Opinion
F076073
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. RORY COLIN MOSER, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Julie A. Hokans, and Darren K. Indermill, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF161210A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Julie A. Hokans, and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Rory Colin Moser was charged with first degree murder of his cellmate in violation of Penal Code section 187, subdivision (a). After the court instructed the jury on first degree murder, the lesser included offenses of second degree murder and voluntary manslaughter, and various defenses, the jury convicted defendant of second degree murder. On appeal, defendant challenges his conviction, arguing the trial court reversibly erred in failing to instruct the jury on involuntary manslaughter. In a supplemental brief, defendant contends the matter should be remanded to require the trial court to strike his prior prison term enhancement.
We remand the matter and order the trial court to strike the prior prison term enhancement, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2014, while housed in North Kern State Prison, defendant beat his cellmate Donald Cook to death. Defendant had moved into Cook's cell earlier that week. Cook was in his 60's and defendant was in his 30's at the time. It was typical for cellmates to exchange "paperwork" regarding their convictions. After reviewing Cook's paperwork, defendant forwarded it up the White inmate hierarchy based on defendant's belief that it reflected Cook was a registered sex offender because the paperwork had an "R" on it. The inmate in charge of the White inmates in that cellblock reviewed Cook's paperwork and concluded the "R" meant he had to register as an arsonist, not a sex offender. Because labeling someone a sex offender could cause that person to get stabbed or killed, an inmate who falsely accuses another inmate of being a sex offender is subject to discipline by his fellow inmates. Accordingly, two individuals were tasked with assaulting defendant the next time they were in the yard.
On the night of June 28, 2014, and the early morning of June 29, 2014, Officer Zenaido Enriquez-Montes performed security checks of the prison unit housing defendant and then left the building. These checks were typically done before 10:00 p.m., 11:00 p.m., 12:30 a.m., and 2:30 a.m. According to correctional officer Alan Tom, who was working the first watch shift from 10:00 p.m. to 6:00 a.m., after the 2:30 count, at around 3:00 a.m., he heard someone yell, "Man down." Inmate H.W. also woke up to someone yelling "Man down." Officer Tom yelled back asking, "What cell?" The voice answered, "Cell 245." Officer Tom called Officer Enriquez-Montes to verify the situation.
Officer Enriquez-Montes responded to defendant's cell. When Officer Enriquez-Montes arrived, he saw defendant slapping Cook in the face and "slugging" him on his shoulder, telling him to "wake up." Cook was propped up against the bottom bunk. According to Officer Enriquez-Montes, defendant said "[h]e just fell off his bunk" and "hit his head." There was a pool of blood inside the cell. There was a container with Pruno (prison alcohol) in it near the toilet, which had blood on it.
Officer Eric Manzanales handcuffed defendant, searched him, and escorted him to a holding cell. The parties stipulated that, according to Sergeant Adalberto Flores, while defendant was being escorted out of his cell in handcuffs he said "I only hit him a couple of times, and he hit his head on the toilet."
Two nurses and numerous correctional officers also arrived at the cell. The nurses could not find Cook's pulse and observed he was pale, unresponsive, and was not breathing. Officer Shawn Smith testified he arrived at cell 245 at around 3:09 a.m. and escorted the personnel carrying Cook out of the cell on a Stokes litter around 3:14 to 3:15 a.m. It appeared to Smith that Cook had been deceased for some time given his color and that he was rigid to the touch.
When Officer Guy Cranmer approached defendant in the holding cell, defendant stood up and spontaneously said to him, "'Man, I killed that guy.'" Officer Cranmer did not respond. Eventually, Officer Cranmer interviewed defendant at approximately 9:15 a.m., after advising him of his rights. The People played the videotaped interview for the jury.
Defendant told Officer Cranmer that Cook had been sexually assaulting him. Defendant reported Cook was "up all night," and "every night" defendant kept waking up, could not feel his fingers, and his "butt" was wet and smelled like spit. Defendant reported seeing Cook taking a rope off defendant's fingers, which he used to pull defendant's arms and pull him over to his side. According to defendant, his "fingers were purple" from "being choked." Defendant said he told Cook all week, "Leave me the fuck alone, dude. Leave me the fuck alone, bro." He reported he woke up and felt "so threatened and ... taken advantage of and victimized." Defendant admitted, "Last night ... I just ... put hands on him." He stated he hit Cook "a bunch of times and [Cook] fell down ... and hit the toilet." Defendant said he tried to give Cook CPR. He stated he "didn't mean to hurt him like that." He reported he "called for man-down for hella long and [Cook] was alive when [defendant] went to sleep. He was breathing." "By the time [the responding officers and nurses] got there, [Cook] wasn't breathing and [defendant] was doing CPR on him." Officer Cranmer told defendant they would "start PREA [Prison Rape Elimination Act] proceedings" and were going to do a sexual assault kit.
Officer Cranmer had defendant medically cleared and transported him to the hospital where defendant was examined. Registered nurse Karen Nalos did a sexual assault forensic examination of defendant. Defendant reported to Nalos, "'The other day, [he] felt like something was inside of [him]'" and that he thought Cook "'had his face in [defendant's] ass.'" Defendant reported a slipknot was used on his fourth and fifth fingers that made them purple and numb. Nalos swabbed defendant's body, including his buttocks and scrotum, as part of the sexual assault evidence collection kit. Defendant admitted inflicting injuries on the suspect and expressly stated, "'I killed him.'" Defendant denied anal or genital injury, pain, or bleeding. Nalos noted some redness, bruising, and swelling in defendant's anal area. She noted "[a]ny rough treatment of the anus could result in bruising" but that she "could not exclude sexual assault." Defendant denied being under the influence or having used drugs or alcohol between the time of the assault and the forensic exam.
J.S. testified he was in the cell below defendant's cell on the night of Cook's death. J.S. heard the "unique sound when a cell fight is occurring of feet stomping and things being banged around and getting bumped up against the door." The fight stopped for a second and J.S. heard defendant loudly yell, "'Don't ever touch me when I'm sleeping.'" The fight was loud and violent; J.S. testified that he had "heard a lot of cell fights" but he "never heard anything like that." The fight "went on and on," "[i]t seemed like forever." According to J.S., "it could have been half an hour. It could have been an hour. But it was long. It was way longer." The fight "sounded pretty one sided." J.S. woke up to defendant screaming "'Man down.'"
B.L. was in the cell below and diagonal from defendant's cell on the night of Cook's death. Around 10:30 or 11:00 p.m. that night, he heard defendant through the vents connecting their cells repeatedly yelling loudly at Cook, "'[D]on't fuckin' touch me' or something like that." He also heard Cook say, "'I wouldn't do that. I'm a Christian man.'" "Then, at some point, [he] heard skin-to-skin contact, like a slap but ... a hit, and then ... a thump." The skin-to-skin thumping went on "for hours. A long, long time. Enough to where the defendant had to take breaks, catch his breath." B.L. could hear Cook "crawling" and "begging for his life pretty much." Cook "kept on saying over and over ... he's a Christian man" and "stop." J.R., who was in the cell next to defendant's, also heard someone say, "'Don't touch me,'" on the night Cook was killed. He awoke upon hearing "Man down" and looked out the window of his cell door. He saw a pool of blood outside of defendant's cell and an officer outside the cell. J.R. heard defendant say, "'It was an accident he hit his head on the toilet.'"
The prison conducted a CDCR 115 administrative hearing during which defendant stated, "This dude was raping me. I beat him up a little, he hit his head. I called for staff and went to sleep. I woke up and gave him CPR for 20 minutes." He reported that "several nights prior to [Cook's death], that he had woke up and had the feeling that he had been raped. He had saliva on his anus area, he believed." Defendant reported Cook had fallen and hit his head after they fought and defendant had hit him a few times.
DNA testing of boxer shorts collected from defendant's bunk did not reveal the presence of saliva or semen but tested positive for blood. Swabs taken from defendant's buttocks tested negative for saliva. Swabs from Cook's mouth tested positive for blood but negative for sperm. No items related to the case tested positive for semen. The report "did not indicate any penetrative act that would introduce saliva."
After the CDCR 115 hearing and months after the incident, the district attorney's investigator Mark Herman interviewed defendant again. Defendant reported Cook would argue with him all the time. Defendant stated, on the night he killed Cook, Cook was choking him with a wool blanket and had something around defendant's wrist. Defendant said he caught Cook getting off of him and defendant "teed off," he hit Cook "four or five times" and Cook fell and hit his head on the toilet. Defendant stated, "I fucked [Cook] up until I knew he was really bad and that's when I did CPR." Cook started wheezing and stopped breathing so defendant started doing chest compressions and called out "Man down." He said he "didn't mean to hurt him like that," stating, "I didn't mean to kill this dude," "I did not plan on killing 'im, it was not pre-meditated ... [it was] self-defense," and that if he "wanted to kill 'em, [he] wouldn't do no fuckin' CPR on him." Defendant denied drinking that night.
Forensic pathologist Robert Whitmore autopsied Cook's body with the coroner. He concluded the cause of death was "blunt force head, neck, and chest trauma." Cook's autopsy revealed multiple hemorrhages beneath his scalp; his face, ear, and neck were bruised; there was a shoe print on Cook's face; the bone in his neck was fractured; multiple ribs were fractured and there were bruises around his eye and on his legs and feet, and lacerations on his forehead and lips. Dr. Whitmore explained a significant amount of force would need to have been applied to result in some of the hemorrhaging Cook suffered. He explained it appeared Cook's face had "[e]ither [been] jumped on or stomped [on]." He opined that one of the lacerations on Cook's face "was caused by a hard linear object that has an edge on it, ... something like a bed frame." Based upon his review of Cook's facial injuries, Dr. Whitmore did not think they were caused by the edge of the toilet. He opined Cook "was sucker-punched in the mouth first" and "the last blow was either a jump or a stomp on the chest." The People introduced pictures of Cook's injuries at trial. Dr. Whitmore opined the bruises on Cook's hands and arms were "probably defense bruises."
The court instructed the jury on first degree murder, second degree murder, voluntary manslaughter, justifiable homicide (self-defense), excusable homicide (accident in the heat of passion), and imperfect self-defense. It denied defendant's request to instruct the jury on the lesser included offense of involuntary manslaughter. The jury convicted defendant of second degree murder.
Thereafter, by bench trial, the court found true an allegation defendant had suffered a prior prison term pursuant to Penal Code section 667.5, subdivision (b). Defendant was sentenced to prison for 15 years to life, consecutive to the one-year prison term enhancement.
DISCUSSION
I. The Refusal to Instruct the Jury on Involuntary Manslaughter Was Not Error but Harmless Nonetheless
Defendant asserts the court reversibly erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter.
A. Relevant Factual Background
Following the presentation of evidence, defense counsel argued the judge should instruct the jury on voluntary and involuntary manslaughter. The People responded that the only theory under which an involuntary manslaughter instruction could be supported in this case is if there was evidence of involuntary intoxication, but the evidence established defendant was not intoxicated.
Defense counsel argued: "The only distinction between voluntary and involuntary [manslaughter] is when a defendant—the difference between the homicide offenses of involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and knowledge and awareness that a person is endangering the life of another and done in a conscious disregard of that risk." He asserted: "There is plenty of evidence in this case to show that [defendant] did not know the extent of the injuries suffered by Mr. Cook, because it was dark, he didn't know. What he said was, as a matter of fact, after the fight, he went back to sleep and he thought Mr. Moser [sic] was okay." "It was after he woke up and found him wheezing that he started CPR on him. This is not for the Court to decide, it's for the jury to decide."
Referring to the CALCRIM jury instruction on involuntary manslaughter, the court noted it "has a sua sponte duty to instruct on involuntary manslaughter as a lesser-included offense of murder when there is sufficient evidence that the defendant lacked malice." The court stated, "[W]hen you look at the testimony and the physical pictures and the testimony of [defendant] in his interviews, it, to me, would be very hard to argue that there's a lack of malice."
Defense counsel responded that defendant repeatedly stated he did not intend to hurt Cook or kill him and "it's not the Court's place to assign whether the Court actually believe[s] him." He argued defendant's statements that he did not intend to hurt or kill Cook were "enough to pass the [very low] threshold" "for the Court to have a duty to give an instruction, if it is not inconsistent with the defense theory in the case." He further asserted: "The theory under which the Court would be able to give the instruction is he was doing a lawful act, defending himself." "So that's the theory under which the Court could consider [giving] this instruction."
The People responded there was "overwhelming evidence of malice in this case." They further argued "the three theories of [involuntary manslaughter] do not apply to this case."
The court denied defendant's request for an involuntary manslaughter instruction. It concluded "based on the evidence presented ... there does not appear [to be] sufficient evidence to indicate that [an] involuntary [manslaughter instruction] should be given, that is, a lack of sufficient evidence that the defendant lacked malice and the theory of the case is not supported by substantial evidence that would justify giving involuntary."
B. Standard of Review and Applicable Law
"California decisions have held for decades that even absent a request, and even over the parties' objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." (People v. Birks (1998) 19 Cal.4th 108, 118; see People v. Breverman (1998) 19 Cal.4th 142, 162.) The duty extends to every lesser included offense supported by substantial evidence; it is not satisfied "when the court instructs [solely] on the theory of that offense most consistent with the evidence and the line of defense pursued at trial." (People v. Breverman, supra, at p. 153.) "The existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (Id. at p. 162.) "'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could ... conclude[]"' that the lesser offense, but not the greater, was committed. [Citations.]" (Ibid.) "We independently review a trial court's failure to instruct on a lesser included offense." (People v. Cook (2006) 39 Cal.4th 566, 596.)
The "duty to instruct fully on all lesser included offenses suggested by the evidence arises from California law alone" (People v. Breverman, supra, 19 Cal.4th at p. 149), and thus a trial court's error in fulfilling this duty "must ... be evaluated under the generally applicable California test for harmless error ... set forth in [People v. Watson (1956) 46 Cal.2d 818]." (Id. at p. 176.) Under Watson, reversal is not warranted unless "it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (Breverman, supra, at p. 178; Watson, supra, at p. 836.)
C. Applicable Law
Manslaughter is "the unlawful killing of a human being without malice." (Pen. Code, § 192.) Section 192, subdivision (b) defines involuntary manslaughter as "the unlawful killing of a human being without malice" during "the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." The elements of murder are an unlawful killing committed with malice aforethought. (§ 187.) "Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." (§ 188, subd. (a)(1).) "Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (Id., subd. (a)(2).) "Generally, involuntary manslaughter is a lesser offense included in the offense of murder." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.)
"If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant's constitutional right to have the jury determine every material issue." (People v. Cook, supra, 39 Cal.4th at p. 596.) "Malice is implied ... when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." (Ibid.)
D. Analysis
Defendant argues the court "erroneously appears to have shifted the burden to [defendant] to affirmatively prove he lacked malice," but the burden was on the People to establish malice. He further contends the evidence supported an instruction on involuntary manslaughter based on his testimony that he did not mean to kill Cook. He argues "the jury reasonably could have concluded [he] committed misdemeanor battery (§ 242) with criminal negligence, which would have supported an involuntary manslaughter conviction." (Fn. omitted.) The People respond no involuntary manslaughter instruction was required because "there was not substantial evidence that [defendant] committed involuntary manslaughter but not murder." They note, though battery involving the infliction of serious bodily injury is a wobbler offense (Pen. Code, § 243, subd. (d)), "[t]he circumstances that may permit battery to be the predicate misdemeanor for a conviction of involuntary manslaughter do not exist here." They further contend "[b]ecause the evidence supporting the verdict of second degree murder was so relatively strong, and the evidence suggesting involuntary manslaughter was so comparatively weak, there was no reasonable probability that the outcome would have been different had the jury been instructed on involuntary manslaughter." We agree with the People.
The evidence presented at trial did not raise a material issue as to whether defendant acted without malice and committed a mere misdemeanor battery, so, the trial court was not obligated to instruct the jury on involuntary manslaughter. Though in his statements to police defendant denied he meant to kill Cook, the evidence, including his own admissions, conclusively showed that defendant brutally beat Cook. (See People v. Cook, supra, 39 Cal.4th at p. 597.) Defendant himself admitted repeatedly hitting Cook: "I fucked [Cook] up until I knew he was really bad." The People also presented evidence including testimony and pictures of Cook's injuries and cause of death. Cook, who was much older than defendant, suffered multiple broken bones, hemorrhages, bruises, and lacerations; there was a shoe print left on his face and a pool of blood in the cell. Dr. Whitmore opined that Cook appeared to have been stomped on, given the impact required to cause the resulting injuries. Thus, we cannot conclude substantial evidence supported a conclusion defendant acted without malice and committed a mere misdemeanor battery. (See Cook, at pp. 596-597 [because evidence showed defendant brutally beat victim, jury could not have found defendant committed mere misdemeanor battery; no material issue as to whether defendant acted without malice to support involuntary manslaughter instruction where defendant savagely beat victim]; see also People v. Benavides (2005) 35 Cal.4th 69, 102, 103 [concluding instruction on involuntary manslaughter on theory defendant killed victim "in the commission of an unlawful act, not amounting to [a] felony" was unsupported; "[I]n light of [the victim's] vulnerability at the hands of defendant, the secrecy in which the crimes occurred, and the number and severity of injuries inflicted, we cannot find sufficient evidence ... assailant engaged in misdemeanor activity, much less that he committed a lawful act without due caution and circumspection, and that therefore the killing was involuntary manslaughter"].) Accordingly, under these circumstances, the trial court did not err in concluding an involuntary manslaughter instruction was not supported by the evidence. Defendant's statements that he did not intend to kill Cook do not change our conclusion. (See People v. Brothers (2015) 236 Cal.App.4th 24, 34 [testimony defendant did not know "'this was going to happen'" was not substantial evidence to support involuntary manslaughter instruction].)
In support of his argument the evidence supported an involuntary manslaughter instruction, defendant cites People v. Murray (2008) 167 Cal.App.4th 1133 and People v. Cox (2000) 23 Cal.4th 665. These cases are inapposite. Both cases involved incidents in which the defendants punched their victims one time, resulting in the victims' inadvertent deaths. (See People v. Murray, supra, at p. 1138; People v. Cox, supra, at p. 668.) Neither case discussed whether an involuntary manslaughter instruction was supported by the evidence, as is the issue presented here, and the defendants in both cases were not charged with murder. (See People v. Murray, supra, at pp. 1138-1140 [holding aggravated assault was not lesser included offense of involuntary manslaughter]; People v. Cox, supra, pp. 670-677 [holding involuntary manslaughter instruction, that stated battery is predicate to involuntary manslaughter as a matter of law, was erroneous].) Unlike in Murray and Cox, defendant did not simply start a fistfight in which one unlucky blow resulted in the victim's death. (See People v. Cook, supra, 39 Cal.4th at p. 597.) He beat Cook to death.
Furthermore, even assuming, arguendo, it was error not to instruct the jury on involuntary manslaughter, defendant was not prejudiced. By convicting defendant of second degree murder instead of the lesser included offense of voluntary manslaughter, the jury found that defendant acted with malice, necessarily rejecting the view that the killing was manslaughter. Also, in rendering a conviction for second degree murder, the jury implicitly rejected defendant's version of the events and defenses, including that he acted in self-defense, imperfect self-defense, or in the heat of passion, which would have resulted in his acquittal or reduced his conviction to voluntary manslaughter. Because the jury resolved these factual findings requisite to involuntary manslaughter against defendant, he cannot have been prejudiced by the lack of an instruction on involuntary manslaughter. Thus, any alleged error was harmless. (See People v. Lewis (2001) 25 Cal.4th 610, 646 ["Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions"].)
II. Senate Bill No. 136
In supplemental briefing, defendant contends the enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) requires his case be remanded to the trial court with an order to strike his prior prison term enhancement imposed under Penal Code section 667.5, subdivision (b). The People agree he is entitled to the benefit of the recent legislation. We also agree.
Senate Bill 136, which the Governor signed into law on October 8, 2019, changes the circumstances under which a prior prison term enhancement may be imposed under Penal Code section 667.5, subdivision (b). (See Stats. 2019, ch. 590, § 1.) As nonurgency legislation, it will take effect on January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a); see People v. Camba (1996) 50 Cal.App.4th 857, 866.)
Under the new legislation, a prior prison term enhancement may only be imposed when the term was served for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). In this case, defendant served a prison prior for a conviction of corporal injury to a spouse, which does not qualify under the new legislation. Because his judgment on appeal will not become final by January 1, 2020, defendant is entitled to retroactive application of the new legislation under In re Estrada (1965) 63 Cal.2d 740. Consequently, this matter is remanded to the trial court to strike the prior prison term enhancement it imposed on defendant.
DISPOSITION
The matter is remanded for resentencing, and the trial court is directed to strike the prior prison term enhancement pursuant to Senate Bill 136. In all other respects, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting the new sentence and forward it to the appropriate authorities.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.