PEOPLE v. BELTRAN

Appellant’s Answer to Petition for Review

Cal.May 18, 2011

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLEOF THE STATE OF CALIFORNIA, Case No. 8192644 Plaintiff, Appellate Case No. A124392 vs. San Francisco County Case Nos. 175503; 203443 TARE NICHOLAS BELTRAN, Defendant. erEn. MAY 18 2011 ANSWER TO PETITION FOR REVIEW Frederick «. Ohirich Clerk After the Unpublished Decision by the CourtofAppealehu'y First Appellate District, Division Four Filed March 30, 2011 LINDA M. LEAVITT Attorney at Law (No. 95519) PMB No. 312 5214-F Diamond Hts. Blvd. San Francisco, CA 94131 (415) 682-7000 Attorney for Appellant By appointmentto the Court under the First District Appellate Program Independent Case System IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Case No. 8192644 Plaintiff, Appellate Case No. A124392 VS. San Francisco County Case Nos. 175503; 203443 TARE NICHOLAS BELTRAN, Defendant. ANSWERTO PETITION FOR REVIEW After the Unpublished Decision by the Court of Appeal First Appellate District, Division Four Filed March 30, 2011 LINDA M. LEAVITT Attorney at Law (No. 95519) PMBNo. 312 5214-F Diamond Hts. Blvd. San Francisco, CA 94131 (415) 682-7000 Attorney for Appellant By appointmentto the Court underthe First District Appellate Program Independent Case System TABLE OF CONTENTS ANSWERTO PETITION FOR REVIEW Summary of Relevant Facts ARGUMENT THIS IS NOT A REVIEW-WORTHYCASE BECAUSE THIS UNPUBLISHED DECISION DOES NOT CHANGE EXISTING LAW, DOES NOT RESULT FROM A CONFLICT IN THE LAW, CALCRIM 570 HAS BEEN MODIFIED AND THE DISSENT WAS BASED ONLY ON PREJUDICE AND DOES NOT OTHERWISE CONFLICT WITH THE MAJORITY OPINION A. Introduction B. The Unpublished Opinion Is Based on Najera, Which Is Based on Long-Standing Precedent, and ThereIs No Disagreement with Najera C. The Challenged Jury Instruction Has Been Modified; Review Is Unnecessary on This Issue CONCLUSION TABLE OF AUTHORITIES STATE CASES In re Thomas C. (1986) .183 Cal.App.3d 786 ........ 0.0.0... eee eee 7 People v. Berry (1976) 18 Cal.3d 509 0.0.0... eee 4.5 People v. Borchers (1958) 50 Cal.2d 321 2.0.0.0... eee eee 4,5 People v. Breverman (1998) 19 Cal.4th 142 ............0..... 2,4, 7,8 People v. Brooks (1986) 185 Cal.App.3d 687 ............ 00.00.0000 5 People v. Elmore (1914) 167 Cal. 205 0... 0.eee 5 People v. Fenebock (1996) 46 Cal.App.4th 1688 ................. 5,6 People v. Flannel (1979) 25 Cal.3d 668 2.0... 0.0.0... 5 People v. Lee (1999) 20 Cal.4th 49 02... 7 People v. Najera (2006) 138 Cal.App.4th 212 ........... 0 cece ee 2,3,4,7,8 People v. Superior Court (Henderson) (1986) 170 Cal.App.3d 516 .......... 5 People v. Valentine (1946) 28 Cal.2d 121 1.2.0.0... eee 4 MISCELLANEOUS CALCRIM 570 Loeeee ee 2, 3,8 CALIIC 8.42 eetenet eee eens 8 1 Witkin & Epstein, Cal.Criminal Law, (2d ed. 1988) .................005. 5 ii IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Case No. 8192644 Plaintiff, Appellate Case No. A124392 VS. San Francisco County Case Nos. 175503; 203443 TARE NICHOLAS BELTRAN, Defendant. ANSWERTO PETITION FOR REVIEW TO THE HONORABLE CHIEF JUSTICE CANTIL-SAKAUYE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Summaryof Relevant Facts For purposes ofthis petition, appellant adopts the procedural history and statement of facts from the unpublished Court of Appeal Opinion appendedto the State's petition for review as Exhibit A. ARGUMENT THIS IS NOT A REVIEW-WORTHY CASE BECAUSE THIS UNPUBLISHED DECISION DOES NOT CHANGEEXISTING LAW, DOES NOT RESULT FROM A CONFLICT IN THE LAW, CALCRIM 570 HAS BEEN MODIFIED AND THE DISSENT WAS BASED ONLY ON PREJUDICE AND DOES NOT OTHERWISE CONFLICT WITH THE MAJORITY OPINION A. Introduction Respondentasserts that review is necessary to resolve the fundamental and long-standing conflict in the proper standard for provocation in heat of passion manslaughter and to establish the proper scope of permissible argumentby the prosecution in inviting the jury to consider an ordinary person's potential reaction to the provocation. (Respondent’s Petition, p. 9.) Appellant disagrees. Basically, there is no conflict. The instant case relied on Peoplev. Breverman (1998) 19 Cal.4th 142, 163 and People v. Najera (2006) 138 Cal.App.4th 212. Najera also relied on Breverman, which in turn relied on previous cases decided by this Court. As noted below, the cases cited by respondent as causing a conflict are not in conflict with the issue in this case. Since Najera was decided, in 2005, no published or unpublished case has disagreed with its ruling that the focus in a voluntary manslaughter case “is on the provocation—the surrounding circumstances—and whetherit wassufficient to cause a reasonable person to act rashly. How thekiller respondedto the provocation and the reasonableness of the responseis not relevant to sudden quarrel or heat of passion” (People v. Najera, supra,at p. 223) andthatit is prosecutorial misconduct to focus on the killer's response to the provocation. Thus, there is no conflict in the appellate courts in applying the Najera decision. In addition, following Najera, CALCRIM 570 was modified a few monthslater, in December 2008, on the precise issue raised by appellant here. The jury instruction has now corrected the error contained in CALCRIM 570 and the issue in this case is unlikely to recur. Thus, this case focusing on the previous version of the instruction is not the best vehicle to decide this issue. Finally, the dissent in this case did not disagree with the legal analysis in the majority opinion, it only decided that the error was harmless under the facts and circumstances in this case. A fact based analysis such as this, is not worthy of review becauseit is limited to this case only. B. The Unpublished Opinion Is Based on Najera, Which Is Based on Long-Standing Precedent, and There Is No Disagreement with Najera In People v. Najera, supra, 138 Cal.App.4th at pp. 223-224,the court found that portions of the prosecutor's statements were incorrect. The court then stated: "An unlawful homicide is upon “ ‘a sudden quarrel or heat of passion’ ”if the killer's reason was obscured by a “ ‘provocation’ ” sufficient to cause an ordinary person of average disposition to act rashly and without deliberation. (People v. Breverman (1998) 19 Cal.4th 142, 163 [77 Cal. Rptr. 2d 870, 960 P.2d 1094].) The focusis on the provocation—the surrounding circumstances—and whetherit was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (People v. Najera, supra, at p. 223) The quotation from Brevermancited People v. Berry (1976) 18 Cal.3d 509, 515, quoting People v. Valentine (1946) 28 Cal.2d 121, 139 and cited People v. Borchers (1958) 50 Cal.2d 321, 328-329. (People v. Breverman, supra, at p. 163.) Thus, the decision in this case, reversing appellant’s convictions werethe result of long- standing holdingsin this Court. Respondentis incorrect that under the holding in this case any activity of the victim igniting the passion that results in any degree of rashnessin an ordinary person is adequate provocation even if "the passion would be wholly insufficient to triggering legal or violent response by that person." (Respondent’s Petition, p. 11.) Case law has long defined the type of triggering events which are adequate which have been heldto constitute legally adequate provocation for voluntary manslaughter provocation (See, People v. Brooks (1986) 185 Cal.App.3d 687 [the murder of a family member]; People v. Elmore (1914) 167 Cal. 205, 211 [a sudden and violent quarrel]; People v. Berry (1976) 18 Cal.3d 509, 515 [infidelity of wife]; People v. Borchers (1958) 50 Cal.2d 321 [infidelity of paramour] and those whichare not, such as simple trespass or simple assault. (See People v. Flannel (1979) 25 Cal.3d 668, 684-685; | Witkin & Epstein, Cal.Criminal Law, (2d ed. 1988) Crimes Against the Person, § 513, pp. 580-581.) That standard is not changed bythis decision. Respondent did not argue in the appellate court that the provocation in this case was insufficient to allow a voluntary manslaughter defense and instruction. Respondent does not challenge that decision in this petition for review. Thus, this case does not present that issue and review is not required on this issue. Respondentstated that the Court ofAppeal rejected two other decisions, People v. Fenebock (1996) 46 Cal.App.4th 1688 and People v. Superior Court (Henderson) (1986) 170 Cal.App.3d 516. (Respondent’s Petition, p. 11, citing Opinion, pp. 17-18.) Respondent misrepresents the decision by the Court of Appeal. The Court of Appeal did not “reject” the two other decisions,it stated that “[iJn our view, neither of these cases supports such a proposition. (Opinion, p. 11.) Appellant agrees that these decisions do not stand for the proposition represented by respondent. The Fenebockcase distinguished the necessity for acting rashly in the heat of passion from what was adequate provocation. It did use the shorthand "produce a lethal response"butit did not purport to create a new standard. (People v. Fenebock, supra, at pp. 1703-1704.) In People v. Henderson, supra, the court was dealing with the dismissal of murder charges and the refusal to reinstate them after a preliminary hearing where the court found that the crime could be no more than voluntary manslaughter. The court reversed that decision, and issued a peremptory writ allowing the prosecution to proceed on murder charges. It did describe the concept of heat of passion as being one "where the provocation would trigger a homicidal reaction" but again, it used the phrase as a shorthand description anddid not purport to create a new standard. Henderson did not concern jury instructions or prosecutorial misconduct and did not discuss the propriety of the issues addressed here;it is mere dicta in relation to this case. (People v. Henderson, supra,at p. 524.) In the samelight, the cases cited by respondent where the court used the phrase "deadly passion" or "homicidal rage" was again the court’s use of shorthand to describe the adequacy ofcertain types of provocation. (See, Respondents Brief, pp. 13-14.) They did not discuss the standard by which a defendant would then act if the provocation had been sufficient. This is particularly true in People v. Lee (1999) 20 Cal.4th 49. The quoted phrase: [t]he provocation which incites the defendant to homicidal conductin the heat of passion must be caused by the victim” is based on Jn re ThomasC. (1986) 183 Cal.App.3d 786, 798. In re Thomas C. found that the objective or reasonable person elementof sufficient provocation had not been met by the Minor's depressed mentalstate and that it could not be the provocation, because the provocation must be from the victim. Jn re Thomas C. never used the phrase “homicidal conduct.” Thus, Lee ’s description of the “conduct” as “homicidal conduct” is not based on precedent and was never meant to change precedent; it merely was a phrase used by the court as shorthand. Basically, there is no conflict. Najera relied on Breverman and Breverman relied on previous cases decided by this Court. Najera does not disapprove or conflict with precedent; this unpublished opinion does not conflict with precedent. In addition, since Najera has been decided, no published or unpublished decision has disagreed with it. There is no conflict. C, The Challenged Jury Instruction Has Been Modified; Review Is_ Unnecessary on This Issue Respondent second question involves whether CALCRIM 570 constitutes prejudicial error. The version of CALCRIM 570 discussed in this unpublished Opinion was modified in 2008. The modified instruction is now similar to CALJIC 8.42 which preceded it. The issue in this case is unlikely to recur. Thus, the modified instruction now is a correct statement of the law as stated in Breverman and other cases cited herein. This case, focusing on the previous version ofthe instruction, is not the best vehicle to decide this issue. Finally, the dissent in this case did not disagree with the legal analysis in the majority opinion; it only decided that the error was harmless underthe facts and circumstancesin this case. A fact based analysis such as this, is not worthy of review becauseit is limited to this case only. CONCLUSION For the reasons stated above, appellant requests that the Court deny review. Dated: May 15, 2011 Respectfully Submitted, Linda M. Leavitt Attorney for Appellant Tare Nicholas Beltran CERTIFICATE OF LENGTH I, Linda M.Leavitt, counsel for appellant, certify pursuant to the California Rules of Court, that the word count for this document is 1606 words, excluding thetables, this certificate, and any attachment permitted under rule 8.504. This document was prepared in WordPerfect X5, and this is the word count generated by the program for this document. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed, at San Francisco, California on May 15, 2011. Linda M. Leavitt Attorney for Appellant Tare Nicholas Beltran PROOE OF SERVICE I, the undersigned, declare: I am over eighteen years of age and not a party to the above action. My business address is PMB NO.312, 5214-F Diamond Hts. Blvd., San Francisco, California, 94131. On May 17, 2011, I served a copy of ANSWERTO PETITION FOR REVIEW by placing a true copy thereof in a sealed envelope with postage fully prepaid, in the U.S. mail at San Francisco, addressedto: ATTORNEY GENERAL, STATE OF CALIFORNIA 455 Golden Gate Ave. # 11000 San Francisco, Ca., 94102 (Attorney for Petitioner) FIRST DISTRICT APPELLATE PROJECT 730 Harrison St. # 201 San Francisco, California, 94102 Mr. Tare Nicholas Beltran Chuc G47484 P.O. Box 2210 Susanville, CA 96127-2210 Matthew Rosen Deputy Public Defender 555 Seventh Street San Francisco, CA 94103 District Attorney 850 BryantSt. San Francisco, CA 94103 San Francisco County Superior Court 850 BryantSt. San Francisco, CA 94103 Clerk, Court of Appeal First App. Dist., Div. 4 350 McAllister St. San Francisco, Ca., 94102 I declare under penalty of perjury that the foregoingis true and correct. Executed on May 17, 201 lat San Francisco, California. LINDA M. LEAVITT