Opinion
E070429
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DUANE MORRIS MAGEE, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1203948) OPINION APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendant and appellant, Duane Morris Magee, of second degree murder (Pen. Code, § 187, subd. (a)) for killing his wife, Velda. The jury also found true an allegation that defendant used a dangerous weapon, a knife, in the commission of the murder. (§ 12022, subd. (b)(1).) Defendant was sentenced to 15 years to life plus one year.
Unless otherwise noted, all further statutory references are to the Penal Code.
On appeal, defendant argues the trial court prejudicially erred by (1) denying his motion for a new trial based on newly discovered evidence, (2) admitting hearsay testimony from the People's pathologist concerning Velda's autopsy, and (3) excluding evidence related to his state of mind at the time of Velda's murder. Defendant also asserts the abstract of judgment must be modified to award him presentence conduct credits. We reject defendant's contentions and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Velda met while in treatment for alcohol and substance abuse. In early 2012, Velda's adult daughter, G.N., moved in with them in their house on Greystone Road in San Bernardino.
In the summer of 2012, defendant began having frequent seizures. Defendant resumed drinking alcohol again around the same time. Velda told him he was drinking too much and threw away or poured out his alcohol. Velda told a neighbor that she wanted a restraining order against defendant and that her marriage with defendant was failing. She also informed her neighbor that she wanted a divorce because of defendant's drinking and that she had changed the locks because she was afraid of defendant.
G.N. believed that Velda was doing "something" to cause defendant's seizures. G.N. told defendant she thought his seizures were caused by Velda poisoning him. G.N. also thought that Velda did not care about defendant's seizures or his health. G.N. believed Velda sought to recover on an insurance policy on defendant that she had recently increased. G.N. told defendant Velda "wanted him dead," and that he should move out of the Greystone residence because G.N. feared for his life. She also told defendant she suspected that Velda was having an affair. Shortly afterward, in early August 2012, defendant moved in with his sister, A.M.
On the morning of September 1, 2012, defendant called G.N. and told her he was at the Greystone residence. A.M. could not get a hold of defendant, so she called their sister, R.M., who lived closer to the house, to check on him. When R.M. arrived, defendant was drunk and emotional. R.M. stayed with him until the evening.
Defendant had access to the house because G.N. had made him a key after Velda changed the locks.
The next morning, G.N. spoke with defendant. He was angry, and told G.N. he wanted to hurt and kill Velda. He said multiple times during their conversation that he was going to kill Velda. Defendant also said he had talked to friends who worked in the judicial system and law enforcement about what would happen to him if he killed Velda.
Around 4:30 p.m., the police were dispatched to the Greystone residence in response to a reported stabbing. Defendant had called 911 and said: "I just killed my wife." "I'm hoping she's dead." "I killed her with a knife." "I just killed her." "She was cheatin' on me and I killed her." "She's laying here on the floor bleedin' to death." "I stabbed her all over."
The responding officers took defendant to the hospital for treatment for the injuries he sustained while stabbing Velda. On the way there, defendant said to the officers, "Crime of passion . . . . Crime of [p]assion." "[L]istening to her kids, cheating on me." "I'm guilty all the way. She claimed my heart." "I did not want to do nothing like that." "Crime of passion. She's dead. Aww, dead." While at the hospital, defendant told medical personnel that he had been injured when stabbing his wife.
Defendant's statements while in the patrol car were recorded and the audio was played for the jury.
III.
DISCUSSION
A. Motion for New Trial
After the trial, Velda's friend D.S. provided the defense with new evidence that she had not previously mentioned to anyone. She recalled that she helped clean Velda's car after her death and, when doing so, she found two rotting burritos and two soda containers on the left rear passenger floor of the car. The food and beverages were "unopened and unconsumed."
Defendant moved for a new trial based on this newly discovered evidence. Defendant testified at trial that he believed Velda was trying to kill him and had hired a "hit man," and that he saw someone with Velda before he stabbed her. He argued the new evidence from D.S. provided additional support for his belief that the hit man was with Velda, which bolstered his argument that he acted in self-defense.
"'"'The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.'"'" (People v. Howard (2010) 51 Cal.4th 15, 42-43.) "A new trial motion based on newly discovered evidence is looked upon with disfavor." (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151.) A new trial is not warranted when it is not "probable" that the newly discovered evidence would have produced a different result. (People v. Delgado (1993) 5 Cal.4th 312, 328.)
We conclude the trial court did not abuse its discretion in denying defendant's motion for a new trial. The evidence of defendant's guilt was overwhelming. Among other things, the jury heard the recording of defendant's 911 call and his statements to the police on the way to the hospital where he unambiguously admitted to killing Velda by "stabb[ing] her all over" in a "crime of passion" because he thought she was cheating on him. The jury also heard evidence from G.N. that on the morning of Velda's death, defendant told her repeatedly that he was going to kill Velda and that he had consulted with people in the legal community and law enforcement about the consequences. Finally, the jury heard evidence that defendant told medical professionals at the hospital immediately after his arrest that he injured himself while stabbing Velda. In light of this evidence, it is not probable that defendant's trial would have had a different outcome had the jury heard D.S.'s testimony about finding unopened food and drinks in Velda's car after her death.
B. Pathologist Testimony
Dr. Dennis Rhee, who performed Velda's autopsy, retired before trial. The trial court therefore allowed Dr. Chanikarn Changsri to testify about the autopsy based on her review of Dr. Rhee's report and photographs of Velda's body. Defendant contends this was prejudicial error because admitting Dr. Changsri's testimony violated his "constitutional rights to due process, a jury trial, and confrontation of witnesses."
We disagree. There was no dispute about how Velda died—because defendant did not dispute that he killed her by stabbing her repeatedly. The only issue was whether defendant was justified in doing so. Dr. Changsri's testimony about how Velda died and the nature of her wounds had no bearing on that issue. And, as outlined above, there was overwhelming evidence that defendant killed Velda because he thought she was cheating on him, not in self-defense. We therefore conclude that, even if the trial court erred in admitting Dr. Changsri's testimony, any resulting error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
C. Excluded Evidence
Defendant argues the trial court prejudicially erred when it excluded two pieces of evidence. First, defendant sought to have A.M. testify that G.N. had told her that she (G.N.) believed that Velda poisoned defendant. The trial court excluded the evidence as inadmissible hearsay. Second, the trial court allowed defendant to introduce evidence from C.E. that he had an affair with Velda during which she solicited him to kill defendant. However, the trial court would not allow C.E. to testify about the details of how Velda proposed that C.E. kill defendant and dispose of his body.
"Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Cole (2004) 33 Cal.4th 1158, 1195.) Because the decision to admit or exclude evidence under Evidence Code section 352 is committed to the trial court's discretion, we will not disturb a trial court's exercise of that discretion "'"except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."'" (Uspenskaya v. Meline (2015) 241 Cal.App.4th 996, 1000-1001.) Reversal is not required unless it is reasonably probable the defendant would have received a more favorable outcome had the excluded evidence been admitted. (People v. Aranda (2012) 55 Cal.4th 342, 354.)
For the reasons explained below, we reject defendant's contention that the trial court's exclusion of evidence here should be analyzed under the federal beyond-a-reasonable-doubt standard. (See People v. McNeal (2009) 46 Cal.4th 1183 [evidentiary ruling that does not completely prevent a defendant from putting on a defense is evaluated under California evidentiary standards].)
Even if the trial court erred in excluding G.N.'s testimony or limiting C.E.'s testimony, any resulting error was harmless. As the People correctly note, the "substance of [G.N.'s] statement" was already in evidence because she testified that "she told [A.M.] that Velda wanted appellant dead," and A.M. testified that she had discussed defendant's concern that Velda was poisoning him with G.N. G.N.'s statement that the trial court excluded therefore would have been cumulative and likely would have had little, if any, effect on the jury. It is not reasonably probable that the jury would have rendered a different verdict had it heard from A.M. that G.N. told her that she (G.N.) believed Velda poisoned defendant.
Nor is it reasonably probable that defendant would have received a better outcome had the trial court allowed C.E. to testify about how Velda allegedly proposed that he kill defendant. Given that the jury heard C.E.'s testimony that Velda solicited him to kill defendant, it is not reasonably probable that the jury would have come to a different result if C.E. testified about the specifics of the plan that Velda suggested.
More to the point, given the overwhelming evidence of defendant's guilt, it is not reasonably probable that defendant would have received a more favorable outcome had G.N.'s statement been admitted or if C.E.'s testimony had not been limited. (People v. Aranda, supra, 55 Cal.4th at p. 354.) We therefore conclude the trial court did not prejudicially err in excluding this evidence.
Accordingly, we reject defendant's argument that the trial court's exclusion of this evidence amounted to a violation of his rights under the federal Constitution. "[T]he routine application of provisions of the state Evidence Code law does not implicate a defendant's constitutional rights." (People v. Jones (2013) 57 Cal.4th 899, 957.) "[O]nly evidentiary error amounting to a complete preclusion of a defense violates a defendant's federal constitutional right to present a defense." (People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4, italics added.) That did not occur here. The trial court's excluding G.N.'s hearsay statement and limiting C.E.'s testimony did not prevent defendant from putting on a defense. "Because the trial court merely rejected some evidence concerning" defendant's defense, the trial court did not violate defendant's federal constitutional rights. (People v. McNeal, supra, 46 Cal.4th at p. 1203.)
Defendant did not dispute below and does not contend on appeal that A.M.'s testimony about what G.N. told her was inadmissible hearsay.
D. Presentence Conduct Credits
1. Background
"Subdivision (a) of section 2933.2 prohibits any person convicted of murder from accruing any presentence conduct or worktime credit." (People v. Chism (2014) 58 Cal.4th 1266, 1336.) "Section 2933.2, subdivision (c) is clear—no murderer, even one receiving an extremely unlikely grant of probation, would ever be entitled to presentence conduct credits." (In re Carr (1998) 65 Cal.App.4th 1525, 1532, fn. 2.) "[T]he language of section 2933.2, subdivision (c) is broad and evidences an intention to impose a complete ban on presentence conduct credits for those defendants who come within its purview." (People v. McNamee (2002) 96 Cal.App.4th 66, 70.)
In November 2016, about a year before defendant's trial, Proposition 57 went into effect. (Gen. Elec. (Nov. 8, 2016)) Proposition 57 added section 32 of article I of the California Constitution (section 32), which provides in relevant part: "Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements." (Cal. Const., art. I, § 32, subd. (2); see People v. Dynes (2018) 20 Cal.App.5th 523, 526.)
Defendant asserts Proposition 57 "effectively repeal[ed]" section 2933.2, and allows inmates convicted of murder to receive presentence conduct credits. He argues any contrary interpretation violates his Fourteenth Amendment right to equal protection under the laws because he was not entitled to pretrial good conduct credits, which are barred by section 2933.2, but now may receive post-sentence good conduct credits under section 32. Thus, defendant asserts the trial court's failure to award him presentence conduct credits violated his equal protection rights and the abstract of judgment must be modified to award him presentence conduct credits. We disagree.
"The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally. [Citation.] Accordingly, '"[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner."' [Citation.] 'This initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged."' [Citation.]" (People v. Brown (2012) 54 Cal.4th 314, 328.) "The 'similarly situated' prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified." (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)
The parties dispute whether pretrial detainees are similarly situated to sentenced inmates. We need not resolve the dispute because defendant does not have a viable equal protection claim because he is not entitled to mandatory good conduct credits under Proposition 57. Section 32 provides only that the Department of Corrections and Rehabilitation "shall have the authority" to award good conduct credits. Inmates therefore do not automatically receive good conduct credits under Proposition 57. (See Brown v. Superior Court (2016) 63 Cal.4th 335, 361 (dis. op. of Chin, J.) [describing section 32 as "permissive"].)
"When one argues two similarly situated groups are being treated differently, it is axiomatic that one group is getting something the other isn't." (In re Cleaver (1984) 158 Cal.App.3d 770, 774 [Fourth Dist., Div. 2].) For instance, in Cleaver, this court rejected the defendant's assertion that his equal protection rights were violated because he could not receive worktime credits as a pretrial detainee under section 2933, whereas post-sentence inmates could receive worktime credits. (Ibid.) This court reasoned that "[t]he work-incentive program provided for in section 2933 is a privilege and not automatically applied to every postconvicted felon. Therefore, some members of the group (postconvicted felons) which [defendant] claims receive special attention, are in fact treated exactly the same as preconvicted felons" because not all post-sentenced inmates receive worktime credits. (Ibid.) This court therefore held that the defendant did not have an equal protection claim. (Ibid.)
So too here. If Proposition 57 mandated that post-sentenced inmates be awarded automatic conduct credits, then defendant likely would have a valid equal protection claim. (See People v. Sage (1980) 26 Cal.3d 498, 506-508; People v. Yanez (2019) 42 Cal.App.5th 92, 100.) Under the plain language of section 32, however, the Department of Corrections and Rehabilitation has discretion to award conduct credits, but it is not required to do so. (See Brown v. Superior Court, supra, 63 Cal.4th at p. 359 (dis. op. of Chin, J.) ["Presumably, authority to award credits includes authority not to award credits or to award fewer credits than the statutes currently require."].) As it stands, though pretrial detainees charged with murder may not receive conduct credits (§ 2933.2), prison inmates convicted of murder also might not receive them because they are not automatically awarded under section 32. "Absent the automatic application of conduct credits, [defendant's] equal protection argument fails." (In re Cleaver, supra, 158 Cal.App.3d at p. 774; accord, People v. Rosaia (1984) 157 Cal.App.3d 832, 848; People v. Caruso (1984) 161 Cal.App.3d 13, 20, fn. 9; People v. Austin (1981) 30 Cal.3d 155, 166 ["[B]ecause of the automatic nature of the application of conduct credits to the length of prison terms, we held [in People v. Sage, supra, 26 Cal.3d 498] that it was a denial of equal protection to deny such credits to persons who were in jail custody before sentencing who would otherwise be required to spend a longer time in actual incarceration than those who only spent time in prison," italics added].)
Because convicted inmates are not entitled to automatic conduct credits under Proposition 57, we reject defendant's argument that the trial court's failure to award him presentence conduct credits violated his equal protection rights. Accordingly, the abstract of judgment need not be modified and we affirm the judgment.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. RAPHAEL
J.