P. v. Macias

Filed 1/21/09 P. v. Macias CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant Emidio R. Macias was convicted by a jury of first degree premeditated murder (Pen. Code,  187, subd. (a), 189)^[1]and personal use of a firearm ( 12022.5, subd. (a)) in a workplace shooting. Appellant was sentenced to 27 years to life state prison and appeals on the ground of instructional and evidentiary error. We affirm.

Facts

On October 31, 1985, appellant shot William Ashley six times and fled. He was arrested and tried for murder more than 20 years later. Appellant and Ashley worked at Trim-Lock Corporation in Paramount. Ashley, who was bigger than appellant, claimed to have a belt black in karate and taunted appellant over a two week period. He called appellant "chicken," "wetback," and "Mexican" and bullied appellant by bumping and pushing him.

On October 30, 1985, Ashley tried to get appellant to fight and followed him after work. That evening, appellant asked his wife to help him find the ammo clip for his handgun.

When appellant arrived for work the next morning, Ashley blocked the doorway and said, "You want to fight today, you feel like you're not man to do it today?" Appellant replied, "Bill, you want to get ready, you really want to fight?" "Let's get even. . . . I don't know karate, but if you have something to defend yourself, let's do it that way." Appellant warned Ashley "there is no turning back, I will kill you." As appellant started to walk outside, Ashley blocked the doorway and said, "You want to do it here?" Appellant replied, "No, I don't want to do it here. I already told you how we're going to do it."

Appellant went to the parking lot and retrieved a loaded semiautomatic handgun from his car. William Rowe saw appellant walk back to the building "stroking" and "petting" the handgun with his hand. A second coworker, Cortez, said "Don't do it, don't do it."

Appellant told Cortez to "Get out of my way," stopped 7 to 10 feet from Ashley, and said, "Bill, defend yourself." Ashley turned and was shot six times as he reached towards his waistband. Ashley carried a buck knife in a waist pouch that was used to cut plastic and boxes at work. When the police arrived, the unopened buck knife was on the floor next to Ashley's leg.

Appellant fled in an Oldsmobile that was abandoned. Inside the car was a Colt 380 semi automatic handgun used to shoot Ashley. Appellant was arrested more than 20 years later, carrying a California driver's license and a passport with different names and birthdates.

At trial, appellant defended on the theory that he acted in self-defense and that it was justifiable homicide. The trial court instructed on first and second degree murder, justifiable homicide in self-defense, and voluntary manslaughter based on imperfect self-defense.

Heat of Passion - Voluntary Manslaughter

Appellant argues that the trial erred in not sua sponte instructing on heat of passion voluntary manslaughter, a lesser included offense of murder. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) A trial court must instruct on lesser included offenses which find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) " 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (Ibid.)

In order to reduce murder to heat of passion voluntary manslaughter, provocation and heat of passion must be affirmatively demonstrated. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) "The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively . . . . '[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" (Id., at pp. 1252-1253.)

When Ashley confronted appellant the morning of the shooting, appellant agreed to fight and told Ashley to get ready. A coworker testified that appellant was humiliated by the taunts but not scared. Appellant told Ashley that he would kill him and there was no turning back.

Appellant claims that a heat of passion killing during mutual combat is sufficient to reduce murder to voluntary manslaughter. The argument fails where the defendant agrees to mutual combat but takes undue advantage by using a deadly weapon against the unarmed victim. (People v. Lee (1999) 20 Cal.4th 47, 60, fn. 6.) "[I]n order to reduce the offen[s]e from murder to manslaughter, it must appear that the contest was waged on equal terms, and no undue advantage was sought or taken by either side; for, if such was the case, malice may be inferred, and the killing amount[s] to murder." (People v. Sanchez (1864) 24 Cal.17, 27.)

Ashley called appellant "chicken" and challenged him to fight the day before the shooting. If appellant was provoked, he had sufficient time to cool off. (See People v. Cole, supra, 33 Cal.4th at p. 1216 [evidence that prior arguments did not end in homicide do not support finding of provocation to kill].) Appellant drove home, asked his wife about the ammo clip, and took a loaded handgun to work the next day. It was strong evidence of planning, premeditation, and malice aforethought. Although Ashley repeated the taunts the next morning, appellant was calm and collected. Appellant agreed to fight and said that he was going to kill Ashley. Absent evidence that appellant acted rashly and without deliberation, the trial court had no sua sponte duty to instruct on heat of passion voluntary manslaughter. (See e.g., People v. Johnson (1993) 6 Cal.4th 1, 44.)

Even if we assumed appellant was provoked by Ashley's taunts, sufficient time elapsed (2 to 5 minutes) for an ordinarily reasonable person to cool down and assess his alternatives. (See e.g, People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1244-1245; People v. Wickersham (1982) 32 Cal.3d 307, 327.) Appellant went to the parking lot, retrieved the loaded handgun, and told Cortez to get out the way. Reentering the building, he pointed the handgun at Ashley, and ordered him to "defend yourself." As Ashley turned to face him, appellant fired 6 shots at a distance of 7 to 10 feet. John Pride, a weapons expert, testified that appellant fired an extremely accurate volley of shots.

The trial court had no duty to instruct on heat of passion voluntary manslaughter unless " 'the killer's reason was actually obscured as a result of a strong passion aroused by a "provocation" sufficient to cause an " 'ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than judgment.' " ' [Citation.]" (People v. Lasko (2000) 23 Cal.4th 101, 108.) An ordinary person of average disposition would have called the police or stayed in the parking lot rather than reenter the building. Appellant, however, stated that "I will kill you" and "I'm going to prove to you that I am a man." Retrieving the handgun from his car, appellant reentered the building and ordered Ashley to "defend yourself." Hardly the words or actions of an enraged person acting without deliberation or reflection. (See People v. Manriquez (2005) 37 Cal.4th 547, 585.)

Appellant claims that Ashley sparked the deadly confrontation by blocking the exit door before appellant went outside. Appellant, however, had already made the decision to kill Ashley and warned "there is no turning back, I will kill you." As appellant passed Ashley at the doorway, appellant said "I don't want to do it here. I already told you how we're going to do it."

In People v. Manriquez, supra, 37 Cal.4th 547,the victim approached the defendant in a bar, called him "a mother fucker," and dared defendant to use his handgun. (Id., at p.  585.) Defendant told the unarmed victim to calm down and shot him. The Supreme Court held there was no duty to instruct on heat of passion voluntary manslaughter absent a "showing that defendant exhibited anger, fury, or rage" and "that defendant 'actually, subjectively, kill[ed] under the heat of passion.' [Citation.]" (Ibid.) Even if defendant satisfied the subjective requirement that he killed in the heat of passion, "the evidence of provocation was insufficient to satisfy the objective requirement, that is, that defendant's heat of passion resulted from sufficient provocation caused by the victim. Although the provocative conduct may be verbal, . . . such provocation 'must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment.' [Citation.]" (Id., at pp.  585-586.)

The same principle applies here. Appellant searched for his ammo clip the night before and took a loaded semiautomatic handgun to work the next day. Appellant agreed to fight Ashley and said "I will kill you."

Appellant complains that the jury was instructed that words, alone, no matter how offensive, are not enough to justify a murder or voluntary manslaughter. (CALCRIM 917.)^[2] The prosecutor, in discussing the instruction, argued that "words alone, no matter how offensive, that are not threatening words, are not enough to justify voluntary manslaughter." (Emphasis added.) The instruction and argument were proper because the only defense theory presented was self-defense justifiable homicide and imperfect self-defense.^[3] (See People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262 [subjective elements of self-defense and imperfect self-defense are identical].)

The jury was instructed it could consider Ashley's words and conduct in determining whether appellant acted in self-defense or imperfect self-defense. (CALCRIM 571, 505, 917.) Defense counsel argued that the jury could not return a murder verdict unless the prosecution proved "the absence of self-defense or imperfect self-defense beyond a reasonable doubt." Counsel referred the jury to CALCRIM 521 which instructed that "[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated."

Assuming arguendo that the trial court erred in not instructing on heat of passion voluntary manslaughter, the error was harmless. (People v. Breverman, supra, 19 Cal.4th at p. 165) In convicting appellant of first degree premeditated murder, the jury found the killing was premeditated, deliberate, and with malice aforethought -- a finding that is the antithesis of heat of passion voluntary manslaughter. (People v. Thompkins (1987) 195 Cal.App.3d 244, 251.) Premeditation and heat of passion "are mutually exclusive. As the Supreme Court explained in People v. Sanchez (1864) 24 Cal. 17, 30 'The intent to kill . . . must be formed upon a pre-existing reflection, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation.' This discussion continues to form the basis for the standard [CALCRIM] instruction on the subject." (Ibid.)

Appellant asserts that the trial court violated his due process right to a fair trial by not instructing on the heat of passion form of voluntary manslaughter. "But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction." (Hopper v. Evans (1982) 456 U.S. 605, 611 [72 L.Ed.2d 367, 373]; People v. Holloway (2004) 33 Cal.4th 96, 141 [neither federal nor state Constitution infringed when theory of voluntary manslaughter unsupported by substantial evidence is omitted from law presented to jury].) Appellant told Ashley "I will kill you" and "I'm going to prove to you that I am a man," declaratory statements inconsistent with heat of passion voluntary manslaughter. (See e.g., People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704 [revenge or punishment killing not heat of passion killing.)

Malice

Appellant argues that the jury should have been instructed that "malice" is intent to kill without provocation and heat of passion.^[4]People v. Rios (2000) 23 Cal.4th 450 does not assist appellant. There, our Supreme Court observed: "[W]here the evidence warrants, a murder jury must hear that provocation or imperfect self-defense negates the malice necessary for murder and reduces the offense to voluntary manslaughter. By the same token, a murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter if the evidence of provocation or imperfect self-defense, which would support a finding 'that the offense was less than that charged,' is lacking. [Citation.]" (Id., at p.  463, fn. 10.)

Assuming that intent to kill without heat of passion is an alternative way of defining malice, appellant waived the issue by not requesting an amplifying instruction. "A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]" (People v. Lang (1989) 49 Cal.3d 991, 1024.)

Waiver aside, the instructional error, if any, was harmless. (People v. Breverman, supra, 19 Cal.4th at p. 1651.) The jury, in rejecting defense theories of self-defense and imperfect self-defense, found that appellant killed with premeditation and malice. "[U]nless the People's own evidence suggests that the killing may have been provoked or in honest response to perceived danger, it is the defendant's obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt of murder. [Citations.]" (People v. Rios, supra, 23 Cal.4th at pp. 461-462.)

Cortez's Pretrial Statement To A Defense Investigator

Appellant argues that he was denied a fair trial because the trial court excluded Cortez's hearsay statement to a defense investigator. Cortez, a coworker, testified that he spoke to appellant the morning of the shooting.

On cross-examination, Cortez could not recall if appellant discussed what happened the night before, i.e., that Ashley followed him after work. Defense counsel asked whether Cortez told an investigator that appellant saw Ashley follow him the night before and was worried that Ashley might do something. The trial court sustained a hearsay objection.

The trial court correctly found that Cortez's statement to the investigator was hearsay and not an inconsistent statement within the meaning of Evidence Code section 1235. Cortez could not recall what he told the investigator and there was no showing that he was being deliberately evasive. (See e.g., People v. Sapp (2003) 31 Cal.4th 240, 296 [claimed lack of memory amounted to deliberate evasiveness]; People v. Perez (2000) 82 Cal.App.4th 760, 764-765 [forgetfulness at trial must be deliberately evasive].)

Defense counsel argued that Cortez's statement of what appellant said was admissible under the state of mind hearsay exception because appellant had decided not to testify. (Evid. Code,  1250 et seq.) Citing Evidence Code section 1251, counsel argued that an out of court statement is admissible if the declarant (i.e., appellant) is unavailable as a witness and the statement is offered to prove the declarant's prior state of mind.^[5]

The trial court properly found that appellant's 1985 statement, which Cortez repeated to a defense investigator before trial, was multiple hearsay. (Evid. Code,  1201; see People v. Reed (1996) 13 Cal.4th 217, 224-225.) "A defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination. [Citation.]" (People v. Harris (1984) 36 Cal.3d 36, 69.)

Cortez's statement was offered to prove the truth of what appellant said 21 years earlier. Appellant saw Ashley follow him the night before and "worried that Ashley might do something." The trial did not abuse its discretion in concluding that the statement was vague as to time, self-serving, and untrustworthy. (Evid. Code,  352, 1252.) "To be admissible under Evidence Code section 1252, statements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are ' "made at a time when there was no motive to deceive." ' [Citations.]" (People v. Edwards (1991) 54 Cal.3d 787, 820.)

Appellant claims that the ruling violated his due process rights but the exclusion of evidence based on state law does not implicate a defendant's federal constitutional rights to present a defense. (People v. Abilez (2007) 41 Cal.4th 472, 503; People v. Cornwell (2005) 37 Cal.4th 50, 82.) A defendant does not have the unfettered right to introduce testimony that is untrustworthy and inadmissible under established rules of evidence. (Montana v. Egelhoff (1996) 518 U.S. 37, 42 [135 L.Ed.2d 361, 367].)^[6]

The exclusion of Cortez's out-of-court statement, if erroneous, was harmless under any standard of review. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Watson (1956) 46 Cal.2d 818, 836.) Other evidence was received that Ashley followed appellant the night before the shooting and that appellant asked his wife about the ammo clip. The next morning, appellant took a loaded handgun to work, agreed to fight Ashley, and declared that he would kill him. The jury found it was premeditated murder based on overwhelming evidence. It is inconceivable that the admission of Cortez's pretrial statement to the defense investigator would have resulted in a different outcome.

Knife Expert Testimony

Appellant next contends that the trial court erred in not permitting John Prine, a weapons expert, to opine how long it would take someone armed with a knife to strike another person seven feet away.^[7] The trial court found the proffered testimony was not relevant and lacked foundation. We concur. There was no evidence that appellant believed that Ashley would strike him with a knife.

Appellant argues that the exclusion of Pride's testimony undermined the defense claim that appellant shot Ashley in response to an imminent peril. But there was no evidence that appellant saw the buck knife or believed he was in imminent danger. The doctrine of self defense requires that the belief be objectively reasonable and " 'judges reasonableness 'from the point of view of a reasonable person in the position of the defendant. . . .' [Citation.]" (People v. Humphrey (1996) 13 Cal.4th 1073, 1083.)

Appellant made no offer of proof that Pride had expertise in calculating the time it would take Ashley to open the knife blade and strike a person seven feet away. The trial court correctly found there was no foundation for the expert opinion testimony. (People v. Ramos (1997) 15 Cal.4th 1133, 1176 [evidence offered without necessary foundation is irrelevant].) Criminal defendants, like the prosecution, must comply with established rules of procedure and evidence, including foundation requirements for expert testimony. (Id., at p. 1175.)

Assuming, arguendo, that the trial court abused its discretion in excluding the knife expert testimony, the error was harmless. It was uncontroveted that Ashley was facing a time clock when appellant pointed the handgun and ordered Ashley to "defend yourself." Ashley turned to look at appellant and was shot six times. No one saw Ashley threaten appellant with a knife.

The police did find a buck knife on the floor, but the knife was closed and posed no threat to appellant. The knife blade had to be opened and locked with two hands before it could be used as a stabbing instrument. A coworker, Edgardo Mellis, testified that Ashley was 12 feet away from appellant when Ashley was shot. We reject the argument that the exclusion of expert testimony about knife response times and striking distances denied appellant a fair trial.

Appellant's remaining arguments have been considered and merit no further discussion. The evidence was overwhelming and showed that appellant agreed to fight Ashley and took undue advantage. Appellant surprised Ashley with the handgun, shooting him six times. The killing was an act of anger and to prove appellant's manhood, negating, as a matter of law, any possible finding that it was imperfect self-defense or heat of passion voluntary manslaughter. (See e.g., People v. Bolton (1979) 23 Cal.3d 208, 215; People v. Dixon (1995) 32 Cal.App.4th 1547, 1552-1556; People v. Fenebock, supra, 46 Cal.App.4th at p. 1704.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Kelvin Filer, Judge

Superior Court County of Los Angeles

______________________________

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jamie L. Fuster, Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1]All statutory references are to the Penal Code unless otherwise stated.

^[2]The CALCRIM 917 instruction stated: "Words alone, no matter how offensive, and acts that are not threatening, are not enough to justify a murder or a voluntary manslaughter. []  However, if you conclude that William Ashley spoke or acted in a way that threatened the defendant with immediate death or great bodily injury, you may consider that evidence in deciding whether the defendant acted in self-defense."

^[3]Citing People v. Le (2007) 158 Cal.App.4th 516, appellant argues that the jury should have been given CALCRIM 570 (voluntary manslaughter based on sudden quarrel or heat of passion). We reject the argument because there was no substantial evidence of objective provocation or "that appellant was acting 'rashly and under the influence of intense emotion that obscured [his] reasoning or judgment.' (CALCRIM No. 570.)" (Id., at p. 528.) In Le, "the prosecutor used CALCRIM No. 917 to take [the victim's] insulting words to appellant, and consequently their impact on appellant, out of the equation for the purpose of determining provocation and heat of passion." (Ibid.)

^[4]The jury received CALCRIM 520 which stated: "There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. []  The defendant acted with express malice if he unlawfully intended to kill. []  The defendant acted with implied malice if: []  1. (He) intentionally committed an act; []  2. The natural consequences of the act were dangerous to human life; []  3. At the time (he) acted, (he) knew (his) act was dangerous to human life; AND []  4. (He) deliberately acted with conscious disregard for (human) life."

^[5]Defense counsel made an offer of proof that, on February 6, 2007, Cortez told a defense investigator "that on the morning of 10/31/85 defendant told him that on the prior evening when he was on his way home he noticed that Ashley was following him. Mr. Cortez stated that the defendant told him that he was worried that Ashley might do something to him."

^[6]During the People's case in chief, Cortez was asked whether appellant threatened Ashley before shooting him. Cortez had told a police detective that appellant said, "Let's do it right now, there is no turning back, I will kill you." At trial, Cortez stated that he did not hear the threat but, on further questioning, did recall telling the detective that appellant make the death threat.

Appellant did not object to the testimony. Having waived the issue, he is precluded from arguing that the trial court "arbitrarily" and "disproportionately" applied the hearsay rules. We reject the argument that prosecutor committed misconduct in asking the jury to consider the "I will kill you" statement and arguing that appellant "went back into the building and hunted down William Ashley like an animal. There's no evidence he was afraid. Absolutely none."

^[7]Defense counsel made the following offer of proof: "[W]itnesses have testified that they observed [Ashley] he had a knife in his waistband area. He was observed reaching for the knife. The knife was found on the ground. Those are the facts that we know. []  I'm going to ask [Pride] -- I'm going to lay a foundation for all of this, and I'm going to ask him how long it would take somebody 12 feet away I'm going to pose a hypothetical starting with 7 and going to 20 [feet] to reach somebody at those distances."