Opinion
A150573
10-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH BONTEMPO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C175717)
A jury convicted defendant Joseph Bontempo of the second degree murder of his wife. (Pen. Code, § 187, subd. (a).) The trial court sentenced him to prison for 15 years to life. In this appeal, defendant contends that the jury should not have been instructed on second degree murder based on implied malice, that California's "inherently dangerous act" theory of second degree murder is unconstitutionally vague, and that the court erred in refusing to give a "pinpoint" instruction regarding provocation. We shall affirm the judgment.
All statutory references are to the Penal Code.
I. BACKGROUND
A. The Killing and Investigation
Defendant's wife, Laurie Wolfe, died on July 6, 2014. Defendant called 911 at 6:33 p.m., saying his wife had "slipped down the steps." Firefighters went to the couple's home. Wolfe was at the bottom of a set of stairs, her head on the carpet, and blood on her scalp. There was a visible injury on the back of her head, with bone exposed. She had large open gashes on her hands and fingers, including a severe laceration to her left ring finger, that were no longer bleeding. She did not appear to be breathing and had no pulse. Rigor mortis had begun to set in. Her skin was very pale, and her body was cool to the touch, indicating she had been dead for a few hours. Defendant had blood on his hands.
There was evidence that a body becomes cold and rigor mortis sets in between two and four hours after death.
There was blood on the wall, as if someone had pushed against the wall with a bloody hand; dried blood and pieces of hair, attached to skin and blood, on the stairs; and blood soaked into the carpet at the bottom of the stairs. A speaker had been knocked over, and a picture on the wall was crooked, with blood on the wall next to it, and the blinds were slightly pushed in. There were blood spatter stains on the carpet, stairs, and wall. The stains of spattered and saturated blood were consistent with a bloody head being bashed to the ground forcefully multiple times. The condition of the stairs and of Wolfe's body was consistent with her head hitting the top of stair steps, multiple times, and bloody hair being "swiped" on the stairs. The evidence suggested Wolfe was on her back, low to the ground, while being attacked.
The pathologist who conducted an autopsy on Wolfe's body testified she died of multiple blunt injuries to the nervous system, ribs, and left fourth finger. Wolfe suffered 57 injuries: one to the left side of her nose, six lacerations on the back of her head, an injury to the right side of her neck, blunt injuries to her arms, multiple bruises on her arms and hands, two lacerations to the fourth finger of her left hand, two abrasions on another finger, bruising on her legs, and bruising and blunt injuries to her torso. The bone in her left fourth finger was broken, some of her ribs were broken, and there was bleeding on the surface of the brain. A fall would not cause injuries of that magnitude, and the injuries did not appear to be self-inflicted. DNA found under Wolfe's fingernails was consistent with defendant's.
A recording from a neighbor's video surveillance system showed defendant's vehicle driving away from the house around 5:10 p.m. on the day of the killing and returning around 5:43 p.m.
At the scene, Defendant told the firefighters he had been sleeping and had last seen Wolfe alive an hour previously. His statement was inconsistent with the state of Wolfe's body. He also said he had recently waxed the stairs. However, the stairs were not slippery, and they appeared not to have been cleaned recently.
Defendant later told a police officer that after he found his wife at the bottom of the stairs, he washed her hands and face and fixed her hair before calling 911. He knew she was already dead. He also described Wolfe as a "powerhouse," and "a woman in a man's world." He said she was strong-willed, she was "someone not to be fucked with," and she was the dominant partner in the relationship.
B. Relationship Between Defendant and Wolfe
Defendant and Wolfe met in a photography class in the mid-1990's, and at the time of Wolfe's death had been married for 13 or 14 years. Wolfe owned a custom machinist company, as well as ten properties in California and Arizona and approximately $800,000 in cash. Her estate was worth between $3,500,000 and $4,000,000. Defendant was an electrician and locksmith and had $300 in his checking account.
Brent Martin, with whom Wolfe had been romantically involved 20 years previously and remained close friends, testified she liked to be "the queen" and that she was the boss of the marriage. He testified that defendant was kind and generous to Wolfe, and he never doubted that defendant loved Wolfe. He never saw defendant start a fight with Wolfe or behave aggressively toward her.
In the defense case, Wolfe's cousin, Christopher Kearns, testified that Wolfe was "more domineering" and defendant was "more passive," that Wolfe "liked to exercise control," and that defendant was kind and affectionate toward Wolfe. Depending on her mood, Wolfe might be "hard on Joe at a particular time," and not "give him any leeway." Kearns thought defendant appreciated Wolfe more than she appreciated him, and she considered him lazy. She scolded him, put him down, and "repress[ed] his identity, personality." She forced him to sell his photography equipment in order to contribute to the couple's finances. Kearns testified that in the months before her death, Wolfe had become more tense, such that he was starting "to not recognize [her] sometimes. It was kind of scary like."
Kearns had dinner with defendant and Wolfe the evening before Wolfe's death. He testified that defendant was "mellow" and Wolfe was "wrapped real tight."
Defendant's next-door neighbor was returning to her home shortly before 3:00 the afternoon of the killing. Wolfe was gardening, with the front door open, talking with defendant, who was inside the house. They were "bark[ing]" at each other, having a "firm conversation," but were not arguing or shouting. The neighbor testified that in the past, she had seen Wolfe giving directions to defendant such as, "Clean out that pot. Get those weeds out of here," and defendant did what Wolfe told him to do. The neighbor thought Wolfe was "the firm one in the relationship."
II. DISCUSSION
A. The Merger Doctrine and Implied Malice
Defendant contends his conviction of second degree murder was based on a theory of implied malice and violates the "merger" doctrine of People v. Chun (2009) 45 Cal.4th 1172 (Chun), under which assaultive felonies "merge" with a homicide and prevent application of the felony murder rule. This contention fails because the merger doctrine discussed in Chun applies to felony murder, not implied-malice murder.
The jury was instructed pursuant to CALJIC Nos. 8.30 and 8.31 that: "Murder in the second degree is the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being, but the evidence is insufficient to prove deliberation and premeditation. [¶] Murder in the second degree is also the unlawful killing of a human being when, 1, the killing resulted from an intentional act; 2, the natural consequences of the act are dangerous to human life; and, 3, the act was deliberately performed with the knowledge of the danger to and with conscious disregard for human life." The second of these instructions is consistent with the rule that "a conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life." (People v. Knoller (2007) 41 Cal.4th 139, 156 (Knoller).)
In connection with a different theory of murder, second degree felony murder, our high court has developed the merger doctrine. A brief summary of the difference between the two theories is in order. "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a).) For purposes of the murder statutes, implied malice exists "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188.) The courts " 'have interpreted implied malice as having "both a physical and a mental component. The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' [Citation.] The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with conscious disregard for life.' " ' " (People v. Soto (2018) 4 Cal.5th 968, 974 (Soto).)
The felony-murder rule, on the other hand, "makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state." (Chun, supra, 45 Cal.4th at p. 1182, italics added.) "First degree felony murder is a killing during the course of a felony specified in section 189, such as rape, burglary, or robbery. Second degree felony murder is 'an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189 . . . ." (Ibid.) The second degree felony-murder rule " 'eliminates the need for the prosecution to establish the mental component [of conscious-disregard-for-life malice]. The justification therefor is that, when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved. The physical requirement, however, remains the same; by committing a felony inherently dangerous to life, the defendant has committed "an act, the natural consequences of which are dangerous to life" [citation], thus satisfying the physical component of implied malice.' " (Ibid.) Whether a felony is inherently dangerous is determined from the elements of the felony in the abstract, not the particular facts of the case. (Id. at p. 1188.)
The merger doctrine arose in People v. Ireland (1969) 70 Cal.2d 522 (Ireland). (See Chun, supra, 45 Cal.4th at p. 1189.) There, the defendant was convicted of second degree murder after shooting and killing his wife. The jury was instructed on second degree felony murder, with assault with a deadly weapon as the underlying felony. (Ireland, at p. 538.) The Supreme Court concluded the instruction was improper, reasoning, "To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault—a category which includes a great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Id. at p. 539.)
The merger doctrine was further developed in Chun, which considered the application of the felony-murder doctrine where the underlying felony is assaultive in nature. The jury there was instructed on second degree felony murder, with shooting at an occupied vehicle (§ 246) as the underlying felony. (Chun, supra, 45 Cal.4th at p. 1178.) After reviewing its jurisprudence regarding the merger doctrine, the court held that, "[w]hen the underlying felony is assaultive in nature, . . . the felony merges with the homicide and cannot be the basis of a felony-murder instruction." (Id. at p. 1200; see id. at p. 1178.) The court therefore concluded the jury should not have been instructed on second degree felony murder. (Id. at p. 1201.) It went on, however, to find the error harmless, because the verdict was fully supported by the valid theory of implied malice based on conscious disregard for human life, on which the jury was also instructed. (Id. at pp. 1202-1205.)
Defendant argues that the rule of Ireland and Chun applies here, because the only dangerous act to serve as a predicate for implied malice was his assaultive action in beating Wolfe—the same action that caused her death. This contention fails. The merger doctrine applies to felony murder, a theory on which the jury was not instructed. It is inapplicable to second degree murder based on implied malice.
Moreover, in light of the distinctions between the two theories, there is no basis to extend the merger rule to implied-malice murder. Both second degree felony murder and implied malice require a physical component. (Chun, supra, 45 Cal.4th at p. 1181.) The difference is in the mental component. Felony murder dispenses with the mental component of second degree murder, and does not require conscious disregard for life. (Id. at pp. 1182, 1184.) The rationale for the merger rule is that, where a felonious assault was the cause of the death, application of the felony-murder rule would mean the jury would never have to consider the issue of malice aforethought. (Ireland, supra, 70 Cal.2d at p. 539.) Implied malice, on the other hand, requires the defendant to know that his conduct endangers human life and to act in conscious disregard of the danger. (Chun, at p. 1181.) Where the theory is implied malice, the issue of malice is squarely before the jury, and the merger rule is inapplicable. (See Chun, at pp. 1202-1205 [affirming second degree murder conviction based on implied malice, even though felony murder instruction improper under merger doctrine].)
B. Unconstitutional Vagueness
Defendant's second challenge is equally meritless. He argues that California's "inherently-dangerous-act second degree murder rule" is unconstitutionally vague.
This argument is based on Johnson v. United States (2015) 135 S.Ct. 2551 (Johnson). The defendant in Johnson pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)), and his sentence was enhanced under the Armed Career Criminal Act of 1984, which provides for increased prison terms for violators who have three or more prior convictions for a " 'serious drug offense' " or a " 'violent felony.' " (Johnson, at pp. 2555-2556; 18 U.S.C. § 924(e)(2)(B).) The act defines " 'violent felony' " in part as " 'any crime punishable by imprisonment for a term exceeding one year,' " which " 'is burglary, arson, or extortion, involves use of explosive, or otherwise involves conduct that presents a serious potential risk of physical injury to another.' ([18 U.S.C.] § 924(e)(2)(B) (emphasis added)." (Johnson, at pp. 2555-2556.) The court held that the italicized phrase, known as the "residual clause," was so vague as to violate the constitutional right to due process. (Id. at pp. 2556-2557, 2563.)
The court reasoned that the residual clause was unconstitutionally vague for two reasons. First, it left "grave uncertainty about how to estimate the risk posed by a crime," because it "tie[d] the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements." (Johnson, supra, 135 S.Ct. at p. 2557.) Second, it left "uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise 'serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction." (Id. at p. 2558.) The court contrasted this provision to criminal laws using "terms like 'substantial risk, 'grave risk,' and 'unreasonable risk,' " explaining, "almost all of the cited laws require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct; 'the law is full of instances where a man's fate depends on his estimating rightly . . . some matter of degree,' [citation]. The residual clause, however, requires application of the 'serious potential risk' standard to an idealized ordinary case of the crime. Because 'the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect,' this abstract inquiry offers significantly less predictability than one '[t]hat deals with the actual, not with an imaginary condition other than the facts.' " (Id. at p. 2561.)
Johnson does not implicate the implied-malice theory of second degree murder. Conviction under this theory rests on a determination that the natural consequences of the act were dangerous to life and the defendant knew of the danger and acted with conscious disregard for life. (Soto, supra, 4 Cal.5th at p. 974.) This inquiry requires the factfinder to "gaug[e] the riskiness of conduct in which an individual defendant engages on a particular occasion," not to carry out an "abstract inquiry" based on "an idealized ordinary case of the crime." (Johnson, supra, 135 S.Ct at p. 2561.) Johnson provides no basis for reversal of defendant's conviction.
In his opening brief, defendant headed this argument: "California's Inherently-Dangerous-Act Second Degree Felony-Murder Doctrine is Unconstitutionally Vague," (italics added), and he relies on a law review article considering whether the second degree felony-murder rule is void for vagueness in light of Johnson. (Lee, Why California's Second-Degree Felony-Murder Rule is Now Void for Vagueness (2015) 43 Hastings Const. L.Q. 1.) But the issue before us is not second degree felony murder, it is implied-malice murder. Whatever merits defendant's argument might have with respect to second degree felony murder—in which the dangerousness of the felony is determined from the elements of the felony in the abstract—we reject it in an implied-malice case, in which the jury must consider the particular facts of the offense to determine whether the defendant in fact acted with malice. (See Chun, supra, 45 Cal.4th at p. 1188; People v. Nieto Benitez (1992) 4 Cal.4th 91, 106 (Nieto Benitez).)
To the extent defendant's challenge to the implied-malice second degree murder doctrine is based on California law, we reject it. Our high court has repeatedly applied and upheld the doctrine. (See, e.g., Chun, supra, 45 Cal.4th at p. 1205 ["No juror could have found that defendant participated in this shooting . . . without also finding that defendant committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life—which is a valid theory of malice."]; Knoller, supra, 41 Cal.4th at pp. 143, 151-156; Nieto Benitez, supra, 4 Cal.4th at pp. 102-104, 110-112 [noting that malice may be either express or implied and approving CALJIC No. 8.31]; People v. Patterson (1989) 49 Cal.3d 615, 626-627.) We are bound by these decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
C. Manslaughter Pinpoint Instruction
The theory of the defense was that defendant acted in the heat of passion, provoked by Wolfe's longstanding demeaning treatment, and he was guilty of manslaughter rather than murder. Accordingly, the trial court instructed the jury with a set of standard instructions regarding manslaughter. (CALJIC Nos. 8.40, 8.42, 8.43, 8.44, 8.50.) Those instructions included the following language: "Legally adequate provocation may occur in a short, or over a considerable, period of time." (CALJIC No. 8.42, italics added.)
Defendant requested this pinpoint instruction: "The evidence of provocation and heat of passion must be viewed as a sum total of the circumstances proved in determining whether provocation was legally adequate to render defendant under the heat of passion. The law of provocation does not require proof of a final event that caused a passionate or immediate reaction resulting in the killing by the defendant." The trial court declined to give the proposed pinpoint instruction, concluding the standard instructions were sufficient without the additional instruction. The court also told defense counsel, "There's enough there for you to argue manslaughter, heat of passion and provocation over a long period of time, but . . . even the basis of a provocation at all is fairly tenuous and I'm not going to highlight something that is fairly tenuous by pinpointing an instruction as if there's tons of evidence that relate to this provocation or long-standing provocation." Defendant contends the trial court erred in refusing the proposed instruction.
A defendant has a right to an instruction pinpointing a theory of the defense. (People v. Noguera (1992) 4 Cal.4th 599, 648.) But instructions that are duplicative, even if accurate, need not be given. (Ibid. ["Other instructions given by the trial court . . .adequately covered the defense theory . . ."]; People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)
Defendant's proposed instruction was based on People v. Wright (2015) 242 Cal.App.4th 1461 (Wright). The defendant in Wright shot the father of her child, and was convicted of first degree murder. (Id. at p. 1464.) On appeal, she contended the trial court erred in refusing to instruct the jury on the principles of law that may reduce first degree murder to second degree murder or manslaughter. (Id. at p. 1480.) Our colleagues in Division One of the First Appellate District concluded that, although the victim's behavior immediately before the killing did not amount to adequate provocation, the parties' ongoing custody battle over their son, in which the victim repeatedly threatened to take custody of the child from her, provided a basis for manslaughter instructions on a provocation/heat of passion theory. (Id. at pp. 1483, 1486.) The court concluded that whether the "eight hours between the last provocatory act and the killing constituted sufficient time for passion to subside and reason to return, after a provocatory course of conduct lasting several months . . . is a question of fact for the jury." (Id. at p. 1490.)
Assuming the proposed pinpoint instruction was a correct statement of the law, its omission does not require reversal. Unlike the jury in Wright, the jury here was instructed on manslaughter. Those instructions informed it that provocation could occur over a "considerable period of time." The jury heard evidence of Wolfe's longstanding behavior toward defendant, and it knew from defense counsel's argument that defendant's theory was that he was provoked and acted under the heat of passion. (See People v. Earp (1999) 20 Cal.4th 826, 886-887 [no prejudice from failure to give pinpoint instruction where jury was instructed prosecution had to prove guilt and defense counsel argued theory that someone else committed crimes].) It is not reasonably probable the jury would have reached a different conclusion if it had heard the proposed pinpoint instruction. (Id. at p. 887, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
Tucher, J.
We concur:
/s/_________
Streeter, Acting P.J.
/s/_________
Judge of the Superior Court of California, City and County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------