P. v. Hussey
Filed 8/9/12 P. v. Hussey CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
WILLIAM THOMAS HUSSEY,
Defendant
and Appellant.
E052750
(Super.Ct.No. FVI902343)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Jules E. Fleuret, Judge. Affirmed
as modified.
Tonja
R. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr., and
Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant
William Thomas Hussey appeals from his conviction of
subd. (b)(1), (b)(3)(B)). He contends
the trial court erred in refusing his counsel’s request to modify the flight instruction
to inform the jury that flight was circumstantial
evidence of guilt, and as such, was subject to all the restrictions on the
use of circumstantial evidence. We find
that any error was harmless. Defendant
also contends, and the People agree, that the parole revocation fine imposed
under section 1202.45 must be changed to match the restitution fine imposed
under section 1202.4. We will order the
minute order and abstract of judgment to be amended accordingly.
II. FACTS AND PROCEDURAL BACKGROUND
In
October 2009, defendant was living with his mother, Mary Hussey, in
Hesperia. Mary was over 70 years old and
had suffered a stroke that left her unable to completely care for herself; she
also had trouble speaking clearly.
Defendant’s son, A.H. (eight years old at the time of trial), and
defendant’s mentally ill brother, Alan, also lived there. A friend, Steven Collett, was living in an RV
parked at the side of Mary’s house. The
house doors were generally left unlocked and Collett could enter the house as
he pleased.
A.H. testified that on Friday, October 16, 2009,
defendant became upset and yelled at Mary about her dogs. While they were arguing, A.H. saw defendant
put his hand over Mary’s nose and mouth three times so she could not
breathe. Defendant broke Mary’s
eyeglasses and her phone. Defendant
followed Mary into her bedroom and hit her while she cried out for help. A.H. saw Mary lying on the floor near the
window. Defendant told A.H. not to tell
anyone.
At
trial, A.H. testified that he did not see defendant hitting Mary, but he
thought he might have told his mother, Christine Decker, he had seen that. A.H. told Decker he had seen defendant
“hitting [Mary] again and again and again and that he wouldn’t stop.” A.H. also told Decker he had heard Mary
calling for help, and he had seen defendant “hitting her, beating her, and he
couldn’t understand why [defendant] didn’t stop.” A.H. told Decker defendant was responsible
for Mary’s death. A.H. said defendant
was striking Mary in the face.
Defendant
told Collett that he, Alan, and A.H. were going fishing, and the three left the
house around 10:15 or 10:30 a.m. on Saturday, October 17, 2009. A.H. saw Mary asleep on the couch. Defendant told A.H. to say goodbye to her
because it was going to be the last time he saw her. Mary woke up before they left, and A.H. gave
her a hug and said goodbye. He did not
see any injuries on her. He got in the
car and waited for defendant, who was still in the house. He did not see his grandmother again. A.H. had previously told a deputy that the
last time he had seen Mary was on Friday night.
At trial, he testified that he did not remember saying that. He said his recollection of what had happened
was fresher shortly after the events happened.
A.H. did not remember telling his mother that defendant had killed Mary.
Deputy
Michael Cleary testified that he had interviewed A.H. in August 2010. A.H. told the deputy that defendant had
beaten Mary. A.H. had seen defendant put
his hand over Mary’s nose and mouth three times for several seconds so she
could not breathe, and he had seen defendant break Mary’s glasses by throwing
them against the wall. A.H. saw Mary
lying on the floor of her bedroom with one arm reaching up toward the
window. Defendant told him not to tell
anyone. A.H. told the deputy he saw the
whole thing happening. A.H. also told the
deputy he had never seen any injuries on Mary.
On Saturday,
instead of going fishing, defendant drove to Decker’s home in Pahrump,
Nevada.
Defendant had not told Decker they were coming, and she had not seen
A.H. in a year. Defendant asked her to
keep A.H. for about a week. She agreed,
and defendant left with Alan. Defendant
told Decker he wanted to see his ex-wife, Vicki Huckaba, and his daughter and
stepson, Michael Stevens. Decker called
them on defendant’s cell phone.
Defendant told Decker he was going to a casino to meet Stevens, and
defendant left with Alan. Defendant told
her his mother had given him a credit card with a $10,000 limit to use for food
and gas. Decker did not hear from him
again until the next day, October 18.
Stevens
figure to him since Stevens was three years old. In October 2009, defendant and Stevens had a
“pretty good” relationship, although they had not seen one another for seven or
eight years. Defendant invited Stevens
to meet him for dinner at a casino.
While they were there, defendant gave Stevens Mary’s credit card to use
to buy gas. Defendant told Stevens he
had to return to California to
“take care of a body.” He said he had
just killed someone, and it was the hardest thing to do—it had taken 10 minutes
and three tries. Stevens testified he
did not ask defendant any questions but just wanted to get away from him. Defendant seemed to be “like dead
serious.” Twice when Stevens was about
13 years old, defendant told him defendant “was involved in a lot of bad
things, and he killed someone,” but defendant did not elaborate, and Stevens
had not asked him any questions, although Stevens did not believe
defendant. Stevens left and dropped off
methamphetamine for several friends.
Stevens later asked his sister to telephone Mary to see if everything
was all right. Stevens testified he did
not know who Collett was. Defendant
asked Stevens for some methamphetamine, but Stevens did not provide him any,
because defendant wanted to use a credit card to buy items to exchange for the
drug, and Stevens “strictly t[ook] cash.”
Defendant’s
ex-wife, Vicki Huckaba, testified that defendant had telephoned her on
October 17, 2009, and asked if she wanted to party. He said he had a credit card that had $30,000
on it. Huckaba was concerned when she
learned that defendant had Alan with him “[b]ecause Alan had a mental problem,
and Mary would never allow him to go with [defendant] anywhere like that
alone.” Defendant’s relationship with
Stevens had been “stressed” in the past.
Stevens told her that defendant was “acting funny” and had said he
killed someone and had to go back to get rid of the body. Huckaba tried to call Mary but no one
answered. She contacted defendant’s
brother, Brian Hussey. Brian tried
unsuccessfully to call Mary on her cell phone, and he then contacted the police
and requested them to do a welfare check on her.
Collett
testified that defendant told him he was going to go to yard sales with Mary
and Alan on Friday, October 16, 2009, but they never did so. Defendant seemed upset and asked Collett to
purchase drugs for him. When Collett
returned with the drugs, defendant did not want him to enter the house, but
Collett went in anyway. He saw Mary come
out of her bedroom with a black eye, and he asked defendant what had happened. Defendant said he had accidentally elbowed
her. Defendant did not seem upset, and
Mary did not say anything. Later that
evening, defendant again told Collett he could not come into the house, and
still later, Collett found that the doors were locked. Defendant came out to the RV and asked
Collett to copy down information from Mary’s credit card and identification
card. Collett wrote the information on a
napkin and gave it to defendant.
Collett
went into Mary’s house through the garage door on Saturday to use the bathroom
and get a drink of water. He did not see
or hear anyone inside, and he noticed that all the doors down the hallway were
closed, although they were normally left open.
Defendant’s
brother, Clayton Hussey, stopped by Mary’s house that evening but found the
house dark and all the doors locked, which was unusual. It appeared that no one was home.
Deputy
Jason Schroeder interviewed Collett.
Collett said that on October 16, 2009, defendant had become upset
about Mary’s dog and continued to be upset all that day. At one point Hussey stood in the doorway and
tried to block Collett from entering Mary’s house, but Collett walked around
him. He said Mary had a bruise on her
face and her glasses were broken; she “had a look on her face like ‘Help me.’” Hussey stated, “‘It’s not how it looks,’” and
explained he had accidentally elbowed her when they were walking down the
hall. Collett asked Hussey to go with
him to get drugs so as to “cool off.”
Hussey told Collett to get the drugs and come back. Before Collett left, Mary walked back toward
her bedroom, and defendant followed her into the bedroom and shut the
door. Alan and A.H. were both in the
living room. Collett went out to get the
drugs and then returned to the house. He
did not see Mary again. Hussey had come
out to the RV and asked Collett for a piece of paper and a pen, which Collett
gave him. Hussey had Mary’s
identification card and credit card, and he asked Collett to write down
information from them and “‘hang on to it.’”
Collett gave the deputy a note that contained Mary’s information.
Deputy
Schroeder was contacted to conduct a welfare check on Mary on Sunday. He went the Mary’s front door, where he saw a
note that read, “mom is at the stores will be back at 200” No one answered when the deputy knocked, and
the door was locked. The deputy knocked
at Collett’s door, and Collett helped the deputy enter the house.
Deputy
Schroeder found dentures on the floor in the hallway. One of the bedroom doors was locked, but the
deputy opened it with a screwdriver. He
found Mary lying below the window, partially underneath a chair. She was gasping for air and had a faint
pulse, but she was motionless and unresponsive.
She was transported to the hospital, where she died a week later from
the combined effect of “blunt force, head and chest injuries.” The autopsy revealed multiple fractured ribs,
including displaced fractures, on both sides; a fractured arm; and extensive
bruising to her upper arm typically associated with being hit, squeezed, or
gripped strongly. Bruises to her face
and gums were consistent having a hand placed over her mouth to suffocate her
or stop her from shouting.
The deputy
searched the house but did not find any drugs or drug paraphernalia. The window screen to Mary’s bedroom was off.
On
Sunday morning, Clayton went to Mary’s house and saw a deputy sheriff’s vehicle
there. After the deputies left, he was
watering her plants when he saw defendant drive, turn around, and drive
back. They made eye contact, and
defendant stopped in front of the house without pulling into the driveway. Clayton yelled something like, “‘What did you
do to mom The police are looking for
you hard.’” Defendant did not say
anything, but drove off.
Defendant
telephoned Decker on October 18 and said that if he was not in Pahrump within
three hours, to call a mutual friend, “because it meant he had been arrested
and she would know why.” He called again
to say that his credit card had been declined, and he needed to wait for
someone to give him gas. Defendant
started crying and said his mother had died while he was gone, and he would
tell Decker how when he got there.
Defendant was arrested later on October 18. Mary’s credit card and ID were found in his
van.
Defense Evidence
Defendant
testified in his own behalf.
name="_ftnref3" title="">[3] He denied being upset with Mary on October
16, 2009, and he denied murdering her.
He said she had given him her credit card and ID card to use.
He
testified that on October 16, 2009, he and Mary had gone to yard sales and
then had picked up A.H. from school. When
they returned home, defendant found Alan in Collett’s RV getting high with
Collett. Defendant became upset and told
Collett he needed to leave. Collett
begged to stay two more days, and Mary agreed, but asked defendant to make sure
the drugs were off the property.
Defendant stated Collett had been living in the RV for about a week and
was supposed to be fixing things around the house and on the RV. Collett came into the house at all hours of
the day, and defendant began to feel Collett was abusing their friendship.
When
defendant and Mary returned that day, they found the yard gates open, and one
of the dogs appeared to be missing. Alan
and Collett blamed each other for leaving the gates open.
Defendant
acknowledged he had put his hand over Mary’s mouth. He explained that he heard her yell for help
and found her on the floor in the bedroom.
He could not understand what she was saying, so he put his hand on her
mouth to quiet her as one would quiet a child.
He denied covering her mouth and nose so she could not breathe. He also denied being angry with her on
October 16, 2009, and he denied breaking her glasses or her phone.
Mary
gave him her credit card and identification card on October 16, 2009. She let him use her credit card when he
needed, and he kept receipts and reimbursed her. He put the cards in a cigarette pack and left
them in the van overnight. He denied
showing the cards to Collett or asking Collett to copy information from the
cards.
Saturday
morning he decided to take A.H. to Pahrump to see his mother. He saw Mary asleep on the couch, and she
appeared to be uninjured. He and A.H.
wanted to surprise Decker, so they did not call to tell her they were coming. He also stated he did not have Decker’s or
Huckaba’s telephone numbers. He had not
seen Stevens for about 15 years, and they had had a terrible relationship in
the past. He denied asking Stevens to
purchase methamphetamine for him. He did
use the credit card to purchase gas, milk, and cigarettes for Stevens.
Defendant
started to drive back to Hesperia at about midnight and stopped a couple of
times on the way to sleep in the back of his van. He dropped off Alan near their house to turn
in some aluminum cans and then unintentionally drove past his house because he
did not recognize a truck parked in the driveway. When he turned around and went back to the
house, Clayton yelled that defendant had killed their mother, and the police
were looking for him. Defendant was
shocked, so he went to pick up Alan. He
did not get out of the car to find out what had happened. Instead, he got on the freeway to drive back
to Nevada, planning to get his daughter to help him. He had a friend telephone Decker, and in a
second conversation with her he told her he had run out of gas and Mary was
dead.
He
had left the note on the door of Mary’s house a few days earlier and had
forgotten it was there. Defendant denied
using drugs with Collett and testified he had been off drugs for nine years.
Verdicts and Sentence
The
jury found defendant guilty of first degree murder (§ 187, subd. (a)) and
elder abuse (§ 368, subd. (b)(1)).
The trial court sentenced him to an indeterminate term of 25 years to
life for the murder. The trial court
also imposed the aggravated term of four years for elder abuse and seven years
for the enhancement under section 368, subdivision (b)(3)(B), but stayed that
sentence and enhancement under section 654.
III. DISCUSSION
Flight Instruction
Defendant
contends the trial court erred in refusing his counsel’s request to modify the
flight instruction to inform the jury that flight was circumstantial evidence
of guilt, and as such, was subject to all the restrictions on the use of
circumstantial evidence.
Additional Background
Defendant’s trial counsel requested
the court to instruct the jury with a modified version of the flight
instruction, as follows: “‘If the
defendant fled or tried to flee immediately after a crime was committed, that
conduct may be circumstantial evidence which
may show that he was aware of his guilt to any charged offense or lesser
included offense. If you conclude that
the defendant fled or tried to flee, it is up to you to decide the meaning and
importance of that conduct. Evidence
that the defendant fled, or tried to flee, cannot prove guilt by itself.’”
The
trial court found that the proposed instruction was confusing in that no lesser
included offense was charged, and argumentative because the standard jury
instruction on circumstantial evidence
was adequate. The trial court instead
instructed the jury with the standard flight instruction (CALCRIM No. 372) as
follows, “If the defendant fled or tried to flee immediately after the crime
was committed or after he was accused of committing the crime, that conduct may
show you that he was aware of his guilt.
If you conclude that the defendant fled or tried to flee, it is up to
you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or
tried to flee cannot prove guilt by itself.”
The trial court also instructed the jury with CALCRIM No. 223 on the
definitions of direct and circumstantial evidence, with CALCRIM No. 224 on the
limitations on the use of circumstantial evidence, and with CALCRIM No. 220 on
reasonable doubt. In refusing
defendant’s requested instruction, the trial court stated that the standard
jury instructions were sufficient to allow defendant’s counsel to argue about
the proper use of flight evidence.
However, defense counsel never raised the issue in argument.
Standard of Review
On review, we “examine the jury
instructions as a whole, in light of the trial record, to determine whether it
is reasonably likely the jury understood the challenged instruction in such a
way that undermined the presumption of innocence or tended to relieve the
prosecution of the burden to prove defendant’s guilt beyond a reasonable
doubt. [Citation.]” (People
v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
Analysis
Section
1127c provides: “In any criminal trial
or proceeding where evidence of flight of a defendant is relied upon as tending
to show guilt, the court shall instruct the jury substantially as follows: [¶]
The flight of a person immediately after the commission of a crime, or
after he is accused of a crime that has been committed, is not sufficient in
itself to establish his guilt, but is a fact which, if proved, the jury may
consider in deciding his guilt or innocence.
The weight to which such circumstance is entitled is a matter for the
jury to determine.” That statute and
case law recognize that flight is circumstantial evidence of guilt. (E.g., People
v. Williams (1988) 44 Cal.3d 1127, 1143, fn. 9; People v. Jackson (2005) 129 Cal.App.4th 129, 166, fn. 120).
“A criminal defendant
is entitled, on request, to instructions that pinpoint the theory of the
defense case. [Citations.]” (People
v. Gutierrez (2002) 28 Cal.4th 1083, 1142.)
However, when standard instructions fully and adequately advise the jury
upon a particular issue, the trial court does not err in refusing to give a
requested pinpoint instruction. (
proffered instruction was a correct statement of the law, the authorities he
cites do not support a conclusion that it was error to fail to identify
specific evidence as circumstantial.
We
presume the jury understood and followed the instructions given. (People
v. Brady (2010) 50 Cal.4th 547, 583.)
Having been instructed on the definition of circumstantial evidence and
the duty to accept inferences pointing to the defendant’s innocence, the jury
did not need an instruction as to whether specific evidence presented at trial
was direct or circumstantial. The trial
court was not required to spell out for the jury whether particular evidence
was direct or circumstantial.
To
the extent defendant contends CALCRIM No. 372 was invalid because it failed to
track the precise language of section 1127c, we reject that contention. In People
v. Paysinger, the court held that CALCRIM No. 372 was constitutional. (People
v. Paysinger, supra, 174
Cal.App.4th at pp. 31-32.) We agree with
that decision.
Moreover,
even if we presume for purposes of argument that error occurred, any such error
was harmless. Defendant contends that
error in refusing a requested pinpoint instruction is structural error
requiring reversal without an examination of prejudice. “An error is ‘“structural,” and thus subject
to automatic reversal, only in a “very limited class of cases,”’ such as the
complete denial of counsel, a biased decision maker, racial discrimination in
jury selection, denial of self-representation at trial, denial of a public
trial, and a defective reasonable-doubt instruction. [Citation.]”
(People v. Mil (2012) 53
Cal.4th 400, 410.) Any error in failing
to give a requested pinpoint instruction plainly did not rise to that level.
Defendant
argues, in the alternative, that error in refusing his requested instruction
was federal constitutional error evaluated under the harmless-beyond-a-reasonable-doubt
standard of Chapman v. California (1967)
386 U.S. 18, 24.) However, it is well
established that in evaluating whether a trial court’s failure to give a
modified version of a standard jury instruction was prejudicial, this court
determines whether, “after an examination of the entire cause, including the
evidence” it appears “reasonably probable” the defendant would have obtained a
more favorable outcome had the error not occurred. (People
v. Lasko (2000) 23 Cal.4th 101, 111; People
v. Watson (1956) 46 Cal.2d 818, 836.)
On the record before us, no such reasonable probability exists. A.H. saw defendant put his hand over Mary’s
mouth and nose several times during an argument and saw defendant hit her. The autopsy revealed bruises to Mary’s face
and gums that were consistent with a person’s hand being put over her nose and
mouth to block her breathing. Defendant
refused to let Collett into the house and locked all the doors when he left for
Nevada, although Collett had previously had full access to the house. Defendant left a note on the front door
saying that Mary was at the store, even though she was still in the house. Most significantly, defendant told Stevens he
had to go back to California to “take care of a body.” He said he had just killed someone and it had
taken him 10 minutes and three tries to do so.
Defendant had Mary’s identification and credit card. In light of the overwhelming evidence, any
error in failing to give the requested instruction was harmless. (People
v. Watson, supra, at p. 836.)
Fines
Defendant contends
the parole revocation fine imposed under section 1202.45 must be changed to
match the restitution fine imposed under section 1202.4, and the minute order
and abstract of judgment must be amended accordingly.
1. Additional Background
At the sentencing
hearing, the trial court imposed a restitution fine in the amount of $1,000
under section 1202.4 and a parole revocation fine of $10,000 under section
1202.45. The trial court stayed the
parole revocation fine pending successful completion of parole. The minute order and the abstract of judgment
reflect that the trial court imposed a restitution fine of $10,000 under
section 1202.4 and a parole revocation fine of $10,000 under section 1202.45.
Under section
1202.45, if the “sentence includes a period of parole,” the court must impose a
parole revocation fine “in the same amount as that imposed pursuant to
subdivision (b) of section 1202.4.” The
court has “no choice and
equal to the restitution fine whenever the ‘sentence includes a period of
parole.’” (People v. Smith (2001) 24 Cal.4th 849, 853.) Error in imposing such fines “presents a pure
question of law with only one
answer,” and “such error is obvious and correctable without reference to any
factual issues in the record or remanding for further findings.” (Ibid.)
The People concede
the trial court erred by not setting the parole revocation fine in the same
amount as the restitution fine. The
People further concede that the oral pronouncement of a $1,000 restitution fine
should control (People v. Mesa (1975)
14 Cal.3d 466, 471.) We agree with the
People’s concession, and we will order the minute order and abstract of
judgment to be amended accordingly.
IV. DISPOSITION
The
minute order for the sentencing hearing and the abstract of judgment shall be
amended to reflect a parole revocation fine and restitution fine in the amount
of $1,000, and the amended abstract of judgment shall be forwarded to the
Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code.
name="_ftn2" title=""> [2] At the time of trial, Stevens was in custody
for a parole violation—being an ex-felon in possession of a firearm and
possession of a machine gun, and he had prior felony convictions for burglary
and grand larceny. He was in custody on
a parole violation at the time of defendant’s trial.
