Opinion
F076282
02-20-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT EUGENE SMITH, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF168215A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and DeSantos, J.
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INTRODUCTION
A jury convicted defendant Robert Eugene Smith of attempted murder, among other charges, after he repeatedly stabbed a man while the two were engaged in a fight. On appeal, defendant contends insufficient evidence supports his attempted murder conviction because the prosecution failed to prove beyond a reasonable doubt he was not acting in the heat of passion.
We affirm the judgment.
FACTUAL BACKGROUND
Shortly after midnight on May 1, 2017, defendant arrived at the trailer park where his former girlfriend, Jackie W., lived with her grandmother. When defendant arrived, he saw Jacob Z., who lived in a neighboring trailer, outside of Jackie's trailer. Jacob was helping Jackie by wrapping up a garden hose in her yard while Jackie was inside the trailer. According to Jacob, defendant did not seem happy to see him. Defendant went inside the trailer and began arguing with Jackie about Jacob. Jackie heard defendant say he would "stab that mother-fucker right now" before defendant exited the trailer; defendant denied making such a statement. Jacob heard defendant say, "where is that mother-fucker," and then he saw defendant run outside toward him in "a fighting motion." Defendant said, "I'm going to fucking kill you."
Jacob thought defendant was going to fight him, so he put his head down and "started swinging at [defendant] to defend [him]self." Jacob heard Jackie say, "[B]e careful, he's got a knife." Jacob punched defendant in the face. At trial, Jacob testified he "probably hit [defendant] first," but he was not sure because he did not realize when he had been stabbed. Jacob picked up defendant and slammed him on the ground. He pinned both of defendant's hands down but did not see anything in defendant's hands. As he was leaning over defendant, Jacob "noticed a bubble coming out of the front of [his] chest" and he realized he had been stabbed. Defendant had stabbed Jacob multiple times in the chest and back. Jacob stood up, stepped back, and asked that someone call 911 because he had been stabbed. Defendant "was pretty upset" and called out to Jackie, "Baby, I just wanted to talk to you." Defendant then turned towards the front gate and left. According to Jacob, the whole incident lasted approximately five seconds.
Jackie called the police and Jacob was taken to the hospital where he stayed for weeks and underwent multiple surgeries. As a result of the stabbing, Jacob's colon, kidney, and abdominal wall were injured and he had a collapsed lung. At trial, both Jackie and Jacob denied having a romantic relationship with each other.
Defendant testified on his own behalf that, on the night of the stabbing, he arrived at Jackie's trailer and thought it was "weird" Jacob was outside. According to defendant, he entered Jackie's trailer and asked her what was going on and she mumbled in response and appeared to be high on methamphetamine. Defendant felt like another man was taking his spot and he was "irritated by not being told the truth," but he denied feeling jealous and denied being angry that Jacob was there. According to defendant, he was scared of Jacob because Jacob is bigger than him and defendant did not want to have problems with him.
Defendant testified he went back outside to the patio, raised his arms, and asked Jacob, "what the fuck is really going on? Are you banging my wife? Why are you here?" According to defendant, Jacob then sprung up, charged at him, and knocked him to the ground before getting on top of defendant and hitting him. Defendant could not breathe and was in fear for his life, so he tried to look for something to get Jacob off of him. He pulled out his Swiss army knife from his pocket and "had to use it with whatever means necessary to get [Jacob] off [him]" because defendant thought he was going to die. He denied intending to kill Jacob and denied telling Jacob he would kill him. He believed he acted in self-defense.
In connection with the stabbing, defendant was charged with attempted murder (count 1), assault with a deadly weapon (count 2), and battery with serious bodily injury (count 3), and enhancements as to counts 1 and 2 for personal infliction of great bodily injury and, as to counts 1 and 3, personal use of a deadly or dangerous weapon. At trial, after the court instructed the jury on the charged offenses, including attempted murder and the lesser included offense of voluntary manslaughter, the jury convicted defendant on all counts and found the enhancements true.
DISCUSSION
In his sole issue, defendant contends the prosecution failed to prove beyond a reasonable doubt that he was not acting in the heat of passion when he stabbed Jacob, so insufficient evidence supports his attempted murder conviction. We disagree.
I. Procedural History
Before releasing the jury to deliberate, the court instructed the jury it could find defendant guilty of attempted voluntary manslaughter, a lesser included offense of attempted murder, "if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion." The court explained that to find defendant attempted to kill because of a sudden quarrel or in the heat of passion the jury had to conclude defendant attempted the killing because he was provoked and the provocation was sufficient to cause a person of average disposition to act rashly without due deliberation. The jury further had to conclude the attempted killing was a rash act done under the influence of intense emotion obscuring defendant's reasoning or judgment. The court admonished the jury "the People have the burden of proving beyond a reasonable doubt that the defendant attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted murder."
In her closing argument, the prosecutor argued defendant was not sufficiently provoked for the jury to convict him of attempted voluntary manslaughter. She argued:
"There's two different theories that you can find someone guilty of attempted voluntary manslaughter as opposed to attempted murder. And I'm just going to briefly point out, for this to apply, he has to have been
provoked. Something [Jacob] did would have caused him to so inflame [sic] and so enraged in that moment that he was acting under a heat of passion. That does not mean some concoction in his head of why he's upset at [Jacob] or he thinks that [Jacob] is sleeping with his girl. [Jacob] is fixing a hose, nothing [Jacob] did could have provoked defendant to stab him."
Defense counsel argued in closing that defendant lacked the intent to kill, emphasizing defendant "did not catch [Jacob and Jackie] sleeping together, but it's kind of suspicious that he would be there in the middle of the night, so [defendant] just wanted the truth. He didn't want to kill anyone.... It's not something that would motivate especially someone in their 50s who has been through life circumstances before. It doesn't match up."
II. Standard of Review
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) The reviewing court's task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Johnson (1980) 26 Cal.3d 557, 578.)
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
We "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis ... is there sufficient substantial evidence to support"' the jury's verdict." (Ibid.)
A. Applicable Law
"[T]o prove the defendant guilty of attempted murder, the prosecution must prove beyond a reasonable doubt among other things, the defendant acted with malice aforethought. To determine whether the defendant acted with malice aforethought, the prosecution must prove beyond a reasonable doubt, where heat of passion is at issue based on the state of the evidence, the defendant did not act in the heat of passion. Assuming the prosecution met its burden on this element, and attempted murder's other elements, the defendant is guilty of attempted murder. If, however, the prosecution fails to establish beyond a reasonable doubt the defendant did not act in the heat of passion, the prosecution fails to carry its burden and the defendant is guilty of attempted voluntary manslaughter." (People v. Speight (2014) 227 Cal.App.4th 1229, 1241-1242; see People v. Rios (2000) 23 Cal.4th 450, 461 [mitigating circumstance of heat of passion "reduce[s] an intentional, unlawful killing from murder to voluntary manslaughter 'by negating the element of malice that otherwise inheres in such a homicide'"].)
B. Analysis
Defendant asserts the prosecution failed to prove beyond a reasonable doubt that defendant was not acting in the heat of passion when he stabbed the victim. Stated differently, defendant argues insufficient evidence supports his attempted murder conviction. Rather, he contends "[t]he prosecution's evidence showed a sudden explosion of violence ... immediately and directly related to [defendant] finding his common law wife Jackie W[.] alone with Jacob shortly after midnight, suspecting that they were engaged in a romantic relationship," which "does not support a finding that [defendant] harbored express malice, a necessary element of attempted murder." The People respond sufficient evidence established defendant harbored an intent to kill. They further argue "[n]othing suggested that, when [defendant] stabbed Jacob, his reason was obscured by passion." We conclude sufficient evidence supports defendant's attempted murder conviction and the jury's related conclusion defendant did not act in the heat of passion when he stabbed Jacob.
"An intentional, unlawful homicide is 'upon a sudden quarrel or heat of passion' (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer's reason was actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an '"ordinary [person] of average disposition ... to act rashly or without due deliberation and reflection, and from this passion rather than judgment."'" (People v. Breverman (1998) 19 Cal.4th 142, 163.) No specific type of provocation is required, and "the passion aroused need not be anger or rage, but can be any '"'[v]iolent, intense, high-wrought or enthusiastic emotion'"' [citations] other than revenge [citation]." (Ibid.; see People v. Lasko (2000) 23 Cal.4th 101, 108.) "'[I]f sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter ....' [Citation.]" (Breverman, at p. 163.)
Here, there was reasonable, credible, and solid evidence upon which a trier of fact could find beyond a reasonable doubt that defendant did not act in the heat of passion when he stabbed Jacob. The uncontroverted evidence established Jacob was in Jackie's yard working when defendant arrived. Aside from Jacob's presence, there was no evidence of any other provocation nor evidence to substantiate defendant's subjective suspicion that Jackie and Jacob had a romantic relationship. Based on the state of the evidence, the prosecution reasonably argued there was insufficient provocation to cause an ordinary person of average disposition to act out of passion rather than judgment. The evidence also established defendant saw Jacob and then went inside the trailer and talked to Jackie before returning outside to fight Jacob. Thus, there was some evidence there was time "'for passion to subside and reason to return.'" (People v. Breverman, supra, 19 Cal.4th at p. 163.) There was also conflicting evidence regarding defendant's state of mind and demeanor before he stabbed Jacob. Indeed, defendant himself testified he was not angry or jealous at the time. Furthermore, defense counsel did not argue defendant was overcome by a heat of passion. Viewing the entire record in the light most favorable to the judgment, the jury, as the sole judge of the credibility of witnesses, could reasonably have rejected the theory that sufficient provocation caused defendant to act rashly and without due deliberation—in the heat of passion—when he stabbed Jacob. Accordingly, we conclude substantial evidence supports the jury's conclusion defendant attempted to kill Jacob and was not acting as a result of a sudden quarrel or in the heat of passion.
"'"'"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]"'" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Thus, even if, as defendant argues, the evidence could support a contrary finding—that defendant stabbed Jacob in a heat of passion—this does not warrant reversal of the judgment where, as here, the circumstances reasonably justify the jury's findings. (See People v. Livingston (2012) 53 Cal.4th 1145, 1170; People v. Rodriguez, supra, at p. 11; People v. Young, supra, 34 Cal.4th at p. 1181; see also People v. Harris (2013) 57 Cal.4th 804, 849-850.)
We reject defendant's sole contention.
DISPOSITION
We affirm the judgment.