Opinion
F070691
03-01-2017
THE PEOPLE, Plaintiff and Respondent, v. TERRY DEAN GELLER, Defendant and Appellant.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kelly E. Lebel and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF274400)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kelly E. Lebel and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
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Terry Dean Geller appeals from a judgment of conviction of involuntary manslaughter. He killed his wife by discharging a firearm inside the bedroom of their home. The bullet passed through a closed bathroom door and struck the victim in her neck while she was sitting on the toilet. The Tulare County District Attorney's Office waited nearly five years to initiate criminal proceedings, but then aggressively sought to convict Geller of first degree murder. At trial, defense counsel advocated for jury instructions on involuntary manslaughter as a lesser included offense, which were given over the People's objection.
The statute of limitations for involuntary manslaughter had expired by the time this case was prosecuted. Although neither party addressed the issue before the jury rendered its verdict, Geller subsequently moved for an order in arrest of judgment on grounds that he could not be convicted of a time-barred offense. Relying on principles of estoppel and forfeiture, the trial court denied relief.
The question on appeal is the legality of Geller's conviction. The answer is found in People v. Stanfill (1999) 76 Cal.App.4th 1137, 1150 (Stanfill), which holds "that a defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense." Geller fails to convince us that Stanfill was wrongly decided. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 21, 2007, Geller shot and killed his wife at their home in Visalia. He was arrested that evening, interrogated, and released five days later without charges. According to statements in the record, the district attorney's office initially rejected the case for prosecution.
On July 25, 2012, the district attorney filed a criminal complaint charging Geller with murder (Pen. Code, § 187, subd. (a)) and alleging various firearm enhancements. A preliminary hearing was held two months later and concluded with the magistrate ruling that the evidence only supported a charge of involuntary manslaughter with an enhancement for personal use of a firearm. Undeterred, the district attorney charged Geller with murder in an information filed on October 1, 2012. Shortly thereafter, on October 11, 2012, a grand jury was convened to consider charges against Geller in relation to his wife's death. After securing an indictment for murder with a section 12022.53, subdivision (d) firearm enhancement, the district attorney dismissed the information. The charges in the indictment were tried before a Tulare County jury in August 2014.
All further statutory references are to the Penal Code.
The People's evidence established that Geller's wife was struck by a .357 Magnum hollow-point bullet fired from a .357 Colt Python revolver. After realizing what he had done, Geller placed a telephone call to his parents and spoke with them for approximately nine minutes. He then called 911 to report the incident.
In his conversation with the 911 dispatcher, Geller said that he had pulled the revolver out of a dresser drawer "and then the damn thing just went off." The dispatcher asked if he had been cleaning the firearm, and he replied, "No, I just took it out of the draw[--] out of the drawer and I was making sure it was there and when I, I talked to [-- ]." It appears from the transcript of the call that he never completed his response. Geller would later claim that he had been cleaning the gun prior to discharging it. He also denied knowing that his wife was in the bathroom at the time.
A firearms expert who examined Geller's revolver testified that it was in good working order and equipped with a hammer block safety to prevent accidental discharge. The gun had a double-action trigger pull of approximately 12 pounds. If the hammer was cocked manually, a person would still need to apply 3.5 to 4.5 pounds of pressure against the trigger to fire a shot. In other words, it was highly unlikely that the gun "just went off" in Geller's hand.
The People's crime scene reconstruction expert opined that Geller's version of events, particularly his alleged location and how he was holding the gun when it fired, was inconsistent with the physical evidence of the bullet's trajectory. Geller also claimed to have evaluated his wife's condition by positioning his ears "as close to her as [he] could to see if [he] could hear her breathing" and then placing his hand on her side to feel for respiratory movement. However, police found no traces of the victim's blood on Geller's hands, clothing, or footwear.
To further support the theory of first degree murder, the People elicited testimony from some of Geller's coworkers who had heard him refer to his wife as a "bitch" and a "whore" on multiple occasions. One of those witnesses contacted police after learning of the shooting to inform them of a conversation he had with Geller in late 2005. Geller, in reference to a question from his son about what he wanted for Christmas, allegedly told the coworker that his response had been something to the effect of, "I would like to take your mom and my .357 for a ride [and] only bring back the .357." In addition, Geller's neighbors testified to having seen and heard him arguing with his wife on the night of her death.
The parties stipulated that a blood sample taken from Geller approximately one hour after the shooting revealed a blood alcohol level of 0.16 percent. Geller testified on his own behalf and maintained the shooting was accidental. He claimed that his thumb slipped as he was attempting to manually "decock" the gun's hammer, thus causing it to fire with minimal pressure on the trigger. Several other defense witnesses, including Geller's adult children and two of the victim's sisters, testified to the loving nature of the relationship between him and his wife.
Shortly before the close of evidence, defense counsel submitted a list of proposed jury instructions that included the "entire instruction" set forth in CALCRIM No. 500, which notably explains the principle of manslaughter being a lesser offense to murder. In a subsequent jury instruction conference, the trial court stated its intention to grant the request for CALCRIM No. 500 and to instruct the jury on both voluntary and involuntary manslaughter. Defense counsel objected to instructions on voluntary manslaughter, but the objection was overruled. The People objected to instructions on involuntary manslaughter, and that objection was overruled as well.
In response to the People's objection, the trial court said: "Well, to me, [CALCRIM No.] 580 is supported by the evidence because if the jury believes the defendant, Mr. Geller, they could find that he was criminally negligent in - so it's my belief that the jury could find that he was criminally negligent - so if they were to find him criminally negligent without an intent to injure her in any way, then the voluntary - involuntary manslaughter would be an appropriate finding. So over the People's objection, I intend to give that instruction." The court then asked defense counsel, "Any comment on that?", and counsel replied, "Nope."
Defense counsel highlighted the theory of involuntary manslaughter at the beginning of closing argument as follows: "I submit to you that involuntary manslaughter has not been proven beyond a reasonable doubt, but I'm not stupid. That's your decision. You're gonna decide whether this is regular negligence which could be a not guilty or criminal negligence which would be involuntary manslaughter." At the conclusion of his argument, defense counsel said: "He's not guilty of first degree murder, second degree murder or voluntary manslaughter, and I'd like you to return those verdicts. Now, with the remaining verdict, involuntary manslaughter, I'm asking you to look at the definition of that and you decide if that is regular negligence ... or criminal negligence. I'm asking you to return a verdict of not guilty on that too[,][but] you know what, I could certainly understand if you disagree with me. I hope you don't, but I can understand it."
The jury found Geller guilty of involuntary manslaughter as a lesser included offense of murder and (ostensibly) found that he personally used a firearm within the meaning of section 12022.5. Prior to sentencing, the defense moved for an order in arrest of judgment based on (1) the statute of limitations for involuntary manslaughter and (2) the trial court's failure to instruct on the elements of section 12022.5. When the matter was heard, Geller's attorney candidly stated that "the case law is not in our favor" on the statute of limitations issue. The trial court agreed and denied that aspect of the motion.
The trial court was receptive to the argument concerning the gun enhancement because, although the verdict form referenced personal use of a firearm within the meaning of section 12022.5, the jury had been instructed (at the People's request) on the elements of section 12022, subdivision (a)(1), which merely requires proof the defendant was armed during commission of a felony. To remedy the instructional error, the trial court reduced the personal use enhancement to an arming enhancement. Geller was sentenced to a four-year prison term, i.e., the middle term of three years for involuntary manslaughter (§ 193, subd. (b)) plus a consecutive one-year term pursuant to section 12022, subdivision (a)(1).
The trial court's handling of the firearm enhancement issue is not in dispute on appeal and we express no opinion regarding the propriety thereof.
DISCUSSION
For statute of limitations purposes, the prosecution of a felony commences upon the filing of an information or indictment. (§ 804, subd. (a); People v. Castillo (2008) 168 Cal.App.4th 364, 374 (Castillo).) There is no statute of limitations for murder, but the statute of limitations for involuntary manslaughter is three years. (§§ 799, 801; Castillo, supra, 168 Cal.App.4th at p. 376, fn. 4.) The interval between the death of Geller's wife in 2007 and the commencement of his prosecution in 2012 exceeded five years. Therefore, involuntary manslaughter was a time-barred offense at the outset of the case.
When a defendant is facing serious criminal charges, such as murder, he or she may wish to avoid having the jury make an all-or-nothing choice between a guilty verdict or outright acquittal. "The absence of a lesser included offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of [the charged offense], but simply to avoid setting the defendant free." (Spaziano v. Florida (1984) 468 U.S. 447, 455 (Spaziano), overruled on other grounds in Hurst v. Florida (2016) 577 U.S. ___ .) Defendants can waive an expired statute of limitations on a lesser included crime in order to have the jury instructed on that offense, which results in exposure to punishment for a time-barred offense but potentially safeguards against an even less desirable outcome. (Spaziano, supra, 468 U.S. at p. 456; Cowan v. Superior Court (1996) 14 Cal.4th 367, 373, 376 (Cowan).
In Cowan, supra, the California Supreme Court held that a criminal defendant can legally waive the statute of limitations on a time-barred offense as part of a plea bargain for the dismissal of more serious charges. (14 Cal.4th at pp. 370, 374-376.) The opinion elsewhere condones having a jury instructed on time-barred lesser included offenses at the defendant's request, but cautions that in either situation the trial court should elicit an express waiver in order to forestall challenges to the judgment on appeal or in a habeas corpus petition. (Id. at pp. 376-377.) A later case, People v. Williams (1999) 21 Cal.4th 335 (Williams), holds that "a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense." (Id. at p. 338, italics added.) However, the opinion further states: "We leave to future appellate courts to decide other questions not involved here, such as the proper rules to apply to convictions of time-barred lesser offenses when the charged offense is not time-barred." (Ibid.) Not long after Williams was published, the First District Court of Appeal issued its decision in Stanfill, supra, 76 Cal.App.4th 1137.
The Stanfill opinion observes that despite the advisement in Cowan regarding the need for trial courts and prosecutors to be mindful of statute of limitations problems when considering lesser included offense instructions, the issue will inevitably be missed in some cases. (Stanfill, supra, 76 Cal.App.4th at p. 1148.) "Just as a defendant before Cowan was tempted to remain quiet about an expired statute of limitations in order to secure the advantage of lesser offense instruction yet have any conviction reversed on appeal, so a defendant after Cowan has an incentive to do basically the same thing. Without a rule that acquiescence or failure to object acts as a forfeiture, the defendant may remain quiet about a limitations problem, avoid the ritual of formal waiver and then, as an ace up his sleeve, secure reversal on the theory that he never expressly waived. This is an unconscionable result that calls for a forfeiture rule." (Ibid.)
To eliminate "the prospect of gamesmanship or sandbagging," the First District adopted a rule of forfeiture under which a defendant is precluded from complaining on appeal "of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense." (Stanfill, supra, 76 Cal.App.4th at pp. 1148, 1150.) The rule is invoked where, as here, the record affirmatively shows the defendant either requested or acquiesced to instructions on a time-barred lesser included offense. (See People v. Beasley (2003) 105 Cal.App.4th 1078, 1089-1090.) The California Supreme Court has acknowledged the Stanfill holding without disapproval (People v. Simon (2001) 25 Cal.4th 1082, 1104, fn. 15) and the case remains good law after nearly two decades.
Geller urges us to reconsider Stanfill in light of Stogner v. California (2003) 539 U.S. 607 (Stogner), which he cites for the proposition that statutes of limitation "create[] a conclusive presumption that the defendant will not be convicted of [a time-barred] crime," and that once the limitations period has expired, "the ex post facto clause of the United States Constitution prevents the state from ignoring that presumption." The reliance on Stogner is misplaced. That case dealt with a legislative attempt to revive time-barred prosecutions through a statutory enactment. (Stogner, supra, 539 U.S. at pp. 609-610.) Such efforts violate ex post facto principles, which concern the enactment of new laws that have retroactive effects. (Id. at p. 610.)
We do not read Stanfill as being in conflict with Stogner. "Under Stogner, what matters is the government's attempt 'to revive a long-forbidden prosecution,' which the high court described as implicating a 'predominating constitutional interest.' " (People v. Trujeque (2015) 61 Cal.4th 227, 257 [italics added], quoting Stogner, supra, 539 U.S. at p. 632 and citing id. at p. 611 ["unfairness where 'government has refused "to play by its own rules" ' "].) Geller was not prosecuted under any new laws. Moreover, the People actually objected to the prospect of him being convicted of a time-barred offense, albeit for reasons other than the statute of limitations. The situation in which Geller finds himself is attributable to his own defense strategy.
Geller's main argument is that Stanfill should be overruled because its holding rests on unsound reasoning and policy considerations. In his view, statutes of limitation must be strictly applied in a defendant's favor absent proof of an express personal waiver, i.e., a knowing and intelligent relinquishment by the defendant as opposed to actions taken by his or her attorney. We are not persuaded and decline to break from precedent on this issue.
DISPOSITION
The judgment is affirmed.
/s/_________
GOMES, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.