Opinion
E055270
12-17-2013
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL CAMPOS, Defendant and Appellant.
Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Julie L. Garland and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF029750)
OPINION
APPEAL from the Superior Court of Riverside County. Mark E. Peterson, Judge. Affirmed.
Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Julie L. Garland and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Jose Campos, of first degree murder (Pen. Code, § 187, subd. (a)), during which he discharged a weapon, causing death (§ 12022.53, subd. (d)). He was sentenced to prison for two consecutive terms of 25 years to life and appeals claiming the jury was misinstructed and evidence was erroneously excluded. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
I.R., a friend of defendant's, testified that on November 15, 2009, he, defendant and the victim were watching a Chargers game in defendant's bedroom at defendant's family's home. Defendant's girlfriend was also in the house. The three males drank liquor and smoked marijuana. After the game ended, the victim hit I.R. in the face and I.R. asked the victim why he did this, as I.R. had supplied the victim with the alcohol and marijuana the victim was consuming. I.R. and the victim exchanged words. Defendant retrieved his rifle and held it to the side of his shoulder with the butt pressed to his chest. The victim angrily said that he no longer wanted to be in the clique he shared with defendant, I.R. and others, that they never looked out for him, that he no longer cared or wanted to be their friend and he said, "Fuck you." Defendant, for his part, was "just talking shit." The victim said to defendant that defendant was not going to do anything. I.R. went to the bathroom to clean the blood off his face and the argument between defendant and the victim got louder, then the rifle went off, killing the victim. When I.R. returned to the room, defendant said, "Let's grab [the victim] and take him out." I.R. felt compelled to cooperate with defendant or suffer the same fate as the victim, so he helped defendant carry the victim into the back yard. While defendant's girlfriend cleaned up the blood inside the house, defendant told I.R. that they should get gasoline. The two rode bikes to a nearby gas station, and while I.R. purchased gasoline which he put in a gas can that had been brought from defendant's house, defendant went into a nearby fast food restaurant and bought food, some of which defendant then ate. When the two returned to defendant's house, they dug a hole in the back yard, put the victim in it, and, at defendant's direction, I.R. put gasoline on the body and defendant set it on fire. I.R. hit the victim's back one time. After the victim's body burned for 30 minutes, defendant's mother, stepfather, sister and the parents' church friend returned to the family home from church. Defendant went inside and talked to them, they appeared upset and they grabbed items and left. After another hour of burning, the body still had not been consumed, so defendant put dirt on it. Defendant and I.R. went inside and went to sleep. The next morning, defendant's brother-in-law came to the home and talked with defendant. The brother-in-law told I.R. that he wanted I.R. out of there and a companion who had accompanied the brother-in-law to the house took him to a local discount store and dropped him off, telling him to keep quiet. I.R. later went to the home of defendant's cousin and told him what had happened to the victim. I.R. denied going to the home of defendant's brother-in-law days after the murder and helping cut up what was left of the body and smashing bones. On Thanksgiving, I.R. met the cousin and defendant, and the latter talked about shooting the victim. Thereafter, the cousin called I.R. and said that defendant needed somewhere to go. Defendant came to I.R.'s home, but I.R.'s mother got mad because she was aware that the victim was missing and I.R. had told her what defendant had done. She told her son defendant could not stay there. I.R.'s sister told him that defendant had told her that defendant could have killed the victim better than he did. Defendant told I.R. that he wanted to go to Mexico. I.R. told his mother that defendant wanted I.R. to go to Mexico with him, but she said that since I.R. had done nothing wrong, he had no reason to flee. When I.R. later told defendant that he did not intend to go to Mexico with defendant, defendant became angry, asked I.R. how he could treat defendant like that, said he should have killed I.R. when he had the chance and called I.R. names.
A church friend of defendant's mother and stepfather testified that he had accompanied the latter to the family home for an after-church dinner on November 15. After the friend saw the victim's body burning in the back yard fire, he overheard defendant tell his stepfather that defendant had shot the victim. The friend then directed defendant's mother, stepfather and sister not to interfere, not to touch anything and to come with him. The four went to the friend's trailer, where defendant's mother, stepfather and sister stayed for a month. When the police contacted the friend two to three weeks after the murder, he told them that defendant's stepfather had told him that defendant had shot the victim. A week before trial, the church friend told the prosecutor, for the first time, that it was defendant, himself, who said that he had shot the victim.
Defendant's cousin, who loved defendant, testified that the day after the murder, a frightened I.R. came to his home and told him that defendant had killed the victim because the victim wanted out of the clique. In an interview with the police, defendant's cousin said that on Thanksgiving, defendant, himself, told him that defendant shot the victim, he regretted it and didn't know why he did it. The cousin told the police that defendant also told him that "they" had burned the victim's body and defendant took the remains of it to the river, where he threw the remains in. The cousin also told the police that defendant had wanted to come to the cousin's house after the murder and stay there. Defendant wanted his cousin to drive him around in order to evade the police, who were looking for defendant.
Defendant's brother-in-law, who pled guilty to disposing of body parts in connection with this case, told the police the following: that the victim punched I.R. in the nose, defendant asked I.R. why he did this, defendant reached in his closet and got his rifle, the victim told defendant not to point the gun at him and asked defendant if defendant was going to shoot the victim, the victim asked to be let out of the clique and defendant said there was only one way out, and defendant shot the victim in the face. Defendant told his brother-in-law that the dead victim was heavy and defendant told I.R. to drag the victim outside, as they were going to have "a barbeque" but I.R. couldn't do it alone, so defendant helped him. Defendant told his brother-in-law that he and I.R. took the victim's body outside and began burning it, but it burned too slowly, so gasoline was poured on it. Defendant told his brother-in-law that defendant told I.R. to bring the beer that was left over from the drinking that occurred before the murder and the two sat there, drinking beer and watching the victim's body burn until it got too cold outside, at which point they buried what remained of the body. The morning after the murder, defendant's mother called defendant's brother-in-law. Defendant's brother-in-law saw the victim's burnt body. Defendant asked the brother-in-law where Lake Perris was, the latter said it was too far away and defendant asked him where a closer lake was and he suggested Canyon Lake, which defendant said he would visit. Defendant's brother-in-law told defendant to visit Canyon Lake the next day when it was light, but defendant insisted on going then, so defendant's brother-in-law began leading the way, but stopped when his car became stuck on a bumpy road and defendant directed him to join defendant in the truck in which defendant was riding, but the former refused to leave his car. Defendant's brother-in-law smelled and saw what remained of the victim's body in the truck. Defendant's brother-in-law told defendant that I.R. had told the brother-in-law that defendant had already burned the body and defendant responded that the body wasn't burning fast enough so he removed the body from the pit. Defendant asked his brother-in-law for an implement to cut metal and the former suggested a saw. The brother-in-law thought that defendant intended to cut up his rifle. The brother-in-law asked defendant if he dumped the victim's body in the lake. Defendant replied that he chopped up the body and scattered it. A police investigator testified that defendant's brother-in-law directed the police to the place in Canyon Lake where the brother-in-law had told defendant to dump the victim's remains and those remains were located there.
Although this person was not married to defendant's sister, he fathered two children with her and defendant referred to him as his brother-in-law.
Defendant testified that the day after the murder, he called his brother-in-law for help with disposing of the body. We assume this evidence was introduced by the prosecution to prove that someone on defendant's "team" called the brother-in-law for help disposing of the body. According to defendant's testimony, his brother-in-law took over the task of disposing of the victim's remains, including a second burning at the brother-in-law's house, before dumping the remains in the lake.
Defendant's girlfriend, who pled guilty to being an accessory to murder, told the police the following: She had told defendant that she just knew defendant had killed the victim and she asked him why, but he did not respond. Defendant's brother-in-law and I.R. told her that defendant had shot the victim and she thought that defendant had done it. She overheard defendant tell I.R. about the shooting and when I.R. asked defendant if he shot the victim, defendant bobbed his head up and down. She heard the victim say, seconds before the shooting, "If you're going to shoot me, then shoot me."
I.R.'s mother testified that the day defendant came to I.R.'s home, I.R. identified defendant as the person who had shot the victim because the latter wanted out of the clique and he said that defendant was in hiding. I.R. expressed fear of defendant. I.R. told defendant to leave his home, at the direction of I.R.'s mother, and defendant told I.R. that he should have killed I.R., also. Later, defendant called I.R., who put the call on speaker phone in the presence of his mother. Defendant told I.R. that defendant wanted I.R. to go with him. I.R. said he could not. Defendant called back and the mother heard him tell I.R. that he should have shot I.R. when he had the chance. At some point, defendant's cousin called the mother and discussed with her taking defendant and I.R. to her sister's in Mexico, but she did not agree to this. The mother told an investigator for the prosecution that she overheard I.R.'s sister ask defendant, the day she told her son to tell defendant to leave I.R.'s home, what would happen if the victim was brought back to life, and defendant said he would kill the victim better this time and cleaner. She testified that on that day, as defendant left the house, he started punching himself in the face and she asked him why he was doing this.
I.R.'s sister testified that the day defendant was at I.R.'s home, she overheard a conversation between I.R. and their mother about defendant shooting the victim and their mother wanting defendant out of the home. She, like her mother, witnessed defendant hitting himself and he said he wanted to make it seem like someone had kidnapped him, beat him up and left him in the mountains. Defendant told her that he wanted to go to Mexico.
During an interview with defendant's stepfather, when told to tell the truth, he said that he feared defendant would go to prison and get the death penalty. In a recorded call between the stepfather and his sister while the former was in jail, he told his sister that the police would not let him go because he was lying (he had told the police that defendant had told him that I.R. had shot the victim). The stepfather asked one of his interrogators what he would expect if the interrogator's son had done something like this—that the stepfather had to hide defendant. The stepfather told his sister to get rid of everything, adding, 'We just cover it up, that's all.'
In early March 2010, defendant and his girlfriend were taken into custody in Mexico, having been there for the past four months. A Chevy Tahoe registered to defendant's mother was found in Mead Valley and it appeared to have been purposefully burned.
Defendant testified that friends of his brother- in-law's had broken into and "hot wired" his mother's Chevy Tahoe, which was parked at the family home, and it was used to transport the remains of the victim's body because the body could be secreted in it. According to defendant, his brother-in-law had told him that he would take care of the vehicle, just as he took care of the victim's remains.
Defendant testified that I.R. had killed the victim and orchestrated the efforts immediately following the shooting to dispose of his body.
1. Jury Instructions
a. On Manslaughter
When discussing jury instructions, the trial court was reluctant to omit from the standard instruction on murder the concept of implied malice second degree murder because the portions of the instruction on that theory were not in brackets and the court felt it would be tinkering with the standard instruction to do so. The prosecutor agreed, and added that the standard instruction allowing the jury to ignore any instructions that did not apply to the facts would prevent the jury from finding second degree implied malice murder if the facts the jury found did not support it. The prosecutor had earlier stated that he did not intend to argue this theory, but the jury might, in the absence of a finding of the intent to kill, premeditation and deliberation, find that the fact that defendant waived the gun around, pointed it at the victim, and "somehow" it went off, created a basis for concluding that he had committed second degree implied malice murder. When the trial court asked counsel if there were any instructions that counsel felt should be given that had not already been discussed, defense counsel said that although he did not intend to argue it, if implied malice second degree murder was a viable alternative under the facts, "manslaughter . . . may apply as well." He did not state how, and he twice asserted that the evidence did not support implied malice second degree murder, but he maintained that if the jury was going to be given this option, "then I can see how that could go down to manslaughter." The trial court refused to give an instruction on manslaughter, saying the evidence did not support it. Defense counsel did not dispute this.
Defendant now claims that the trial court erred in refusing to give an instruction on manslaughter because there was evidence that defendant killed the victim upon a sudden quarrel or heat of passion resulting from sufficient provocation. Defendant concedes that instructions on manslaughter based on this theory are required only when adequate provocation and heat of passion are affirmatively demonstrated. (People v. Lee (1999) 20 Cal.4th 47, 59, 60.) Further, the provocation must be caused by the victim or it must be conduct which the defendant reasonably believed the victim engaged in. (In re Thomas C. (1986) 183 Cal.App.3d 786, 798; People v. Brooks (1986) 185 Cal.App.3d 687, 694.) Finally, it must be such that "an average, sober person would be so inflamed that he or she would lose reason and judgment." (Lee, supra, 20 Cal. 4th at p. 60.)
Defendant finds evidence of provocation in interviews his brother-in-law had with the police in which the brother-in-law reported statements defendant made about the incident to the brother-in-law. Relevant portions of those interviews have been reproduced below because defendant pulls one portion out of it, interprets it, himself, without any supporting evidence, and claims it is evidence of provocation. The brother-in-law reported to police that defendant told him that defendant, the victim and I.R. were free-style rapping when he and I.R. began playing around and the victim got angry about this and punched I.R. in the nose. Defendant asked the victim why he punched I.R. The brother-in-law then reported, "Nah he was talking to [sic] much fucking shit." Although it is not at all clear from the face of the statement who is referenced in it and what it means, defendant "interprets" the "he" as referring to the victim and asserts that defendant was complaining to the brother-in-law that the victim was talking too much "fucking shit" and it was against defendant. The brother-in-law reported a similar statement by defendant in the brother-in-law's second interview with police, in which the brother-in-law said that defendant said (and this time, it's fairly clear that defendant is referring to the victim) that the victim was "always talking shit" but he did not say what this was about. Resuming defendant's actual narrative to his brother-in-law, defendant appeared to tell the victim to not get upset over the rapping, then he reached into the closet and got the gun. Defendant said that the victim should not have punched I.R. Defendant pointed the gun at the victim's feet. The victim asked defendant if defendant was going to shoot him. The victim told defendant repeatedly to just take the victim out of the clique. The victim said, " . . . I know I'm being a dick but you guys are being fuckin pussies . . . ." The victim told defendant not to point the gun at him. The victim then said he felt like he was going to die. Defendant said the victim "must've read my mind." It appears the victim told defendant, "[F]uck you, then take me out of your fuckin click. . . . [A]nd [defendant said, "S]o I fuckin took him out and shit. . . . [T]here's only one way out["] . . . and then he just shot him in the face." In fact, during his testimony at trial, the brother-in-law said that defendant had told him that the reason defendant shot the victim was because the victim wanted out of the clique. Frankly, we find no evidence whatsoever of provocation in the brother-in-law's report of what defendant told him about the shooting, unless being asked to be dropped from a casual clique of friends is adequate provocation for murder. Nor do we agree with defendant's current interpretation of this evidence as constituting "relentless jeering and goading . . . whereupon [defendant] snapped and shot [the victim] in the eye."
"And . . . and [I.R.] was like by the bed standing up and they were all just kinda free stylin rap and shit. And that I don't know that [I.R.] and him kinda started shit with the rap and shit like you know. Fuckin like playing around and shit and that and [the victim] took it to serious and that . . . that he socked, he punched [I.R.] in the nose. He's all yeah fool that guy punched [I.R.] in the nose and shit. He's all I thought [I.R.] was gonna go all crazy and shit he all like and I asked that fool like what the fuck. What the fuck you hitting him for and shit. Nah he was talking to much fuckin shit. Fool ah fool you guys are just rapping dog it ain't serious you know. Fuckin take it and you know take as a rap thing and shit and he's like nah this fool hasn't been talking shit for a minute already ah. And fuckin and then [defendant] started saying that he's yeah and fool and I fuckin reach into the closet and pulled it out and then that fool [the victim] said what the fuck you gonna shot [sic] me fool. He's all fool I thought this was just a little chickout and shit and he's like nah and they were all drunk you know what's when [defendant] kept saying fool were drunk fool . . . I like . . . like remember me stumbling and shit trying to hold it. He's all like and um . . . and um that . . . that that fool [the victim] started telling em' man fool you from (inaudible) he's like I called you out last time [defendant]. You didn't want to fuckin box me and shit. And um . . . and um that fool said and [defendant] (inaudible) [defendant] just had it like that, man fool take me out of your clicka dog. I mean I know I'm being a dick but you guys are being fuckin pussies and shit he's all I was over here crying like a little girl and shit and fuckin ah the [defendant] . . . the [defendant] had already like that he [defendant] . . . [defendant] said that he just went like clack. And that he got right in the . . . the eye. That he just fell back. And then like landed on . . . on his wall. And that he's like yeah there was blood everywhere and shit." "I don't know if [I.R.] . . . when he got socked or what but that [defendant] had just, just like looked over and told uh, he told that fool, um, . . . what did you do that for? And then, then [defendant] says that he just kind of like reached into the closet for the, for the gun and uh and that he had it like that. . . . and shit. This fool always talking shit and then [defendant] told him that . . . fuckin just, you know . . . just rapping dog, don't take it seriously like that and shit. He was trying to protect [I.R.] and then he said, like he said uh, um, oh that, that, that [victim] . . . [¶] . . . [¶] Right and, and that he said, he said . . . fuckin' . . . . I don't know what they call him but I'm pretty sure they were using their nicknames and he said . . . jumped this fool in and shit. . . . why um, that you know, he shouldn't have done that shit. . . . and that . . . pointed, like he just pointed it like towards his feet and that, [defendant] said that, that that fool kept telling him that to take me out, take me out and then, and then [defendant] was, then [defendant], he was all like . . . thinking about . . . shit. He's all it was crazy fool. He's all, he's all like we were all fucking faded. He's like it even took my faded, like me being faded away and shit and them um-"
Interestingly enough, I.R. testified that he, himself, "usually talk[ed shit] to everybody. That's how most men talk to each other these days."
Defendant also cites I.R.'s testimony as evidence of provocation. Specifically, I.R. said that after the victim punched him and defendant was holding the gun against his chest, standing two-three feet from the victim, the victim said, very angrily, that he didn't want to be in the clique anymore, "F" them, "he didn't care" and they weren't friends anymore. The victim told defendant that when he needed "you guys" they were not there for him, so he wanted out. The victim also told defendant that the latter wasn't going to shoot the victim. At the preliminary hearing, I.R. testified that he and the victim had been "going back and forth" for months and I.R. was already upset with the victim before the latter came to defendant's house the day of the shooting. Just before the shooting, the victim and I.R. were exchanging words, then the victim and defendant exchanged words. I.R. testified that "he thought" the victim told defendant that he was gay, which is what the victim had been saying to I.R. for months. On the other hand, I.R. testified at the preliminary hearing that defendant and the victim had a good relationship before the murder. In fact, defendant wanted to pick the victim up the day of the shooting and bring him to his house, but I.R. unsuccessfully tried to talk defendant out of doing this. How defendant now derives from the foregoing that the victim "was viciously implying, if not outright saying that [defendant] backed up [I.R.] since [defendant] had a 'gay' thing for [I.R.]" is beyond us. We also reject defendant's characterization of this testimony as "rabid taunting" of defendant or "trashing [his] character [and] friendship." It is clear from the versions of events offered by both witnesses that victim was set off when I.R. and defendant began messing around with the effort of the three to rap, a situation defendant attempted to diffuse, but things disintegrated into the impaired victim's criticism of the clique as being unsupportive of him, causing him to insist on being dropped from it. Defendant's response was to drop the victim from the clique the only way one can be dropped—by being killed. The victim's accusation that defendant was gay, an accusation he had repeatedly also used against I.R., giving it even less of a sting, and in the context of him already being angry at defendant and I.R. and being hurt by the lack of support from the clique, did not amount to provocation by defendant to kill him. (See People v. Najera (2006) 138 Cal.App.4th 212, 226.) As the People correctly point out, using the term "being gay" is often a euphemism for being "lame" or not doing what you're supposed to be doing, which is exactly what the victim was accusing the members of the clique of doing, i.e., not supporting him when he needed them. This is not provocation for murder.
Both defendant and I.R. testified that the victim drank three alcoholic beverages as well as smoked marijuana. Defendant testified that the victim chugged a beer and smoked more marijuana.
In his reply brief, defendant asserts that his close emotional ties to the victim and to I.R., combined with taunting words or other provocative conduct, creates provocation. However, there is no evidence that defendant had the type of relationship with either I.R. or the victim that existed in the cases he cites in support of his position. (People v. Barton (1995) 12 Cal.4th 186 [victim threatened defendant's daughter]; People v. Verdugo (2010) 50 Cal.4th 263 [victim appeared to defendant to be the person who smashed defendant's close friend in face with broken bottle]; People v. Berry (1976) 18 Cal.3d 509 [wife taunting husband]; People v. McCowan (1986) 182 Cal.App.3d 1 [defendant kills ex-wife and her parents]; People v. Doyle (1958) 162 Cal.App.2d 158 [wife stabbed husband]; and People v. Van Ronk (1985) 171 Cal.App.3d 818 , which defendant also cites, does not stand for the proposition, as defendant claims it does, that a so called and undescribed "friendship"/relationship between a drug user and a drug dealer creates the kind of environment in which little provocation grows into adequate provocation for murder.) In Van Ronk, the defendant was convicted of attempted voluntary manslaughter of his asserted "friend," someone who was to obtain marijuana for him, when he shot the man after angrily telling him that he believed that the man was ripping him off and the man threatened to break every bone in the defendant's body. (Van Ronk at pp. 820-821.) On appeal, defendant unsuccessfully contended that there was no such thing as attempted voluntary manslaughter. (Id. at pp. 820, 822, 824-825.) The appellate court was not called upon to and did not decide whether the relationship between the parties contributed to the provocation arising from the victim telling the defendant that he was going to break every bone in the latter's body.
Defendant's cousin described the clique as a group that formed to sell drugs and hang out, but it did not sell drugs. He did not say how long it had existed, even though he testified that he and defendant founded it. He said there were 10 people in it, including himself, defendant, the victim and I.R. His memory of the other members was very sketchy. I.R. testified that he, the victim, defendant and defendant's cousin were members, and there were two or three other members, but he did not know who they were. He had known the victim for one year at the time of the murder, suggesting that either the victim or I.R. had not joined the clique until a year before the crime. I.R. was angry at defendant at the time of the crime, and had been exchanging words with the victim. According to I.R., after the murder, defendant told him that he should have killed I.R. when he had the chance, that I.R. was a "bitch" and "not worth shit." I.R. also felt that if he did not help defendant dispose of the victim's body, defendant would kill him. Defendant described the clique as a rapping crew composed of him and I.R., whom he had known since he was 13 or 14. However, I.R. lived with his mother in San Diego until defendant turned 16, at which point he would smoke weed and drink beer with I.R. "every once and a while." Defendant was aware of bad feelings between I.R. and the victim, which caused them to stop seeing each other for a while, six or seven months before the murder. Even though the three resumed hanging out together, I.R. would bring up the problem that had caused them to stop seeing each other and the victim would call I.R. out to fight, but I.R. would back down. According to I.R., their relationship was strained and they "talk[ed] smack back and forth " to each other." Defendant testified that minutes before the shooting, I.R. rapped lyrics that were disrespectful to the victim's family and the victim called him on it. They argued, calling each other names, the victim probably thought that I.R. was going to hit him and I.R. continued to goad the victim until the later socked him in the nose. At the preliminary hearing, I.R., himself, testified that the victim disrespected him by punching him. Just before I.R. returned to defendant's bedroom after washing the blood off his face from being socked by the victim, defendant told the victim that he would tell I.R. to shut up and not bring up the things that had made the victim angry in the first place. Defendant described I.R. as a "crybaby" who wined a lot. This is the testimony concerning the nature of the relationship between defendant, the victim and I.R. Certainly, that relationship was not akin to those in the cases cited by defendant as creating an atmosphere in which provocation becomes sufficient to reduce murder to manslaughter.
He falsely implicated one of them in the murder.
In his reply brief, defendant states, "[I.R.]'s testimony and [defendant's] statements to [his brother-in-law] reasonably showed that [I.R.] and [the victim] were rivals of a sort and vied to be [defendant's] favored friend and right hand man in their . . . clique, of which [defendant] was the unspoken leader." However, these portions of the record do not support this assertion. Defendant also cites the interrogations of defendant's brother-in-law, however, we are unable to cull such meaning from his almost indecipherable account of the shooting.
As before, misconstruing defendant's statements to his brother-in-law, defendant asserts that he shot the victim in the heat of passion. Specifically, the brother-in-law reported defendant as saying of the victim punching I.R. in the nose, "I thought [I.R.] was gonna go all crazy . . . ." Defendant "interprets" this as follows: "[A]fter [defendant] saw I.R. 'go all crazy' and crying from getting punched" defendant responded "protectively and angrily" by asking the victim why he punched I.R. "then grabbed the shotgun." However, defendant never said that I.R. went crazy. More importantly, defendant's own trial testimony undermines his current claim. When specifically asked if he felt he had to shoot the victim to protect I.R., defendant said no. Additionally, as already stated, defendant testified that before I.R. returned from the bathroom, defendant told the victim that he would tell I.R. to shut up and not mention the things that I.R. had already said to upset the victim. Certainly, defendant's statement to his brother-in-law about why he shot the victim did not support defendant's current assertion. This statement was corroborated by defendant's cousin's interview with the police in which he said that defendant reported to him, "[A]fter [the victim said he wanted out of the clique, defendant] tried to say that . . . his only way out . . . is . . . to die . . . ."
In fact, when he testified, defendant said it was the victim who "started going crazy with [I.R.]" when I.R. sang a rap song that disrespected the victim's family.
Defendant relies on the following, from the interview of defendant's brotherinlaw with the police, to prove that I.R. cried after being punched by the victim, "[The victim said, ']I know I'm being a dick but you guys are being fuckin pussies['] and shit he's all I was over there crying like a little girl . . . ." It is not clear about whom the brotherinlaw is referring. However, I.R. himself testified that he cried after the victim punched him because it hurt his feelings.
Defendant also calls our attention to this interview with his cousin. Specifically, in it, the cousin said, "I.R. [told] me that [defendant] looked like [he] had a demon in him supposedly." However, this does not establish heat of passion. Defendant's use of the words "fool" and "fuck" so permeate his language, and that of I.R., defendant's cousin and defendant's brother-in-law, that it is impossible to find in their use indications of heat of passion.
We, like the trial court, the prosecutor and even defense counsel, see no evidence of provocation or heat of passion in the evidence adduced at trial.
b. Instruction on Premeditation and Deliberation
The jury was given the standard instruction on first degree murder, in pertinent part, as follows, "The defendant is guilty of first degree murder if the People have proved that he acted . . . deliberately, and with premeditation. . . . The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts that caused death. [¶] The length of time the person spends considereing whether to kill does not alone determine whether the killing is deliberate and premediated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time"
Defendant here contends that this instruction omits what he claims is the essential element that the decision to kill "must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding deliberation" which is language taken from former CALJIC No. 8.20. He contends that the trial court's failure, sua sponte, to add this to the instruction given requires reversal of his conviction. We disagree.
Since we have already concluded that there was no evidence of heat of passion and defendant does not even assert that there was evidence of some other condition precluding deliberation, there was no evidentiary basis for that portion of defendant's proffered modification of the standard instruction. Even defendant, himself, acknowledges that this principal has to be "raised by the evidence" in order for its absence from the instructions given to warrant reversal. Here, it was not. As to the notion that the decision to kill must have been formed upon pre-existing reflection, that was covered by the standard instruction's provisions, as stated above. Therefore, the trial court had no sua sponte obligation to give this modification of the standard instruction.
Defendant misreads the holding in People v. Steele (2002) 27 Cal.4th 1230. Therein, the prosecutor, while questioning whether the evidence warranted a voluntary manslaughter due to provocation instruction, successfully requested one out of an abundance of caution. (Id. at p. 1250.) The California Supreme Court concluded that there was no evidence of provocation, therefore, the trial court did not err in failing to give, sua sponte, an instruction that provocation insufficient to reduce murder to manslaughter could be considered in determining whether the defendant killed with premeditation and deliberation. (Id. at pp. 1250-1251.) In response to defendant's argument that while there was no evidence that the victim provoked him into murdering her, "the entire defense theory of the case was that he killed under the heat of passion caused by a combination of circumstances." (Id. at p. 1251.) The California Supreme Court responded to this argument by pointing out that the jury had been given what, at the time, was the standard instruction on deliberate and premeditated first degree murder, i.e., CALJIC No. 8.20, which contains the language that the killing must not have been committed under heat of passion or other circumstances precluding deliberation. (Steele at p. 1251.) The high court continued, "By specifically referring to heat of passion and generally referring to any other condition precluding deliberation, the [trial] court fully instructed on the law relevant to the actual evidence. It did not also have to refer to 'provocation' regarding the degree of murder, which would not have fit the evidence." (Ibid.) What the Supreme Court meant by the foregoing was that even if it accepted defendant's claim that there exists a heat of passion reduction of murder to manslaughter, absent any evidence of provocation, this jury had been given the standard instruction that existed at the time which covered this concept. It was not a holding by the Supreme Court that there is a heat of passion concept that operates separate from the idea of provocation, and even in cases where there is no evidence of provocation, instructions on heat of passion should be given because the defense is that the killing was the result of heat of passion, a claim not even made in the instant case below. Defendant cites no authority, and we are aware of none, that permits the divorcing of the concept of provocation from the concept of heat of passion, as the defendant in Steele argued. To the extent defendant asserts that People v. Avila (2009) 46 Cal.4th 680, so held, he is incorrect.
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2. Impeachment of I.R. Based on a Prior Juvenile Adjudication
During an in camera confidential hearing before trial began, the trial court noted that I.R., who was 18 at the time of the murder, had been adjudicated, as a juvenile, to have committed in 2008 vandalism in violation of section 594, subdivision (a) (it was not determined, at this point, whether this was a felony or a misdemeanor) and a felony offense, the latter when he was 16 or 17. Defense counsel stated he would not be seeking to introduce a third adjudication from that year in order to impeach I.R. The People did not oppose the jury being told that I.R. was on felony probation at the time of the murder. The trial court added to the People's concession that among the things I.R. was on probation for was the vandalism. The court also offered that if defense counsel discovered that the vandalism was a felony, he could go into it more. However, the trial court concluded that the extremely prejudicial impact of revealing to the jury the actual felony offense for which I.R. had been adjudicated, or a description of it, outweighed its probative value and the court prohibited defense counsel from revealing either. Defendant here contests this ruling, claiming it was an abuse of discretion. (People v. Chavez (2000) 84 Cal.App.4th 25, 30.)
At trial, during his direct testimony, I.R. admitted that he pled guilty to being an accessory to murder because of what he had done after the victim had been killed and he admitted that he was currently on probation for that offense. He also admitted that he was not always honest with the police about this case. On cross-examination, he admitted that he went "around telling people that [he] shanked people . . . [¶] . . . [¶] . . . but that's not actually true . . . ." He admitted falsely telling the police that seven different people, including two who were like second parents to him, were involved in this crime, although none of them were. He admitted that he helped drag the victim's body, that he bought the gas that was used to burn the victim's body and he helped burn the body. He also said that as part of the plea bargain in this case, he also admitted poking the victim's body. He admitted when the police came to his home to question him, he tried to run out the back. He admitted repeatedly lying to the police about his own involvement and the acts of others at the time of the murder and afterward. At trial, he contradicted statements he had made at the preliminary hearing, as well as statements he had made earlier during his testimony. He admitted lying to defendant's stepfather at the scene of the murder. He admitted that his father destroyed evidence. He admitted he was convicted in 2008 of vandalism and he was on probation when the murder occurred. He admitted that he paid for the alcohol he and the victim drank just before the murder by stealing things from several people, including his father. He admitted supplying alcohol and marijuana to the victim, a minor. He admitted that he had been a gang member while he lived in San Diego County. In his testimony, defendant asserted that it was I.R. and not him who killed the victim, then orchestrated the disposal of the remains.
We agree with defendant that the credibility of I.R. was very important in this trial, which was a factor favoring admission of evidence of his omitted adjudication. Defendant also cites as another factor favoring admission whether exclusion of the evidence would give the witness a false aura of veracity. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) However, in light of the admission of evidence that I.R. had been convicted of vandalism and of being an accessory to murder, as well as all the other evidence that called his veracity into question, mentioned above, he hardly had a false aura of veracity. In cases where there is other impeaching evidence available, the trial court's exercise of its discretion to omit yet another piece of impeaching evidence is upheld. (People v. Farley (2009) 46 Cal.4th 1053, 1105.) This was not such a case.
Moreover, it is the cumulative effect of all the evidence calling into question I.R.s' veracity, along with the strong evidence of defendant's guilt from sources other than I.R., that persuades us that, regardless of the propriety of the trial court's ruling, defendant was not so prejudiced by the exclusion of this additional piece of impeaching evidence that his conviction should be reversed due to its absence. The same is true for defendant's assertion that the trial court should have sanitized I.R.'s prior by calling it felonious conduct involving moral turpitude and that his trial counsel was incompetent for failing to ask the court below to do this. Specifically, as to the latter, defendant bears the burden of showing that there is a reasonable probability he would not have been convicted had the prior been so sanitized. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Given this record, defendant cannot carry this burden. The trial court's ruling deprived defendant of due process only if it resulted in a trial that was fundamentally unfair (People v. Falsetta (1999) 21 Cal.4th 903, 913) and this one was not. Defendant's right to confrontation and cross-examination is not violated unless the prohibition on that examination would have produced a significantly different impression of the witness' credibility (People v. Smith (2007) 40 Cal.4th 483, 513), and we have already concluded that would not have occurred here.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur: HOLLENHORST
J.
KING
J.