P. v. Lu
Filed 3/4/13
P. v. Lu CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES CHE MING LU,
Defendant and Appellant.
B236609
(Los Angeles County
Super. Ct.
No. GA077455)
APPEAL from a judgment of
the Superior Court of
County, Clifford L. Klein, Judge. Modified, and as modified, affirmed.
Edward H.
Schulman, 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, Steven D. Matthews and Analee J. Brodie,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________________
A jury found defendant and appellant
James Che Ming Lu (defendant) guilty of the premeditated, deliberate and
willful first degree murder of his
wife and the attempted murder of his stepson.
Defendant contends on appeal that there was insufficient evidence to
support the premeditation finding; that the jury was misinstructed on
provocation; and that the trial court abused its discretion when it dismissed a
sitting juror. We reject these
contentions, but we modify the judgment to correct a sentencing error. We affirm the judgment as modified.
BACKGROUND
I. Factual background.
A. Prosecution
Case
Defendant
married Michelle Lu (Lu) in 2002.
Defendant was much older, 85, and Lu was in her 50’s. Although defendant was retired, Lu had
a housekeeping and childcare job that required her to be at work six days
a week. Lu therefore slept at their home
in Pasadena only Saturday nights,
returning to work Sunday.
name="_ftnref1" title="">[1] She did the cooking, cleaning, and shopping
for the family, and, when she was home, defendant “bossed†her around. Although defendant and Lu shared a bedroom,
he often slept in the basement until 1:00 or 2:00
a.m.
in the summer.
In
June 2009, Ji Zeng, Lu’s adult son, came from China and lived with defendant
and his mother. He had his own bedroom,
separated from defendant’s and Lu’s bedroom by a bathroom. Zeng and defendant didn’t talk much, but the
first week that Zeng lived with his mother and defendant everything was fine. Problems arose, however, when the new bed Lu
bought for Zeng broke. Lu’s failure to
ask defendant’s friend to repair it angered defendant. After that, defendant would hang up on Lu
when she called home. Defendant stopped
eating with Lu and Zeng, and he engaged only in simple greetings. Once, when Lu came home, Zeng overheard her
sobbing and defendant talking loudly. Lu
told her son that defendant wanted a divorce and he would pay her money.
On Saturday, July 25, 2009, Zeng and Lu went to a
friend’s house in the afternoon, returning home around 9:00
p.m. After eating, they called Zeng’s fiancée and
then went to their rooms around 10:00 p.m. Zeng stayed up until about midnight. By the time Zeng went to bed, defendant had
not come up from the basement. At some
point, Zeng heard defendant come upstairs—he could tell it was defendant by the
shuffling noise he made when he walked.
Zeng
heard the door to Lu’s and defendant’s bedroom open. Seconds later, he heard a muffled sound and
then a squeaky one. Before these sounds,
Zeng did not hear any arguing or other commotion. After a short period of quiet, Zeng’s door
opened and he heard footsteps approach his bed.
Looking up, Zeng saw defendant holding an axe with two hands above his
head. Zeng threw his blanket at
defendant, who twice tried to hit Zeng with the axe. He missed, and Zeng grabbed the axe. They struggled violently for control of it,
and when Zeng, with one hand, reached for his cell phone to call 911, he heard defendant’s
teeth snap in an attempt to bite him.
Zeng finally gained control of the axe.
Holding it, he ran from the house to defendant’s goddaughter’s nearby
house, where he called 911. He told the
responding officer, “ ‘My mother’s inside.
Please help her.’ â€
Deputy
Sheriff Mayra Sotomayor and her partner were the first to arrive at the
house. When the deputy approached the
door, defendant came out and, in response to her question who else was in the
house, he said, “ ‘My wife is in the bedroom.’ â€
The
investigating officer, Detective Richard Ramirez, arrived at the house around 1:00 a.m. He saw no signs of a struggle in defendant’s
and Lu’s bedroom, where Lu’s body was on the bed. There were signs of a struggle in Zeng’s
room, where the comforter was partially on the floor and a speaker was knocked
over. The only large collection of blood
was under Lu’s head. No weapons or a
wood dowel were found in Lu’s bedroom, and there was nothing in her hands.
Deputy
Sheriff Raymond Poon also arrived at the house around 1:00 a.m. Defendant stood on the front porch, without a
wheelchair or other walking aid. In
English, he said, “ ‘I did it. I’m
the one who called you. I will
cooperate. I will tell you
everything.’ †Defendant repeated
that he did it, and he said he and his wife had argued that day and
“ ‘[s]he said she wanted to leave me because she said her son is here
already.’ †Smelling soap on
defendant, Deputy Poon asked if defendant had showered. Defendant said he had showered and changed
his clothes because it was not “ ‘nice to meet the police [in]
pajamas.’ â€
At the
police station, detectives interviewed defendant, who did not complain of pain
or say he needed to stop the interview.
He was coherent throughout the recorded interview.
and his wife argued that night. Lu wanted
to leave him because she wanted her son, not her husband. This made defendant angry, but he was also
angry about other things; for example, he had to do all of the housework and
cooking and he was afraid they would get audited because Lu didn’t pay taxes on
the money she earned. Lu also complained
that defendant never gave her money, but he gave her $80,000.
Defendant said that Lu tried
to hit him but missed. When she tried to
hit him, he picked up an axe he kept next to the closet for protection and
struck her in the face. He struck her
again as she was lying in bed. Defendant
went to Zeng’s room, and when Zeng saw him with the axe, he struggled with
defendant for it, hitting defendant’s back in the struggle. Defendant then called 911, “Because I did
it. I killed my wife. I ought to call you guys.â€
Dr.
Pedro Ortiz, a deputy medical examiner from the Los Angeles County Department
of Coroner, autopsied Lu’s body. She had
11 distinct sharp force injuries or
force injuries. Three of her wounds
were fatal: one to her right forehead,
one to her left forehead, and one over her right temple, all of which caused
her left lower jaw that produced multiple fractures. Her hand had a wound that was possibly a
defensive wound. Lu died as a result of
multiple sharp force and blunt force trauma to the head and body.
Michelle
Madrid, a criminalist, examined the crime scene. The majority of blood was on the bed, around
the head and body. No other pool of
blood was found in that bedroom or elsewhere in the house. The majority of bloodstains were to the wall
area and curtains above the victim’s head.
Small blood stains were on the floor at the end of the bed, a mirror
along the wall, a tissue box near the bedside, and the headboard. There were no bloodstains on the soles of
Lu’s feet, but there were a few on the top of her feet. A pair of men’s pajamas, bloodstained in the
center and upper arms, were on the bed.
There was also blood on the exterior doorknob leading to Zeng’s room and
on his comforter. All three bathroom
sinks tested positive for blood. There
was water in the bathroom tub of the basement and the soap appeared to be wet.
Zeng
never saw a hatchet or axe anywhere in the house before that night. Defendant did not come to his room that night
and tell him he’d “ ‘hurt [Zeng’s] mother.’ â€
B. Defense
case.
Defendant
testified.
United States in 1961. His first wife
died in 1997, and they had three sons together.
Before retiring, defendant worked as a wood carver. He married Lu four months after meeting her,
and he agreed to marry her so she could stay in the United States. Because of safety concerns, defendant kept an
axe in the bedroom. Zeng was out of the
house six days out of the week, and defendant cooked for himself.
Zeng
and defendant got along. When Zeng’s bed
broke, defendant gave him the tools to fix it.
A repairman ultimately fixed the bed, which was fine with defendant. There was no argument about the bed.
Defendant
and Lu did, however, argue about money, with Lu accusing defendant of not
giving enough money to her. When Lu said
she only wanted her son, defendant said they should get divorced. Lu wouldn’t agree to a divorce because she
didn’t want to lose defendant’s benefits.
It was defendant’s understanding that if he died, Lu would get his
property, but if they divorced she would get half. Lu asked defendant, “ ‘Why don’t you
just die[,]’ †since he was at such an “ ‘advance[d] age.’ †She told him that after he died she and her
son would live on the income from defendant’s rental properties. Defendant was afraid that Lu and Zeng would
harm him.
In
keeping with his habit, defendant went to bed in the bedroom at 8:00 p.m. that
Saturday night. He did not sleep in the
basement. Around 10:00 or
11:00 p.m., Lu came into the room and started to talk about money,
accusing him of not giving any to her.
Defendant listed everything he gave her.
Lu got the wood dowel defendant used to keep the kitchen window shut and
hit defendant’s back with it. She
continued to hit defendant, who used his hands to block the blows. When she stopped hitting him, they argued
about money again for 15 to 20 minutes.
At one point she said that if he kept talking she would “ ‘kill
[him] with a knife.’ †She went to
the kitchen and defendant could hear her get a knife. Lu returned to the bedroom. Afraid, defendant picked up the axe to defend
himself. When he turned his body with the
axe in his hand, Lu “pounced†on him.
“[D]azed and confused,†defendant hit her with the axe or, as she
“pounced†on him, the two of them “collided†while he held the axe. Defendant could not remember what happened
after that. The next thing he remembered
was seeing Lu, who looked dead. He
turned on the light, and because her eyes were open, he closed them.
Not
realizing he was still holding the axe, defendant went to Zeng’s room to tell
him Lu was dead and to ask what they should do.
Calling out Zeng’s name to wake him, defendant said he’d argued with Lu
and told him she was dead. When Zeng saw
the axe, he tried to grab it, and he and defendant struggled over it. Defendant never intended to hit Zeng with the
axe. Afraid that Zeng would hit him,
defendant fled from the house. After
hiding, he returned to the house, locked the door, and called 911. Although he changed his clothes, he did not
shower or wash up, and he did not use soap because he was allergic to it.
During
the interview with police, he did not ask how long he would be
incarcerated. Instead, he said,
“ ‘She [(Lu)] [said] I won’t have too many years to muddle along.’ â€
Defendant’s
son from his first marriage, Conrad Lu, a doctor, testified that in 1993,
defendant had a massive heart attack, which required
Conrad told his father he could live with him, but defendant said he was more
comfortable in his own house. Because
Alice Wong, defendant’s goddaughter, told Conrad that defendant seemed
depressed, Conrad went to see his father the night Lu was killed. Lu and her son were not there at the time.
Defendant
was admitted to the hospital with severe chest pains on July 26, 2009, after he
was arrested and interviewed.
Photographs of him in the hospital showed bruising.
Dr.
Stephen Read specializes in Geriatrics Psychiatry. He reviewed the police reports, coroner’s
report, taped interviews, and photographs, and he personally interviewed
defendant. He diagnosed defendant with
two conditions. First, defendant had
“intermediate step of vascular
brain damage†caused by his earlier heart attack. It was not a “dementing condition†or “that
serious,†but it impaired defendant’s ability to think through and reason, a
condition called mild cognitive impairment or cognitive disorder. Second, defendant had “a version of
depression, which is abetted by this kind of vascular brain damage.†Defendant’s failure to grieve the death of
his first wife contributed to his condition and shaped his response to and
perception of what happened to him.
There
is also such a thing as a person acting on “automatic pilot†or in an automatic
manner. It’s a phenomenon where people
act in complex ways without really intending to; for example, some September 11
survivors reported acting in a similar way.
When this happens, people may recall things in an incomplete or
fragmentary way. People feel like
they’ve “woken up at the end and know that something has happened, but have no
memory or consciousness of their having done whatever it turned out they did.â€
background.
On November 22, 2010, a first jury deadlocked. On July 27, 2011, a second jury found
defendant guilty of count 1, the first degree murder of Lu (Pen. Code,
§ 187, subd. (a))
name="_ftnref7" title="">[7]
and of count 2, the willful, deliberate and premeditated attempted murder of
Zeng (§§ 187, subd. (a), 664). As
to both counts, the jury found true personal weapon-use allegations
(§ 12022, subd. (b)(1)).
On
October 7, 2011, the trial court sentenced defendant, on count 1, to
25 years to life plus a consecutive one-year term for the weapon
enhancement. The court sentenced him, on
count 2, to a concurrent “15-years-to-life†plus one year for the weapon enhancement.
I. There was sufficient evidence to
support the finding that the murder and attempted murder were premeditated,
deliberate and willful.
Defendant
contends there is insufficient evidence to support the jury’s finding that the
murder of Lu and attempted murder of Zeng were premeditated, deliberate and
willful.
“Review
on appeal of the sufficiency of the evidence supporting the finding of
premeditated and deliberate murder involves consideration of the evidence
presented and all logical inferences from that evidence in light of the legal
definition of premeditation and
deliberation . . . . Settled principles of
appellate review require us to review the entire record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find that the defendant
premeditated and deliberated beyond a reasonable doubt. [Citations.]â€
(People v. Perez (1992) 2
Cal.4th 1117, 1124; see also People v.
Snow (2003) 30 Cal.4th 43, 66; Jackson
v. Virgina (1979) 443 U.S. 307, 317-320.)
“We draw all reasonable inferences in support of the judgment. [Citation.]â€
(People v. Wader (1993)
5 Cal.4th 610, 640.) Reversal is
not warranted unless it appears “ ‘that upon no hypothesis whatever is
there sufficient substantial evidence to support [the conviction].’ [Citation.]â€
(People v. Bolin (1998) 18
Cal.4th 297, 331.) The standard of
review is the same in cases in which the People rely mainly on circumstantial
evidence. (People v. Cravens (2012) 53 Cal.4th 500, 507-508.) “ ‘An appellate court must accept
logical inferences that the jury might have drawn from the evidence even if the
court would have concluded otherwise.’ â€
(People v. Halvorsen (2007) 42
Cal.4th 379, 419.)
A
murder that is premeditated and deliberate is murder of the first degree. (§ 189; People v. Burney (2009) 47 Cal.4th 203, 235.) “ ‘ “ ‘[P]remeditated’ means
‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or
determined upon as a result of careful thought and weighing of considerations
for and against the proposed course of action.’ †’ †(Burney,
at p. 235; see also People v. Jurado
(2006) 38 Cal.4th 72, 118.) An
intentional killing is premeditated and deliberate if it occurred as the result
of preexisting thought and reflection, rather than an unconsidered or rash
impulse. (Burney, at p. 235.) The
process of premeditation and deliberation does not require any extended period
of time; rather, the “ ‘ “true test is not the duration of time as
much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly. . . . †[Citations.]’
[Citation.]†(
1080.)
Three
basic, but not exhaustive, categories of evidence will sustain a finding of
premeditation and deliberation:
(1) motive; (2) planning activity; and (3) manner of
killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27; People v. Burney, supra, 47 Cal.4th at p. 235;
at p. 420; People v. Perez, supra,
2 Cal.4th at p. 1125.) All three
factors need not be present to sustain a finding of premeditation and
deliberation. (People v. Pride (1992) 3 Cal.4th 195, 247.) Rather, “[a] first degree murder
conviction will be upheld when there is extremely strong evidence of planning,
or when there is evidence of motive with evidence of either planning or
manner.†(People v. Romero (2008) 44 Cal.4th 386, 400-401.)
There
was evidence of all three factors in this case.
First, there was evidence that defendant had a motive to kill Lu and
Zeng. Defendant and his wife had been
arguing, primarily over money. According
to Zeng, defendant had asked Lu for a divorce, which she didn’t want. Zeng also testified that defendant threw a
“temper tantrum†when the bed broke. In
the week preceding Lu’s murder, defendant hung up the phone when Lu called and
refused to eat with the family or to engage in conversation other than simple
greetings. Even defendant testified that
he and Lu had problems and argued over money and her failure to pay taxes,
although he characterized Lu as the one with the temper. Defendant also said that it was Lu who asked
for a divorce, because she only wanted her son.
Thus, defendant’s own story provided a motive for killing Lu and Zeng
citing her son as the reason. (See People
v. Bloyd (1987) 43 Cal.3d 333, 342, 348 [evidence that the defendant and
victim argued before the murder was sufficient to support a finding that anger
motivated defendant to kill]; People v.
Lunafelix (1985) 168 Cal.App.3d 97, 102 [observing that the law does not
require a “ ‘rational’ †motive for murder; even anger, however
“ ‘shallow and distorted,’ †at the way the victim spoke to the
defendant may be a motive for murder].)
Second,
there was evidence defendant planned to kill Lu and Zeng. He stayed downstairs in the basement until Lu
and Zeng had gone to bed, coming up sometime after midnight. Zeng also never saw an axe in defendant’s and
Lu’s bedroom, contrary to defendant’s testimony he kept an axe in the room for
safety. The jury therefore could have
reasonably inferred that defendant brought the axe with him into the bedroom,
planning to use it to kill Lu and then Zeng.
(See, e.g., People v. Wharton (1991)
53 Cal.3d 522, 547 [evidence that the likely murder weapon, a hammer, was
placed near the scene of murder suggested planning activity].)
Finally,
the manner of killing showed premeditation.
Lu was found in bed, dead from multiple blows from the axe. According to Zeng, his mother had gone to bed
around 10:00 p.m., and the murder took place around midnight. Lu had only one wound to her hand that the
coroner described as possibly a defensive wound. There was no sign of a struggle in the
bedroom. Zeng did not hear any arguing
or a commotion. The main collection of
blood was on the bed, under Lu’s head and upper body. There were no weapons, such as a wood dowel
or a knife, found in the bedroom. From
this evidence, the jury could have inferred that defendant killed Lu, or at
least struck the first blow, while she was asleep, thereby supporting the
conclusion that her murder was deliberate rather than spontaneous. (See People
v. Hawkins (1995) 10 Cal.4th 920, 956‑957 [execution style killing
and no evidence of a struggle supported conclusion that murder was premeditated
and deliberate rather than impulsive], disapproved on other grounds in
110; People v. Bloyd, supra, 43 Cal.3d
at p. 348 [point blank shot to the back of the head of one victim and
close-range shot to another victim showed premeditation and
deliberation].) Similarly, there was
evidence that defendant tried to kill Zeng while he slept: defendant went into Zeng’s room with the
axe. Zeng heard someone come into his
room and opened his eyes to find defendant standing over his bed, axe held in
two hands ready to strike.
Based
on this, there was sufficient evidence to support the jury’s finding that the
murder and attempted murder were premeditated, deliberate and willful.
II. The jury was not misinstructed on
provocation.
Defendant
contends that CALCRIM Nos. 522 and 570 misled the jury as to how they should
evaluate evidence of the provocation necessary to negate premeditation and
deliberation, thereby denying him his due process rights. We disagree.
A challenge to jury
instructions as being incorrect or incomplete requires us to evaluate the
instructions given as a whole, not in isolation, to determine whether there is
a reasonable likelihood they confused or misled the jury and thereby denied the
defendant a fair trial. (
Cal.4th 99, 182; People v. Richardson
(2008) 43 Cal.4th 959, 1028; People v.
Hernandez (2010) 183 Cal.App.4th 1327, 1332.) We presume jurors are intelligent and capable
of understanding and correlating jury instructions. (Richardson,
at p. 1028; People v. Carey (2007)
41 Cal.4th 109, 130.)
“First
degree murder is an unlawful killing with malice aforethought, premeditation,
and deliberation.†(People v. Hernandez, supra, 183 Cal.App.4th at p. 1332.) Second degree murder is an unlawful killing,
but without premeditation and deliberation.
(Ibid.) First degree murder thus may be reduced to
second degree where there is evidence the defendant formed an intent to kill in
direct response to provocation and acted immediately. (People
v. Wickersham (1983) 32 Cal.3d 307, 329, disapproved on another ground by
200-201; see also People v. Valentine (1946)
28 Cal.2d 121, 132 [provocation that is insufficient to reduce a murder to
manslaughter may nevertheless raise a reasonable doubt that the defendant
formed an intent to kill, thereby reducing the degree of murder to
second].) “The issue is whether the
provocation precluded the defendant from deliberating. [Citation.]
This requires a determination of the defendant’s subjective state.†(People
v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295; see also
heated words were exchanged or a physical struggle took place between the
victim and the accused before the fatality may be sufficient to raise a
reasonable doubt in the minds of the jurors regarding whether the accused
planned the killing in advanceâ€].) If
the provocation would not cause an average person to experience deadly passion
but it precludes the defendant from subjectively deliberating and
premeditating, the crime is second degree
murder. (Hernandez, at p. 1332.)
Provocation
thus operates in two ways. First, it can
reduce first degree murder to second degree murder if the provocation prevented
the defendant from subjectively premeditating.
Second, it can reduce murder to manslaughter if a person of average
disposition (an “objective†person) would have been provoked. The jury was therefore instructed with CALCRIM
No. 522: “Provocation may reduce a
murder from first degree to second degree and may reduce a murder to
manslaughter. The weight and
significance of the provocation, if any, are for you to decide. [¶] If
you conclude that the defendant committed murder but was provoked, consider the
provocation in deciding whether the crime was first or second degree
murder. Also, consider the provocation
in deciding whether the defendant committed a murder or manslaughter.â€
The
trial court also instructed the jury with 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: [¶]
[o]ne, the defendant was provoked; [¶] [t]wo, as a result of the
provocation the defendant acted rashly and under the influence of intense
emotion that obscured his reasoning or judgment; and, [¶] [t]hree, 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] cause[s] the 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 isn’t
allowed to set up his own standard of conduct.
You must decide whether the defendant was provoked and whether the
provocation was sufficient. 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 has passed
between the provocation and the killing . . . for a person
of average disposition to ‘cool off’ and regain his or her clear reasoning and
judgment, then the killing is not reduced to a voluntary manslaughter on this
basis.â€
Defendant
contends that giving CALCRIM Nos. 522 and 570 together confused the jury and
led them to apply an objective standard inappropriately when considering the
degree of murder. Defendant does not,
however, directly contend that either CALCRIM No. 522 or No. 570 misstate
the law. He instead argues that giving
them together in this case was misleading.
But a trial court has no sua sponte duty to revise or to improve an
accurate statement of law absent a request from counsel. (See, e.g., People v. Lee (2011) 51 Cal.4th 620, 638; People v. Rogers (2006) 39 Cal.4th 826, 877-880;
Cal.App.4th at p. 1333 [an instruction on provocation for second degree murder
is a pinpoint instruction that need not be given sua sponte by the trial
court].) By failing to request a
pinpoint instruction, defendant forfeited the issue on appeal.
In
any event, we reject the argument that the jury would have been misled by
CALCRIM Nos. 522 and 570. CALCRIM No.
522 expressly told the jury that provocation could reduce murder to
manslaughter or reduce a murder from
first to second degree. CALCRIM No. 570,
in contrast, clearly concerned only reducing murder to voluntary
manslaughter. The instruction begins, “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.â€
It goes on to state, “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 . . . . â€
(Italics added.) The reference to
the “provocation†that would have caused a “person of average disposition†to
act rashly and without due deliberation was therefore confined to the context
of reducing murder to manslaughter. The
instruction does not refer to reducing first degree murder to second degree
murder.
CALCRIM No. 521 addressed
that issue. It informed the jury that
first degree murder differs from second degree murder in that the former
requires a killing that is intentional, deliberate, and premeditated. The instruction continues: “A decision to kill made rashly, impulsively,
[or] without careful consideration [is] not deliberate and premeditated.†CALCRIM No. 521 therefore instructed that
provocation can reduce first degree murder to second degree murder by negating
intent, deliberation and premeditation.
(People v. Hernandez, supra, 183 Cal.App.4th
at p. 1334 [“Based on CALCRIM No. 521, the jury was instructed that unless
[the] defendant acted with premeditation and deliberation, he is guilty of
second, not first, degree murder, and that a rash, impulsive decision to kill
is not deliberate and premeditatedâ€].)
When CALCRIM Nos. 521, 522
and 570, are read together, it is reasonably clear that provocation can reduce
a first degree murder to second degree, and that the objective “person of
average disposition†applied to the separate question whether a murder can
be reduced to manslaughter. Considering
the instructions as a whole, it is not reasonably likely that the jury was
misled into legal error.
Nor do we agree that the
question the jury submitted suggests anything to the contrary. The jury asked, “In terms of 2nd degree
murder, is it up to me, a juror, to decide whether or not possible provocation
was simply present? Or whether the
provocation justified the end result (many wounds to Mrs. Lu’s face)?†The court instructed the jury, “These issues
are for the jury to decide.†The jury’s
question does not indicate what the jury was thinking regarding defendant’s
objective or subjective perceptions.
Rather, at least the first question indicates that the jury was asking
the basic question whether it was up to them to decide the presence of
provocation.
Because
we conclude that there was no instructional error, we also reject defendant’s
related contention that his trial counsel rendered ineffective assistance by
failing to request a modification to CALCRIM No. 522. (See generally, Strickland v. Washington (1984) 466 U.S. 668; People v. Holt (1997) 15 Cal.4th 619, 703.) As we have said, the instructions given as a
whole were adequate.
Even
if there was instructional error, it was harmless, whether we review the issue
under Chapman v. California (1967)
386 U.S. 18 or People v. Watson
(1956) 46 Cal.2d 818. The evidence
overwhelmingly showed that there was no provocation. Contrary to defendant’s story that Lu
attacked him with a wood dowel or that she had a knife, no weapons were found
in the bedroom. There were no signs of a
struggle in defendant’s and Lu’s bedroom.
Lu was found on the bed, and blood had collected under her head and
upper body. Other than small spatters of
blood on or near the bed, there were no other large collections of blood. Lu had no defensive wounds, other than a
possible one to her hand. Defendant also
went to Zeng’s room while still holding the axe. Given this evidence, any error in failing to
instruct the jury on the provocation necessary to reduce first degree murder to
second degree was harmless.
III. The trial court did not abuse its discretion
by dismissing Juror No. 3.
The
trial court dismissed a juror who commented on reasonable doubt. Defendant contends that the juror was
dismissed without cause and that the dismissal violated his constitutional
by an impartial jury. (U.S. Const., 6th
& 14th Amends.; Cal. Const., art. I, § 16.)
We disagree.
A. Additional
facts.
During closing arguments and
before the jury retired for deliberations, Juror No. 2 reported to the
bailiff that at the conclusion of trial on Friday she was with Juror No. 3
in an elevator. Juror No. 3 “suggested
to [Juror No. 2] that she had already formed an opinion or was very close to
already forming an opinion.†Juror
No. 3 said something like, “ ‘Well, after today’s testimony, we can
see how reasonable doubt can be easily arrived at.’ †No other juror was present when the comment
was made.
The
trial court, out of the presence of the other jurors, asked Juror No. 3 if she
had commented on the case. She “could
have†made a comment about reasonable doubt.
She agreed that if she did, it could be “problematic†because she had
been instructed not to discuss the case.
Although she couldn’t recall specifically what she said, “I do remember
the tone of just that we both were sort of like, ‘Oh, it’s––you know, we’ve
heard it all now, and a bit of relief, and that it was a very sort of
surprising just as we talk about one doesn’t know everything until you’ve heard
everything.†“So there was sort of that,
‘Wow, it was sort of surprising to learn things.’ †The juror said she did not make a judgment on
reasonable doubt, but she did say something like she could see how there could
be reasonable doubt. When the juror made
her comment, she was not trying to intimate what she thought or influence the
other juror.
Based on this, the prosecutor requested that Juror No. 3
be replaced with an alternate, but the defense objected. The trial court granted the motion to replace
the juror: “I think there is enough
evidence here based on what Juror No. 2 said. And she said something very close to that, so
‘you can see how reasonable doubt can be easily arrived at after today’s
testimony.’ She said it specifically
according to him in the context of the testimony. And even in her own version, I think it was
very close to that. And I just think she
has failed to obey the admonition. She
has discussed the case and expressed some opinion on it.â€
B.
instructions constituted good cause for her dismissal.
“An accused has a constitutional right to a trial by an impartial
jury. [Citations.] An impartial jury is one in which no member
has been improperly influenced [citations] and every member is ‘ “capable
and willing to decide the case solely on the evidence before it†’ [Citations].â€
(In re Hamilton (1999) 20
Cal.4th 273, 293-294.) “If at any time,
whether before or after the final submission of the case to the jury, a juror
dies or becomes ill, or upon other good cause shown to the court is found to be
unable to perform his or her duty . . . the court may order
the juror to be discharged . . . . †(§ 1089; see also People v. Farnam (2002) 28 Cal.4th 107, 140-141;
466, 474.)
To
remove a sitting juror, the juror’s disqualification must appear on the record
as a “ ‘ “demonstrable reality.†’ †(People
v. Farnam, supra, 28 Cal.4th at p. 141; People
v. Barnwell (2007) 41 Cal.4th 1038, 1052; People v. Fuiava (2012) 53 Cal.4th 622, 711.) “This standard ‘indicates that a stronger
evidentiary showing than mere substantial evidence is required to support a
trial court’s decision to discharge a sitting juror.’ [Citation.]â€
(Barnwell, at p. 1052; see also People
v. Allen and Johnson (2011) 53 Cal.4th 60, 71.) The demonstrable reality test is “more
comprehensive and less deferential†than the substantial evidence
standard. (Barnwell, at p. 1052
“It requires a showing that the court as trier of fact
the entire record, supports its conclusion that bias was
established. . . . [A] reviewing court does not
test. Under the demonstrable reality
standard, however, the reviewing court must be confident that the trial court’s
conclusion is manifestly supported by evidence on which the court actually
relied.†(Id. at pp. 1052‑1053; see also Fuiava, at p. 712.) The
reviewing court must therefore consider the evidence and the record of reasons
the trial court provided. (
A
court may discharge a juror for good cause, which includes failing to follow
the court’s instructions. (
Cal.4th at p. 69; § 1122, subd. (a)(1).) The jurors here were instructed not to talk
about the case with anyone, including each other, “until the time comes for you
to begin your deliberations.†The jury
was also told to “discuss this together only after all of the evidence has been
presented, the attorneys have completed their arguments, and I have
instructed you on the law. [¶] After I tell you to begin your deliberations,
you may discuss the case only in the jury room, and only when all jurors are
present.†Despite these instructions,
Juror No. 3 made a comment to Juror No. 2 about reasonable doubt. When the comment was made, the jurors were
not yet deliberating, they were not in the jury room, and not all jurors were
present. The juror therefore violated
the court’s instructions.
Even if, as defendant
argues, Juror No. 3’s comments were neutral and did not suggest a bias toward
either side, disregarding the trial court’s instruction to refrain from
discussing the case can constitute, in the trial court’s discretion, good cause
to excuse the juror. (
864-865.) It may be that had the trial
court refused to dismiss Juror No. 3, that too would not have been an abuse of
discretion. But where, as here, the
juror indisputably commented, before deliberations had even begun, on
reasonable doubt in a way that might suggest her opinion of the case,
we cannot find that her dismissal was an abuse of discretion, even under the
heightened standard of review.
IV. The sentence must be
modified.
The trial court sentenced
defendant, on count 2 for attempted murder, to a concurrent
“15-years-to-life†plus one year for the weapon enhancement. Premeditated and deliberate attempted murder
is punishable, however, by life in prison with the possibility of parole. (§ 664, subd. (a).) The correct sentence on count 2
therefore should be life plus one year for the weapon-use enhancement under section 12022,
subdivision (b)(1).
DISPOSITION
The judgment is modified to reflect that the correct
sentence on count 2 is life with the possibility of parole plus one year under
section 12022,
subdivision (b)(1). The clerk of the
superior court shall modify the abstract of judgment to reflect the correct
sentence and forward the modified abstract of judgment to the
otherwise affirmed as modified.
PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
J.
We concur:
KLEIN, P. J.
KITCHING, J.
name="_ftn1" title="">[1] Defendant had lived in the house with his first wife, and
they raised their children there.
name="_ftn2" title="">[2] The
statement was played for the jury.
