Opinion
E065850
05-17-2018
THE PEOPLE, Plaintiff and Appellant, v. JAMES LEE WILCOXSON, Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General; Michael A. Ramos, District Attorney, and Brent J. Schultze, Deputy District Attorney, for Plaintiff and Appellant. David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1403879) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General; Michael A. Ramos, District Attorney, and Brent J. Schultze, Deputy District Attorney, for Plaintiff and Appellant. David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Defendant and appellant James Lee Wilcoxson appeals his conviction for second degree murder. He asserts that the trial court erroneously allowed evidence of an unrelated crime as evidence of his intent in committing the charged offense and to negate his claim of self-defense. The People also appeal, asserting that it was error for the trial court to deem the murder to be second degree because the verdict form signed by the jury foreman did not specify that the crime was first degree murder. We reject both parties' contentions.
PROCEDURAL HISTORY
On January 8, 2015, defendant was charged with the 1985 murder of Warren Thompson. A jury found defendant guilty of murder "in violation of Penal Code section 187[, subdivision] (a)." The verdict form provided by the court did not specify that the crime was first degree murder.
Defendant filed a motion to deem the crime to be second degree murder, pursuant to Penal Code section 1157. The court granted the motion and sentenced defendant to a term of 15 years to life in state prison.
Defendant filed a timely notice of appeal. The prosecution filed a timely notice of cross-appeal.
FACTUAL HISTORY
On the night of April 12 and 13, 1985, Warren Thompson was stabbed to death in his apartment in Montclair. His son, Val, who lived there part time, came over between 10:00 and 11:00 p.m. Thompson was alone in the apartment. He was sitting on the sofa, watching television and drinking a beer. When Val left about 20 minutes later, Thompson was still sitting in the living room. There was some cash on the coffee table. Thompson's wife and daughter returned home shortly after 1:00 a.m., to find him lying face down in the kitchen, in a pool of blood. The apartment had been ransacked. The cash that had been on the coffee table was missing, as were the television, a VCR, some silverware, some coins, some prescription drugs, and a 10- to 12-inch kitchen knife. Thompson died as a result of 29 stab wounds, mostly to his back, including stab wounds to his lungs.
The homicide remained unsolved. In 2007, the Montclair Police Department began looking into it again. Detectives obtained DNA samples from two "persons of interest," neither of whom was defendant. The samples were compared with DNA recovered from blood found at the scene. Both men were excluded as possible sources of the blood. In 2014, however, DNA from a buccal swab that had been obtained from defendant was compared with blood samples taken from the apartment. Defendant was a possible source of the DNA found on three cuttings from a towel found in Thompson's kitchen. For the first cutting, the DNA profile would be found in one in 970,000 African-Americans, one in 240,000 Caucasians, and one in 990,000 Hispanics. For the second cutting, the profile would be found in one in 71 billion African-Americans, one in 2.8 billion Caucasians, and one in 20 billion Hispanics. For the third cutting, the profile would be found in one in 120 billion African-Americans, one in 5.1 billion Caucasians, and one in 32 billion Hispanics.
On March 7, 2014, Montclair detective Raul Perez was informed that defendant's DNA was a possible "hit" in Thompson's homicide. Defendant was located in northern California, and on September 16, 2014, Perez interviewed him at the San Jose Police Department. Defendant stated that in 1985, he had lived in an apartment in Montclair approximately one mile from Thompson's residence. He admitted using a kitchen knife during a 1987 robbery in Pomona. He initially denied any knowledge of Thompson or his death, but after being asked why his blood was found in the apartment, went on to give three versions of his involvement in the incident.
First, he said he had gone to the apartment with a man he believed to be Thompson's stepson. He said his hand was cut when he tried to break up a fight between Thompson and his stepson, one of whom grabbed a knife during the fight. He said he left the apartment after he was cut and did not see anything happen to Thompson. He denied taking anything from the apartment.
Defendant next stated that he and a man he had met that day in a bar, named Gregg or Craig, went to Thompson's apartment to borrow some money or retrieve some money that was owed to the other man. The man, who might have said he was Thompson's stepson, opened the apartment door with a key. The man then told defendant to take the TV and put it in the car. Defendant did so, and when he returned to the apartment, the other man was stabbing Thompson. Defendant and the other man then ransacked the apartment, taking a VCR and some prescription drugs. He claimed he had no part in the killing and that he got cut trying to break up the fight.
Defendant then admitted that he had told some lies. He claimed he had met Thompson a few days earlier in a bar and that Thompson told him that his wife liked to "get with other guys." He gave defendant his address. A few days later, he went to Thompson's apartment to see if Thompson's wife was there. Thompson and defendant talked a while, and then Thompson left the room. When he returned, Thompson accused defendant of taking some money that had been on a table. Defendant denied that he had taken the money. Thompson took a knife out of the chair where he was sitting and attacked defendant. Defendant struggled with Thompson, eventually ending up in the kitchen. He took the knife away from Thompson and stabbed him with it. Defendant said he "stuck" Thompson with the knife five or six times in the back or on the ribs. He claimed that he blacked out because he was drunk and high. He denied intending to kill Thompson. He stabbed Thompson repeatedly because Thompson tried to stab him. He claimed that he took the TV and VCR as an afterthought, but later appeared to admit that Thompson saw him taking Thompson's "stuff" and that the struggle ensued.
Although neither Thompson's wife nor his daughter recognized defendant, Thompson's son, Val, testified that defendant used to help his father collect scrap metal. He had seen defendant half a dozen times over the course of about six months. He believed that defendant and his father got along and was not aware of any animosity between them. Val denied that he had ever pulled a knife on his father or that his father had ever pulled a knife on him. There was no evidence that Thompson had a stepson.
LEGAL ANALYSIS
THE APPEAL
DEFENDANT HAS NOT SHOWN THAT ADMISSION OF THE
OTHER CRIMES EVIDENCE WAS PREJUDICIAL
Evidence Code section 1101, subdivision (b) (hereafter 1101(b)), provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act." If the evidence is relevant to prove any such fact, the trial court must then determine whether the evidence is more probative than prejudicial, pursuant to Evidence Code section 352. (People v. Ewoldt (1994) 7 Cal.4th 380, 404, superseded on another point by Evid. Code, § 1108.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review the admission of evidence pursuant to Evidence Code sections 1101(b) and 352 for abuse of discretion. (People v. Jones (2011) 51 Cal.4th 346, 371.)
In this case, the prosecution filed a motion in limine pursuant to Evidence Code section 1101(b), seeking to admit evidence of two robberies committed by defendant in 1987, after the killing of Warren Thompson. Defendant opposed the motion. The trial court denied the motion as to a robbery that occurred in an ice cream parlor, finding it insufficiently similar to the charged offense to be probative. It granted the motion as to the second robbery, finding it relevant to the issues of defendant's intent to rob the victim in this case and to disprove defendant's claim that he acted in self-defense. The court found the prior robbery to be more probative on those issues than prejudicial. It later instructed the jury that it could consider this evidence in deciding whether defendant acted with the intent to commit theft when he entered Thompson's apartment and/or intended to steal when he used force against Thompson and whether defendant's actions were not in self-defense.
As to the prior robbery, the evidence showed the following: In 1987, defendant entered a video store in Pomona, grabbed an employee's arm, demanded money, and held a large kitchen knife to the employee's throat. Defendant then said, "Hurry up or I'll slit [the employee]'s throat." Another employee threw money from the cash register onto the floor. Defendant picked up the money and left the store. The owner and a customer pursued defendant to a yard behind a fence. Defendant threw the money on the ground and said, "Here's your money. Leave me alone." Defendant left, and the owner picked up the money. The owner later reported the incident to police. Defendant was convicted of robbery with the use of a deadly weapon based on this incident.
Defendant contends that it was an abuse of discretion to admit this evidence because the incidents were not sufficiently similar to be probative as to his intent in the current case or as to his claim of self-defense and because the relevance of the evidence was outweighed by its prejudicial effect.
In order for evidence of other crimes to be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented. The least degree of similarity is needed when, as here, the evidence is offered to prove intent. (People v. Jones, supra, 51 Cal.4th at p. 371.) Here, the evidence showed that the two incidents were only minimally similar: In one, defendant entered a store and used a knife, which he brought with him, to commit a robbery. He did not injure anyone in the incident. In the other, defendant entered the residence of someone he apparently knew and, under circumstances that were not established with any certainty, used a knife to kill the occupant and stole some money and other items. There was no evidence that defendant brought the knife with him. The weapon used in the incident was never found. The victim's widow testified that a set of chef's knives was missing from the kitchen. Thus, the use of a knife was the sole point of similarity between the two incidents that was established by the evidence, and the absence of evidence that defendant brought the knife with him tends to limit the probative value of the evidence that in the prior incident, defendant carried out a robbery with a knife he had brought with him.
We need not decide whether it was error to admit the evidence of the prior robbery, however, because reversal is required only if the error was prejudicial. A claim that evidence pursuant to Evidence Code section 1101(b) was erroneously admitted is reviewed under the test of People v. Watson (1956) 46 Cal.2d 818. (People v. Malone (1988) 47 Cal.3d 1, 22.) Under Watson, an error is reversible if there is a reasonable probability that the outcome of the trial would have been more favorable to the defendant in the absence of the error. (People v. Watson, at p. 836.) A reasonable probability in this context means merely a reasonable chance, more than an abstract possibility. (People v. Wilkins (2013) 56 Cal.4th 333, 351.)
A judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate both error and prejudice. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549; People v. Coley (1997) 52 Cal.App.4th 964, 972.) Here, defendant merely asserts because the circumstances of the killing were unclear, "it is inconceivable that the jurors were not influenced" by the prior robbery evidence in reaching the verdict. This is insufficient to meet his burden on appeal. It is not our function to make arguments for an appellant (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116), and we decline to do so. We do note, however, that any error in the admission of the prior robbery evidence was not prejudicial with respect to defendant's claim of self-defense, because even if Thompson did attack defendant with the knife, as defendant claimed, defendant did not use reasonable force to repel the attack. Rather, according to defendant's description of the incident, he disarmed Thompson and then stabbed him 29 times. A person who is assaulted has the right to respond with reasonable force in order to repel the assault, but the use of unreasonable force negates the defense. (People v. Burns (2011) 198 Cal.App.4th 726, 734-735.) Accordingly, even if the jury entirely credited defendant's final version of the incident, there is no reasonable probability that it would have found that defendant acted justifiably in self-defense if the evidence of the prior robbery had been excluded.
THE CROSS-APPEAL
THE COURT WAS REQUIRED TO DEEM THE MURDER SECOND DEGREE
Penal Code section 1157 provides: "Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree."
Here, the verdict form signed by the jury foreman stated: "We, the jury in the above-entitled action, find the defendant . . . guilty of the crime of murder, in violation of Penal Code section 187(a), as to Count 1." Because the verdict form did not fix the degree of murder, the trial court granted the defense motion to deem the crime to be second degree murder, even though the court believed that the jury intended to return a verdict of guilty of first degree murder. The People contend that this was error. They contend that in People v. Mendoza (2000) 23 Cal.4th 896 (Mendoza), the California Supreme Court overruled earlier case law, specifically People v. McDonald (1984) 37 Cal.3d 351 (McDonald) and People v. Beamon (1973) 8 Cal.3d 625, which held that Penal Code section 1157 is to be rigidly applied, and instead held that a trial court could go "beyond the four corners of the verdict form to determine the jury's intent." We are baffled by this argument, in that Mendoza says no such thing. Nor, contrary to the People's contention, did the court in Mendoza reject McDonald's holding that where Penal Code section 1157 applies, it is to be applied strictly, even if it seems unjust. (McDonald, at pp. 382-383.)
Interpretation of a statute or of case law is a question of law, which we determine independently. (Linton v. DeSoto Cab Co., Inc. (2017) 15 Cal.App.5th 1208, 1215.)
In Mendoza, supra, 23 Cal.4th 896, 907, the California Supreme Court addressed the proper construction of Penal Code section 1157. It held that felony murder is not a crime "'which is distinguished into degrees'" within the meaning of Penal Code section 1157 because, if the jury finds that the homicide was committed during the commission of any of the offenses enumerated in Penal Code section 189, the homicide is first degree murder by operation of law. (Mendoza, at p. 908.) If the evidence supports only a finding of guilty or not guilty of felony murder and no other theory of murder, the trial court is justified in withdrawing the question of degree from the jury and instructing it that the defendant is either not guilty, or is guilty of felony murder. (Id. at pp. 908-909.) A guilty verdict for a crime other than first degree murder is, under those circumstances, contrary to law and must be rejected by the trial court. (Id. at p. 909.)
Nowhere does Mendoza hold that Penal Code section 1157 does not strictly apply in all instances in which a defendant was convicted of a crime that is divided into degrees. Nor does it contain any language that could be interpreted as holding that if a jury's verdict does not specify the degree of such a crime, the trial court could go "beyond the four corners of the verdict form to determine the jury's intent," as argued by the People. Nor does any California Supreme Court case decided since Mendoza contain such a holding.
On the contrary, in People v. San Nicolas (2004) 34 Cal.4th 614, the court quoted, apparently with agreement, the following language from McDonald, supra, 37 Cal.3d 351: "[T]he key is not whether the 'true intent' of the jury can be gleaned from circumstances outside the verdict form itself; instead, application of the statute turns only on whether the jury specified the degree in the verdict form." (McDonald, at p. 382, italics added; see People v. San Nicolas, at pp. 634-635.) Consistent with that language, the court has held that a verdict form that does not explicitly state that the crime is of the first degree may nevertheless sufficiently reflect the jury's finding as to the degree. In People v. San Nicolas, the court found it sufficient that the verdict form included a finding that the defendant "'did act willfully, deliberately, and with premeditation.'" (People v. Nichols, at p. 635.) This factual finding, the court said, is "tantamount to a finding of first degree murder." (Ibid.; see People v. Nunez and Satele (2013) 57 Cal.4th 1, 50 [same].) This is not, however, the same as saying that the court can look for clues outside the verdict form itself as to the jury's intentions.
In Mendoza, supra, 23 Cal.4th 896, the court disapproved McDonald, supra, 37 Cal.3d 351, with respect to McDonald's statutory analysis of Penal Code section 1157, in that McDonald's reasoning is not based on the language of Penal Code section 1157, but rather on the Supreme Court's analysis of a predecessor statute, Penal Code section 21, in People v. Campbell (1870) 40 Cal. 129. In Mendoza, the court explained that in McDonald, it had failed to realize that Campbell was discussing an entirely different statute, and that the Legislature enacted Penal Code section 1157 in order to overrule Campbell. (Mendoza, at pp. 912-918.) Mendoza did not, however, disapprove McDonald's holding that where Penal Code section 1157 does apply, the jury's intention to return a verdict of guilty of first degree murder must be clearly stated in the verdict form itself. --------
In any event, there was no such factual finding in the verdict form in this case. Moreover, the case was submitted to the jury with instructions on both felony murder and premeditated first degree murder, as well as second degree murder. And, because the jury was not asked to return a finding as to whether the homicide occurred during a robbery or burglary, there is no finding of fact which demonstrates that the homicide was first degree murder as a matter of law. Accordingly, Penal Code section 1157 does apply in this case, and the trial court correctly determined that it was required to deem the homicide second degree murder.
The People point out that the trial court instructed the jury to return verdict form 1-A if it found defendant guilty of first degree murder, and instructed the jury to return verdict form 1-B if it found defendant not guilty of first degree murder. If it found defendant not guilty of first degree murder, the jury was instructed to determine whether defendant was guilty or not guilty of second degree murder, using verdict forms 1-C and 1-D. They argue that we can infer the jury's intent from the fact that the jury did return verdict form 1-A and did not return a not guilty verdict using verdict form 1-B, and that it also did not return verdict form 1-C as it was instructed to do if it found defendant guilty of second degree murder. They rely upon cases which do not involve Penal Code section 1157, however, but rather involve Penal Code section 1404.
Penal Code section 1404 provides: "Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right." Based upon that statute, courts have held that technical defects in a verdict "may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice." (People v. Webster (1991) 54 Cal.3d 411, 447.) Accordingly, based upon Penal Code section 1404, the court in People v. Camacho (2009) 171 Cal.App.4th 1269, held that a jury verdict form that incorrectly listed the offense in count 2 as carjacking rather than robbery, as was alleged in the information, was sufficient because, based on the record as a whole, the jury's intent to convict the defendant of robbery in count 2 was unmistakable. (Id. at pp. 1272-1275.) Similarly, in People v. Jones (1997) 58 Cal.App.4th 693, the court held that the trial court's failure to give the jury a verdict form for a multiple-crime, multiple-victim special circumstance in a sexual assault case did not preclude imposition of sentence pursuant to the special circumstance because the jury found that the crimes were committed against each alleged victim. The court held that it was clear that the jury intended to find each multiple victim circumstance true and that the jury "made such findings to the best of its ability, with the verdict forms it had been given." (Id. at p. 710; see id. at pp. 706, 711.)
Penal Code section 1404 is a general statute regarding the sufficiency of jury verdicts despite technical defects. Penal Code section 1157 deals with a specific form of defect in a jury verdict, i.e., the absence of specification of the degree of an offense that is distinguished into degrees. "'It is well settled . . . that a general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.' [Citation.]" (San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577.) Accordingly, cases construing Penal Code section 1404 have no bearing on the construction of Penal Code section 1157. In any event, the California Supreme Court has made it clear that Penal Code section 1157 requires that either an express finding of guilt of first degree murder or a finding of specific facts that render the offense first degree murder must be contained in the verdict form itself. (People v. San Nicolas, supra, 34 Cal.4th at pp. 634-635.) We are bound by that authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. FIELDS
J.