Opinion
D039119.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD DAILEY, Defendant and Appellant.
James Edward Dailey (James) appeals from a judgment convicting him of first degree murder of Guadalupe (Lupe) Dailey.
James argues (1) there is insufficient evidence to support the conviction because Lupes body was never found, and there was no physical evidence of harm, no eyewitnesses, and no confession; (2) the trial court erroneously admitted evidence of his threats to kill another domestic partner without leaving a trace behind; (3) the evidence warranted sua sponte instruction on voluntary manslaughter; (4) the trial court had a sua sponte duty to instruct on provocation as it pertained to second degree murder; and (5) the trial court erred in excluding evidence of third-party culpability based on Lupes intimate relationships with other men. We reject all contentions of error and affirm the judgment.
FACTUAL SUMMARY
James and Lupe met in late 1992 or early 1993 and were married. They had two children, Nicole and Ryan, who in 1997 were four and two years old, respectively. In 1997, the couple separated. In March, Lupe moved to her own apartment in Santee with the two children. Jamess and Lupes divorce was to be final on September 20, with the parties having joint custody and James paying $ 400 monthly child support. Lupe worked as the director of a day care center, La Petite Academy.
Subsequent references to dates without an indication of the year are to the year 1997.
Around 3:00 or 4:00 p.m., Ryan became fussy, so Lupe laid down with him. She then got up again and their discussion continued. It was like an emotional roller Lupes Disappearance
On Saturday, August 30, Lupe and her two children had dinner with Lupes sister, Rose Keene, at Keenes house. Lupe seemed normal and happy. Lupe left with Ryan about 8:00 p.m., leaving Nicole to spend the night with Keenes daughter. At about 9:00 p.m., Keene spoke with Lupe on the telephone. Lupe told Keene about her plans to go to Las Vegas the next day with Alan Thompson, the man she was dating. Sometime after 10:00 p.m., James picked up Ryan from Lupes home.
At about 10:30 p.m. on Saturday, Lupe and her best friend and coworker, Patricia Urbanski, met at the parking lot of a bar they frequented (the Driftwood Bar) and then drove to La Jolla Cove. Lupe was upset because it was the anniversary of her brothers suicide. Lupes family had a memorial service for her brother every year at this time, and Lupe told Urbanski she did not understand why they had to have the service rather than let her brother rest and get on with their lives. Lupe also told Urbanski that if she were pregnant with Thompsons child, she would have to leave town to have the baby. Lupe asked if Urbanski would be able to handle it if she disappeared. However, Lupe did not indicate that she was pregnant, nor that she wanted to disappear, nor that she wanted to kill herself. Overall, Lupe was happy; she was excited because she had earned enough credits to go on a trip on September 15 with directors of La Petite Academy.
Lupe and Urbanski returned to the Driftwood Bar parking lot around 1:00 a.m. Sunday. According to Jamess statement to the police, Lupe came to his home around 1:30 a.m. Sunday, saying she missed Ryan. She stayed for a few hours and then suddenly left. (See summary of Jamess interviews with police, post.)
Between 10:00 a.m. and noon on Sunday, Lupe spoke with Thompson and finalized plans to drive to Las Vegas that afternoon. Thompson and Lupe agreed that Thompson would call her at 2:30 p.m. to confirm she was home. They planned to leave from her apartment around 3:30 p.m. in her truck and return home Monday evening.
At 11:41 a.m. on Sunday, an ATM withdrawal was made from Lupes bank account. At about noon on Sunday, Lupe drove to Eric Camerons house to borrow an overnight bag for her trip to Las Vegas. Lupe had previously dated Cameron as well as his roommate, Tommy Tucker. Cameron brought the bag out to Lupe and talked with her for about 15 minutes while she sat in her truck. While they were talking, Lupe received two pages. She told Cameron she had to go see her son at her ex-husbands home. She also told Cameron that she might not go to Las Vegas because she was supposed to attend a memorial service for her brother on Monday morning. She told Cameron that if the trip did not happen, she would call him later that day so they could get together. Cameron did not hear from her again, and he and Tucker spent the day watching sports. That night Cameron and Tucker went to separate bars with friends.
On Sunday between noon and 12:30 p.m., Urbanski received a voicemail page from Lupe. In the message, Lupe was laughing and teasing Urbanski because Lupe was going to Las Vegas. Lupes message stated she was leaving with Thompson that day after she finished her errands, and that hopefully she would return on Monday for a picnic, but otherwise she would be back by Tuesday morning.
On Sunday at about 1:00 p.m., Keene called James to ask if he had heard from Lupe. James said no.
Thompson called Lupe around 2:30 p.m. on Sunday, but she did not answer the telephone. He called and paged her repeatedly during the course of the day and evening, but received no responses. At 6:00 p.m., Thompson unsuccessfully looked for Lupe at her apartment and at the Driftwood Bar. Her truck was not at either place. Thinking he had been stood up, he went home, started drinking, and continued trying to contact her by telephone and pager. Around 9:00 p.m., he returned to her apartment and stayed in his truck drinking until he passed out. He woke up in his truck Monday morning. Lupes truck was not there.
At about 7:00 p.m. on Sunday, James called Keene and told her that Lupe had been at his apartment from about 1:30 to 6:30 p.m. that day and that he did not know where she went. James sounded irritated. He told Keene that he and Lupe had argued on and off during that time period, and in between arguments Lupe took naps. They were arguing because Lupe wanted money for rent and for a trip to Las Vegas.
Around 7:30 p.m. on Sunday, James called and asked Keene if she would babysit Ryan and Nicole that night because he was upset and needed to go out and clear his head. Keene declined and suggested he ask her sister, Mary Mena. About 8:30 p.m., James stopped at Keenes house to get Nicole on his way to pick up Mena. Keene noticed that he was pacing back and forth.
James picked up Mena and drove her and the children back to his apartment. According to Mena, at around 11:00 p.m., after the children were asleep, James left the apartment, telling Mena he was going out with friends. At around 7:30 the next morning, James came into the room where Mena was sleeping and woke her.
James told the police he went with his boat to Mission Bay about 10:30 Sunday night. (See summary of Jamess police interviews, post.) During a later police investigation, Lupes checkbook was found slipped between the side wall and the seat of Jamess boat. The checkbook contained a receipt for a purchase on Saturday, August 30.
Lupes extended family had a picnic on Monday, September 1, the Labor Day holiday. Lupe had planned to attend but she did not show up. Keene tried paging Lupe a couple of times, but received no response. James attended the picnic with his two children. Keene noticed he was acting somewhat distant. When Keene asked him what was wrong, he said it was Lupe and their problems.
On Tuesday, September 2, Thompson spoke with Urbanski and discovered that Lupe had not shown up for work. Concerned, Thompson filed a missing persons report. Thompson left Lupe several tearful voice messages saying that he loved her. After Thompson called her, Urbanski called James and asked if he had heard from Lupe. James responded that he had not, but that she had gone to Las Vegas and he was sure she would show up.
When Urbanski arrived at La Petite Academy at about 6:00 a.m. on Tuesday, she noticed that Lupes truck was in the parking lot. This was unusual as Lupe ordinarily did not arrive until 8:00 or 9:00 a.m. Additionally, Lupes truck was not parked where Lupe usually parked. It was parked crooked, taking up two spots, and, contrary to Lupes usual habit, did not have the anti-theft "club" in place. During a community search for Lupe, Lupes coworker, Marisa Padilla, commented that it was odd where Lupes truck had been parked, and James responded by insisting that the truck had been parked in a proper place.
One witness testified she did not see the truck at the daycare center when she drove by at 4:30 p.m. on Sunday. Another witness saw the truck there around 6:00 p.m. and noticed it was still there around 10:00 p.m. The day care center was about one mile from both Lupes and Jamess apartments. Jamess and Lupes fingerprints were found on the truck. The overnight bag Lupe had borrowed from Cameron was behind the seat of the truck. On September 26 a banner advertising the day care center which had been in Lupes truck was found discarded in some hills off a road in Santee.
Both Thompson and Keene testified that in the past Lupe always responded to her pages. Lupe was very dedicated to her job at La Petite Academy and was not the type of person to suddenly change her plans. She was very good with her children, was always checking on them, and would not abandon them. There was no activity on Lupes bank account or credit cards after Sunday, August 31.
Jamess Interviews with Police
The police interviewed James on September 2 and 4. James told the police that on Saturday, August 30, he informed Lupe he had plans for that evening after work. Later, Lupe called him at work and told him she would be dropping the children off at 7:30 p.m. James responded he was tired of "this last minute stuff." When James proceeded with his plans and did not go home after work, Lupe paged him and yelled at him because he was not at his home to take the children.
James arrived home at about 10:00 p.m., called Lupe, and went to Lupes home to pick up Ryan. Lupe said she was going to a movie. At about 1:30 a.m., Lupe came to his home, banging on his door, saying she missed Ryan. Ryan was sleeping in Jamess bed; Lupe and James laid down on either side of him and went to sleep. A couple of hours later, Lupe suddenly jumped up and said she had to leave. She left and James went back to sleep.
On Sunday, August 31, Lupe called James around 10:30 a.m. She sounded like she had not slept, and she told James she had missed her brothers memorial service. Between 1:00 and 1:30 p.m., Lupe again arrived at Jamess home without calling first. James considered her unannounced arrival strange because they had agreed they would call each other first after an occasion when James went to her place without calling and she had a boyfriend there. Lupe wanted to know how Ryan was. She also wanted James to pay her rent for the month; he told her he could not pay it right then. They disagreed about the money James owed her. coaster; Lupe would be calm and then get angry. She accused James of being a bad father because he was not paying her enough money. Lupe had told him on Friday or Saturday that she was going to Las Vegas, and so James "threw that in her face," asking why she was going there if she could not pay her bills. The question made Lupe very angry, and she was still upset when she left between 6:00 and 6:30 p.m. James called Keene. Keene told James that Lupe was always using him and he should not give in and pay Lupes rent as he had in the past.
Witnesses variously testified that the memorial service was on Sunday or Monday morning.
After picking up Mena to babysit the children, James went to Mission Bay with his boat about 10:30 p.m. He launched the boat, but it was not working properly. He put the boat back on its trailer, unsuccessfully looked for motor oil for the boat at a store, and ended up just walking on the beach. He returned home about three or four hours later.
James told the police that about two or three months earlier, Lupe had insulted him in front of a group of parents at the preschool, and he told her not to treat him like that. In the past, Lupe would sometimes call James and tell him she was lonely and they would go over to each others homes, but lately this had been a rare occurrence. James had started dating other people because he knew Lupe did not want to be with him. Lupe did not want to tell him about her personal life, and he did not ask anymore because she would get mad. James wanted Lupe to be careful who she brought home when the children were there. On one occasion his daughter told James she did not like "Tommy sleeping in mommys bed"; James told Lupe she should not do that around the children.
About a month earlier Lupe let a homeless man named Ed live with her, and Lupe got mad at James when he told her it was dangerous for the children. James refused to let the children go back to Lupes house as long as the man was there. Lupe would go from a "Doctor Jeykell [to] Mr. Hyde type thing." For example, she would call him up screaming; and then when he would hang up, she would call back and apologize, but then start screaming again. Every month Lupe came up with additional expenses that she wanted James to pay, and James felt some of the money was not going towards food for the children.
Jamess Statements Regarding Lupe
According to Keene, James and Lupe started having problems in early 1997. James told Keene that he was upset that Lupe was going to leave him, that he cared about the children, and that he did not want a divorce. Although he always paid his child support, he was upset about having to pay it; he was also upset that Lupe was going out with other men. He told Keene that he would get stressed out and sometimes his nose would bleed and his hair would fall out.
In June or July 1997 at La Petite Academy, Urbanski overheard Lupe and James arguing about a man that Lupe was dating. James was angry and told Lupe that he could make her disappear and no one would find her body.
In 1997 James worked as a security guard at Viejas Casino. Several coworkers testified that during the spring and summer of 1997 he was obsessed with talking about Lupe. He repeatedly made statements about killing her and disposing of her body in a manner so that it could not be found. He told his coworkers that he was upset because Lupe was trying to keep the children from him, was dating other men even though they were in the middle of a divorce, and was misspending money. He also told his coworkers he was concerned because Lupe had overnight guests which was not a good thing for the children to observe.
James wanted to go to marital counseling but Lupe refused. He complained that sometimes when it was his weekend for the children Lupe would not let him see them, and other times he was late for work because Lupe called at the last minute and told him he had to find a babysitter. This put him under a lot of stress; he believed Lupe was "playing with his mind and trying to get into his head."
As to his statements about killing Lupe, James told one coworker that his life would be a lot better if Lupe was not around because it would eliminate his problems. James told another coworker that "the opportunity would knock, that he would take [Lupe] to bed, and that while they were having sex he would strangle her"; that he would take her out 30 miles and "put her down" where no one would ever get to her; and that this was easy for him to do because he had killed before (apparently referring to his military experience) and he could do it again. He said that Lupe was trying to keep his children from him, and that if she kept trying to get money from him and "pressing him so hard," he would kill her. When a coworker asked how James thought he could get her into bed given that they were separated, James said Lupe was "easy" and would lay down for anybody.
James told still another coworker at the casino that he wanted to hurt Lupe because she was seeing other men and he had found condoms in her bureau drawer. While demonstrating a twisting motion with his hands, he stated he wished he could kink her neck. He also noted that he used to work at the California Department of Corrections and he knew some hit men that could do the job for him and get rid of Lupe. The coworker got the feeling from James that if James could not have Lupe, no one else could either.
To another coworker, James described and demonstrated with his hands killing Lupe by shooting her with a rifle and throwing a plugged-in radio in her bath. Referring to Lupes last-minute babysitting demands which caused him to be late for work, James stated that sometimes he would just rather "do her in." James told a different coworker that "he would slit [Lupes] throat and he would dump her body in the munitions dump out in the ocean."
In the summer of 1997, when Jamess supervisor observed him crying, he told her Lupe had threatened to take the children and had physically abused him. James stated he was going to do whatever he needed to do to keep the children, and that he would get rid of Lupe by cutting her up in small pieces and getting rid of her a little at a time. He also said he was going to get a boat and put her in a lake.
In August 1997 James told a coworker that he had bought a boat. When the coworker asked James if he was going to ride the boat around, he told her he had better things to do at the lake. In the summer of 1997 James told another coworker that he was not going to pay Lupe child support, that he wanted his children, and that he would "see [Lupe] dead." He stated he had a boat and that he would take Lupe out to sea, tie cement on her, and throw her overboard. During the summer of 1997 he told still another coworker that he was thinking about killing his wife and was trying to find a way to put her body in the water off the coast of California where the Navy dumped its unexploded munitions. This coworker testified that he, like James, had been in the Marines, and he and James discussed various ways they had learned to kill someone, including breaking the neck.
Jamess coworkers noticed that Jamess anger was increasing over time, and that he was losing weight and had circles under his eyes. In the summer of 1997 he told a coworker that he was not sleeping.
These coworkers understood that James was venting his frustration over his divorce. One coworker, who was also going through a divorce, viewed Jamess comments as normal, angry divorce talk. However, most of the coworkers were concerned about Jamess statements. They did not report their concerns to authorities, but they did try to help James by talking to him and trying to calm him down. Although Jamess supervisor had not received specific complaints regarding Jamess statements about Lupe, she did receive complaints that he was angry all the time, aggressive and volatile. When James told the supervisor that he wanted to get rid of Lupe by cutting her into small pieces, the supervisor advised James that he needed counseling and gave him an Employee Assistance Program card to access such services.
After Lupe was reported missing, James called Viejas Casino employee Robert Boyle. Boyle told James he had seen him on television and that he thought James was in a lot of trouble. James said, "Yes, I know. Dont ever tell anybody what you wish for."
Jamess Prior Threats to a Former Girlfriend
Lourdes Aboytes, Jamess former girlfriend, testified that James frequently threatened to harm her when she and her young son lived with him during 1990 and 1991. He told her that if she ever cheated on him he would "get rid of [her]"; that he would take her to an isolated area like a cave in a forest, torture her, and leave her for dead. He also said people would not be able to find her body because her family was in Mexico. At first Aboytes did not take his statements seriously because of their romantic relationship and because he was good to her child. But as the arguments became stronger and other things happened between her and James, she realized she had to get out of the relationship. James became very possessive and controlling in her life: for example, not letting her check the answering machine messages before he did, not telling her about her telephone messages, controlling the time she spent with her ex-husband communicating about their son, and checking her car to see if she had driven somewhere. James threatened to kill her ex-husband, telling her that he had the military expertise to get rid of someone "without leaving a drop of blood behind." He also said he could break her neck and not leave any trace behind.
Lupes Relationships with Other Men
In March or April 1997, Lupe began dating Thompson, whom she had met several years earlier when they were both working as security guards at Sea World. She also dated roommates Cameron and Tucker, who were both in the Navy and whom Lupe had met at the Driftwood Bar. Thompson believed that Lupes friendships with Cameron and Tucker were not sexual.
Cameron testified that he dated Lupe for about six months beginning in the spring of 1997, after Lupes relationship with Tucker ended. Cameron and Lupe had an intimate relationship for about two or three months, which relationship Cameron assumed was exclusive. He and Lupe mutually ended their romantic relationship in the beginning of August 1997, but continued their friendship.
Tucker testified that he met Lupe in about February 1997 and began dating her two to four weeks later. They had an on-and-off type of intimate relationship. Their romantic relationship ended completely about two to four weeks before she disappeared. Tucker believed that Lupe started dating Cameron right after Tuckers relationship with her ended, and that she was not intimate with Cameron and him during the same time period.
Cameron denied that there was any tension between him and Tucker because of their relationships with Lupe. Tucker agreed that he and Cameron remained friends. Tucker testified that he and another roommate heckled Cameron when Lupe came to borrow the overnight bag, because by then they knew her reputation. Tucker did not go outside when Lupe arrived to collect the bag because he had prior problems with her. Tucker communicated to Cameron that it was not a good idea to be with Lupe. Tucker knew Cameron was very emotional about Lupe, and Tucker did not want to see his friend "go down like that." When Tucker had been dating Lupe, he would go with her to the Driftwood Bar and she would flirt with other men. One night Tucker followed her home because she had previously expressed concern to him about the man who was taking her home, and Tucker was worried for her safety.
During the spring or in early August 1997, a man named Ed Hurst lived with Lupe for a short time. Thompson and Urbanski advised Lupe against letting Hurst stay with her because Lupe did not really know him.
Urbanski knew that Lupe was interested in Thompson. Urbanski told Lupe that if she was serious about Thompson, she should not be "playing games" like she had in the past with Cameron and Tucker, and she should not try to make men jealous by being with one man and then flirting with another man.
DISCUSSION
I. Substantial Evidence
James does not challenge the sufficiency of the evidence to support a finding that, if he killed Lupe, the murder was deliberated and premeditated. Rather, he argues that, because there were no eyewitnesses to a killing, no body found, no physical evidence of harm, and no confession, there is no substantial evidence that Lupe was killed or that he was the killer. In support of his contention that Lupe was not killed, he points to the evidence that she was upset about the anniversary of her brothers suicide and that the night before she disappeared she told her friend she would disappear if she were pregnant by her boyfriend. As to the lack of evidence that he was the killer, James points to the existence of the other men in Lupes life who, based on jealousy, had a motive to kill her.
To evaluate a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Perez (1992) 2 Cal.4th 1117, 1124, 831 P.2d 1159.) Substantial evidence is evidence which reasonably inspires confidence and is credible and of solid value. (People v. Raley (1992) 2 Cal.4th 870, 891, 830 P.2d 712.) The inferences in support of the judgment must be reasonable and drawn from evidence rather than from mere speculation or suspicion. (Ibid .) Although the jury must acquit if circumstantial evidence can be interpreted to support both guilt and innocence, it is the jury, not the appellate court that must be convinced of guilt beyond a reasonable doubt. (People v. Perez, supra, 2 Cal.4th at p. 1124.) On appeal we affirm the judgment if the circumstances reasonably justify the trier of facts findings even if they might also be reconciled with a contrary finding. (Ibid .; People v. Ruiz (1988) 44 Cal.3d 589, 611, 244 Cal. Rptr. 200, 749 P.2d 854.)
Concerning the fact of Lupes death, James acknowledges that despite an extensive search (including national television publicity), Lupe was never found. There were community forums and searches, distribution of fliers throughout San Diego County, local television coverage, and national television coverage on the "Americas Most Wanted" program. The district attorneys office conducted a database search of public and private records to access information regarding the department of motor vehicles, Social Security, credit bureaus, traffic citations, prisons, jails, and fingerprinting, which revealed no activity about Lupe. An investigator traveled to Mexico to contact Lupes relatives there and learned they had not seen or heard from her. Additionally, there had been no activity on Lupes bank account or credit cards since her disappearance and her checkbook was found abandoned in Jamess boat. Lupe had not contacted anyone to check on the welfare of her two children, despite strong evidence that she was an attentive mother. Likewise, she had a job that she loved as the director of a day care center and was excited about an upcoming job-related trip.
These facts present substantial evidence to support a finding that Lupe is deceased and did not voluntarily disappear. At the time of the jurys verdict in August 2001, Lupe had been missing for four years. The jury could reasonably infer that Lupe could not have disappeared without accessing her bank account or using her credit cards because she would have no other means of financial support. Further, the jury could infer that a woman who loved her job and her children would not have abandoned them. Lupes single statement that she might disappear if she were pregnant, with no evidence that she was pregnant, and the indications that she was depressed over her brothers suicide do not defeat the strong inferences that she is deceased.
A witness testifying for the defense claimed to have seen a woman who looked like Lupe after her disappearance. However, the witness was not sure the woman was Lupe. James does not characterize, nor do we perceive, this testimony as significant enough to detract from the jurys finding that Lupe is deceased.
As to Jamess identity as the killer, James admitted that Lupe was at his home for several hours on the day of her disappearance. James was the last person to see her alive. He admitted that he went out with his boat late at night on the date of her disappearance, and he had repeatedly told coworkers that he planned to kill Lupe and use his boat to dispose of her body. Significantly, her abandoned checkbook containing a recent receipt was found in the boat. These facts provide a compelling inference that James used his boat to effectuate his plan to kill and dispose of Lupe in a way that no one could find her body. Further, James had indicated he had the military expertise to kill a person by breaking his or her neck and without spilling blood. The jury could infer he used this, or a similar, method so as to leave no blood or other physical evidence of a killing.
The inferences of guilt are further supported by Lupes sisters observations of Jamess conduct of pacing and acting distant after Lupes disappearance. The fact that other men may have been jealous because of Lupes manner of conducting herself with men does not defeat the sufficiency of the evidence showing Jamess guilt. James acknowledges in his brief on appeal that there was no strong evidence that any of these other men had anything to do with Lupes disappearance.
We conclude there is substantial evidence for a rational trier of fact to find James guilty of murder beyond a reasonable doubt.
II. Admission of Aboytess Testimony Regarding Prior Domestic Abuse
James argues his former girlfriends testimony regarding his prior domestic abuse (i.e., threats to kill Aboytes without leaving a trace behind) was erroneously admitted because (1) Evidence Code section 1109 violated his constitutional right to due process, and (2) the trial court abused its discretion under Evidence Code section 352 in finding the evidence more probative than prejudicial.
A. Constitutionality
Subject to Evidence Code section 352, Evidence Code section 1109 allows admission of evidence of other domestic violence in a criminal action where the defendant is accused of an offense involving domestic violence. "Domestic violence" is defined as "abuse" against a current or former romantic partner, with "abuse" defined as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Evid. Code, § 1109, subd. (d); Pen. Code, § 13700, subds. (a), (b).)
Prior to the enactment of Evidence Code sections 1108 and 1109 (hereafter, section 1108 and section 1109), prior bad acts were inadmissible when their sole relevance was to prove a defendants propensity to engage in criminal conduct. (See People v. Falsetta (1999) 21 Cal.4th 903, 911, 913, 986 P.2d 182; Evid. Code, § 1101.) The enactment of sections 1108 and 1109 created statutory exceptions to the rule against the use of propensity evidence, allowing admission of evidence of other sexual offenses and other acts of domestic violence in cases charging such conduct to prove the defendants disposition to commit the charged offense. (People v. Falsetta, supra, 21 Cal.4th at p. 911; People v. Hoover (2000) 77 Cal.App.4th 1020, 1025.) In People v. Falsetta, supra, at pages 910-922, the California Supreme Court ruled that section 1108 (addressing sexual offenses) was constitutional. Lower appellate courts have repeatedly applied Falsetta to reach the same conclusion for section 1109 (addressing domestic violence). (People v. Hoover, supra, 77 Cal.App.4th at pp. 1027-1029; People v. Johnson (2000) 77 Cal.App.4th 410, 420; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1313; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096, and cases there cited.)
We will assume for purposes of discussion that James has not waived his constitutional challenge to section 1109 even though he did not raise it before the trial court. James argues that Falsettas holding should not be applied to section 1109, because section 1108 requires that the bad act be an offense, whereas section 1109 does not. We are not persuaded.
As explained in People v. Johnson, supra, 77 Cal.App.4th at page 418, Falsettas holding that section 1108 is constitutional was premised on a recognition that sex offense propensity evidence was critical in sex offense cases given the serious and secretive nature of sex crimes. Similarly, the legislative history of section 1109 refers to the special nature of domestic violence crime, which involves escalating conduct of dominance, control, abuse, and violence and, without the use of propensity evidence, can be masked from one intimate partner to the next intimate partner. (People v. Johnson, supra , 77 Cal.App.4th at p. 419.)
The definition of domestic violence used in section 1109 is derived from Penal Code section 13700, which is a provision included in a title of the Penal Code addressing standards for law enforcements response to domestic violence, temporary restraining orders, and domestic violence data collection. Assuming Penal Code section 13700 does not itself define an offense, we are satisfied the Legislature made a policy determination that for propensity evidence to be admissible in domestic violence cases, the defendants prior act of domestic violence need not be shown to fit within any particular statutorily-defined offense (although in many cases it most likely would). Notwithstanding some differences in the provisions of the two statutes, we agree with the appellate court holdings in Hoover, Johnson, Brown, and Jennings that the analysis in Falsetta applies equally to section 1109.
James asserts section 1109 was unconstitutionally applied in his case to deprive him of due process. Although not entirely clear, his argument appears to be premised on the manner in which the jury was instructed. With agreement by defense counsel and over the prosecutors objection, the trial court modified the standard instruction for section 1109 (see CALJIC No. 2.50.02) by substituting the term "domestic abuse" for the term "domestic violence," so as to not mislead the jury into thinking James engaged in actual physical violence, rather than threats of violence, against Aboytes. Additionally, based on defense counsels request, the trial court did not instruct the jury regarding the elements of an offense underlying the uncharged domestic abuse, nor regarding the prosecutions burden of proving the domestic abuse by a preponderance of the evidence. Defense counsel did not want these latter instructions because of a concern the jury would speculate that James had committed a crime against Aboytes beyond mere threats. Given that the manner in which the jury was instructed was based on defense counsels tactical decisions, any claim of error regarding these instructions is waived on appeal under the doctrine of invited error, and we need not address them further. (People v. Wader (1993) 5 Cal.4th 610, 657-658, 854 P.2d 80; see People v. Barton (1995) 12 Cal.4th 186, 198, 906 P.2d 531.)
B. Evidence Code Section 352
In upholding the constitutionality of section 1109, the courts have recognized that a "careful weighing of prejudice against probative value under [Evidence Code section 352] is essential to protect a defendants due process right to a fundamentally fair trial." (People v. Jennings, supra, 81 Cal.App.4th at p. 1314.) Factors to consider include the relevance of the uncharged conduct to a disputed issue; the proximity in time and the similarity between the uncharged conduct and the charged conduct; the degree of certainty that the uncharged conduct was committed; the likelihood of confusing or distracting the jury from their main task; the likelihood of prejudice arising from conviction based on extraneous factors; the inflammatory nature of the uncharged conduct; the burden on the defendant to defend against the uncharged conduct; the availability of less prejudicial alternatives than admission of all the uncharged conduct evidence; and the cumulative nature of the uncharged conduct evidence. (Ibid.; People v. Harris (1998) 60 Cal.App.4th 727, 737-741.) When engaging in the weighing process, the trial court should consider the unique facts and issues of each case rather than mechanically applying technical rules. (People v. Jennings, supra, 81 Cal.App.4th at p. 1314.) On appeal, we will not disturb the trial courts exercise of its discretion unless its decision was "arbitrary, capricious, and patently absurd." (Ibid.)
Here, prior to trial Aboytes testified at an Evidence Code section 402 hearing to allow the trial court to evaluate her proffered testimony. The court concluded that the probative value outweighed the danger of prejudice, noting the "unique quality of the statements, that the bodies would never be found in a case where the body has never been found . . . ."
James argues that although the uncharged conduct showed a propensity to threaten domestic partners, it did not show a propensity to kill them, and thus the evidence had virtually no probative value. We disagree. Even though the uncharged conduct involved threats whereas the charged conduct involved murder, the content of the uncharged threats was directly relevant to a pivotal issue underlying the charged conduct — i.e., the disappearance of the murder victims body. Thus, it was within the reasonable exercise of the trial courts discretion to rule the prior domestic violence testimony that James threatened to kill a girlfriend without leaving a trace behind had significant relevance on the issue of whether James did in fact kill Lupe without leaving a trace of her body. That is, the jury could properly infer from the uncharged conduct that the defendant had a propensity to make a certain type of threat to domestic partners, and then could further infer that he did in fact carry out the precise threat against a domestic partner, the victim in the instant case.
James argues the prior domestic abuse was remote from the current offense. Jamess romantic relationship with Aboytes ended in 1991 and commenced with Lupe in late 1992 or early 1993. Thus, there was not a lengthy interval between the two relationships. When viewed in this context of conduct occurring during Jamess relationships with domestic partners, the lapse of time between the threats to Aboytes and Lupes death in 1997 is not so lengthy as to detract from the probative value.
James contends the evidence had minimal probative value and was unduly prejudicial because the jury might have wanted to punish him for the threats he made to Aboytes. As we have stated, the evidence was highly probative on the particular facts of this case. Regarding the potential for prejudice, the unrealized threat to Aboytes paled in comparison to the murder of Lupe, and no rational jury would convict James of murder merely to punish him for threatening to kill a previous domestic partner.
James also argues Aboytess testimony was unduly inflammatory. Given the tragic nature of this case, involving the death of a mother of two small children with a full life ahead of her, Aboytess testimony carried no danger of inflaming the jury beyond the emotions engendered by the alleged facts of the case.
Finally, we are not persuaded by Jamess argument that an undue burden was placed on him to defend against the uncharged domestic violence evidence because the bad acts did not involve a conviction and because he could not refute them without waiving his privilege against self-incrimination. As he acknowledges, he had a full opportunity to attack the truth of the uncharged conduct testimony by cross-examining Aboytes. Considering the highly probative value of the evidence, the fact that James could refute the testimony only via cross-examination does not alone require the trial court to exercise its discretion to exclude the evidence. (See People v. Johnson, supra, 77 Cal.App.4th at p. 419, fn. 6 [no requirement that uncharged domestic violence be based on conviction].)
III. Failure to Instruct on Voluntary Manslaughter
At trial, Jamess defense counsel indicated he wanted instructions only on first degree murder. As required by the law, the trial court considered whether the evidence warranted instructions on the lesser included offenses of second degree murder and voluntary manslaughter, and concluded there was sufficient evidence of provocation to support the former but not the latter. Accordingly, the trial court instructed on second degree murder but not on voluntary manslaughter. On appeal, James argues the evidence warranted a sua sponte instruction on voluntary manslaughter.
As we will discuss later in conjunction with Jamess challenge to the second degree murder instructions, the provocation for voluntary manslaughter must be sufficient to arouse deadly passion in the average person, whereas provocation for second degree murder only requires that the defendant be subjectively precluded from deliberating or premeditating. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.)
A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of voluntary manslaughter. (People v. Breverman (1998) 19 Cal.4th 142, 153, 960 P.2d 1094.) Malice is negated when the defendant acts in a "sudden quarrel or heat of passion." (Id. at pp. 153-154.) A trial court has a sua sponte obligation to instruct on voluntary manslaughter when the offense is supported by the evidence, even if the defendant expressly objects to the instruction. (Id. at p. 154.) The duty to instruct does not arise if there is "any evidence, no matter how weak" in support of the lesser offense, but rather only arises if there is evidence "substantial enough to merit consideration by the jury." (Id. at p. 162.) Substantial evidence exists if there is evidence that a reasonable jury could find persuasive. (Ibid.) In deciding whether there is substantial evidence to warrant the instruction, the court should not evaluate the credibility of witnesses and should resolve doubts in favor of giving the instruction. (Ibid .; People v. Strozier (1993) 20 Cal.App.4th 55, 63.)
To show heat of passion for voluntary manslaughter, the defendants reason must be "actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an "ordinary [person] of average disposition . . . to act rashly and without due deliberation and reflection, and from this passion rather than from judgment."" (People v. Breverman, supra, 19 Cal.4th at p. 163.) The passion aroused can be any intense emotion other than revenge. (Ibid .) The provocation need not occur instantaneously but may occur over a period of time. (People v. Wharton (1991) 53 Cal.3d 522, 569, 280 Cal. Rptr. 631, 809 P.2d 290.) The key element is not the duration of the provocation but whether at the time of the act the defendants reason was so disturbed by some passion that an ordinary person would act rashly. (Id. at pp. 569-570.) However, the killing is not voluntary manslaughter if sufficient time has elapsed between the provocation and the killing for passion to subside and reason to return. (People v. Breverman, supra , 19 Cal.4th at p. 163.) Provocation must be affirmatively shown and is evaluated under an objective standard; i.e., the conduct must be sufficiently provocative that it would cause an average person to be so inflamed that he or she would lose reason and judgment. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143.)
The California Supreme Court has on several occasions recognized that ongoing conduct by a faithless spouse can create provocation to support voluntary manslaughter. For example, in People v. Berry (1976) 18 Cal.3d 509, 512-516, 134 Cal. Rptr. 415, 556 P.2d 777, shortly after their wedding, the defendants wife announced she was in love with another man and wanted a divorce; for the next two weeks the wife alternated between sexually enticing and rejecting the defendant, until he killed her. In People v. Bridgehouse (1956) 47 Cal.2d 406, 413-414, 303 P.2d 1018, disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 109, 999 P.2d 666, the defendants wife was having an ongoing sexual relationship with another man but would not agree to a divorce; the defendant killed the man when he experienced a great shock from an unexpected encounter with the man at his mother-in-laws house.
In contrast, a court refused to find substantial evidence of provocation merely because the defendant was upset about a divorcing spouses new romantic relationship. In People v. Lujan (2001) 92 Cal.App.4th 1389, 1414-1415, the defendant, who had been stalking his wife, went to his wifes residence and after surreptitiously observing her embracing a man, killed her and the man. Lujan rejected the claim that voluntary manslaughter instructions were warranted, reasoning that it "is not provocative conduct for a woman who has been separated from her estranged husband for four or five months and who has filed a petition for dissolution of marriage to later develop a romantic relationship with another individual." (Ibid .)
The record here shows that Jamess anger towards Lupe was based on issues that often arise in conjunction with dissolution, including child support obligations, visitation disputes, money pressures, lingering emotional attachments, and the effect of new romantic relationships on the children. There is no evidence that Lupe was taunting James with the possibility that their marriage would continue while simultaneously engaging in other intimate relationships.
To the contrary, the divorce was to become final a few weeks after she disappeared. James stated that Lupe showed up at his place in the early hours of Sunday morning because she missed their son. However, James told the police it was now rare for Lupe to come over because she was lonely, he knew Lupe did not want him, and he had started dating other people. There is no suggestion that Lupes contact with James was designed to, or did, mislead him into believing they still might stay together. As to Lupes relationships with other men, the record indicates Lupe began dating Tucker sometime in February or March 1997, and she did not move out of Jamess residence until March 1997. Assuming the record can support an inference of provocation from Lupes conduct while still living with James, as a matter of law it could not have lasted until the time of her killing in August 1997.
One coworker testified that James said Lupe had physically abused him; however, there is no suggestion that this was a serious problem or the primary source of Jamess anger. Jamess statements to his coworkers showed that he was continually and increasingly angry at Lupe during the spring and summer of 1997 (primarily over disputes regarding the children, money, and other men) even though she had moved out and the divorce was soon to be final. The fact that Lupe may have communicated with James in an emotionally volatile or insulting manner, burdened him with last minute babysitting demands, misspent and demanded more money, disrupted agreed-upon child visitation schedules, and engaged in a series of post-separation romantic entanglements, does not show a type of conduct which is atypical for divorcing spouses so that it can be characterized as provocative for purposes of arousing deadly passion in the average person.
There is nothing in the record to indicate that Lupes behavior and arguments with James on the day of her disappearance were qualitatively any different from any of their previous arguments — i.e., emotionally-charged disagreements about money, parenting, and Lupes social activities. Although Jamess emotions and frustrations may be understandable for a person going through a bitter divorce, his deadly passion cannot be deemed to arise from legally adequate provocation which dispels malice absent some type of extraordinary conduct by the divorcing spouse such as occurred in the Berry case.
Because there was no evidence worthy of jury consideration to show provocation sufficient to cause an average person to kill in the heat of passion, we conclude there was no sua sponte duty to instruct on voluntary manslaughter.
Burden of Proof
James argues that when the court rendered its ruling rejecting voluntary manslaughter instructions, it erroneously shifted the burden to the defense to prove heat of passion and required the defense to present direct evidence of provocation. To support this argument, he points to the following statements by the trial court explaining why it had decided to give second degree murder, but not voluntary manslaughter, instructions: "The difference here is that [for] manslaughter . . . you have to establish that there was heat of passion and that the alleged victim started it, was the initiator. [P] We have no evidence of that. We simply dont know what happened. And it - but it would be speculation at this point to say who started it. [P] Also, there really is insufficient evidence to show heat of passion. I think unless the defense puts the defense of heat of passion before the jury, that it would be improper to instruct on manslaughter or involuntary manslaughter."
Absent an affirmative showing of error in the record, we presume the trial court applied the proper legal standards in rendering its rulings. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914, 141 Cal. Rptr. 133, 569 P.2d 727.) When read in context, the record does not indicate that the trial court shifted the burden to the defense or failed to apply the proper standards governing sufficiency of the evidence to warrant instructions. The record shows that the trial court carefully evaluated the evidence of provocation, and concluded that while there was sufficient evidence for second degree murder instructions, there was insufficient evidence for voluntary manslaughter instructions. Although on its face the courts statement that "we simply dont know what happened," could be construed to mean the court failed to consider the inferences arising from circumstantial evidence, such a construction is belied by the courts statements that there was sufficient evidence of provocation for purposes of second degree murder instructions. Explaining its decision to instruct on second degree murder, the trial court stated: "The jury could conclude that he was the kind of guy who would mouth off and who would say that he wanted to kill people and never do anything about it, but he did get into a situation where she provoked him at that time and, remember, this is not a planned visitation, this is where she is just coming over - and it was so provoking to him that he had to pay money to her, that she was going to use it to go on a trip with another guy and not for the welfare of his children; that he, being overcome with rage, . . . killed her." (Italics added.) These statements clearly showed that the trial court considered the inferences arising from the circumstantial evidence.
The prosecution carries the burden of proving malice, which can include the requirement of disproving provocation and heat of passion shown by the evidence. (See People v. Rios (2000) 23 Cal.4th 450, 462; People v. Hyde (1985) 166 Cal. App. 3d 463, 475, 212 Cal. Rptr. 440, Pen. Code, § 189.5.)
As to the trial courts statement that the voluntary manslaughter instructions were not warranted "unless the defense puts the defense of heat of passion before the jury," the record suggests that there may have been some unclarity as to whether there was a sua sponte duty to give voluntary manslaughter instructions over defense objection. However, after inviting the parties to conduct further research, the record indicates the trial court correctly understood that the sua sponte duty extended to voluntary manslaughter, but the court reached the conclusion that the instructions were not warranted based on the state of the evidence.
There is nothing in the record to indicate the trial court improperly shifted the burden of proof to the defense. When the discussion and ruling are viewed in their entirety, the record shows the court fully and properly evaluated the evidence and the inferences to be drawn therefrom.
IV. Failure to Instruct on Provocation for Second Degree Murder
The trial court ruled that although there was insufficient evidence of provocation for purposes of voluntary manslaughter, there was sufficient evidence of provocation for second degree murder. Accordingly, over defense objection, the court instructed the jury on second degree murder as a lesser included offense of first degree murder. However, as we will discuss below, the trial court did not specifically instruct the jury on a provocation theory of second degree murder.
Based on the facts of a particular case, provocation may exist for second degree murder but not for manslaughter. This is because second degree murder provocation is only determined under a subjective test, whereas voluntary manslaughter provocation must satisfy both a subjective and an objective test. That is, the existence of provocation to negate deliberation and premeditation and reduce the crime to second degree murder rests on a subjective evaluation of the defendants actual state of mind. (People v. Fitzpatrick, supra, 2 Cal.App.4th at pp. 1295-1296.) In contrast, provocation that negates malice and reduces the crime to voluntary manslaughter also requires a determination that a reasonable person under like circumstances would have reacted with deadly passion. (Ibid.) Thus, a defendant who is subjectively precluded from deliberating because of provocation is guilty of second degree rather than first degree murder, even if a reasonable person would not have been so precluded. (Ibid.)
Based on the courts ruling, the jury was instructed as to first and second degree murder. As to first degree murder, the jury was given CALJIC No. 8.20, which states that the murder must be "the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation . . . ." (Italics added.) As to second degree murder, the jury was also given CALJIC No. 8.30 which informed them that the crime was second degree murder if the defendant killed intentionally and with malice but "the evidence is insufficient to prove deliberation and premeditation."
James argues the trial court also had a sua sponte duty to instruct the jury on the theory of provocation for second degree murder by giving CALJIC No. 8.73 or some similar instruction. We will assume arguendo that the record contains sufficient evidence of provocation for purposes of casting doubt on whether James subjectively deliberated and premeditated. CALJIC No. 8.73 states: "If the evidence establishes that there was a provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation."
A trial courts decision to give an instruction does not necessarily establish that the evidence would have necessitated a sua sponte instruction, because instructions are commonly given in an abundance of caution. (People v. Steele (2002) 27 Cal.4th 1230, 1251.)
Even in the absence of a request the trial court must instruct on the general principles of the law raised by the evidence which are necessary for the jurys understanding of the case. (People v. Middleton (1997) 52 Cal.App.4th 19, 30.) When supported by the evidence, a trial court has a sua sponte duty to give instructions regarding recognized defenses (if consistent with the defense theory of the case), and regarding lesser included offenses (even if inconsistent with the defense theory or objected to by the defense). (People v. Breverman, supra, 19 Cal.4th at pp. 154, 157-158, 162-163; People v. Saille (1991) 54 Cal.3d 1103, 1117, 820 P.2d 588.) Once a jury is adequately instructed on the elements of the charged offenses, lesser included offenses, and recognized defenses, more specific instructions which seek to create doubt on the elements are considered pinpoint instructions that the trial court is only required to give upon request. (See People v. Saille, supra, 54 Cal.3d at p. 1120; People v. Bolden (2002) 29 Cal.4th 515, 556.)
Provocation causing heat of passion negates deliberation and premeditation thereby reducing the crime from first degree murder to second degree murder. (People v. Lee (1994) 28 Cal.App.4th 1724, 1732; People v. Middleton, supra, 52 Cal.App.4th at p. 31.) To inform the jury of the elements of first degree murder and of the lesser included offense of second degree murder, CALJIC Nos. 8.20 and 8.30 state that first degree murder must result from deliberation and premeditation, not heat of passion, and that in the absence of deliberation and premeditation, the murder is of the second degree. The instruction not given here, CALJIC No. 8.73, amplifies these instructions by specifically pointing to the evidence of provocation which can negate deliberation and premeditation.
Several appellate courts have held that CALJIC No. 8.73 is a pinpoint instruction which need not be given sua sponte. (People v. Middleton, supra, 52 Cal.App.4th at pp. 28, 32-33; People v. Lee, supra, 28 Cal.App.4th at p. 1734.) In People v. Mayfield (1997) 14 Cal.4th 668, 778, 928 P.2d 485, the California Supreme Court, citing Lee, agreed that CALJIC No. 8.73 was a pinpoint instruction that need not be given sua sponte because it "relates particular facts to an element of the charged crime and thereby explains or highlights a defense theory."
However, in Mayfield the trial court actually gave CALJIC No. 8.73, and the only issue before the Supreme Court was whether the instruction was ambiguous and failed to sufficiently specify pertinent subjective factors. (People v. Mayfield, supra, 14 Cal.4th at p. 778.) Moreover, in People v. Steele, supra, 27 Cal.4th at pages 1250-1251, the court recognized language in two other California Supreme Court cases (People v. Johnson (1993) 6 Cal.4th 1, 859 P.2d 673 and People v. Perez, supra, 2 Cal.4th 1117) which contain statements contrary to the statement in Mayfield of no sua sponte duty. In the Johnson and Perez cases, the court assumed there was a sua sponte duty to instruct with CALJIC No. 8.73, but then held the instruction was not required because the evidence did not show provocation. (People v. Johnson, supra, at pp. 42-44; People v. Perez, supra, at pp. 1129-1130.) The court in Steele did not resolve this inconsistency and expressly refrained from deciding whether CALJIC No. 8.73 must be given sua sponte, because in the case before it there was no evidence of provocation. (People v. Steele, supra, 27 Cal.4th at pp. 1250-1251.) Thus, this issue has not been resolved by the California Supreme Court, but has been twice resolved by the lower appellate courts, in Lee and Middleton.
Noting that the instruction was a pinpoint instruction that need not be given sua sponte, the court in Mayfield held the instruction was adequate and no further clarification or amplification was necessary absent a request. (People v. Mayfield, supra, 14 Cal.4th at pp. 778-779.)
James argues that the analysis in the more recent Supreme Court decision, People v. Breverman, supra, 19 Cal.4th 142, abrogates the holdings in Lee and Middleton. In Breverman, the court held that the sua sponte duty to instruct on lesser included offenses also requires instruction on every theory supported by the evidence which can establish the lesser included offense, even if the theory is inconsistent with the defendants theory of the case. (People v. Breverman, supra, 19 Cal.4th at pp. 148-149, 160.) The court in Breverman found error because the jury was only instructed regarding the unreasonable self-defense theory of voluntary manslaughter, but was not instructed regarding the heat of passion theory of voluntary manslaughter. (Ibid.)
Here, the jury was instructed in CALJIC No. 8.20 regarding the theory of heat of passion which negates deliberation and premeditation and establishes the crime as second, rather than first, degree murder. Provocation leading to deadly passion rather than deliberation is a means of showing second degree murder based on a heat of passion theory. (See People v. Wickersham (1982) 32 Cal.3d 307, 329-330, 185 Cal. Rptr. 436, 650 P.2d 311, disapproved on other grounds in People v. Barton, supra, 12 Cal.4th at p. 200; People v. Steele, supra, 27 Cal.4th at p. 1251.) Provocation is not a theory that exists independently of heat of passion, because the provocation must cause the defendants reasoning to be "obscured by passion" to preclude deliberation and premeditation. (Cf. People v. Sedeno (1974) 10 Cal.3d 703, 719, 112 Cal. Rptr. 1, 518 P.2d 913 [discussing voluntary manslaughter], disapproved on other grounds in People v. Breverman, supra, 19 Cal.4th at p. 172.) We see nothing in Breverman suggesting that when a jury is properly instructed on the general theory supporting a lesser included offense (heat of passion to negate premeditation), the trial court must also sua sponte instruct on the specific factual basis supporting that theory (provocation to show heat of passion).
Absent further direction from the California Supreme Court, we conclude that the holding in Lee and Middleton, that CALJIC No. 8.73 is a pinpoint instruction which needs to be given only upon request, is correct and is not inconsistent with the analysis in Breverman. That is, the trial court satisfies its sua sponte duty to instruct on the lesser included offense of second degree murder based on heat of passion when it instructs the jury with CALJIC Nos. 8.20 and 8.30, and it need not sua sponte amplify those instructions by giving CALJIC 8.73 which "relates particular facts [of provocation] to an element of the charged crime." (People v. Mayfield, supra, 14 Cal.4th at p. 778.)
James argues that it is incongruous to require sua sponte instruction on provocation for voluntary manslaughter but not to impose the same requirement for second degree murder. However, there are differences in provocation as between the two crimes. Because provocation for voluntary manslaughter is evaluated based on an objective test of whether the victims conduct would provoke the average person to kill, the jury must be informed of this requirement so as not to improperly reduce the charged offense of murder to manslaughter. (See CALJIC No. 8.42; People v. Gutierrez, supra, 28 Cal.4th at pp. 1143-1144; People v. Rios, supra, 23 Cal.4th at p. 463, fn. 10.) In contrast, for second degree murder there is no such limit on provocation, and the jury need only be instructed to focus on the issue of whether the defendant actually deliberated and premeditated. (See People v. Fitzpatrick, supra, 2 Cal.App.4th at p. 1295.) Moreover, provocation is an essential component to defeat malice and reduce murder to voluntary manslaughter based on a heat of passion theory. (People v. Steele, supra, 27 Cal.4th at pp. 1252-1253.) In contrast, although provocation and heat of passion often go hand in hand, heat of passion to defeat deliberation and premeditation and establish the crime of second, rather than first, degree murder may arise even without provocation. (See, e.g., id. at p. 1250-1251; People v. Padilla (2002) 103 Cal.App.4th 675, 679.) Thus, in the context of second degree murder, provocation is one possible factual underpinning of a heat of passion theory. As long as the jury is informed that heat of passion negates deliberation and premeditation, no further instruction is required for it to understand the lesser included offense of second degree murder.
We conclude the trial court had no sua sponte duty to specifically instruct on provocation for second degree murder.
V. Third Party Culpability
James argues the trial court improperly precluded him from presenting third party culpability evidence regarding Tommy Tucker and Ed Hurst.
A. Background
The prosecution moved in limine to exclude defense evidence regarding third party culpability. The defense opposed the motion on the basis that there was evidence showing the possible culpability of other men in Lupes life, including Tucker and Hurst.
The defense presented a police report indicating that Tucker stated he often had drunken arguments with Lupe but they never escalated into physical confrontations. The defense also proffered evidence that a man (David Lamphear) stated Lupe asked him to follow her home one night because she had been in an argument with Tucker. When Lamphear confronted Tucker in the parking lot outside Lupes apartment, Tucker sounded upset and complained because Lupe would not go out with him.
The trial court ruled the defense could present evidence of the sexual nature of Lupes relationships with Tucker, Cameron, and Thompson and that two of the relationships did not end happily, but could not question the men as to whether they killed Lupe. The court reasoned that although there was evidence that Lupe ended the affairs and treated the men poorly, there was no evidence the men said or did anything indicating they wanted to harm Lupe. The court stated it would reconsider its ruling upon request when the witnesses were on the stand depending on what was elicited during their testimony.
At trial, defense counsel unsuccessfully sought to question Tucker and Urbanski about an incident where Tucker pushed Urbanski and told her to mind her own business when she confronted him in a parking lot about his jealousy over Lupes talking with another man. The trial court excluded the evidence on the basis that mere jealousy resulting in rude conduct was not relevant "unless there is some possibility that any reasonable jury could find that [Tucker] was guilty of the crime."
During the motion in limine, the defense also proffered evidence that Ed Hurst denied to a defense investigator that he had sex with Lupe, whereas he admitted to a district attorney investigator that he did have sex with her. Further, Hurst stated that when he moved out of Lupes place in August 1997 he kept a key to her apartment. The trial court ruled that a mere showing of a sexual relationship and a key to the apartment was insufficient to establish relevancy on the issue of third party culpability.
Neither Hurst nor Lamphear were called as witnesses. The defense was allowed to elicit testimony from Tucker that he had prior problems with Lupe, that he followed her home one night when he was concerned for her safety because of the man (apparently Lamphear) who was bringing her home, and that Urbanski confronted him in the parking lot of the Driftwood Bar. The defense also presented evidence that Hurst lived with Lupe for a short time in the spring or early August against the advice of Thompson and Urbanski.
B. Analysis
James argues the trial court erroneously precluded him from introducing evidence that (1) Hurst had been sexually involved with Lupe and lied about it and that he had a key to her apartment when she disappeared; (2) Lamphears testimony that Lupe asked him to follow her home because of her argument with Tucker and Tuckers upset complaint about Lupe not going out with him; and (3) evidence that Tucker had pushed Urbanski.
To be admissible, third party culpability evidence need not show a substantial probability that the third party committed the crime, but need only raise a reasonable doubt of the defendants guilt. (People v. Hall (1986) 41 Cal.3d 826, 833, 226 Cal. Rptr. 112, 718 P.2d 99.) However, this does not mean that "any evidence, however remote" must be admitted. (Ibid .) "Evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.; accord People v. Gutierrez, supra, 28 Cal.4th at pp. 1136-1137.) On appeal, we evaluate the trial courts relevancy ruling under the abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 717, 996 P.2d 46.)
James asserts that when the court precluded evidence of Tuckers conduct of pushing Urbanski, its statement that there was no evidence from which a reasonable jury could find Tucker guilty of the crime indicated that it applied a stricter standard than the standard set forth in Hall; i.e., that the evidence need only raise a reasonable doubt of defendants guilt. For purposes of the earlier in limine motion, the Hall standard was set forth in the parties papers and verbally discussed with the trial court. In rendering its in limine ruling, the trial court cited the Hall case and at several points expressly referred to the "raise a reasonable doubt" standard. Thus, the record shows the court was well aware that to be admissible the third party culpability evidence need only raise a reasonable doubt of the defendants guilt. Although the courts reference during trial to a "jury . . . finding that [Tucker] was guilty of the crime" constitutes an inexact choice of words, we have no doubt the court understood and applied the proper standard.
Turning to the merits of the trial courts ruling, James argues that Tuckers jealousy about Lupe and his violence in connection with that jealousy are shown by Tuckers conduct of heckling Cameron on the day of Lupes disappearance when she came to borrow the overnight bag; Lamphears version of Tuckers conduct when following Lupe home; and Tuckers conduct of pushing Urbanski when confronted about his jealousy. Although such conduct could reasonably support an inference Tucker was jealous and unhappy about the end of his romantic relationship with Lupe, it is a far cry from evidence of a level of jealousy which would give rise to a motive to kill. In addition to the absence of any significant evidence of a motive to kill, there was no evidence linking Tucker to the crime. The trial court did not abuse its discretion in excluding the evidence regarding Tucker.
As to Hurst, James argues there was circumstantial evidence linking him to the crime and showing motive because he had a key to the apartment and there was no evidence of forced entry; he gave inconsistent statements about his sexual relationship with Lupe showing consciousness of guilt; the sexual relationship had ended and he had moved out; and Thompson and Urbanski had warned Lupe about living with him because Lupe did not know him. The inferences urged by James are speculative at best. There was no evidence that Hurst had contact with Lupe near the time of her death, that he was jealous, or that he had any motive to kill Lupe. Again, the evidence did not present any link between Hurst and the crime so as to raise a reasonable doubt of Jamess guilt. The trial courts ruling excluding the proffered evidence pertaining to Hurst was not an abuse of discretion.
James also complains that the trial court examined the facts as to Hurst and Tucker in isolation, rather than considering the totality of the circumstances. The record shows a lengthy and careful consideration of the proffered evidence by the trial court, including taking the matter under submission, which resulted in a decision within the courts reasonable exercise of discretion. Accordingly, there was no error.
Finally, apparently for purposes of preserving a federal challenge, James argues that Halls standard of admissibility violates his federal constitutional rights. As recognized by James, it is not our role as a lower appellate court to reconsider long-established standards developed by the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
C. Closing Argument
James argues that the trial court erroneously precluded him from arguing that third parties might have killed Lupe. In ruling that defense counsel could not ask Cameron, Tucker, or Thompson whether they killed Lupe, the court explained: "If I were to rule [defense counsel] could ask that, then I would rule that you were entitled to argue third-party liability that they were the killers. And in order to permit you to get into that area and ask those questions, I have to find that some reasonable jury, based on the evidence that I have before me, could find that that would raise a reasonable doubt. [P] And just because you have a lady who . . . has sex with four guys at various times and there is some sort of sexual tension resulting in that household, thats not enough to get me to the part where some reasonable jury can say thats reasonable doubt." (Italics added.)
We will assume for purposes of discussion that the trial courts statement was an implicit ruling on the permissible scope of closing argument. During closing argument, counsel is entitled to comment on the evidence and reasonable inferences that may be drawn therefrom. (People v. Williams (1997) 16 Cal.4th 153, 221, 940 P.2d 710.) However, counsel is not entitled to argue facts or inferences which are not substantiated by the evidence. (People v. Ponce (1996) 44 Cal.App.4th 1380, 1388-1390.) As we have discussed, although the record can support an inference that Lupe had tumultuous romantic relationships with several men, there was no evidence tying any of these men to her disappearance. Thus, although defense counsel was free to comment on the evidence and to vigorously argue any facts or inferences which created a doubt of Jamess guilt, defense counsel was not entitled to specifically argue that any of these other men killed Lupe because there was no evidentiary basis to support such an inference.
In his brief on appeal James suggests he was precluded from generally arguing that "we dont know if [a third party] killed her." However, the trial courts statement does not reflect such a broad ruling, but only refers to an argument that the identified third parties killed Lupe. Assuming arguendo a general statement that it was not known if a third party killed Lupe would constitute fair comment pointing to a weakness in the prosecutions case, the record does not indicate defense counsel was precluded from making the statement.
DISPOSITION
The judgment is affirmed.
McDONALD, J., AARON, J., We Concur.