Opinion
A130252
11-14-2011
THE PEOPLE, Plaintiff and Respondent, v. NORMAN MCGINNIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 05-090979-6)
Defendant was convicted following a jury trial of first degree murder,with personal use of a deadly or dangerous weapon (Pen. Code, § 187, § 12022, subd. (b)(1)).He presents two issues in this appeal: first, that the trial court erred by giving the CALCRIM No. 361 instruction on the evaluation of a defendant's failure to deny or explain evidence against him; and second, that the order for payment of attorney fees pursuant to section 987.8 was not supported by evidence of his ability to pay. We conclude that the CALCRIM No. 361 instruction did not violate defendant's constitutional rights and was supported by the evidence. We further conclude that his challenge to the order for payment of attorney fees is premature. We therefore affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated. Upon defendant's motion for a new trial the trial court modified the conviction to second degree murder.
STATEMENT OF FACTS
Defendant and the murder victim, Wyander Ricketts, known as Ryan, met in 2003 and were married in February of 2008. Their primary residence was a house defendant purchased in Fairfield, although Ricketts also stayed during the week in an apartment on Shellmound Street in Emeryville to be closer to her job in Berkeley.
Defendant and Ricketts attended a Thanksgiving dinner in 2008 hosted by defendant's daughter Brenda McGinnis-Babb. After the dinner, Brenda discovered a cell phone that belonged to Ricketts. She also noticed text messages left on the phone that were sexually explicit in nature. Brenda told defendant about the text messages, and he returned to her house that night to retrieve the victim's cell phone. Defendant stopped to look at the 50 messages on his wife's phone on his way home. Forty of the messages, some of which had sexual content, were from the same man. When defendant returned to the Fairfield house, Ricketts was gone. He "felt lost" and "hurt," and did not want to talk to Ricketts.
For the sake of clarity and convenience we will refer to defendant's daughter Brenda McGinnis-Babb and her husband Deric Babb by their first names.
A few days later Ricketts arrived at the house with her son and the police to "get some stuff," but defendant refused to let them come inside. The next day, however, defendant visited the Emeryville apartment to speak with Ricketts. She admitted that she "made a mistake" and apologized. Defendant believed her and was determined to "work it out." They returned together that night to the Fairfield house.
Soon thereafter, defendant purchased and renovated a five-bedroom house on Ivy Bay Court in Hercules. After he and Ricketts moved into the house, she made the "strange" request to sleep in a separate bedroom. She seemed "distant," and "started saying things" and doing "certain things" that made defendant suspicious she had resumed "her affair" with "another person."
On the evening of January 11, 2009, defendant took Ricketts out to dinner to discuss his belief that she was continuing a "relationship with someone else." She "shut down" and would "not communicate" with him. Defendant became "frustrated," and continued to pressure Ricketts to "talk about this" after they returned home. Ricketts finally became very angry and said, "Nah, that's it. I'm gone. I'm going to Emeryville." She proceeded to the garage and got in her car, but defendant repeatedly closed the garage door to prevent her from driving away. The garage door "kept opening and closing." Defendant said he "didn't want her to leave," and demanded that they "talk about this." He continued "harassing her." When defendant refused to let Ricketts leave, she finally called the police from the house. She then returned to the garage and continued her efforts to leave.
Within a few minutes, at about 9:00 p.m., an officer from the Hercules Police Department and a deputy from the Contra Costa County sheriff's office arrived. Officer Dave Imada testified that as he approached the house he observed the garage door repeatedly open and close. A black Escalade in the garage had the engine running. Defendant was standing in front of the vehicle and Ricketts was in the driver's seat. Defendant told the officers that Ricketts "could not leave because he says so." Defendant was "uncooperative" with the officers; he refused to open the garage door when directed to do so by Officer Imada.
Ricketts was also less than cooperative. After Ricketts exited the vehicle, Officer Imada separated her from defendant to talk to her alone, while the deputy and other officers conversed with defendant. Ricketts stated that she and defendant "had tussled," but never gave a clear explanation of the nature of their dispute, and "did not want to press charges." Ricketts had a scratch on the back of her leg that she said occurred "when they tussled," but did not have any noticeable bruises or red marks on her face. She gathered her belongings from throughout the house before she left the Hercules house in the black Escalade.
After Ricketts and the officers left, defendant "went upstairs to go to bed." Once he was in bed, defendant realized that Ricketts took his cell phone with her. Defendant then dressed and drove to the Emeryville apartment to recover his cell phone, and primarily to continue his discussion with Ricketts.
Ricketts' cell phone had been broken in the prior altercation.
When defendant reached the Emeryville apartment, he decided to "break the door" so Ricketts could not stay there that night. He kicked his foot through the dead bolt and entered the apartment. Ricketts was lying in bed looking "real scared." Defendant sternly reprimanded Ricketts for "taking the cell phone," and reiterated his demand that they "finish ta[l]king about all this." Ricketts responded that she was "going to call 911," but was unable to operate defendant's cell phone. She moved toward the front door and then stepped quickly into the hallway. Neighbors heard Ricketts frantically crying and screaming that defendant was going to kill her. They also heard defendant yell, "I'm gonna kill you." The neighbors ran into the hallway, subdued defendant after a scuffle, and escorted Ricketts into one of the apartment units. Defendant acknowledged that he grabbed at Ricketts, pulled her hair and struck her once in the forehead as she attempted to enlist neighbors in the hallway to call 911. He also admitted that he struck one of the neighbors who came to the aid of Ricketts. Defendant blamed the incident on frustration, "one-dimensional thinking," and consumption of alcohol.
An officer responded to a domestic violence report at the Shellmound Street apartment at 11:00 p.m. that night. The officer observed damage to the apartment door and scratches to Ricketts' shoulder, back, and leg.
Defendant and Ricketts subsequently reconciled again and agreed to seek marriage counseling. Defendant felt their relationship was "back to normal."
On the afternoon of March 4, 2009, however, defendant learned from a friend at a Home Depot store that Ricketts was frequently seen in the company of a "White" man.He was devastated and felt "empty" upon hearing the news that his wife was seeing someone else. Defendant testified that he lost trust in Ricketts and decided that his "marriage was over." He resolved to talk to Ricketts and tell her "this is too much."
Defendant and Ricketts are both African-American. The text messages defendant found on Ricketts' cell phone referred to sex acts with a "White" man.
Defendant delivered food to a friend in Vallejo, then went home to find Ricketts seated in front of a vanity table in the upstairs bathroom. He began to explain to Ricketts the news he heard earlier that day, but she told him not to bother her. Defendant was trying to make Ricketts understand that he knew "what's going on," and "engage [her] in a conversation." Ricketts cursed and yelled at him to, "Get out of here." Defendant repeatedly asked Ricketts to admit her relationship with "this guy." Finally, in a "fury," she mentioned that the sex was "good to her," and called defendant a "little-dick mother fucker."
Ricketts grabbed an exercise dumbbell from the vanity and threw it at defendant as she told him she was seeing someone else. Defendant deflected the dumbbell away and moved aside. Ricketts reached for the dumbbell, but defendant grabbed it and "ripped it from her." As defendant snapped the dumbbell into his hand, it struck Ricketts in the face. She swore at defendant and fell back into the vanity. Defendant testified that he thought Ricketts then grabbed for scissors on the vanity table, whereupon he moved toward her and "hit her real hard" twice with the dumbbell. Ricketts cowered, threw her hands up, and swore at defendant again. Defendant noticed that she did not have the scissors in her possession as she fell forward to the floor on her knees, then onto her chest. He did not hit her again. Defendant knew Ricketts "was very hurt." She had a "huge pile of blood" coming from her head. Defendant heard a big sigh from her, followed by an exhale, and realized she was dead. He attempted to give her CPR, to no avail. Defendant testified that he did not intend to kill his wife.
After Ricketts was dead, defendant stayed with her in the bathroom for about two hours because he "just wanted to be with her." He moved the body out of the bathroom, down the stairs, and laid her on the bottom steps of the stairway. Defendant then "started drinking" alcohol as he cleaned a little and remained with the victim at the bottom of the stairs. He fell asleep on the stairs, and when he awakened not long after 6:00 a.m., he decided to call Ricketts' son and other members of the family to "tell them" what happened.
The victim's son Bruce Williams received voice mail messages from defendant at the Emeryville apartment that morning. Defendant sounded "in some kind of grief" or "intoxicated." In one of the messages defendant said, "Bruce, I'm sorry, mom is gone. She's gone. Been with the White boy too long. . . . It's over. She's gone. I finished it."
Defendant's son-in-law Deric testified that he received a call from defendant at about 6:30 a.m. Defendant was slurring his words "like he had been drinkin'." He repeatedly asked Deric to tell Brenda that he loved her and the kids. Deric immediately contacted Brenda and told her to call defendant "because he called and sounded funny." When Brenda called defendant he seemed unusually soft-spoken. He told Brenda he loved her and the kids. Brenda contacted her husband and mother and arranged to meet at defendant's house.
Deric had previously neither heard of nor observed defendant in an intoxicated state.
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Brenda and Deric arrived at the house in Hercules at the same time. They knocked on the door and rang the doorbell, but defendant did not respond. When they entered the house they observed defendant on the stairs next to Ricketts. The victim was lying still on the stairs; she appeared to be dead. Brenda panicked and briefly "passed out" before she returned to her car to call 911. Deric escorted defendant away from the victim; he appeared to be "in a daze." Deric asked defendant "what happened," but he did not respond.
Officers from the Hercules Police Department arrived at the house in response to Brenda's call at around 10:00 a.m. Brenda, her mother, and a small child were outside; Brenda was "hysterically crying." Ricketts was "laying at rest on the stairs motionless," with her eyes "fixed open." The victim had no pulse and her "body was cold to the touch." Deric and defendant were standing about 10 feet away from the stairs; Deric "seemed a little confused," and defendant "was unresponsive." Defendant had stains that "resembled blood" on his hands. He was transported to the Hercules Police Department.
Examination of the crime scene revealed blood stains on the bottom of the stairs and the victim's hair, along with "contact bloodstains" from a hand or other source "throughout her body." A considerable amount of dark, concentrated blood was found in the upstairs master bathroom, and additional blood stains were observed in the bathroom sink, on towels and a hair weave in the bathroom, and on a dumbbell on the bathroom floor. A bloody palm print on the bathroom bathtub "was made by the right palm" of defendant. A visible blood trail started in the upstairs bathroom and ended on the stairs near the victim's body. The autopsy determined that the cause of the victim's death was "blunt force head injury due to multiple blows to the head" that damaged the "microscopic structures of the brain causing them not to function anymore."
DISCUSSION
I. The Constitutionality of the CALCRIM No. 361 Instruction.
Defendant challenges the CALCRIM No. 361 instruction given by the trial court, which reads: "If a defendant failed in his or her testimony to explain or deny evidence against him or her, and if he or she could reasonably be expected to have done so based on what he or she knew, you may consider the failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If a defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure." Defendant argues that the instruction violates "a criminal defendant's right to testify and to have a fair trial." He complains that CALCRIM No. 361 improperly "singles out the defendant's testimony" for "special scrutiny," and thus is inconsistent with the principle that the jury "must judge the testimony of each witness by the same standards." (CALCRIM No. 226.) Defendant adds that CALCRIM No. 361 may "have a chilling affect on the constitutional right of the defendant to testify, knowing that his or her testimony will be subject to the special scrutiny injected into the case by this instruction."
The CALCRIM No. 361 instruction is in substance essentially comparable to the former CALJIC No. 2.62, which the California Supreme Court in People v. Saddler (1979) 24 Cal.3d 671, 678-681 (Saddler), decided does not violate a defendant's privilege against self-incrimination, deny him the presumption of innocence, nor violate due process. (See also People v. Plaza (1995) 41 Cal.App.4th 377, 386; People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030; People v. Ballard (1991) 1 Cal.App.4th 752, 756.) Presented with the claim that CALJIC No. 2.62 violated the defendant's constitutional right to due process by requiring him to disprove the existence of an element of the offense and denying the presumption of innocence by creating an inference of guilt, the court in Saddler declared: " 'The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of defendant beyond a reasonable doubt.' " (Saddler, supra, at p. 680.)
The court in Saddler also rejected the argument that CALJIC No. 2.62 "impermissibly singles out a defendant's testimony and unduly focuses upon it." (Saddler, supra, 24 Cal.3d 671, 680.) The court referred to its decision in People v. Mayberry (1975) 15 Cal.3d 143, in which the court noted that CALJIC No. 2.62 is "consistent with Evidence Code section 413 which permits the drawing of inferences from any party's failure to explain or deny evidence against him," and reasoned: "Since the only testifying 'party' in a criminal case is the defendant, the code section can have reference only to him." (Saddler, supra, at p. 681.) The court thus concluded that the instruction "suffers no constitutional . . . infirmity." (Ibid.; see also People v. Lamer (2003) 110 Cal.App.4th 1463, 1471 (Lamer).)
The court in People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066, recently reached the same conclusion when confronted with a constitutional challenge to CALCRIM No. 361. Relying on the Saddler decision, the court in Rodriguez observed that analogous cautionary language is included in CALCRIM No. 361, that warns that a failure to explain or deny " 'is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt.' It further instructs the jury, 'If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.' The presumption of innocence is thus incorporated into CALCRIM No. 361. While the language of CALCRIM No. 361 differs somewhat from CALJIC No. 2.62, the reasoning of the Supreme Court in Saddler, supra, 24 Cal.3d at page 680 applies with equal force to CALCRIM No. 361 because language preserving the presumption of innocence and explaining the prosecution's burden of proof appears in each." (Rodriguez, supra, at pp. 1066-1067.) The court also held that CALCRIM No. 361, like CALJIC No. 2.62, is consistent with Evidence Code section 413, which permits the drawing of inferences from any party's failure to explain or deny evidence against him, and does not impermissibly single out or unduly focus on a defendant's testimony. (Rodriguez, supra, at p. 1067.) The court in Rodriguez found "no violation of appellant's right to due process based on this instruction." (Ibid.)
We agree with the reasoning in Rodriguez that in light of the decision of the Supreme Court in Saddler the CALCRIM No. 361 instruction is constitutionally valid. We turn to defendant's claim that the instruction was not supported by the evidence.
II. The Evidentiary Support for the CALCRIM No. 361 Instruction.
Defendant complains that the trial court erred by giving the CALCRIM No. 361 instruction "in this case because there was no material evidence that he should reasonably have been able to explain or deny but did not." He also argues that the instructional error was prejudicial, as it invited the jury to view with "inherent skepticism" his testimony, which was crucial to his heat of passion and unreasonable self-defense theories.
"The general rule is that in a criminal case the trial court must instruct on the 'principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.]' [Citation.]" (People v. Mobley (1999) 72 Cal.App.4th 761, 781; see also People v. Armstead (2002) 102 Cal.App.4th 784, 792; People v. Watie (2002) 100 Cal.App.4th 866, 883.) " 'A party is not entitled to an instruction on a theory for which there is no supporting evidence.' [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 715.)
The test "as to when an instruction must be given is whether there was substantial evidence presented which would warrant the giving of the instruction." (People v. Strozier (1993) 20 Cal.App.4th 55, 63.) The "test is not whether any evidence is presented, no matter how weak. Instead, the jury must be instructed when there is evidence that 'deserve[s] consideration by the jury, i.e., "evidence from which a jury composed of reasonable [people] could have concluded" ' that the specific facts supporting the instruction existed. [Citations.]" (People v. Petznick (2003) 114 Cal.App.4th 663, 677, italics omitted; see also People v. Marshall (1997) 15 Cal.4th 1, 39.) " 'It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation].' [Citation.]" (Saddler, supra, 24 Cal.3d 671, 681.) "The trial court's determination of whether an instruction should be given must be made without reference to the credibility of the evidence." (People v. Young (2005) 34 Cal.4th 1149, 1200; see also People v. Villanueva (2008) 169 Cal.App.4th 41, 49.)
An appellate court's duty in reviewing a claim that CALCRIM No. 361 "was improperly given is 'to ascertain if [the] defendant . . . failed to explain or deny any fact of evidence that was within the scope of relevant cross-examination.' [Citation.] In order for the instruction to be properly given '[t]here [must be] facts or evidence in the prosecution's case within [the defendant's] knowledge which he did not explain or deny.' [Citation.] A contradiction between the defendant's testimony and other witnesses' testimony does not constitute a failure to deny which justifies giving the instruction." (Lamer, supra, 110 Cal.App.4th 1463, 1469, italics omitted.) Further, "If a defendant has not been asked an appropriate question calling for either an explanation or denial, the instruction cannot be given, as a matter of law." (People v. Roehler (1985) 167 Cal.App.3d 353, 392; see also People v. Mask (1986) 188 Cal.App.3d 450, 455.) "However, if the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible, the inquiry whether he reasonably should have known about circumstances claimed to be outside his knowledge is a credibility question for resolution by the jury." (People v. Mask, supra, at p. 455; see also People v. Belmontes (1988) 45 Cal.3d 744, 784.) " '[T]he applicability of CALJIC No. 2.62 is peculiarly dependent on the particular facts of the case.' [Citation.]" (People v. Sanchez, supra, 24 Cal.App.4th 1012, 1030.)
While we reiterate our view that trial courts are well advised to avoid the repeatedly and fittingly criticized CALCRIM No. 361 instruction (Lamer, supra, 110 Cal.App.4th 1463, 1469), which adds nothing of substance to the store of knowledge possessed by a juror of average intelligence, we do find in the record some evidentiary support for it in the present case. Defendant's testimony failed to account for or refute some of the evidence that described the multiple injuries sustained by the victim, and how they were inflicted, the physical evidence of the state of the bathroom and the items in it, and expert opinion testimony as to the position of the victim when blows were inflicted on her. Thus, the record supports the suggested inference that defendant failed to explain incriminating evidence. (People v. Sanchez, supra, 24 Cal.App.4th 1012, 1030.)
In any event, we conclude that the instruction was not prejudicial to defendant. The test of reversible error is the standard adopted in People v. Watson (1956) 46 Cal.2d 818, 836: whether a verdict more favorable to defendant was reasonably probable without the instruction. (Saddler, supra, 24 Cal.3d 671, 683; Lamer, supra, 110 Cal.App.4th 1463, 1471; People v. Roehler, supra, 167 Cal.App.3d 353, 393.) CALCRIM No. 361 is a cautionary admonition that does not shift the burden onto the defense to disprove any element of the People's case, permits rather than directs the jury to draw any proper inference, and if unsupported by the evidence is essentially irrelevant. (Lamer, supra, at p. 1470.) "[C]ourts have routinely found that the improper giving of CALJIC No. 2.62 constitutes harmless error." (Id. at p. 1472.) Moreover, the jurors were also instructed to disregard any instruction which applied to facts determined not to exist. Although we agree that defendant's testimony was crucial to the voluntary manslaughter theories offered by the defense, his account of the altercation, even if considered in the most favorable light, did not come close to establishing heat of passion or unreasonable self-defense. It is not reasonably probable that a more favorable verdict would have resulted if the instruction had been omitted. (Saddler, supra, at pp. 683-684; Lamer, supra, at p. 1473; People v. Ballard, supra, 1 Cal.App.4th 752, 756-757; People v. Marsh (1985) 175 Cal.App.3d 987, 994; People v. Ramirez (1980) 109 Cal.App.3d 529, 544.)
II. The Order for Payment of Attorney Fees.
Defendant's final contention is that the order for restitution of attorney fees must be vacated. The trial court imposed on defendant an attorney fee of $500 "only if he has the ability to pay, and since I don't know whether he has the ability, the court is going to indicate that that would come into being only on a showing of ability to pay." Defendant claims that section 987.8 does not countenance imposition of an attorney fee order without a prior hearing and finding of his ability to pay.
"Section 987.8 establishes the means for a county to recover some or all of the costs of defense expended on behalf of an indigent criminal defendant. [Citation.] Under subdivisions (b) and (c) of the statute, an order of reimbursement can be made only if the court concludes, after notice and an evidentiary hearing, that the defendant has 'the present ability . . . to pay all or a portion' of the defense costs. [Citations.]" (People v. Polk (2010) 190 Cal.App.4th 1183, 1205.) Section 987.8, subdivision (b) "provides in relevant part that in 'any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. . . . The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.' (§ 987.8, subd. (b).) Further, '[i]f the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county . . . .' (§ 987.8, subd. (e).)" (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397-1398.)
Defendant is of course correct that section 987.8 requires a prior determination, either express or implied through the content and conduct of the hearings, of the defendant's ability to pay attorney fees. (People v. Pacheco, supra, 187 Cal.App.4th 1392, 1398; People v. Phillips (1994) 25 Cal.App.4th 62, 71.) Without the requisite hearing and finding of ability to pay, the order directing payment of attorney fees cannot stand. (People v. Pacheco, supra, at p. 1399; People v. Hart (1998) 65 Cal.App.4th 902, 907.)
In the present case, however, the trial court did not unconditionally order defendant to pay attorney fees. The order is expressly effective only "on a showing of ability to pay."
We thus conclude that defendant's challenge is premature, as the court has not decided whether defendant has the ability to pay, or even ordered that he must pay attorney fees. (See In re Jacob S. (2002) 104 Cal.App.4th 1011, 1019.) The court also explicitly determined that until his ability to pay is evaluated, the $500 fee will not be imposed. "A controversy is not deemed ripe for adjudication unless it arises from a genuine present clash of interests and the operative facts are sufficiently definite to permit a particularistic determination rather than a broad pronouncement rooted in abstractions." (O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1451.) The content of the trial court's order and the posture of this case would require us to speculate about unpredictable future events in order to evaluate defendant's claim. (See Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1585; PG&E Corp. v. Public Utilities Com. (2004) 118 Cal.App.4th 1174, 1217.) Only if, and when, an impermissible order to pay attorney fees without the requisite hearing and finding of ability to pay occurs, will an error and harm to defendant occur. Until then, his challenge is not yet ripe. (People v. Murrison (2002) 101 Cal.App.4th 349, 363.)
Accordingly, the judgment is affirmed.
Dondero, J.
We concur:
Marchiano, P. J.
Margulies, J.