Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050402131
Ruvolo, P. J.
I.
Introduction
Appellant was convicted by jury of the second degree murder of Janet Cook, a woman described as a prostitute, crack addict and con artist. (Pen. Code, §§ 187-189.) The jury also found that appellant intentionally and personally discharged a handgun causing great bodily injury in the commission of Cook’s murder within the meaning of section 12022.53, subdivision (d). He was sentenced to a total prison term of 40 years to life. On appeal, appellant raises a single evidentiary issue––that the court erroneously excluded evidence crucial to his defense that Cook’s threatening and demanding conduct in the weeks before the shooting provoked him to kill her in a heat of passion. We disagree and affirm.
All statutory references are to the Penal Code.
II.
Facts and Procedural History
Appellant first met Cook about two months prior to her murder when he used her services as a prostitute. Shortly after their first meeting, Cook approached appellant and proposed a financial arrangement. She told him that she needed someone to cosign some paperwork in order to get a property settlement from the sale of her deceased mother’s home. In return, she would give him $5,000. Appellant agreed to this arrangement. The evidence presented at trial showed that during the ensuing two months, Cook repeatedly came to appellant’s house uninvited, called him at all hours of the day and night, and essentially harassed him until he either gave her money for drugs or allowed her to sleep at his house.
In the two weeks prior to her death, Cook began showing up at appellant’s house with increasing frequency. Appellant testified that when Cook showed up at his house “my head would be throbbing . . . and I’d cut her a check.” He testified he “wanted her out of my life.” On the day of her death, July 1, 2003, appellant asked Cook to leave after she spent the night at his house. She became “enraged, angry, ranting, [and] raving,” and she threatened appellant’s life. He testified that he could not take it anymore, and he “snapped.”
Appellant admitted he shot and killed Cook as she walked in front of him inside of his garage. He testified he “put [the gun] up to the back of her head and fired.” After the killing, appellant wrapped her body in a blanket secured with electrical cords and stuffed her in a recycling container. He watched the next morning as Cook’s body was dumped into a garbage truck. Cook’s body was discovered at the recycling center in Point Richmond on July 2, 2003.
When arrested, appellant initially denied any involvement in Cook’s murder. He eventually made a statement to the police admitting his involvement in Cook’s murder and explaining the nature of his relationship with Cook in the months leading up to her death.
Over the prosecution’s objection, the court allowed the defense to present evidence of Cook’s prior relationship with James Ragsdale, who was 71 years old at the time and a recent widower. Members of the Ragsdale family testified that Cook was habitually seen in a park next to Ragsdale’s home. Eventually, Cook started coming to the door, asking to see Ragsdale. However, her presence and persistence became unwelcome. If not let into Ragsdale’s house, she would bang on the door, ring the doorbell repeatedly, and curse. She threw rocks at Ragsdale’s son’s car. Her general demeanor was described as “vicious” and “aggressive.”
James Ragsdale was deceased by the time of trial.
After Cook made several threats against Ragsdale and his family, including repeatedly saying “you [sic] dead,” Ragsdale’s family contacted the police. Because she would not leave him alone, Ragsdale eventually sought and obtained a restraining order against Cook. On October 30, 1997, Cook pled no contest to possessing property stolen from Ragsdale and she was ordered to pay Ragsdale $27,759 in restitution.
Appellant’s defense was that the killing was done in a moment of heat of passion. In closing argument, defense counsel argued that “[i]n those last couple of weeks, she had backed him so far into a corner . . . [h]e just wanted her out of his life.” On the day of the murder, “when she’s in a rage, high on cocaine, calling him names and threatening his safety, he snaps. He acts rashly.” In rebuttal, the prosecution retorted that if appellant “wanted Janet Cook out of his life, if he wanted her gone, he . . . could have done a bunch of different things instead of jumping straight to murder.”
III.
Discussion
As noted, over the prosecution’s objection, the court allowed the defense to present evidence of the victim’s prior conduct towards the Ragsdale family under Evidence Code section 1103. Evidence Code section 1103 allows evidence of the victim’s character to be admitted when offered by the defendant to prove the victim acted in conformity with that character. The evidence established that Cook had harassed, threatened and stolen from Mr. Ragsdale and his family.
Evidence Code section 1103 reads in relevant part: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: “(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. “(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1). “(b) In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”
However, the court did not allow the defense to establish how the Ragsdale family felt and reacted to the victim’s threats and harassment. Appellant claims that Jean Kurnik, Ragsdale’s daughter, would have testified that she did not anger easily, yet she had never felt rage like she did towards Cook. Mr. Kurnik, Mr. Ragsdale’s son-in-law would have testified that Cook “got under his skin like no one [he had] ever met.” Dennis Ragsdale, Mr. Ragsdale’s son, would have testified that it could have easily been him in appellant’s situation because he felt so much anger towards Cook and what she was doing to his father. Moreover, Dennis Ragsdale was precluded from describing an incident when he went after Cook with a baseball bat in order to protect his father.
The court rejected the proffered evidence on grounds of irrelevancy, explaining the evidence was “too remote to be connected to the state of mind of the Defendant . . . under the circumstances special and peculiar to him . . . .” A ruling determining the admissibility of evidence is reviewed for an abuse of discretion. (People v. Davis (1995) 10 Cal.4th 463, 530; People v. Cooper (1991) 53 Cal.3d 771, 816.) “This standard is particularly appropriate when . . . the trial court’s determination of admissibility involved questions of relevance . . . . [Citation.] Under this standard, a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Appellant contends that by not allowing the defense to establish how Cook’s prior victims felt and reacted to her threats and violent conduct, the court denied the defense a right to a fair trial and the right to present a complete defense to the charge of murder. He claims the Ragsdales’ reaction to Cook’s threats and violent conduct was relevant because this evidence tended to prove a reasonable person in appellant’s situation would have been provoked to act rashly without due deliberation or reflection. In short, he claims the court’s evidentiary ruling denied him the right to present his defense that he was provokedto the point where, in the heat of passion, he committed the homicide.
California law recognizes heat of passion as a defense to intentional murder. In People v. Lee (1999) 20 Cal.4th 47, 59 (Lee), the California Supreme Court explained that “manslaughter has been considered a lesser, necessarily included, offense of intentional murder. Generally, an intent to unlawfully kill reflects malice. [Citations.] An unlawful killing with malice is murder. [Citation.] Nonetheless, an intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation [citation], or kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense. [Citation.] Only these circumstances negate malice when a defendant intends to kill. [Citation.]”
The Lee court also explained that “although section 192, subdivision (a), refers to ‘sudden quarrel or heat of passion,’ the factor which distinguishes the ‘heat of passion’ form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim citation, or be conduct reasonably believed by the defendant to have been engaged in by the victim. Citations. The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause anordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] ‘Heat of passion arises when “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.” ’ [Citation.]” (Lee, supra, 20 Cal.4th at p. 59, italics added.)
Our Supreme Court has consistently defined provocation by reference to an objective standard of reasonableness, indicating that the existence of serious provocation must be determined through the eyes of a reasonable person standing in defendant’s shoes. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144 [“ ‘ “this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,” because “no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.”. . . ’ ”]; People v. Steele (2002) 27 Cal.4th 1230, 1254 [although section 192, subdivision (a), does not explicitly require an objective standard, “[o]ur cases have long and continuously held that whether the provocation is considerable enough to negate malice must be judged objectively”]; Lee, supra, 20 Cal.4th at p. 60 [“The test of adequate provocation is an objective one, however. The provocation must be such thatan average, sober person would be so inflamed that he or she would lose reason and judgment.”]; People v. Barton (1995) 12 Cal.4th 186, 201 [“Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’. . .”].)
Consequently, when determining whether an action is objectively reasonable, the pertinent inquiry is whether a reasonable person, placed in the same circumstances as the defendant, would have acted in the same manner. The focus is on the provocation, the surrounding circumstances, and whether it was sufficient to cause a reasonable person to act rashly. (People v. Najera (2006) 138 Cal.App.4th 212, 223.) Moreover, “the jury, in determining objective reasonableness, must view the situation from the defendant’s perspective.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1086, italics in original.)
Appellant argues his proffered evidence, designed to show that the Ragsdale family felt rage and violence toward Cook, was evidence of significant probative value because it tended to show that a reasonable person, in appellant’s situation would have provoked to kill as a result of the Cook’s actions. Since the law requires appellant to conform to the standard of a reasonable person who was placed in the same circumstances and was subjected to the same provocation, we can discern no place for evidence of how another party reacted in circumstances unrelated to the charged crime. Consequently, we believe the testimony was properly excluded because the fact that under different circumstances at a different time someone else felt like assaulting or killing the victim had marginal relevance to the jury’s understanding of what a reasonable person in appellant’s position would do.
The principal case relied upon by appellant to support the admissibility of this evidence, People v. Minifie (1996) 13 Cal.4th 1055, is easily distinguishable. To support a claim that he shot and killed the victim in self-defense, the defendant in Minifie sought to introduce evidence of threats he had received from third parties who were associated with the victim. (Id. at pp. 1061-1062.) The court held it was error to exclude the evidence because it was highly relevant to the defendant’s claim of self-defense. (Id. at pp. 1065-1066.) The Supreme Court pointed out that in determining whether a reasonable person in defendant’s position would have believed in the need to use lethal force to defend, the jury must consider “all the facts and circumstances” in which defendant found himself. (Id. at p. 1065.) Specifically, the defendant is required to “ ‘ “prove his own frame of mind,” ’ and in so doing is “entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear.” [Citation.]’ ” (Ibid.) Consequently, evidence of threats made by others is potentially admissible to establish the defendant’s state of mind, if “the defendant reasonably associated the victim with those threats.” (Id. at p. 1068.)
Appellant misses the point of Minifie. Minifie simply held that because the ultimate test of reasonableness is objective, in determining whether a reasonable person in defendant’s position would have believed in the need to defend, the jury must consider all of the relevant circumstances in which defendant found himself, including prior threats by the victim’s cohorts. Minifie did not sanction the introduction of evidence of another person’s state of mind in previous dealings with the victim in order to prove the reasonableness of defendant’s state of mind. As we have held, such evidence is not very probative of appellant’s mental state, and is properly excluded. Contrary to appellant’s argument, Minifie does not suggest that any evidence of marginal relevance must be admitted simply because, for lack of anything more compelling, it lies “ ‘at the heart of the defense.’ ” (Minifie, supra, 13 Cal.4th at p. 1070.)
Moreover, to a large extent, the evidence sought to be introduced by appellant was cumulative. The defense was allowed to establish that Cook’s behavior toward the Ragsdales was violent, aggressive, and predatory and the jury was instructed that they could use this evidence “to prove that [Cook] acted in conformity with those traits during the events described in this case in 2003.” In closing argument, appellant’s defense pointed out that the anger and agitation of the Ragsdale family was evident in their demeanor while testifying, even though the events they described had taken place years earlier. A trial court could easily conclude that putting on more evidence to establish the Ragsdales’ emotional reaction to Cook’s behavior added little to the evidence already before the jury.
In any event, we believe it would have been a risky strategy for defense counsel to use the reaction of the Ragsdale family to formulate the prototype of what a “reasonable person” would do in a similar situation to which appellant would be compared. Appellant’s actions would no doubt be found to be reasonable if he had behaved as the Ragsdales and obtained a restraining order against Cook. However, in the situation in which he found himself, appellant did not behave as a reasonable person, hence he was put on trial for shooting Cook in the back of the head and then dumping her body in a recycling bin. Appellant’s conduct was such a gross deviation from the standard of conduct that a reasonable person would observe in the same situation that the exclusion of this evidence cannot be said to be prejudicial or to have caused a miscarriage of justice. (People v. Cunningham (2001) 25 Cal.4th 926, 999 [the exclusion of defense evidence on a minor or subsidiary point does not interfere with the right to due process of law]; People v. Watson (1956) 46 Cal.2d 818, 836.)
On cross-examination, appellant admitted he never contacted the police for assistance in dealing with Cook’s continual harassment. He elaborated that “[t]he thought never occurred to me.” He also never thought about trying to get a restraining order.
IV.
Disposition
The judgment is affirmed.
We concur: Sepulveda, J. Rivera, J.