Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 04HF1842, Richard F. Toohey, Judge. Affirmed.
Arthur B. Martin, 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, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Defendant James Herbert Speights, Jr., was convicted of the first degree murder of his wife, with a special circumstance that the killing was intentional and involved the infliction of torture. Defendant raises two challenges to his conviction on appeal. We reject both, and therefore affirm.
First, defendant argues the trial court abused its discretion by admitting evidence of two prior acts of domestic violence. Defendant contends that because a previous attack on the murder victim in 2004 and a 1995 attack on his ex-wife occurred many years apart, they were not the type of typically repetitive conduct Evidence Code section 1109 was enacted to address. The trial court conducted the proper analysis Evidence Code section 352, and we agree the probative value of the evidence outweighed any prejudicial impact.
Second, defendant argues the jury instructions were misleading and caused the jury to mistakenly believe that the objectively reasonable provocation needed to negate malice was the same as the provocation needed to negate premeditation and deliberation. We conclude the instructions correctly stated the law.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On March 20, 2004, police responded to a report of a domestic dispute at the home of defendant and his wife Jeselinda Zill. Zill, who was home alone, reported that she and defendant had had an argument, defendant had prevented her from leaving the home, and he had grabbed her by the throat. Zill denied defendant had been violent with her during their 10-year relationship, and declined to press charges or obtain an emergency protective order.
In June 2004, defendant bought a global positioning system tracking device; he told the store clerk he intended to place the device on his wife’s car to track where she went.
Zill began an extramarital affair with John Avenido sometime during 2004. Defendant went to Avenido’s home several times and harassed him about the affair. Zill admitted to defendant in September or October that she was having an affair. In November, defendant bought pepper spray and a 300,000-volt stun gun; the store clerk recalled defendant saying he wanted these items for protection.
On the evening of November 29, 2004, Zill called Avenido, told him she had a headache, and said, “I do not know what I’m feeling in my body.” Zill also told Avenido defendant was with her.
On November 30, 2004, between 8:00 and 8:30 a.m., defendant called his friend Garland Norton and told Norton he had messed up and killed his wife. Norton notified the police. When the Irvine police responded to defendant and Zill’s home, they discovered Zill’s body in a bedroom, wrapped in blankets. Zill had ligature marks around her ankles, wrists, and neck. She had also suffered blunt force trauma and a laceration to the back of her head. Linear burns down Zill’s back were caused by a stun gun.
The police found chains that had open padlocks and an ankle cuff hanging from them attached to the bed. A plastic flex tie was tied around Zill’s hand, and another one was in the trash can in the bedroom; defendant’s DNA was on both ties. A piece of duct tape with Zill’s blood on it was found in the trash can. A flashlight with Zill’s blood on it was determined to be the likely cause of the blunt force trauma suffered by Zill. The door to the bedroom was hanging off its frame. There were coverings on the headboard of the bed and over the window blinds. The police also found a notebook on a desk, which contained the following list of items: pepper spray, stun gun, rope, garbage bags, leg cuffs, handcuffs, chain, tape, soundproofing, mask, gag, neck brace, wrist straps, oleander, antifreeze, Flexeril, and Darvocet.
The police discovered defendant in his car, along with a suicide note, ropes, and a stun gun. Defendant had tried to commit suicide by ingesting antifreeze and pills. DNA found on the prongs of the stun gun matched both Zill and defendant.
The coroner determined the cause of Zill’s death was ligature strangulation. Death by ligature strangulation could take as long as several minutes. The coroner also concluded Zill was still alive when the burns from the stun gun were inflicted.
Defendant’s ex-wife, Thelma Speights, was called to testify about a previous incident of domestic violence. On November 8, 1995, while defendant and Thelma were in the process of divorcing, defendant asked Thelma if she was seeing anyone romantically. Although Thelma answered no, defendant choked her into unconsciousness. When Thelma woke up, she could not move and had a bad headache. Defendant gave Thelma medicine and she went back to sleep. Defendant later took Thelma to the hospital. She had swollen, red eyes; bruising on her arm; and a handprint on her neck.
We refer to Thelma by her first name to avoid confusion; we intend no disrespect.
In defense, Norton testified defendant was depressed because Zill would often be gone for a week or two and defendant would not know where she was. On the day before the murder, defendant visited Norton and told him he was planning to leave Zill. After the murder, defendant made a series of calls to Norton; in one call, defendant claimed Zill got in his face and questioned his manhood, and he snapped. A forensic psychiatrist testified, “rage is an explosive emotional reaction [in] which the person loses control for one of a variety of reasons. . . . It’s something where they completely lose control. They don’t think ahead about what they’re doing.” The psychiatrist also testified a rage can last from seconds to hours.
Defendant was charged with murder (Pen. Code, § 187, subd. (a)), and the information alleged as a special circumstance that the killing was intentional and involved the infliction of torture (id., § 190.2, subd. (a)(18)). A jury found defendant guilty of first degree murder, and made a true finding on the special circumstance. Defendant was sentenced to life in prison without the possibility of parole, credited with 1,102 actual days of custody, and ordered to pay a restitution fine of $5,000.
DISCUSSION
I.
DOMESTIC VIOLENCE PROPENSITY EVIDENCE UNDER EVIDENCE CODE SECTION 1109
Defendant argues the admission of Thelma’s testimony and of testimony regarding the March 2004 incident between defendant and Zill, under Evidence Code section 1109, was an abuse of discretion, and prejudiced defendant. We review the trial court’s admission of evidence of prior acts of domestic violence for abuse of discretion. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114.)
Over defendant’s objection, the trial court ruled as follows: “I have weighed the probative value of that evidence, and the court does not find that prejudicial aspect of it outweighs its probative value. . . . I don’t think there’s undue consumption of time with these incidents. I don’t think th[ere] is a substantial danger of undue prejudice or confusing the issues or misleading the jury. They’re not more egregious than the conduct that’s before the court. And I find that probative value outweighs any prejudicial impact and they are both admissible.”
Except under circumstances not relevant here, “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1).) Under Evidence Code section 352, evidence that is otherwise admissible may be excluded if its probative value is substantially outweighed by its prejudicial effect. “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 320.)
Defendant argues the trial court abused its discretion in admitting Thelma’s testimony and the testimony regarding defendant’s previous attack on Zill because they did not prove the existence of a propensity for domestic violence, which Evidence Code section 1109 was designed to permit. Defendant cites to People v. Brown (2000) 77 Cal.App.4th 1324, 1333-1334, in which the appellate court held: “[B]y enacting [Evidence Code] sections 1108 and 1109, the obvious intention of the Legislature was to provide a mechanism for allowing evidence of past sexual offenses or acts of domestic violence to be used by a jury to prove that the defendant committed the charged offense of the same type; recidivist conduct the Legislature has determined is probative because of its repetitive nature. Furthermore, it is apparent that the Legislature considered the difficulties of proof unique to the prosecution of these crimes when compared with other crimes where propensity evidence may be probative but has been historically prohibited.”
Defendant argues that because the attack on Thelma and the first attack on Zill occurred nine years apart, they did not constitute the sort of typically repetitive behavior Evidence Code section 1109 was enacted to address. Therefore, he continues, there was no probative value to the evidence.
We disagree. People v. Brown does not hold that only incidents occurring repeatedly over a short time period are admissible. Acts of domestic violence may be typically repetitive even though they occur only infrequently. (See People v. Morton (2008) 159 Cal.App.4th 239, 248 [evidence of domestic violence occurring nine years before the charged crime was admissible under Evidence Code section 1109].) Evidence Code section 352 provides the necessary safeguards to ensure these incidents are not so remote in time as to lack probity.
In this case, all three attacks were committed by defendant against his then wife, and in all three defendant choked his victim. The attack on Thelma and the murder of Zill were also similar in that they both occurred after a lengthy marriage that was otherwise mostly free from domestic violence, during a period when the marriage was or seemed to be ending.
The sources of the evidence of the earlier domestic violence incidents were independent of the source of evidence of Zill’s murder, increasing its probative value. (People v. Ewoldt (1994) 7 Cal.4th 380, 404; People v. Morton, supra, 159 Cal.App.4th at pp. 246-247.) The attack on Thelma was reported to the police by the staff of the hospital where she was treated, while Zill self-reported the March 2004 attack on her. Thelma testified she had never talked to Zill about defendant’s attack on Thelma. Both of the previous incidents of domestic violence were reported at the time they occurred, meaning the testimony regarding those incidents was not influenced by knowledge of Zill’s murder. The evidence of defendant’s attack on Thelma and his first attack on Zill was far less inflammatory than the testimony regarding Zill’s murder. (People v. Morton, supra, 159 Cal.App.4th at pp. 247-248.)
Even if we were to find error on the part of the trial court in admitting the evidence of previous acts of domestic violence, we would conclude the error was harmless. Reversal is only required if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence was overwhelming that defendant methodically planned the torture and murder of Zill and, over a period of at least 11 days, purchased the necessary supplies to commit the murder and to then commit suicide. Significant evidence was also presented detailing the extent of the effort expended by defendant in committing Zill’s murder. It is not reasonably probable the jury would have reached any verdict other than first degree murder, even in the absence of the evidence of defendant’s previous acts of domestic violence.
II.
CLAIMED INSTRUCTIONAL ERROR
Defendant also argues the jury was misinformed regarding the provocation capable of reducing first degree murder to second degree murder. We review defendant’s claim of erroneous instructions independently, considering the instructions as a whole and determining whether it is reasonably likely the challenged instructions confused or misled the jury. (People v. Rundle (2008) 43 Cal.4th 76, 149.)
The Attorney General argues defendant forfeited this argument by failing to object to the jury instructions at trial. When a defendant’s substantial rights are affected, however, we may review the propriety of the jury instructions absent an objection in the trial court. (Pen. Code, § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7; People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1074.) Because defendant’s argument, if correct, would mean that the prosecution’s burden of proof on the element of premeditation and deliberation was reduced, any error would affect defendant’s substantial rights, and we therefore conclude defendant did not forfeit this argument.
The issue of provocation was before the jury in two ways. First, the jury was required to determine whether any provocation precluded defendant from deliberating, thus reducing the crime from first degree murder to second degree murder. “This requires a determination of the defendant’s subjective state.” (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.) Second, the jury was required to determine whether defendant was provoked or the attack occurred in the heat of passion so as to negate malice and reduce murder to manslaughter. “The 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. As we explained long ago in interpreting the same language of [Penal Code] section 192, ‘this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,’ because ‘no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)
The trial court instructed the jury with the following instructions: CALCRIM No. 500 (murder and manslaughter are types of homicide); CALCRIM No. 520 (elements of murder with malice aforethought); CALCRIM No. 521 (degrees of murder); CALCRIM No. 522 (effect of provocation on degree of murder); CALCRIM No. 570 (voluntary manslaughter). Defendant argues CALCRIM No. 522 is incorrect as a matter of law, and that giving CALCRIM No. 570 immediately after CALCRIM No. 522 was error.
CALCRIM No. 522, as read to the jury, provides as follows: “Provocation may . . . reduce murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also consider the provocation in deciding whether the defendant committed murder or manslaughter.”
As read to the jury, CALCRIM No. 570 provides as follows: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if[:] [¶] 1. The defendant was provoked[;] [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and [¶] 3. 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. [¶] 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 a murder to 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 killing for a person of average disposition to cool off and regain his clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis. [¶] The People have [the] burden of proving beyond a reasonable doubt that the defendant did not kill as a result of sudden quarrel or heat of passion. If the People have not met this . . . burden[,] you must find the defendant not guilty of murder.”
Defendant contends these jury instructions misinformed the jury, because they failed to specify that the type of provocation necessary to reduce first degree murder to second degree murder differs from the type of provocation necessary to reduce murder to manslaughter. As defendant frames the issue: “Nothing in the instructions tells jurors of the crucial distinction in the provocation capable of reducing first to second degree murder: that such provocation does not need to be such that a person of average disposition would react as did the defendant. It is entirely reasonable to expect jurors to reject the issue of provocation for purposes of both analyses once they determined any provocation as described in the case at hand would not provoke a homicidal reaction in a person of average disposition.”
We disagree. The jury instructions given correctly stated the law. There is no reasonable likelihood the jury understood the instructions defining the provocation properly considered in determining whether premeditation and deliberation exist to be the same as that required to negate malice. CALCRIM No. 522 correctly instructs that the existence of provocation may be considered by the jury in deciding both whether premeditation and deliberation exist for first degree murder and whether malice exists for purposes of manslaughter. CALCRIM No. 570, pertaining solely to voluntary manslaughter, properly specifies provocation in that context must be objectively reasonable. The only reasonable interpretation of these two legally correct instructions, taken together, is that the provocation precluding a finding of premeditation and deliberation differs from that which would preclude a finding of malice. In other words, the jury necessarily understood that, even if some provocation existed, the killing would then be second degree murder unless the jury also found the provocation was reasonable under the circumstances. Otherwise, there would be no need to instruct the jury to consider provocation in the context of second degree murder.
Therefore, considering the instructions as a whole, a reasonable juror would necessarily have understood that something less than the objectively reasonable provocation could preclude a finding of premeditation and justify a verdict of second degree murder. We generally presume that jurors understand and follow the court’s instructions (People v. Yeoman (2003) 31 Cal.4th 93, 139), and there is no reason here to conclude that the jurors might have incorrectly interpreted these instructions as suggested by defendant.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., ARONSON, J.