they've got Bell's palsy, because they've got heart problems? Are we saying because of that, it was okay for you to walk up to Joshua, shoot him one time in the chest and kill him? Because of that emotion, is it okay to do what you did? And it's not. We don't. Fortunately we have the constitution, we have the statutes that we've got to follow. The law is what the law is.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"He was in a pressure cooker? That's no different than probably all of you. Everybody has problems. Do we give people a license to kill?
"He made the choice. He went and got the gun. . . . [W]ho now has the right to self-defense? Who now is the aggressor? Who has now taken this fistfight and brought a deadly weapon into the fight? Was it Joshua? No. It was the defendant. The defendant brought a deadly weapon into this fight. So at this point who has the right to attack? Who has the right to do whatever they need to do to save themselves? Not the defendant. He became the aggressor. He made that choice. He was living in this pressure cooker, yes, but he made the choice to bring the gun, kept it in his right hand where he was more accurate, and he said, 'I shot him, just like that.' He made the choice."
Smith also objects to the prosecutor's reference to a heat of passion voluntary manslaughter as being "murder with a discount." Smith waived this issue by failing to object. Further, while crudely stated, the prosecutor's statement reflects the standard concept that heat of passion "reduces" a murder to voluntary manslaughter. (People v. Breverman, supra, 19 Cal.4th 142, 154 [" . . . heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide" (italics omitted)].)
"A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ' "unfairness as to make the resulting conviction a denial of due process." ' [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial." (People v. Alfaro (2007) 41 Cal.4th 1277, 1328; People v. Stanley (2006) 39 Cal.4th 913, 951.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
As a general rule, a defendant must make a timely objection and request the court to admonish the jury to preserve a claim of prosecutorial misconduct for appeal. (People v. Ledesma (2006) 39 Cal.4th 641, 726.) However, "[a] defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ' "an admonition would not have cured the harm caused by the misconduct." ' " (People v. Hill (1998) 17 Cal.4th 800, 820.)
In People v. Najera (2006) 138 Cal.App.4th 212, 223 (Najera), the prosecutor made a similar argument. The prosecutor stated: " 'Heat of passion is not measured by the standard of the accused. We don't care what the accused did. We don't care what the standard is for the accused. As a jury, you have to apply a reasonable, ordinary person standard, okay. [¶] Going back to that intruder hypothetical. Any reasonable, ordinary person walking in on a child being molested, if they had a gun in their hand, would probably do the same thing. It's that same hypothetical that was given to you in voir dire by defense. . . . Would a reasonable person do what the defendant did? Would a reasonable person be so aroused as to kill somebody? That's the standard.' " (Italics as indicated in Najera.) During rebuttal, the prosecutor stated: " '[T]he reasonable, prudent person standard . . . [is] based on conduct, what a reasonable person would do in a similar circumstance. Pull out a knife and stab him? I hope that's not a reasonable person standard.' " (Ibid., italics added as indicated in Najera.)
The Najera court found the italicized portions of the prosecutor's argument were incorrect, explaining: "The focus [of a heat of passion defense] is on the provocation — the surrounding circumstances — and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (Najera, supra, 138 Cal.App.4th at p. 223.) The Najera court noted that "[t]he prosecutor interspersed correct statements of the law with the incorrect ones stating, for example, '[w]ould a reasonable person be so aroused as to kill somebody? That's the standard.' " (Id. at p. 224.) Ultimately, while the Najera court found the prosecutor's argument resulted in confusion, it did not reverse because the defendant had failed to object, the jury had been instructed to follow the court's rather than the attorney's instructions on the law, and the evidence, in any event, did not support a voluntary manslaughter conviction. (Id. at pp. 224-226.)
As in Najera, the prosecutor here improperly argued the heat of passion defense uses a reasonable person standard for assessing how the killer responded to provocation defense. However, also like Najera, Smith failed to object to the misconduct and thus waived the issue. This is not a situation where an admonition would have failed to cure any possible harm from the prosecutor's argument. Had an objection been raised, the trial court could have corrected any misleading or inaccurate statements of law and warned the prosecutor not to repeat them.
Further, the court properly instructed the jury on heat of passion and told the jury that if there were any conflicts between the statements made by the attorneys and the court's instructions, the jurors were to follow the court's instructions. We must presume, in the absence of any evidence to the contrary, that the jurors followed these instructions. (Najera, supra, 138 Cal.App.4th at p. 224; People v. Gray (2005) 37 Cal.4th 168, 217.)
Finally, there was compelling evidence supporting the second degree murder conviction. Smith started the physical altercation by pushing Joshua. The physical altercation did not result in the infliction of any serious injury. Smith had only one spot of redness on his chest and no other injuries. Joshua had no injuries consistent with hitting Smith. The confrontation ended before Smith retrieved the gun. When Smith confronted Joshua with the gun, Joshua was unarmed. No yelling or screaming was heard prior to the gunshot. If Smith had been dodging Joshua's blow when he fired the gun, one would have expected to find gunpowder stippling on Joshua's arm but there was none. Smith's trial testimony was also impeached by statements he made to a deputy sheriff at the scene that he shot Joshua because Joshua had responded, "fuck you" when Smith told him "get out or I'll shoot." Smith indicated he felt justified in shooting Joshua because after the kitchen incident, he had warned Joshua, "You jump me again I'm . . . gonna shoot your ass." While Smith may not have intended to kill his son, the evidence strongly supported a finding that Smith, motivated by anger and injured pride, intentionally shot Joshua at close range, a situation consistent with murder and not voluntary manslaughter.
We conclude there is no reasonable probability that absent the prosecutor's misstatements of law Smith would have received a more favorable verdict.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., O'ROURKE, J.