P. v. Lewis

Filed 11/16/09 P. v. Lewis CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Dewey Lawes Falcone, Judge. Affirmed as modified.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, for Plaintiff and Respondent.

__________________________

Jeffrey Dendard Lewis appeals from his conviction for the first degree murder of his ex-wifes companion. We modify the judgment to award presentence custody credits and, as modified, affirm.

FACTS AND PROCEEDINGS

In 1989, appellant Jeffrey Dendard Lewis married Sharisse Adams. During their 10-year marriage, appellant physically abused Adams once or twice a month, often accompanied by accusations that she had been unfaithful to him. After their fights, Adams sometimes took the couples children and stayed with her mother for a while. Three times during the marriage, Adams separated from appellant for lengthier periods of several weeks, once in 1991 and twice in 1997. In 1999, appellant and Adams divorced.

About a year after appellant and Adams divorced, they reconciled and reunited as a couple. Although they did not remarry, they bought a house and resumed living as a family with their two children. But renewed disenchantment with the relationship eventually set in, and Adams became romantically involved in late-2004 with a co-worker, Da Shun Shufford. Appellant suspected Adamss affair with Shufford, but Adams denied any unfaithfulness. Following a fight fueled by appellants suspicions, Adams moved to her mothers house. In the following weeks, appellant repeatedly asked Adams to return home. Eventually, Adams returned and, confirming appellants suspicions, promised to stop seeing Shufford. On Valentines Day 2005, Adams ended her affair with Shufford.

Appellants distrust did not end, and he continued to question Adams about Shufford and tried to call Shufford at work. In April 2005, appellant hit Adams during a fight. Adams moved out of the house for the final time and secretly resumed her relationship with Shufford. After her departure, appellant repeatedly contacted Adams every day with phone calls, text messages, and unannounced visits to her work and mothers home. On May 15, he left Adams a voice mail message, telling her he was going to deal with their separation my way and that he was gonna deal with your friend Shun too.

On May 21, Adams and Shufford went out to dinner for what would be Shuffords last night alive. Three or four times before that evening, appellant had visited what he believed was Shuffords neighborhood based on internet searches, hoping to find Shufford. The day before Adams and Shufford went out to dinner, appellant found Shuffords correct address. The next day he retrieved a gun from his storage locker and bought a wig to wear over his shaved head. He drove to Shuffords neighborhood, parked his car, and waited; appellant testified at trial that he wanted to talk to Shufford to confirm his suspicion that Adams was lying to him when she denied she was having an affair. While appellant bided his time, Shufford arrived home at about 9:00 p.m. from his dinner with Adams. As Shufford drove up, appellant got out of his car. Shufford saw appellant, but did not recognize appellant because it was dark and appellant was wearing a wig, and appeared to be waiting for someone. Appellant approached Shufford and asked how long he had been involved with Adams. Shufford replied a few months. Shufford then moved like a football player, a fake right, run left. Claiming something flew out of Shuffords hand, appellant fired at Shufford hitting him four times. Shufford fell mortally wounded to the ground, where appellant approached him, hit him with the gun, and stomped on his head, fracturing his skull. Appellant then ran away.

The People charged appellant with first degree murder. A jury convicted him and found true the special circumstance of lying-in-wait. The court sentenced appellant to life in state prison without possibility of parole. This appeal followed.

DISCUSSION

A.                 Prior Acts of Domestic Violence

Appellants contended that intended defense at trial was clinical depression and voluntary intoxication prevented him from forming malice aforethought for murder. Appellant had a history of depression. In 1998, he voluntarily admitted himself to a hospital for four days for treatment of depression and suicidal thoughts. And in 2005 when he killed Shufford, he was again under treatment for depression triggered by Adamss infidelity.

In addition to depression, appellant claimed voluntary intoxication added to his inability to harbor malice aforethought. For his depression in 2005, his doctor prescribed Welbutrin and Trazedone which he was continuing to take when he shot Shufford. Two weeks before Shuffords murder, appellant underwent surgery to repair a torn tendon in his arm. To control his post-operative pain, appellants doctor prescribed Vicodin. Hours before Shuffords death, appellant took Vicodin and drank a half pint of gin. According to expert testimony, the effect of appellants ingestion of prescription drugs and alcohol on his thoughts and behavior when he killed Shufford was unpredictable.

Consistent with his defense of depression and voluntary intoxication, appellant strove to paint a picture of a loving family life with Adams, the loss of which sent him into a psychological tailspin. The trial court had initially found to be irrelevant the evidence of domestic violence between appellant and Adams because Adams was not appellants murder victim. But based on appellants aim to suggest familial harmony, the court ruled it would allow the prosecution to offer sanitized evidence of domestic violence to assist the jury in drawing a more accurate picture of appellants relationship with Adams and his reaction to the failure of their relationship. The court thus ruled the prosecutor could offer evidence of a restraining order Adams had received against appellant. The court also ruled the prosecutor could offer sanitized evidence of the occurrence of physical confrontations between appellant and Adams without elaboration of the details of any specific incidents.

During appellants opening statement, appellant described why he suspected Adams and Shufford were having an affair. He also stated that his discovery of Adamss unfaithfulness triggered his depression that culminated in Shuffords death. Learning from appellants opening statement the defense appellant intended to advance, the prosecutor asked the court at sidebar to remove its restrictions on the domestic violence evidence the prosecution could offer. The prosecutor asserted that appellants domestic violence demonstrated appellant sought to dominate and control Adams, thereby suggesting a motive for appellant to kill Shufford. The court agreed to loosen its restrictions on the domestic violence evidence the prosecutor could introduce. To illuminate the relationship between appellant and Adams and to cast a truer light on appellant not as an innocent, aggrieved ex-husband but rather a controlling former romantic partner, the court permitted the prosecutor to elicit from Adamss testimony that she endured domestic violence once or twice a month during her marriage to appellant. According to Adams, appellant started hitting her about six months into their marriage and hit her maybe like once a month, maybe every couple of weeks. Whenever he was upset. The court also permitted Adams to testify in broad detail about four of those incidents: appellants hitting her in the mouth during their separation in 1997, knocking out two front teeth; appellants pulling a knife on her while they were arguing in his parked car; appellants punching her while she was pregnant; and appellants violating a restraining order by ramming his car into her car the day the order was issued.

Appellant contends the court erred in admitting the domestic violence evidence because he was not on trial for committing a crime against Adams. (Cf. Pen. Code,  1109, subd. (a)(1) [uncharged domestic violence evidence admissible to show likelihood of committing later violent act against same victim].) Appellant contends that because his domestic violence was not directed at Shufford, admission of his acts against Adams amounted to inadmissible character evidence offered only to show his propensity toward violence. We disagree.

We review admission of prior uncharged acts for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.) Evidence Code section 1101, subdivision (b) permits evidence of uncharged acts to show, among other things, motive. (People v. Catlin (2001) 26 Cal.4th 81, 145.) Evidence of an uncharged act need not be similar to the charged offense if the purpose of the evidence is to show a defendants motive; the uncharged act need only have a direct logical nexus to the charged offense. (People v. Daniels (1991) 52 Cal.3d 815, 857; People v. Scheer (1998) 68 Cal.App.4th 1009, 1018.) Here, appellants attempt to control Adams, and his anger when she challenged that control, manifested itself in his violence toward her. Her affair with Shufford was one such challenge, and his violence toward Shufford was an extension of appellants effort to control Adams. Accordingly, the domestic violence evidence had a direct logical nexus to Shuffords murder, rendering the courts admission of the evidence a reasonable exercise of its discretion.

Appellant contends the court erred in admitting all the evidence of domestic violence. Appellants contention overstates the amount of evidence the court allowed. The court permitted Adams to tell the jury that appellant assaulted her once or twice a month during their marriage. Undoubtedly, the jury could do the math to calculate Adams was implying scores of attacks, but the court allowed Adams to testify about only four specific instances: knocking out her teeth, pulling a knife on her, punching her while she was pregnant, and ramming her car. Moreover, the court told jurors they could consider the evidence of domestic violence for only a limited purpose. The court instructed:

Certain evidence was admitted for limited purpose and that evidence was we had some indication of physical abuse during the marriage. That evidence was admitted for a limited purpose only. And that was admitted for the purpose of establishing either motive or a state of mind of the defendant, limited purpose only. [] So again, certain evidence was admitted for a limited purpose. At the time the evidence was admitted, you were instructed it could not be considered for any purpose other than that limited purpose for which it was admitted. Do not consider this evidence for any purpose except for that limited purpose for which it was admitted.

Appellants contention thus fails because the court allowed only a limited amount of domestic violence and did so only for a limited purpose. The court did not, as appellant states, admit all evidence of domestic violence.

Appellant contends that even if his domestic violence against Adams was relevant, the court should nevertheless have excluded it under Evidence Code section 352 because it was unduly prejudicial. (People v. Ewoldt (1994) 7 Cal.4th 380, 404 [error under section 352 to admit relevant evidence where prejudicial effect outweighs probative value].) Appellants contention fails because the evidence was not overly prejudicial. Appellant was on trial for having murdered a man with whom he had little, if any, previous dealings. Whatever the reprehensibility of appellants domestic violence against Adams, none of his assaults of her was life-threatening or sufficiently egregious or inflammatory that they would lead a rational jury to falsely convict appellant of murdering Shufford in order to punish him for having beaten up Adams. Moreover, the domestic violence was highly probative because it provided a link to appellants motive to kill Shufford, a man who had otherwise done nothing to offend appellant, and to cast doubt on appellants defense based on intoxication and depression. Accordingly, Evidence Code section 352 did not bar admission of the domestic violence evidence.

B.                 CALJIC 2.50 and 2.50.1

The court instructed the jury that it was allowing the domestic violence evidence for a limited purpose. The court did not, however, instruct the jury with CALJIC 2.50 and 2.50.1. Those instructions tell the jury that it cannot use prior uncharged acts as evidence of a defendants propensity to commit the charged offense.^[1] Appellant contends the court erred in not giving these instructions to the jury. The court did not, however, have a sua sponte duty to read them and appellant did not request them. (People v. Rogers (2006) 39 Cal.4th 826, 854 (Rogers); People v. Collie (1981) 30 Cal.3d 43, 63.) Accordingly, no error occurred in their omission.

Appellant contends that under the facts of his case, the court had a sua sponte duty to instruct with CALJIC 2.50 and 2.50.1. In support, appellant cites Rogers, supra. That decision recognized such a duty might arise sua sponte for the occasional extraordinary case, but this is not such a case. Rogers explained an appropriate case involves evidence of past offenses that is a dominant part of the evidence against the accused and is both highly prejudicial and minimally relevant to any legitimate purpose. (Rogers, supra, 39 Cal.4th at p. 854; People v. Bunyard (1988) 45 Cal.3d 1189, 1225-1226.) Neither set of conditions applies here. Domestic violence was not a dominant part of the case against appellant. It consumed only a handful of pages in a reporters transcript of a trial that lasted several days. In addition, it was highly relevant to appellants state of mind by showing he had a motive to kill Shufford. Rogers thus created no sua sponte duty for the trial court to instruct with CALJIC 2.50 and 2.50.1.

C.                 Murder and Manslaughter

Appellant contends the court misinstructed the jury about the differences between murder and manslaughter. Viewing as a whole the courts instructions governing murder and manslaughter, we see no error.

We begin by noting the court told the jury that the presence of malice elevated manslaughter to murder. Instructing with CALJIC 8.50, the court stated:

The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. [] When the act causing the death, though unlawful, is done in the heat of passion that amounts to adequate provocation, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [] To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel.

Appellant notes that the foregoing instruction describes voluntary manslaughter arising from the heat of passion or a sudden quarrel. (Pen. Code,  192, subd. (a).) Appellant contends the instruction was incomplete, and thus flawed, because it did not highlight that manslaughter exists in two forms: voluntary and involuntary. Appellants contention is unavailing.

According to the Use Note for CALJIC 8.50, evidence suggesting involuntary manslaughter obligates the court to instruct with one or both of the following paragraphs from CALJIC 8.51:

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