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People v. Smith

California Court of Appeals, Fourth District, Second Division
Mar 27, 2008
No. E042044 (Cal. Ct. App. Mar. 27, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. GARY WAYNE SMITH, Defendant and Appellant. E042044 California Court of Appeal, Fourth District, Second Division March 27, 2008

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF121046 W. Charles Morgan, Judge.

Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Bradley A. Weinreb, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RICHLI, J.

On December 27, 2004, defendant Gary Wayne Smith secreted a loaded 12-gauge shotgun under his bed and waited for his wife Lori Smith to come home from work. When she got home, he poured her a glass of wine, and they discussed their marital problems. After they finished talking, Lori sat at the kitchen table doing work. Defendant went upstairs, got the loaded shotgun, and, without saying a word, shot her in the side of the head. She died instantly. Defendant then drove to the Temescal Public Safety Facility and told the fireman on duty that he had just shot his wife. Defendant was subsequently interviewed by police detectives wherein he admitted that he had waited at home for Lori and shot her with shotgun.

A jury found defendant guilty of first degree premeditated and deliberate murder (Pen. Code, § 187, subd. (a)). The jury also found true the allegations that defendant was lying in wait (§ 190.2, subd. (a)(15)) and that he personally discharged a firearm (§ 12022.53, subd. (d)). The trial court sentenced defendant to 25 years to life for the personal discharge of a firearm, plus life without the possibility of parole for committing murder while lying in wait.

All further statutory references are to the Penal Code unless otherwise specified.

The parties note that the clerk’s transcript and abstract of judgment both incorrectly state that defendant was sentenced to two life without the possibility of parole sentences on count 1, one for the first degree murder and one for the lying-in-wait special circumstance allegation. The People concede the error. The reporter’s transcript correctly states the sentence: life without the possibility of parole on the substantive count (§§ 187, subd. (a), 190.2, subd. (a)(15)), plus 25 years to life for personally discharging a firearm (§ 12022.53, subd. (d)). We therefore will order that the minute order and the abstract of judgment be corrected to reflect the proper sentence.

Defendant now contends:

1. His confession was made under unduly coercive circumstances that rendered his statement involuntary.

2. The trial court erred by refusing to give his requested pinpoint instructions on voluntary manslaughter.

3. The refusal to give instructions on involuntary manslaughter as a lesser included offense constituted prejudicial error.

4. Cumulative error requires reversal.

5. The minute order and abstract of judgment must be corrected to accurately reflect the sentence imposed by the court.

We find no prejudicial error; however, we agree that the minute order and abstract of judgment must be modified to reflect the proper imposed sentence.

I

FACTUAL BACKGROUND

A. Prosecution

1. Lori and Defendant’s relationship prior to the shooting

Prior to 2002, Lori, then 45 years old, and her children, Raymond and Rochelle Orzulak, lived in a house owned by Lori. Sometime in 2002, Lori met 61-year-old defendant, and they were soon married. In late summer 2003, defendant, Lori, Raymond, and Rochelle all moved into a house that defendant and Lori purchased together, located at 4187 Crooked Stick Lane in Corona.

In 2004, defendant and Lori started having marital problems mostly due to money and how Lori was raising Raymond and Rochelle. Despite their problems, defendant and Lori bought two rental houses together at Lori’s suggestion.

In October 2004, Lori moved out of the master bedroom and started sleeping on the couch. Defendant became more aggressive toward Lori. He left a message on Lori’s phone calling her an “[f]-ing whore,” telling her that she needed to pack her “[f]-ing shit” and get out of the house.

Sometime around December 14 or 15, 2004, defendant broke nearly all of the wine bottles in Lori’s wine collection. Defendant also cut up pictures of the two of them. He said to Lori sometime in December 2004, “You’re fucking me over and taking my money.” Defendant had told Lori that he was thinking of killing himself, so she hid all of defendant’s guns in their attic.

Lori wanted out of her relationship with defendant. She started spending time in Arizona and Nevada with another man, Dan White. While she was on one of these trips, defendant left a message for Lori advising her that he wanted her out of his “fucking house” and that he knew she was seeing another man.

On or about December 18, 2004, defendant wrote Lori a note, again calling her an “[f]-ing whore.” The note also referred to “Dan.” On December 19 or 20, defendant accused Lori of cheating on him with White. Lori and her family spent Christmas Eve and Christmas day with White; defendant was not invited. Lori had already filed for divorce.

Defendant told a friend that he was beginning to become concerned about not having enough money to retire. Defendant had not wanted to buy the rental homes but had given in to make Lori happy.

2. The shooting

On the morning of December 27, 2004, Lori went to work around 8:30 a.m. Defendant was in and out of the house the entire day, which was unusual because he was normally at work.

Rochelle was running on a treadmill in the master bedroom around 11:00 a.m. that day when defendant came into the bedroom and asked her if White drove a red Hummer. Rochelle just shrugged her shoulders because she did not want to get into the issue with defendant. Rochelle left the house around 1:00 or 2:00 p.m.

That evening, Raymond and his girlfriend, Jessica, were in Raymond’s bedroom watching a movie. At one point during the movie, Jessica went to the kitchen and got drinks. Jessica ran into defendant in the kitchen. Defendant asked her what she and Raymond were going to be doing that night and whether they were going to be home. Jessica thought it was unusual that defendant had asked about their plans because he had not done that before.

Lori returned home from work and changed into her pajamas. Sometime later, Raymond and Jessica heard a loud bang. They jumped up and opened the door. Raymond smelled what he believed to be burning flesh. Raymond and Jessica heard the front door close. They ran to Raymond’s bedroom window and saw defendant walk quickly to his truck and drive away.

Raymond had burned himself before so he recalled the smell.

Raymond and Jessica then ran down the stairs and discovered Lori lying on the dining room floor with a gunshot wound to her head. A shotgun was lying on the ground near her body. Lori had no pulse. After the shooting, a note was found in Lori’s belongings that said, “Unfaithful bitch tell Dan hello.”

3. Defendant’s surrender

Defendant drove to the nearby Temescal Public Safety Facility, which housed both the fire and police stations. It was three minutes from the Crooked Stick Lane house. He calmly told a fireman on duty, “Hi. I just shot my wife. I’d like somebody to come pick me up.” Defendant also spoke with a police dispatcher while waiting outside the fire station. The dispatcher asked defendant, “Are you the one that shot your wife?” Defendant responded, “Yes, I am.” Defendant said that his wife was in the kitchen on the floor in a house on Crooked Stick Lane. He said he shot his wife only once, probably in the head.

Corona Police Officer Jeremy Bechtold arrived and arrested defendant. Defendant was given his Miranda rights. He was “[v]ery calm.” He did not appear be intoxicated. He said his wife was “[i]n the kitchen.” Defendant also said that the shotgun he had used was lying on the ground with two rounds in it. Officer Bechtold asked defendant what had happened. Defendant responded that he and Lori were getting a divorce, and she was “fucking another guy.” Defendant then said, “Well, not anymore.”

Miranda v. Arizona (1966) 384 U.S. 436.

4. Defendant’s statement to police

Corona Police Detective Edward Fanchin interviewed defendant.

Defendant recounted how he and Lori had met. He explained they were having problems because he disagreed with how she was raising her children and because she was spending his retirement money. Lori wanted a divorce. Defendant said that he loved Lori very much, but “[u]nfortunately that’s probably ended now but . . . she had a boyfriend in Arizona.” Defendant said, “I’m 61 years old; I have no future so I might as well just make sure that she has no future too.”

That day, defendant drank about eight beers in the afternoon and arrived home at 4:00 p.m. Defendant got a shotgun from its hiding place in the attic. He loaded three rounds of 25-year-old shotgun shells and hid the gun under his bed. He then waited for Lori to come home and hoped the children would leave. Defendant said, “So it is premeditated if that’s what you’re asking.”

Lori came home around 6:00 p.m. Defendant asked about Lori’s day and poured her a glass of wine. They argued over the car insurance; defendant had removed her from his policy because she had stopped paying the household bills. Defendant once again said he was upset that she was spending all of his retirement money. Defendant claimed that Lori was “rubbing it” in his face that night that she was going to see her boyfriend that weekend; defendant stated, “I decided it was time . . ., she was ending my life so I was going to end hers.” He said, “[T]hat’s when I blew her away.”

Lori had been sitting at the kitchen table. Defendant went upstairs and got the gun. He came down the stairs and around the corner and pointed the gun at her. Lori was looking at her work. He pulled the trigger. He was not sure where he shot her but presumed it was in the head because he saw “hair fly.” Defendant only shot once. He laid the gun on the ground and immediately drove to the fire station. He said nothing to Lori prior to shooting her.

Defendant claimed he would have done “suicide by Police” if he had had the “guts.” Defendant was asked when he decided to he was “going to end it this way[.]” Defendant responded, “[T]hat question I probably shouldn’t answer. [B]ut I will because I don’t really give a shit. [P]robably this morning.”

Detective Fanchin questioned why defendant was so calm. Defendant responded, “I know what I did. I know what the consequences are.” Detective Fanchin asked defendant if he regretted what he had done. Defendant responded, “Yes, I don’t regret killing her. I regret that the marriage ended.” He was asked why he did not regret it. Defendant responded, “I think she really deserved it frankly.” He felt that she did not care about him or their marriage.

Defendant said, “Life’s over. Sixty-one (61) years old, your wife leaves you, takes everything you’ve got, what do you do, you[r] life, you know.” Detective Fanchin said, “You’ve obviously done what you thought was necessary.” Defendant responded, “Well it wasn’t necessary it was just a bit of passion. I wouldn’t want anybody else to go through this at her expense.”

Testimony was also presented to the jury that defendant was not allowed to go to the bathroom during the interview because Detective Fanchin wanted to conduct a gunshot residue test, and defendant ended up soiling himself.

5. Further investigation

After Detective Fanchin interviewed defendant, he went to the Crooked Stick Lane house. A 12-gauge 1912 Winchester shotgun was lying on the floor right below the stairway. The barrel of the shotgun was facing toward the kitchen and dining area. Detective Fanchin observed Lori lying on the floor in the kitchen and dining area. Lori died as a result of the gunshot wound to her neck and head. The scalloped edges of the gunshot wound were consistent with a shotgun being used. The wound was consistent with Lori having her face turned to the side away from the gun at the time she was shot.

B. Defense

Defendant had $167,000 in his retirement account before he married Lori, but by December 2004, he had only $20,000. Defendant believed that Lori was cheating on him with White. Defendant’s blood alcohol level at the time of the murder would have been between 0.09 and 0.11.

Defendant also presented evidence by way of a retired Los Angeles Police Department police officer that the shooting may have been unintentional based on the fact that defendant did not empty the gun of its bullets, and the angle at which Lori had been shot indicated that the gun was at defendant’s hip at the time it fired. Defendant had military training and was an expert in the use of a M-14 rifle.

When defendant was first detained, he told an officer, “Those shells were 25 years old, I’m surprised they went off.”

II

DEFENDANT’S CONFESSION WAS VOLUNTARILY MADE

Defendant contends that his pretrial statement made to police was involuntarily made because it was the result of unduly coercive circumstances.

A. Additional Factual and Procedural Background

Defendant brought a motion to exclude his statement made to the police during his interview at the fire station. The trial court reviewed the motion. It concluded that the burden was with the defendant to prove the statement was involuntarily because defendant had been read his rights under Miranda. Defendant called Detective Fanchin.

Defendant did not object to this conclusion.

At the time that Detective Fanchin met with defendant, defendant already had confessed that he was the shooter. Defendant asked to use the bathroom prior to the interview. Detective Fanchin wanted to protect defendant’s hands so that a gunshot residue test (GSR) could be taken to corroborate defendant’s statement, so he was not allowed to use the bathroom.

After the interview started, defendant again asked to use the bathroom. The interview lasted 40 minutes. Defendant asked at least three times to use the bathroom. Another detective told defendant to go ahead and “soil” himself. Defendant urinated in his pants. He then continued on with the interview. Defendant was not allowed to change until the conclusion of the interview, which was about another 20 minutes after he soiled himself.

No other measures were taken to protect defendant’s hands, such as bagging them; however, he was handcuffed behind his back. Defendant was told why he could not use the bathroom. Detective Fanchin attempted to facilitate a quicker arrival of the GSR technician. Defendant remained calm and cooperative throughout the interview.

Defendant did not appear intoxicated during the interview. He indicated that it had been his intention to confess to the crime all along. Nothing in his manner or tone of voice showed that he was not acting on his own free will.

The trial court reviewed the audiotape of the interview. The trial court did not think that having to “pee” in your pants was a “nice” thing to have to do whether in custody or not. It did not, however, make the statement involuntary. Defendant did not change his tone of voice or make any protest when he was told to hold it or urinate in his pants.

Defendant argued that he was denied a basic human need; it was “repugnant” to civilized society. This created a bad precedent. Defendant wanted the Corona Police Department to be taught a lesson that they could not do this.

The trial court ruled, “I don’t, from the totality of this, I don’t believe it is a tactic. . . . I think it is an unfortunate circumstance and shouldn’t be continued at all. But I don’t think it’s a tactic to be used in order to extract information at all. It was a circumstance that they’re not going to be proud of, and they shouldn’t be proud of. And when it’s divulged, the trier of fact won’t be proud of that, their peace officers acting this way, I’m sure. But to suppress it, it is not a tactic. It was an unfortunate circumstance. It was wrong, and I don’t think it was used as a means to coerce anything out of this person. And he was — it was a voluntary statement as well. So both sides of that coin are the same side, whatever way you want to look at it, it’s not a good thing and should not be promulgated. And if it continues to be promulgated, then it becomes a tactic, then it becomes stressful, you’re right. But no. But in the total fairness of the situation and the total circumstance, it shall come in.”

B. Analysis

“An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution [citation] as well as article I, sections 7 and 15 of the California Constitution [citation].” (People v. Weaver (2001) 26 Cal.4th 876, 920.) Where a defendant claims his confession was involuntary, the People have the burden to show, by a preponderance of the evidence, that the statements were made voluntarily. (People v. Jones (1998) 17 Cal.4th 279, 296.) Under both state and federal law, the courts apply a totality of circumstances test to determine voluntariness. (People v. Haley (2004) 34 Cal.4th 283, 298; People v. Bradford (1997) 14 Cal.4th 1005, 1041.)

“A finding of coercive police activity is a prerequisite for a finding that a confession was involuntary under the due process clauses of the federal or state Constitution. [Citations.]” (People v. Clark (1993) 5 Cal.4th 950, 988.) Police are prohibited from using only those psychological ploys that, under all the circumstances, “‘are so coercive that they tend to produce a statement that is both involuntary and unreliable.’” (People v. Jones, supra, 17 Cal.4th at p. 298, quoting People v. Ray (1996) 13 Cal.4th 313, 340.)

“In determining whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his will was overborne.’ [Citation.]” (People v. Massie (1998) 19 Cal.4th 550, 576, quoting People v. Memro (1995) 11 Cal.4th 786, 827, quoting Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225 [93 S.Ct. 2041, 36 L.Ed.2d 854]; see also People v. Holloway (2004) 33 Cal.4th 96, 114.)

On appeal, “‘the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to voluntariness of the confession is subject to independent review.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 471.) Although this issue is independently reviewed on appeal, appellate courts “‘“‘give great weight to the considered conclusions’”’” of lower courts. (People v. Whitson (1998) 17 Cal.4th 229, 248; see also People v. Wash (1993) 6 Cal.4th 215, 235-236.)

Initially, defendant claims that the trial court improperly shifted the burden of proof by requiring that he show that the statement was involuntary, and therefore this court should remand to the lower court in order for the trial court to apply the correct standard. The People do not address the issue. We agree with defendant that the trial court erred by requiring defendant to show that his statement was involuntarily made. As noted above, the burden lies with the prosecution, not the defense, to demonstrate voluntariness by a preponderance of the evidence. (People v. Jones, supra, 17 Cal.4th at p. 296.) This error, however, does not require reversal, because we perform an independent review of the trial court’s determination that the confession was voluntary. (People v. Haley, supra, 34 Cal.4th at p. 298.)

Our independent review of the record supports that defendant’s statement was voluntarily made. There is no dispute that defendant voluntarily went to the fire station to turn himself in. He also told the interviewers that he wanted to speak with them. With little or no prompting by the detectives, defendant then recounted his marriage to Lori and the events of the day of the shooting. He told the officers that he shot Lori.

Defendant then told the officers that he had to go to the bathroom or he was going to soil himself. Detective Fanchin did not berate defendant or tell him he could go to the bathroom when he had confessed; rather, he told defendant that he was “sorry” but that defendant would have to wait, because they wanted to conduct the GSR test. Defendant was assured he would get new clothes if in fact he soiled himself.

As stated by the trial court, this was a truly “unfortunate” circumstance. This certainly would be an inappropriate tactic used by officers to obtain a confession. However, we believe it is clear from the record that Detective Fanchin was not using this as a tactic to extract a confession from defendant. Defendant was fully aware that the reason he could not go to the bathroom was because of the pending GSR test. Detective Fanchin believed such GSR test was necessary in order to corroborate defendant’s statement. Although the results of the GSR test were not introduced at trial, certainly, at the time of the interview, Detective Fanchin could reasonably believe that the test was important.

Furthermore, it does not appear that defendant was significantly impacted by having to soil himself. Defendant never changed his demeanor throughout the interview. He did not complain at any time that he was uncomfortable or request that the interview stop so that he could change. We cannot say that, as a result of his having to soil himself, his will was overborne so that he confessed. We believe that, in this case, it cannot be concluded that these circumstances resulted in an involuntary confession. While we certainly would not condone such a practice, the actions of the detectives in this case did not result in an involuntary confession.

Defendant cites to Collazo v. Estelle (9th Cir. 1991) 940 F.2d 411 to support his position that Detective Fanchin’s procedure was so repugnant as to require suppression of his statement. As is oftentimes stated, lower federal court decisions interpreting federal law are not binding on this court. (People v. Williams (1997) 16 Cal.4th 153, 190.) Furthermore, the interview in Collazo was conducted under significantly different circumstances. The defendant in that case was arrested; he did not voluntarily go to the station. (Collazo, at p. 413.) Furthermore, that defendant was coerced into waiving his Miranda rights, unlike defendant here, who willingly waived those rights. (Collazo, at p. 414.) Collazo bears no resemblance to the instant case and therefore does not help defendant.

Even if the trial court erred in finding defendant’s statements voluntary, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Cahill (1993) 5 Cal.4th 478, 510 [harmless error analysis applies to coerced confessions]; see also People v. Johnson (1993) 6 Cal.4th 1, 32-33.)

Even without defendant’s confession, the evidence showed that defendant was seen just prior to the shooting at the house. A loud blast was heard and Lori was found shot dead in the kitchen. Defendant was seen driving away from the house immediately after the shooting. Prior to defendant being in custody and interviewed, he called into the fire station and immediately stated, “Hi. I just shot my wife. I’d like somebody to come pick me up.” This evidence clearly supports his murder conviction.

Defendant contends that the evidence of the lying-in-wait special circumstance was based solely on his own statements. Viewing the evidence without defendant’s statement, there was ample evidence presented that defendant had a motive to kill Lori; they were arguing over money, he believed that she was sleeping with another man, and she had filed for divorce. Lori had hidden defendant’s shotgun in the attic. It is reasonable to assume that defendant retrieved the gun from the attic prior to the shooting. There was no dispute that Raymond and Jessica placed defendant at home when Lori arrived. Defendant asked Jessica if she and Raymond were going to be home that night, something he had never done before. The prosecution could have argued, and the jury reasonably could have concluded, based on this evidence alone, that defendant was waiting at home with the shotgun in order to shoot Lori.

Based on our own independent review of the record, we conclude defendant’s confession was voluntarily made.

III

DEFENSE PINPOINT INSTRUCTIONS

Defendant contends that the trial court erroneously excluded his pinpoint instructions pertaining to voluntary manslaughter.

A. Additional Factual and Procedural Background

In addition to the standard jury instructions on voluntary manslaughter under a theory of heat of passion that the trial court intended to give, defendant asked the trial court to give additional pinpoint instructions pertaining both to evidence of provocation and duration of provocation. Defendant’s special instruction No. 3 provided, “Evidence of admissions of infidelity, taunts directed to defendant may support a finding that a defendant acted in the heat of passion. It is a question of fact for the jury to decide.” (Capitalization omitted.)

Defendant also offered special instruction No. 2, which provided, “Verbal taunts by an unfaithful wife are sufficient provocation which supports a finding that a killing occurred in the heat of passion.” Defendant concedes on appeal that this was an inappropriate instruction.

The trial court rejected the instruction, stating, “As to the remaining specials . . . two through six. Two and six, advocate[] a position versus a flat statement of the law. And I’m refusing that one for that purpose . . . . I . . . think number three is in that same vein.”

Special instruction No. 4 was proffered as follows: “A defendant may be aroused to a heat of passion by a series of events over a considerable period of time.” (Capitalization omitted.) The trial court rejected this instruction on the ground that it was already covered by the standard CALJIC instructions being given to the jury. The trial court instructed the jury on voluntary manslaughter on a theory of sudden quarrel or heat of passion as embodied in CALJIC Nos. 8.40, 8.42, 8.43, 8.44, 8.72, and 8.73.

B. Analysis

“A defendant is entitled to have the court instruct on a defense theory if it is supported by substantial evidence, i.e., if a reasonable jury could conclude the particular facts underlying the instruction existed. [Citations.]” (People v. Sullivan (1989) 215 Cal.App.3d 1446, 1450.) A defendant may request, and a trial court must give, pinpoint instructions relating to the theory of the defense. (People v. Earp (1999) 20 Cal.4th 826, 886.)

However, “a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation].” (People v. Bolden (2002) 29 Cal.4th 515, 558.) Instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative. (People v. Wright (1988) 45 Cal.3d 1126, 1137.)

Here, it is clear from defendant’s argument that he was relying on the heat-of-passion theory to have the jury find a reduced charge of voluntary manslaughter and that Lori’s taunting of him over time was sufficient provocation. However, we do not believe that the trial court was required to give his requested pinpoint instructions, as they were duplicative of the already-given voluntary manslaughter instructions and were argumentative.

Initially, special instruction No. 3 is merely argumentative, as it pointed the jury to specific evidence to be considered in determining provocation. Defendant relies upon People v. Berry (1976) 18 Cal.3d 509 to support his claim that such instruction is properly given. In Berry, the defendant was a 46-year-old man who killed his 20-year-old wife. Three days after they were married, the wife left the country by herself for more than a month. When she returned, she told the defendant she had fallen in love with another man and had enjoyed his sexual favors, that he was coming to claim her, and that she wanted a divorce. For the next two weeks, the wife alternately taunted the defendant with her involvement with the other man and at the same time sexually excited the defendant, indicating her desire to remain with him. (Id. at p. 513.) A defense psychiatrist testified the wife was a depressed and suicidally inclined woman who had taunted the defendant in an unconscious desire to provoke him into killing her. As a result of this cumulative series of provocations, the defendant “was in a state of uncontrollable rage, completely under the sway of passion.” (Id. at p. 514.)

On appeal, the defendant argued that this evidence supported an instruction on voluntary manslaughter based on a theory of heat of passion. The California Supreme Court agreed. (People v. Berry, supra, 18 Cal.3d at pp. 515-516.) It further held that provocation could occur over a long period of time. (Id. at p. 516.)

We don’t believe that Berry stands for the proposition that defendant is entitled to an instruction that a wife’s infidelity or taunts constitute provocation. The Berry court merely concluded that these actions were sufficient evidence to support the standard voluntary manslaughter instructions on heat of passion. Although Berry may require an instruction that provocation can occur over a period of time (see People v. Wharton (1991) 53 Cal.3d 522, 571 [error to refuse to instruct jury that legally adequate provocation may occur over a period of time]), the instruction offered by defendant here is not supported by the findings in Berry. Defendant’s pinpoint instruction merely highlighted the evidence in favor of his position. As such, the instruction was unnecessary.

Furthermore, the trial court did not error in refusing defendant’s special instruction No. 4, which would have advised the jury that a defendant may be aroused to a heat of passion by a series of events over a considerable period of time.

In People v. Gutierrez (2002) 28 Cal.4th 1083, the defendant made a request for a special instruction on voluntary manslaughter that included language that defined passion as long-continued provocation that caused “‘“long smoldering resentment”’”on the part of the defendant. (Id. at p.1142.) The trial court denied the instruction finding that the standard CALJIC instructions adequately defined voluntary manslaughter. (Ibid.)

Upon review, the California Supreme Court first determined that the special instruction was derived from People v. Berry, supra, 18 Cal.3d at p. 515, the same case relied upon by defendant in this case. It then noted that the Courts of Appeal were divided as to whether pinpoint instructions based on Berry should be given. (People v. Gutierrez, supra, 28 Cal.4th at p. 1143.) However, the Gutierrez court did not resolve the conflict. Instead, the California Supreme Court found that “the standard manslaughter instructions given adequately covered the valid points in the proposed pinpoint manslaughter instructions,” relying on CALJIC Nos. 8.40, 8.42, 8.43, 8.44 and 8.50. (Gutierrez, at p. 1144.)

Similarly here, CALJIC No. 8.42 adequately covered the concept that provocation can occur over a period of time as requested in defendant’s special instruction No. 4. CALJIC No. 8.42 advised the jury that provocation could occur over a short or long duration. Defendant’s special instruction No. 4 was merely a rewording of this concept and was not necessary, as it was duplicative.

Moreover, even if defendant’s special instruction Nos. 3 and 4 should have been given, any error in refusing the instructions was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) In Gutierrez, after finding that the special instruction requested by the defendant was adequately covered by the other instructions, it additionally found the refusal to give the instruction, if error, was nonetheless harmless. It found, “Most importantly, even were we to conclude on this record that pinpoint instruction should have been given explaining that legally adequate provocation can occur over a considerable period of time, the error would be harmless, as ‘nothing in [the standard instructions given] precluded the jury from finding adequate provocation resulting from conduct occurring over a considerable period of time,’ and counsel’s argument fully explicated the defense theme of long-standing provocation in connection with the . . . murder charge. [Citation.]” (People v. Gutierrez, supra, 28 Cal.4th at pp. 1144-1145.)

As in Gutierrez, nothing in the instructions here “precluded” the jury from finding that Lori’s taunting and infidelity supported a finding that defendant acted in the heat of passion. Nor was the jury precluded from finding that a defendant might be aroused to a heat of passion by a series of events over a considerable period of time.

Furthermore, defendant adequately covered these concepts in his closing argument. The jury was fully aware that they could find that Lori had provoked defendant over a long period of time.

Finally, the evidence that defendant committed premeditated and deliberate murder was overwhelming in this case. Defendant did state that, on the night of the shooting, Lori was “rubbing it” in his face that she had been with another man. However, prior to this discussion, defendant stated that he had decided to kill her that morning and had armed himself with a shotgun prior to her arriving home from work. Defendant said he killed her because she was no longer in love with him and he had no future, not because he was in a fit of rage after he had been provoked by Lori over a long period of time. After the shooting, defendant was very calm and cooperative. Even had the jury been instructed with defendant’s pinpoint instructions, there is no reasonable possibility that the results would have been different.

The trial court did not error by refusing defendant’s pinpoint instructions.

IV

INVOLUNTARY MANSLAUGHTER INSTRUCTIONS

Defendant contends that in addition to voluntary manslaughter instructions, the trial court should have instructed the jury on involuntary manslaughter. He claims that such failure to instruct the jury constituted prejudicial error.

A. Additional Factual and Procedural Background

Defendant requested that the trial court instruct the jury with CALJIC No. 8.45, which defined involuntary manslaughter. Defendant argued that there was evidence in the record from which it could be argued that although he had pointed the gun at Lori, he had no intent to kill her. Defendant wanted to argue that he held the gun either just scare the victim and the gun went off, or to commit suicide and the gun went off.

The trial court denied the instruction, “I am not going to give involuntary manslaughter, because I don’t think any of the facts . . . and most favorable to the defense support an instruction of involuntary. I think the evidence is overwhelming that the defendant retrieved the weapon for the purposes of doing some harm to the victim. Now, between murder of the first or of the second or voluntary, that’s up to the trier of fact. Each can be easily supported in my opinion. Depends upon how it falls on the ears of the trier of fact. But . . . nothing to do with suicide, though suicide was mentioned, but not as to how things evolved on December 27th, no. Nor just to scare her. No.”

B. Analysis

A trial court has a duty to instruct on lesser included offenses only when there is substantial evidence that the lesser included offense, but not the greater charged offense, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Conversely, even on request, a trial court has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) In this context, substantial evidence is evidence sufficient to deserve consideration by the jury; in other words, it is evidence that a reasonable jury could find persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102.)

Involuntary manslaughter is treated as a lesser included offense to murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422; People v. Saille (1991) 54 Cal.3d 1103, 1121.) A person commits involuntary manslaughter either by committing “an unlawful act, not amounting to felony” or by committing “a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).)

Defendant contends two theories supported the instruction: (1) that he accidentally shot the gun while he was holding it either to commit suicide or to scare Lori, and (2) that he was intoxicated. Initially, we reject that he was entitled to an involuntary manslaughter instruction based on voluntary intoxication.

Although defendant did not advance this theory in the lower court, we are mindful that the trial court has a sua sponte duty to instruct on lesser included offenses supported by the evidence. (People v. Cunningham, supra, 25 Cal.4th at p. 1008.)

An instruction on voluntary intoxication for involuntary manslaughter requires intoxication to the point of unconsciousness that left a person unable to form the requisite intent to kill or to premeditate the killing. (People v. Saille, supra, 54 Cal.3d at p. 1121.) Unconsciousness does not require that the person be still or unresponsive, but rather that he “committed the act without being conscious thereof.” (People v. Haley, supra, 34 Cal.4th at p. 313.) A defendant’s ability to recount an incident in great detail is inconsistent with unconsciousness. (Ibid.)

There simply is no evidence here of unconsciousness due to voluntary intoxication. Defendant recounted with detail the events of that evening. Those details were corroborated by Detective Fanchin, who searched the Crooked Stick Lane house, found the gun lying in the hallway and found, as defendant said he would, Lori dead by the kitchen table. All of the officers who encountered defendant smelled alcohol but indicated that defendant did not slur his words or appear impaired in any fashion. Although the jury was instructed on voluntary intoxication (CALJIC Nos. 4.21 and 4.21.1) as it related to specific intent based on his testimony that he had drank between 8 and 12 beers that night, there simply was no evidence that defendant was unconscious at the time he shot Lori.

Defendant’s detailed account of the events and the officers’ observations precluded a rational jury from finding him unconscious and guilty of only involuntary manslaughter.

We also reject defendant’s claim that involuntary manslaughter instructions were necessary on his theory that he was holding the gun and it accidentally discharged. Although there was testimony presented that defendant had contemplated suicide, there was not “persuasive” evidence that he was holding the gun in order to kill himself, and it accidentally discharged. Defendant himself admitted that he was too scared to commit suicide.

Likewise, although defendant presented the expert testimony of Pride that he believed the shooting may have been accidental based on the type of wound and the fact that only one shotgun shell was used, it must be noted that Lori was, after all, shot in the head and died instantly; there was no need to fire more than once. As previously noted, the trial court need only instruct the jury on a lesser offense if the evidence supporting the lesser offense is “persuasive.” (People v. Benavides, supra, 35 Cal.4th at p. 102.) Defendant himself stated that he intended to shoot Lori and that he had pulled the trigger on the gun. The gun would only fire if the trigger was pulled. There simply was no substantial evidence that warranted the involuntary manslaughter instruction under the facts of this case.

Even if it could be argued that the trial court erred by failing to instruct the jury on involuntary manslaughter, such failure to so instruct is subject to the Watson standard of review. (Breverman, supra, 19 Cal.4th at p. 165.)

Initially, it is inconceivable that the jury would have concluded that defendant was only guilty of involuntary manslaughter when it was properly instructed in this case on first degree murder, second degree murder, voluntary manslaughter, and voluntary intoxication, and it rejected any lesser option. (People v. Rogers (2006) 39 Cal.4th 826, 884 [failure to instruct on involuntary manslaughter harmless because “[t]he jury rejected the lesser options and found defendant guilty of first degree premeditated murder”]; see also People v. Barnett (1998) 17 Cal.4th 1044, 1156 [“[b]y finding defendant guilty of first degree murder in the face of exhaustive instructions pertaining to the lesser included offenses of second degree murder and voluntary manslaughter, the jury reached the factual conclusion that defendant acted with malice aforethought, deliberation, and premeditation, and necessarily rejected the argument that . . . taking of methamphetamine interfered with his ability to form these requisite mental states. Thus, to the extent the failure to give the involuntary manslaughter instruction was error, it was harmless”].)

Here, the jury rejected that defendant was guilty of anything less than first degree murder while lying in wait. It is not reasonably probable that they would have concluded he only committed involuntary manslaughter. Further, as fully explicated, ante, the evidence of such premeditated murder was overwhelming. We reject that the trial court erred by failing to instruct on involuntary manslaughter.

V

CUMULATIVE ERROR DOCTRINE

Defendant contends that errors in this case, taken together, are prejudicial and require reversal of his conviction. Since we find that no individual prejudicial error occurred, we also conclude that there is no cumulative prejudice. (People v. Cook (2006) 39 Cal.4th 566, 608.)

VI

CORRECTION OF MINUTE ORDER AND ABSTRACT OF JUDGMENT

We addressed, ante, that the abstract of judgment and minute order improperly state that defendant was sentenced to two sentences of life without possibility of parole on the substantive count of murder. Murder while lying in wait mandates one sentence of life without the possibility of parole. (§ 190.2, subd. (a)(15).) The trial court properly stated such sentence during the oral pronouncement of sentence. Accordingly, we order that the minute order and abstract of judgment be corrected to reflect the proper sentence in this case of 25 years to life for the gun use (§ 12022.53, subd. (d)), plus life without the possibility of parole.

VII

DISPOSITION

The judgment is affirmed. The trial court is directed to correct the minute order and the abstract of judgment to comport with the oral pronouncement of judgment as set forth, ante, and to send copies of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

We concur: McKINSTER, Acting P.J., KING, J.


Summaries of

People v. Smith

California Court of Appeals, Fourth District, Second Division
Mar 27, 2008
No. E042044 (Cal. Ct. App. Mar. 27, 2008)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GARY WAYNE SMITH, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 27, 2008

Citations

No. E042044 (Cal. Ct. App. Mar. 27, 2008)