Opinion
C083772
08-11-2021
The PEOPLE, Plaintiff and Respondent, v. Gregory Michael WILSON, Defendant and Appellant.
Hassan Gorguinpour, Cypress, and Deanna Lamb, Sonora, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez Supervising Deputy Attorney General, Caely E. Fallini, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Parts I, III, IV, V, VI, VII.
Hassan Gorguinpour, Cypress, and Deanna Lamb, Sonora, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez Supervising Deputy Attorney General, Caely E. Fallini, Deputy Attorney General, for Plaintiff and Respondent.
MURRAY, J. A jury found defendant Gregory Michael Wilson guilty of second degree murder. He was sentenced to 17 years to life. On appeal he contends the trial court erred in failing to (1) instruct the jury sua sponte on defenses arising from the use of deadly force to protect against common law felonies; (2) instruct sua sponte on the Home Protection Bill of Rights presumption; and (3) provide the jury with verdict forms for voluntary manslaughter. He also contends (4) the errors cumulatively require reversal; (5) his prior prison term enhancement must be struck in light of Senate Bill No. 136; and (6) the imposition of certain fines and fees were unlawful in light of People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ).
We will strike the prior prison term enhancement and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The victim was stabbed to death after an argument erupted at a home gathering. At the house that night were three couples: the husband and wife, who lived in the house; defendant and defendant's girlfriend, who were staying at the house; and the victim and his girlfriend. Also there was a teenager, who had come to smoke marijuana, and four young children.
At trial, the adults and the teenager testified. The victim's girlfriend, defendant's girlfriend, and the teenager testified for the prosecution. The married couple and defendant testified for the defense.
With few exceptions, the witnesses’ testimony largely agreed as to the events surrounding the stabbing. But they parted ways regarding the actual stabbing.
The Party and the Subsequent Events
According to witnesses, the victim and his girlfriend came to the married couple's house the day before the murder. Also at the house were defendant and defendant's girlfriend, who the married couple let stay at their home. A teenager, who was friends with the husband's son, was there too (though the son was not). Rounding out the group were the two young children of the married couple and two others who were the victim's girlfriend's.
At the house, the adults drank, smoked marijuana, and hung out. As it grew dark, the young children were put to bed. Next, defendant and his girlfriend went to bed, followed by the teenager.
Thereafter, the married couple, and the victim and his girlfriend retreated to the master bedroom. Methamphetamine was consumed and at some point, a fight broke out. Eventually the married couple told the victim and girlfriend to leave. The quartet then moved to the living room, still fighting.
The fight's origin is disputed: the victim's girlfriend testified it started when she fell off the bed and her hand accidently caught the wife's face. The husband testified it started when the victim's girlfriend punched the victim and then the wife. The wife testified it started when group sex was proposed, the victim signaled his willingness, and his girlfriend punched him in the face followed by the wife.
At some point, defendant woke up and confronted the victim outside at a gate between the stairs to the porch and the porch. There defendant stabbed the victim five times: once in the chest, once in the arm, and thrice in the back. Four of the wounds, the one to the chest and three to the back, were each fatal.
After the stabbing, defendant, his girlfriend, the married couple, their kids, and the teenager got in a van and left. Before leaving, the husband moved the victim out of the van's way. They drove to the husband's mother's house. There, the married couple, defendant, and his girlfriend concocted a story to tell police, assigning blame to a fictional "Mike Wright."
Later, the husband, the wife, and defendant's girlfriend each pled guilty to felony accessory after the fact.
At defendant's trial, the jury heard five separate accounts of the murder. But only the wife and defendant claimed to remember the actual stabbing.
The Prosecution Witnesses Accounts
The Victim's Girlfriend
The victim's girlfriend — who drank at least eight shots with beer, smoked marijuana, and was on medication — testified that after leaving the master bedroom, the fight continued in the living room. The wife threatened her, while she and the victim tried to deescalate. Defendant and the husband joined the fray , with everyone telling the victim to leave and the girlfriend to stay because she was too intoxicated to drive.
The victim's girlfriend testified defendant and defendant's girlfriend never went to bed but remained in the living room.
The victim's girlfriend took her kids down to her car, but it was locked, so she waited by the car with her kids. When the victim arrived, she told him she didn't have her keys. The victim returned to the house and was told the keys weren't inside. When the victim relayed the response, the girlfriend told him to go back. He did but never came back.
It was too dark to see, and the girlfriend heard no yelling or commotion. Instead, she saw the married couple, defendant, and his girlfriend run down the stairs and pile into the van in the driveway. She then saw the van headlights illuminate the victim's body.
The Teenager
The teenager testified that when he went to bed, the noise kept him from sleeping. He heard the commotion in the master bedroom, along with the victim and girlfriend being told to leave, and the victim asking for his car keys. He then heard the group on the porch. This was followed by the sound of defendant being told that the victim and girlfriend were messing up the porch and not wanting to leave. He then heard defendant and defendant's girlfriend on the porch, along with the wife's yelling.
For several minutes, defendant repeatedly told the victim to leave. Defendant then said: "You have five seconds to get off the porch or I'm going to stab you." The order was followed by a "ruffling, commotion," and then he heard someone (he thought it was defendant) say, "I stabbed him." Someone else screamed, "You stabbed him?"
The teenager was later recalled by the defense during its case and he testified he never said this. He claimed what he heard defendant say was "You have five seconds to leave or something else is going to happen."
The teenager subsequently got in the van and left with the others.
Defendant's Girlfriend
Defendant's girlfriend of 11 years testified that she and defendant went to bed after a day where "everybody drank and did drugs, smoked weed." She woke to the sound of fighting and screaming. The victim was "hollering obscenities and asking for his keys." She also heard the front door being kicked multiple times. She went to the living room and saw the wife screaming that the victim's girlfriend had punched her. The husband was also there, trying to get the victim, who was then outside, to leave.
The married couple went out on the porch, to confront the victim who was trying to come back up the stairs to the porch: "[the wife] was climbing over the top of [the husband] to hit [the victim] and pull his hair and screaming obscenities, and [the husband] was standing between them, just trying to get them to stop."
At some point, the husband asked defendant's girlfriend to get defendant. She went to the bedroom, woke him, and told him the victim wasn't leaving the house and the married couple were fighting with him. Defendant said he would, "F-ing kill him." Defendant's girlfriend, however, did not take the comment seriously; defendant just seemed mad at being woken up. Also, she and defendant had always gotten along with the victim, and she didn't think defendant had smoked or drank enough to be impaired.
Defendant dressed and went out on the porch. The victim was still trying to come up the porch stairs, and the married couple were still on the porch. Defendant's girlfriend went into the room with the teenager and waited. Less than 10 minutes later, she heard the wife come into the house screaming, "We got to go, we got to go, we got to go." They all got in the van and left.
Defendant's girlfriend testified she never heard the victim make a threat, she only heard him repeatedly ask for his keys.
The Defense Witnesses Accounts
The Husband
The husband explained that he had known defendant for 10 to 15 years. As to his memory of the night, he admitted: "My timeline, it was horrible ... it's been years and I was drinking heavily."
After defendant and his girlfriend went to bed, the husband and his wife, along with the victim and the victim's girlfriend drank and used methamphetamine. An altercation led to the victim and girlfriend being asked to leave.
The group migrated to the living room, and the victim and girlfriend ended up outside. When the security door locked behind them, the victim screamed, yelled, banged a window, and "started kicking on the doors ... trying to break into the house." The husband testified the victim's demeanor was violent, explaining, "I was concerned for everyone's safety." He added, "I didn't know what would happen if he made it into the house .... He was extremely belligerent and drunk and, you know, making threats." He also said: "I guess the big hangup with them leaving was their keys were missing, and to try and keep everyone separated I wasn't able to look for these keys and I didn't feel safe letting him inside to look for the keys."
Asked about waking defendant, the husband answered: "I don't remember who woke him up or asking anyone anything. I mean, honestly, I was just really drunk. I was, you know, falling-down, blackout drunk almost."
At some point the victim came to the front door and was trying to get inside. The husband worried he would assault someone. With defendant in earshot, the victim said his brother kills people and is in prison for killing someone. He also said he had a gun in the truck, claimed to be unafraid of killing, and issued several threats to, "kick your ass," "stab you guys," and "kill you."
At one point defendant went outside, and the husband could not clearly see what happened. "He was on the porch. That's all I know." The victim was either on the porch or on the steps. Defendant tried to calm the victim, who continued yelling, screaming, and making threats. The husband vaguely recalled the victim turning and leaving: "that's what I remembered. And so it's foggy what happened right before he left, but yeah, I just saw him leave. He just walked down the steps and walked away." Sometime after, defendant returned to the house, and the husband "possibly" heard defendant say, "I stabbed him."
The husband testified that he did not know if he and his wife were on the porch when defendant went outside with the victim.
On cross-examination, the husband was asked about telling an investigating officer that defendant pushed past him at the security door and went out to the victim on the porch, the husband said, "I don't remember specifically." Asked about saying there was almost instantly a fight, he said, "I do remember something about a fight." Asked about defendant "bro-hugg[ing]" the victim, the husband said, "Maybe. I think." The husband denied any memory of telling the officer the victim never made any threats to the husband or his family, nor did he threaten to arm himself. The Wife
On redirect, he testified, "I really don't remember," when asked if he had seen the "bro-hug" or simply heard about it.
The wife testified that after the blowup in the bedroom, they went to the living room. She and her husband continued to tell the victim and girlfriend to leave, while the victim's girlfriend was attacking everybody and screaming.
The victim and girlfriend gathered their things and made a couple of trips to their car. The wife testified, "it was brought to our attention that keys were missing ...." At some point, the victim and girlfriend left the house and the door was shut and locked behind them: "it didn't feel safe having them in the home." She told them to wait while they looked for the keys. After 20 minutes of looking, she woke defendant and his girlfriend.
She told defendant's girlfriend "everything's out of control," and she needed help finding the keys. She also asked defendant to help her husband diffuse the situation. She could hear banging and kicking on the window and door. "It felt like they were trying to break into my house."
Called on rebuttal, an officer testified to seeing no boot mark or indentation on the security gate; the gate was merely "worn" and "weathered."
Defendant went with the husband to the door. At some point, defendant's girlfriend and the wife told the victim and his girlfriend that their keys couldn't be found, and they wouldn't be let back in. The victim and girlfriend "freaked out," and were "actively, like, trying to break my window and trying to break ... my screen door" to get in. The victim said he had a brother who was in prison for murder, adding he was "not afraid to fucking kill you."
Defendant and the married couple ended up on the porch. The wife did not remember who opened the door. The victim was standing on the stairs on one side of the gate separating the porch from the porch stairs; the married couple, defendant and his girlfriend were on the other side, standing on the porch. The wife denied trying to crawl over her husband to get at the victim.
The victim kept refusing to leave without the keys, threating, "you're going to have to fight me if you want me to leave," "I'll fuck you up," and, "I'm not afraid to fucking kill you."
The wife testified, "I was scared. I mean, he was freaked out," She added, "He wanted in to get his keys. And ... he had stated several times that he was going to get them, and so I was worried that yeah, he could hurt somebody. I didn't feel like he was going to hurt me."
After 10 minutes or so, while the victim was on the top steps of the stairs, leaning over the "railing," the victim lunged at defendant. Defendant and the victim then got "in some sort of, like, scuffle, like a little kind of fight, like a punchy kind of thing, kind of like not super intense," and defendant put his arm around the victim as though he was giving a hug. The victim then walked away.
The wife asked defendant what he had said to the victim. Defendant held up a knife and said, "I fucking stabbed him." On cross-examination, the wife was asked if she told an officer that defendant had said to her: "I fucking told him, I fucking told him you don't come here and fuck with us like that," she responded: "I don't recall saying that, but again, if it's in my statement, then I'm sure that I said that." She conceded telling an officer, her husband was very strong, and the victim could not have gotten through the gate with him holding it shut. She also agreed she was not in fear of her life, and the victim never brought the safety of her kids into the situation.
Defendant's Testimony
Defendant testified that before going to bed, around 10:00 p.m., he was smoking concentrated cannabis and taking a "few shots." "Everybody was drinking excessively."
The wife woke him, saying the victim wouldn't leave. Defendant went to the victim in the front room and told him to go. He hugged the victim and led him outside. Defendant had known the victim for around 18 months and had never had any arguments with him. But after shutting the door, the victim "got really, really just amped up and he got violent."
The victim started kicking the door, saying, "I need my F-ing keys." He grew more aggressive, demanding to get in. The wife yelled back at the victim through the window. The married couple and defendant joined the victim on the porch. The victim was shouting, "Fuck you motherfuckers," as he was told to leave.
The victim stood on the top of the stairs by the gate, and wanted in. He continued to make threats, saying that either he or his brother was in prison for murder. The victim said he wasn't afraid to kill, and defendant believed it.
The married couple were at the gate, and the wife continued to yell at the victim. For 10 to 15 minutes defendant tried to reason with the victim. According to defendant, the victim said, " ‘I'm going to kill you motherfuckers and [the wife] and the kids.’ " Defendant thought the victim was "going to try to hurt somebody." However, he did not see any weapons in the victim's possession. And the wife had a flashlight, while the husband had a bat.
Defendant testified the victim lunged toward him, and he responded by grabbing his knife from his pocket and stabbing the victim. He described grabbing the knife as "a reaction," adding it "just happened so damn fast." The victim then veered to the left, and defendant stabbed him. He added, "and then he's going around and I stab, and then I stab, stab, stab. It just happened so fast. It was in a second." Defendant testified that when the victim veered past him, he thought the victim was going toward the married couple. The first stab was to the neck or chest area, the next was to the arm, and then he stabbed the victim in the back because he kept going past defendant. Defendant admitted to stabbing the victim five times. He explained, "I just reacted. I was scared. I thought he was going to come after me and after them. He was threatening to kill People. I didn't know. I believed him." After the last stab to the back, the victim turned around and left. Defendant denied there was a scuffle or "punchy fight" between him and the victim. And he admitted that when he was interviewed by law enforcement after his arrest, he told them he did not remember how the stabbing happened. He told them, "I don't know what the F happened, I really don't. I don't know exactly how it went down."
Defendant testified that he normally carries a knife in his left pocket and he "use[s] it as a tool when [he] work[s] on cars."
Law enforcement found blood drops on the stair hand railing, the steps and the walkway leading away from the steps. A single drop of blood was found on the porch. The paths of the stab wound to the chest and two stab wounds to the back were downward.
A psychologist testified that defendant suffered from Post-Traumatic Stress Disorder. (PTSD) He testified that when a person with PTSD goes through a traumatic event, "they can't remember a lot of things" if interviewed "right after an event" but over time the person might "start to randomly remember" and fill in the "gaps."
Verdict and Sentencing
The jury found defendant guilty of second degree murder ( Pen. Code, § 187, subd. (a) ) , and found he had used a deadly weapon (§ 12022, subd. (b)(1)). The trial court found defendant had sustained a prior prison term for felon in possession of a firearm (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code.
The trial court imposed a sentence of 15 years to life for second degree murder along with two consecutive one-year terms for the deadly weapon enhancement and the prior prison term. DISCUSSION
I. Instructions on Defense Against Commission of Common Law Felonies
See footnote *, ante .
II. Home Protection Bill of Rights
A. Section 198.5
Defendant contends the trial court erred in failing to instruct the jury on the Home Protection Bill of Rights, under section 198.5. Section 198.5 provides: "Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred." ( § 198.5.) (Italics added) Defendant argues a section 198.5 instruction creates a presumption in his favor and failing to give it was error.
As the italicized language makes clear, the presumption applies only when the resident uses force within the residence . That is not what happened here. Accordingly, we conclude defendant's claim is meritless.
B. Additional Background
As pertinent to this contention, the house was elevated 10 to 15 feet above the road. The porch was elevated and had stairs leading up to it from a walkway that connected to the driveway. There was a wooden gate at the top of the stairs. The gate was secured by a latch and did not have a lock. The front door to the residence had a black metal security screen door with a locking lower handle and dead bolt lock. Law enforcement found no damage to the porch gate or the front door security screen door.
C. Analysis
The section 198.5 presumption requires that a resident's use of force must be within the residence, and thus an unlawful and forcible entry into a residence is a predicate to application of the presumption. ( People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1495, 8 Cal.Rptr.2d 513 ( Brown ); see also 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2020) Defenses, § 76 ["Entry into the residence is required before the presumption applies"].) Here the victim had not forced entry into the residence; he was on the steps to the porch when he was stabbed.
There are actually four elements to the section 198.5 presumption: (1) an unlawful and forcible entry into a residence; (2) by someone who is not a member of the family or the household; (3) the residential occupant used "deadly" force (as defined in § 198.5 ) against the victim within the residence ; and (4) the residential occupant knew of the unlawful and forcible entry. (Brown, supra, 6 Cal.App.4th at pp. 1494-1495, 8 Cal.Rptr.2d 513.) We address the third element here, whether the resident used force against the victim within the residence.
This court held that a porch is not a residence for purposes of section 198.5 in Brown, supra, 6 Cal.App.4th at p. 1491, 8 Cal.Rptr.2d 513. There, the defendant resident, while standing in his front doorway, shot the victim, who was standing on the defendant's porch at the time. ( Ibid . ) The Brown court held: "Although there was evidence that the victim's entry onto defendant's front porch was unlawful and forcible, an entry onto a front porch like defendant's does not constitute entry into a residence as required under section 198.5." ( Ibid. , italics added.) The porch in Brown was "an unenclosed front porch, without any signs, gates or other indications that would tend to show the residential occupant did not expect intrusion into that area." ( Ibid . ) In holding the porch was not the "residence" for purpose of section 198.5, the Brown court explained: "A reasonable person would not expect protection from unauthorized intrusion onto this kind of porch. Quite the contrary. Social convention dictates that anyone wishing to summon the occupant's presence or gain entry into the home must first enter the porch." ( Id . at p. 1497, 8 Cal.Rptr.2d 513.)
Similarly, here, nothing about the residence indicates the married couple expected protection from unauthorized intrusion onto the porch. The porch gate had no lock. And as is apparent from photos of the porch and gated stairs in the record, anyone wishing to summon the occupants inside the home would have to first enter the porch through the gate.
Defendant attempts to distinguish Brown , pointing to its language that: "Absent ‘no soliciting’ signs or a gate or some other barrier, Girl Scouts selling cookies, the person delivering the newspaper, the door-to-door salesperson or any stranger will likely come onto a front porch of this nature, without permission. The reasonable residential occupant would not react violently to this entry." ( Brown, supra, 6 Cal.App.4th at pp. 1497–1498, 8 Cal.Rptr.2d 513.) He argues that here, by contrast, the porch was elevated with a latching gate, and to reach the porch one had to walk from the sidewalk, up the L-shaped driveway, and up a set of stairs. He maintains that with the porch stair gate latched, "a resident could rightly expect to be free from intrusion onto the porch." We disagree.
While the Brown court noted the absence of a gate, its absence was not dispositive. Rather the holding turned on the absence of anything in the "nature of structure's composition ... such that a reasonable person would expect some protection from unauthorized intrusions." ( Brown, supra , 6 Cal.App.4th at p. 1496, 8 Cal.Rptr.2d 513.) While here the porch had a gate, nothing indicates it was there to protect from unauthorized intrusions. Indeed, the wife told an officer the gate was put in to keep the kids from falling off the stairs. Nobody testified it was installed for security or keeping people off the porch. The gate was no taller than the porch railings, it had no visible lock, and nothing on it would indicate to someone delivering a package or selling cookies that entering the porch to knock on the door was not permitted. And while there was a metal security gate on the house, it was attached to the front door, not the stairs leading to the porch.
Defendant also argues that we should consider how the gate was used prior to the stabbing. He notes that at the time of the stabbing, the residents were using it to keep the victim out, and any permission previously given to the victim had been effectively rescinded. Thus, according to defendant, the gate marked the boundary of their residence "in their minds and in fact." Defendant also argues that a general consent to enter spaces can be restricted to certain purposes or certain times. At oral argument, counsel for defendant argued that in addition to the gate, there was a trio of people trying to keep the victim from entering onto the porch and based on that testimony an instruction on the section 198.5 presumption should have been given.
Defendant cites no authority supporting an expansion or contraction of what would be considered within the residence based on the residents’ conduct at the time force was used against an intruder. And in our view, this elastic approach to defining what is within a residence is untenable. It would allow the presumption to be applied wherever a resident takes a stand against an intruder, effectively rendering the requirement that the force be used within the residence a nullity.
As we have noted, the Brown holding turned on the absence of anything in the "nature of a structure's composition ... such that a reasonable person would expect some protection from unauthorized intrusions." ( Brown, supra , 6 Cal.App.4th at p. 1496, 8 Cal.Rptr.2d 513.) In reaching that conclusion, the Brown court looked to the decisional law on burglary to determine what constitutes an entry into a residence. ( Id . at pp. 1495-1496, 8 Cal.Rptr.2d 513.) All of those cases focused on the physical part of the structure where the entry was made and none considered conduct by the residents. ( Ibid . ) Consistent with that analysis, we look to the physical character of the residence to determine whether an area is within the residence for purposes of section 198.5. The activities of the residents outside a residence does not expand the area defined by the "structure's composition" beyond that which would otherwise be considered within the residence.
Accordingly, we conclude that the porch here was not a residence for purposes of section 198.5. The trial court, therefore, had no duty to instruct on the Home Protection Bill of Rights.
See footnote *, ante .
DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement imposed under Penal Code section 667.5, subdivision (b). The clerk of the trial court is directed to amend the abstract of judgment accordingly and forward a copy thereof to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur:
ROBIE, Acting P. J.
HOCH, J.