P. v. Estell



















Filed 1/11/13 P.
v. Estell CA2/5

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115>.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FIVE




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THE PEOPLE, Plaintiff and Respondent, v. STEVEN DAVID ESTELL, Defendant and Appellant.

B237766 (Los Angeles County Super. Ct. No. MA049193) ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]

THE COURT:

It
is ordered that the opinion filed herein on December 12, 2012, be modified as follows.

On
page 4, the second full paragraph should read:


A psychologist testified defendant suffered from
intimate partner battering syndrome, post-traumatic stress disorder (PTSD),
major depressive disorder, and alcohol dependent disorder. Intimate partner battering syndrome and PTSD
affected defendant’s perception of the need to use self-defense.

There is no
change in judgment.



TURNER, P. J. MOSK,
J.

Filed 12/12/12 P. v. Estell CA2/5 (unmodified version)

>NOT TO BE PUBLISHED IN THE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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
FIVE






>

THE PEOPLE, Plaintiff and Respondent, v. STEVEN DAVID ESTELL, Defendant and Appellant.

B237766 (Los Angeles County Super. Ct. No. MA049193)

APPEAL from a judgment of the
Superior Court of Los Angeles County, Bernie C. LaForteza, Judge. Affirmed.

Leslie Conrad, under appointment by
the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Blythe J. Leszkay and Michael Katz, Deputy Attorneys General,
for Plaintiff and Respondent.



______________________________

The jury found defendant Steven
David Estell guilty of the second degree murder of Sandra Jones (Pen. Code, §
187, subd. (a))href="#_ftn1"
name="_ftnref1" title="">^[1] and disobeying a domestic relations order (§ 273.6,
subd. (a)), a misdemeanor. The jury also
found that defendant personally used a deadly or dangerous weapon in the
commission of the murder. (§ 12022,
subd. (b)(1).) Defendant was sentenced
to 16 years to life in state prison and a consecutive jail term of one year.

In this timely appeal, defendant
contends: (1) the trial court abused its discretion in
excluding a relevant portion of his interview with the police; and (2) he was denied effective assistance of counsel
when his attorney failed to object to the prosecution’s improper closing
argument. We conclude the court did not
abuse its discretion and defendant was not denied effective assistance of
counsel. Accordingly, we affirm the
judgment.



STATEMENT OF FACTS



Prosecution
Case



Defendant was Jones’s
boyfriend. They frequently drank to
excess, argued, and had violent physical fights. On one occasion, Jones threatened to kill
defendant with a knife. On December 17,
2009, defendant and Jones had an angry argument. Defendant kicked in the front door and the
bedroom door to get to Jones and punched her in the face. On January 4, 2010, the superior court issued
a criminal protective order prohibiting defendant from having contact with
Jones. Defendant claimed Jones had hit
him on the head with a bottle. He told
Jones’s neighbor that “he was going to kill her for bashing in his head.” A restraining order was issued against
defendant.

On May 21, 2010, defendant killed
Jones. He knocked her to the floor by a
blow to the face and then stood over her and bashed in her head with a wooden
baseball bat. He also beat her with the
bat on the back and shoulders. There was
no struggle, and Jones had no opportunity to try to defend herself. Jones suffered no defensive wounds, and
defendant was uninjured. Defendant
pushed some of Jones’s pills into her open wounds and covered the upper part of
her body with a blanket.

Defendant gave two interviews to the
police. In the first interview, he
denied any involvement in the death. He
said Jones was in her bedroom the evening she died watching soap operas on
television and drinking, while he watched the big television in the living
room. Everything was cool between them;
she was not drunk and they did not really argue or hit each other. They argued “a little bit” that night “but
nothing . . . physical.” He stated she
was an argumentative and slightly violent person. “[S]he was kind of dangerous, . . . but not
me.” He went out for a while and found her
dead when he returned. There was blood
on his shoes, which he explained was his own blood from the week before when
she stabbed him in the chin with a little fork, not leaving a mark.

In the second interview, defendant
stated Jones went off on him every day and less than a year earlier hit him on
the head causing a laceration. Defendant
admitted he killed her, but it was not intentional. He said she picked up a wooden baseball bat
and swung it at him first, before he grabbed it and swung back at her. He denied being aware how many times he hit
her or where he disposed of the bat. He
stated, “I got tired of getting . . . busted up all the time.” He stated that the last time she hit him,
which was during the prior year, she locked herself in her room and he broke
the door in. Defendant displayed what he
stated were the scars and marks of where she had hit him in the past: a large scar on his face; ten staples in his
head; and marks under his eye and on his nose.
Moreover, she bit him on the lip the previous year.

Defendant was aggressive and violent
with his female partners, and with others.
He threatened to kill Jones’s house mate with an eight-inch knife
blade. He threatened to kill his ex-wife
on numerous occasions. He tracked her
down, made threats, and broke windows of her house, injuring her young
son. Defendant was the subject of a
restraining order to protect the ex-wife, and in 2009, he violated the
order. He was also violent with an
ex-girlfriend with whom he had three children.
She obtained a permanent restraining order against him in January
2009.



Defense
Case



A friend of Jones testified Jones
was abusive and violent toward defendant.
Jones would strike him on the head, kick him in the testicles, and push
him. On two occasions in 2009, without
provocation, she put a knife against his throat and threatened to cut him. She did these things for no reason; he did
not provoke her. The friend never saw
defendant be violent with Jones and or fight back.

A psychologist testified Jones
suffered from intimate partner battering syndrome, post-traumatic stress
disorder (PTSD), major depressive disorder, and alcohol dependent
disorder. Intimate partner battering
syndrome and PTSD affected defendant’s perception of the need to use self-defense.



>DISCUSSION



Evidentiary
Ruling



The prosecution asked the trial
court to admit into evidence a redacted version of defendant’s interviews with
the police. Defendant objected that one
of the redactions in the first interview was his statement about an injury
Jones inflicted on him in the past:
“‘She hit me with a bottle. See
this injury here.’” Defendant requested
that the first interview be admitted, if at all, in its entirety, under the
rule of completeness. The court denied
defendant’s request, finding Evidence Code section 356 did not apply. “[T]he first portion where he talks about his
injuries . . . [is] a separate conversation, and the rule of completeness would
not apply. . . . [¶] . . . I’ll allow the People . . . to admit
those areas where he’s only talking about the incident as statements against
his interest.” Defendant’s statement
about prior injuries “doesn’t indicate what happened as opposed to the
defendant said he had injuries. It is
two separate -- one is an admission, and the other is a self-serving statement
in terms of what happened to him in terms of his injuries.”

Defendant
contends the ruling was an abuse of discretion.
We disagree with the contention.

“On appeal, we apply an abuse of
discretion standard of review to
any ruling by a trial court on the admissibility
of evidence.” (People v. Guerra (2006) 37 Cal.4th
1067, 1140.) “A trial court abuses its
discretion when its ruling ‘fall[s] “outside the bounds of reason.”’ [Citations.]”
(People v. Waidla (2000) 22 Cal.4th 690, 714.)

“‘“Only relevant evidence is
admissible [citations], and all relevant evidence is admissible unless excluded
under the federal or California Constitution or by statute. [Citations.]
Relevant evidence is defined in Evidence Code section 210 as evidence
‘having any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.’ The test of relevance is whether the evidence
tends ‘“logically, naturally, and by reasonable inference” to establish
material facts . . . .
[Citations.]’ [Citation.] The trial court has broad discretion in
determining the relevance of evidence [citations] . . . . [Citations.]”
[Citation.]’ [Citation.]” (People v. Carter (2005) 36 Cal.4th
1114, 1166–1167.)

Evidence Code section 356
provides: “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the
whole on the same subject may be inquired into by an adverse party; . . . and when
a detached act, declaration, conversation, or writing is given in evidence, any
other act, declaration, conversation, or writing which is necessary to make it
understood may also be given in evidence.”

“The purpose of [Evidence Code
section 356] is to prevent the use of selected aspects of a conversation, act,
declaration, or writing, so as to create a misleading impression on the
subjects addressed. [Citation.] Thus, if a party’s oral admissions have been
introduced in evidence, he may show other portions of the same interview or
conversation, even if they are self-serving, which ‘have some bearing upon, or
connection with, the admission . . . in evidence.’ [Citations.]”
(People v. Arias (1996)
13 Cal.4th 92, 156.) “Application of
Evidence Code section 356 hinges on the requirement that the two portions of a
statement be ‘on the same subject.’” (>People v. Vines (2011) 51 Cal.4th 830,
861.)

The subject of the first
interview is defendant’s claim of a lack of knowledge about who killed Jones
and his assertion their relationship the night she died was essentially
peaceful and harmonious. The subject of
the redacted statement is Jones’s hitting him with a bottle on a prior
occasion, which left a mark. These are
different subjects. The redacted
statement has no bearing on defendant’s story that everything was fine between
them that night and he had nothing to do with her death. Accordingly, the trial court did not abuse
its discretion in concluding Evidence Code section 356 did not apply.

Exclusion of the
statement was harmless in any event, because, under the circumstances of the
case, “it is not reasonably probable that admission of the . . . evidence would
have resulted in a more favorable verdict.
(People v. Watson
[(1956] 46 Cal.2d 818, 836.)” (>People v. Arias, supra, 13 Cal.4th at p. 157.)
The record contains numerous references to injuries Jones inflicted on
defendant during the course of their relationship. Moreover, while it did not come in with the
first interview, evidence of this specific prior injury came in through other
witnesses and exhibits. The
outcome of the trial was not affected by the trial court’s ruling.



Ineffective
Assistance of Counsel



Defendant contends counsel was
ineffective in failing to object to the prosecutor’s statement to the jury, “In
order for you to find that the defendant killed Miss Jones in the heat of
passion, you have to accept his statement that Miss Jones swung the bat at him
first.” We conclude counsel’s failure to
object was not ineffective assistance.

“To secure reversal of a conviction
upon the ground of ineffective
assistance of counsel under either the state or federal Constitution, a
defendant must establish (1) that defense counsel’s performance fell below an
objective standard of reasonableness, i.e., that counsel’s performance did
not meet the standard to be expected of a reasonably competent attorney, and
(2) that there is a reasonable probability that defendant would have obtained a
more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25
Cal.4th 926, 1003, citing Strickland
v. Washington (1984) 466 U.S. 668, 687-694.) “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ (Strickland
v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22
Cal.4th 1153, 1175.)” (People v.
Cunningham, supra, at p. 1003.)

The jury was instructed in the
language of Judicial Council of California Criminal Jury Instructions
(2010-2011) CALCRIM No. 570: “A killing
that would otherwise be murder is reduced to voluntary manslaughter if the
defendant killed someone because of a sudden quarrel or in the heat of
passion. [¶] The defendant killed someone because of a
sudden quarrel or in the heat of passion if:
[¶] 1. the defendant was provoked; [¶]
2. As a result of the
provocation, the defendant acted rashly and under the influence of intense
emotion that obscured his or her reasoning or judgment; [¶] and
[¶] 3. The provocation would have caused a person of
average disposition to act rashly and without due deliberation, that is, from
passion rather than from judgment.
[¶] Heat of passion does not
require anger, rage, or any specific emotion.
It can be any violent or intense emotion that causes a person to act
without due deliberation and reflection.
[¶] In order for heat of passion
to reduce a murder to voluntary manslaughter, the defendant must have acted
under the direct and immediate influence of provocation as I have defined
it. While no specific type of
provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short
or long period of time. [¶] It is not enough that the defendant simply
was provoked. The defendant is not
allowed to set up his or her own standard of conduct. . . . In deciding whether the provocation was
sufficient, consider whether a person of average disposition, in the same
situation and knowing the same facts, would have reacted from passion rather
than from judgment. [¶] If enough time passed between the provocation
and the killing for an ordinary person of average disposition to ‘cool off’ and
regain his or her clear reasoning and judgment, then the killing is not reduced
to voluntary manslaughter on this basis.
[¶] The People have the burden of
proving beyond a reasonable doubt that the defendant did not kill 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 murder.”

“‘Murder
is the unlawful killing of a human being with malice aforethought. (See § 187, subd. (a).) A murder, however, may be reduced to
voluntary manslaughter if the victim engaged in provocative conduct that would
cause an ordinary person with an average disposition to act rashly or without
due deliberation and reflection.’
[Citation.] [¶] Heat of passion has both objective and
subjective components. Objectively, the
victim’s conduct must have been sufficiently provocative to cause an ordinary
person of average disposition to act rashly or without due deliberation and
reflection.
[Citations.] . . .
[¶] Subjectively, ‘the accused
must be shown to have killed while under “the actual influence of a strong
passion” induced by such provocation.
[Citation.] “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.’ [Citations.]”
[Citation.]’ [Citation.]” (People
v. Enraca (2012) 53 Cal.4th 735, 759.)

Defendant’s theory of the case was
he killed Jones in self-defense: because
of her violence toward him in the past, he believed Jones’s swinging the bat at
him placed him in imminent danger of great bodily injury. Counsel also asked the jury to consider
provocation, to reduce defendant’s culpability to voluntary manslaughter but
did not advance any basis other than Jones’s assault with the bat as the factual
basis for a finding of provocation.

Concerning voluntary manslaughter,
the prosecution argued to the jury: “In
order for the defense to show that the defendant acted out of heat of passion,
the defendant has to prove that he was provoked and that the provocation was
the type that would excite or arouse the passion in an ordinary, reasonable
person in the same circumstances and that the defendant acted under the
influence of that passion. [¶] In order for you to find that the defendant
killed Miss Jones in the heat of passion, you have to accept his statement that
Miss Jones swung the bat at him first.”

The prosecutor’s statement of the
application of the law to this case was correct. The only provocation presented by the record
that could have been a “direct and immediate influence” acting on defendant
when he killed Jones in May 2010 was Jones’s assault with the baseball
bat. (CALCRIM No. 570.) The record contains no evidence the killing
occurred when he was under the influence of any provocative act other than
Jones’s assault with a baseball bat.
Jones’s assaults in 2009 were remote and her recent assault on his chin
with a “little fork,” which left no mark, was both remote and minor. Defendant’s expert did not testify that
intimate partner battering syndrome or PTSD would lead defendant to attack
Jones if she did not attack him first.
Neither at trial nor on appeal has defendant identified a factual basis,
apart from the evidence Jones swung the bat at him, to support a finding the
killing was in the heat of passion.

Because the prosecution’s statement
of the law as it applied in this case was unobjectionable, counsel was not
ineffective in failing to object to it.



DISPOSITION



The judgment is affirmed.





KRIEGLER, J.





We concur:





TURNER, P. J.





MOSK, J.