P. v. Morales
Filed 4/26/13 P. v. Morales CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWIN MORALES,
Defendant and Appellant.
B240625
(Los Angeles County
Super. Ct. No. LA059214)
APPEAL from
a judgment of the Superior Court of the County of Los Angeles, Susan M. Speer, Judge. Affirmed as modified.
Mark D.
Lenenberg, 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, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Kimberley J. Baker-Guillemet, Deputy
Attorney General, for Plaintiff and Respondent.
Defendant and
appellant Edwin Morales (defendant) was convicted of second degree murder. (Pen. Code, §§ 187, subd. (a)
court erred in responding to a question posed by the jury because it did not do
so adequately, and the abstract of judgment should be corrected to reflect the
custody credits awarded him by the trial court.
We order that the abstract of
judgment be corrected to state that defendant is awarded 1,409 days of custody
credit consisting of 1,409 days of actual custody credit. We otherwise affirm the judgment.
BACKGROUND
A.
Factual
Background
Defendant hit Jorge Veliz with a bottle
twice and stabbed and killed Veliz.
Prior to being stabbed, Veliz drank alcohol with defendant’s mother,
made comments about defendant’s mother that defendant deemed to be disrespectful,
refused defendant’s repeated requests that he leave the premises, attempted to
take defendant’s mother out on a date, and pushed and hit defendant. Defendant submitted evidence that he was
frightened and suffered from schizophrenia, was under medication for
schizophrenia, and was not medicated at the time Veliz was killed.
Procedural
Background
Following a trial, the jury found
defendant guilty of second degree murder in violation of section 187,
subdivision (a). The jury found true
that defendant used an edged weapon within the meaning of section 12022,
subdivision (b)(1).
The trial
court sentenced defendant to state prison for a term of 16 years to life,
consisting of a term of 15 years to life for second degree murder, plus a one
year-enhancement under section 12022, subdivision (b)(1). The trial court awarded defendant 1,409 days
of custody credit consisting of 1,409 days of actual custody credit.
DISCUSSION
A. Response to Jury’s
Inquiry
While deliberating, the jury asked
the trial court a question that provided, inter alia, whether for purposes of
determining if the defendant is guilty of manslaughter instead of murder, “does
an average [provoked] person have to act to the same extent as the defendant
did.†Defendant cites
212, at page 223, for the proposition that the reasonable person analysis for
voluntary manslaughter focuses “on the provocation—the surrounding
circumstances—and whether it was sufficient to cause a reasonable person to act
rashly. How the killer responded to the
provocation and the reasonableness of the response is not relevant to sudden
quarrel or heat of passion.†Defendant
contends that the jury’s inquiry questioned whether, for purposes of
manslaughter, an average provoked person has to “kill,†and the trial court did
not respond to the question by stating that the jury was not allowed to
consider whether defendant’s act of killing Veliz was reasonable. Moreover, defendant argues that the trial
court should have inquired further of the jury as to the nature of its
question.
1. Background Facts
The trial court instructed the jury with CALCRIM No. 520,
stating that to prove defendant was guilty of murder, the People must prove
that defendant acted with malice aforethought when he caused the death of
another person, and proof of either express malice—unlawful intention to
kill—or implied malice would be sufficient to establish the state of mind
required for murder. The trial court
instructed the jury that, “Defendant acted with implied malice if he
intentionally committed an act; the natural and the probable consequences of
the act were dangerous to human life; at the time he acted, he knew his act was
dangerous to human life; and four, he deliberately acted with conscious
disregard for human life. . . . [¶] . . . . [Malice aforethought]
must be formed before the act is committed.
The trial court also instructed the jury with CALCRIM
No. 570, stating, inter alia, that, “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, one, the defendant
was provoked; two, as a result of the provocation, the defendant acted rashly
and under the influence of intense emotion that obscured his reasoning or
judgment; and three, the provocation
would have caused a person of average disposition to act rashly and without due
deliberation; that is, from passion rather than from judgment. [¶]
Heat of passion does not require anger, rage or any specific
emotion. It can be any violent or
intense emotion that causes a person to act without due deliberation and
reflection. [¶] In order for
heat of passion to reduce a murder to voluntary manslaughter, the defendant
must have acted under the direct and immediate influence of provocation as I
have defined it. [¶] While no specific type of provocation is required, slight or
remote provocation is not sufficient. . . . [¶] It
is not enough that the defendant simply was provoked. The defendant is not 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. [¶] . . . [¶] The People have the burden of proving beyond
a reasonable doubt that the defendant did not kill as the result of a sudden
quarrel or in the heat of passion. If
the People have not met this burden, you must find the defendant not guilty of
murder.†(Italics added.)
Defendant argued to the jury that the manslaughter
instruction “does not say that a person of average disposition would also have
killed.†The prosecutor argued during
closing argument, “And here’s the biggest problem, it’s number three: The provocation would have caused a person of
average disposition to act rashly and without due deliberation, that is from
passion rather than judgment. [¶] You have to think of
what an average person would do. Would
an average person act this way? Would an
average person respond this way?â€
name="_ftnref3" title="">[3]
During jury deliberations, the jury
asked the trial court, “For manslaughter-Heat of passion, does an average
person have to act to the same extent as the defendant did, or would it satisfy
the manslaughter charge if an average person would act rashly without due deliberation?â€
Outside the presence of the jury,
the trial court read the jury’s question to counsel, and proposed the following
answer to the jury’s inquiry: “The heat
of passion requirement for manslaughter has both an objective and subjective
component. Defendant must actually
subjectively kill under the heat of passion, but such heat of passion must be
objectively viewed under the reasonable person standard. In other words, the defendant must have
killed while subjectively under the influence of strong passion aroused by
provocation sufficient to lead an ordinary person of average disposition to act
rashly and without due deliberation and reflection and from passion rather than
from judgment. [¶] The fact that a defendant suffers from
a mental abnormality or has a particular or has particular susceptibilities to
events is irrelevant in determining whether the claimed provocation was
sufficient.â€
Defendant’s counsel stated that she
did not have an objection to the first paragraph of the proposed response; it
“obviously is appropriate.†Defendant’s
counsel stated, “I have only an objection to the . . .
second paragraph. [The jury] was
not asking anything about mental abnormalities or whether or not evidence of
mental illness is . . . considered. [¶] Their
question is pretty
straightforward . . . . [W]ould an average
person . . . be driven to kill or it is simply that an average person
would be acting rashly and without due deliberation, which is the exact
language in [CALCRIM
No. 570,] the jury instruction for heat of passion.†The trial court stated, “[The jury’s
question] doesn’t make sense to me unless they are somehow considering the
defendant’s mental illness, which is causing their confusion. [¶] . . . [¶] [T]hey
have [CALCRIM No. 570]
and apparently it’s not helping them reach a verdict. I think it can only be confusion regarding
his mental illness . . . .â€
The following exchange then
occurred: “[Defendant’s counsel:] “So my concern is this: . . . I think we need to ask them for . .
. clarification as to what they’re asking about. I don’t think we can make the assumption that
they are factoring in the mental illness issue. [¶] When I
argued it, I told them the mental illness doesn’t factor in here. I
just think it’s inappropriate to provide them with information that is not
what’s being asked for because the question isn’t worded clearly enough to
understand what they’re asking. So I’d
ask them to reword their question.
[¶] [Trial court:] But
if you agree that is an accurate statement of the law . . . why would
you object to it being given in written form?
[¶] [Defendant’s counsel:] Because it’s not an
actual response to their question.†The
trial court asked defendant’s counsel, “So if you had to answer their question
yes or no, how would you answer that?â€
Defendant’s counsel responded, “That the average person would act rashly
without due deliberation.â€
The following exchange then
occurred: “[Trial court:] “So, [prosecutor], are you in agreement that
I leave out the last
sentence? [¶] [Prosecutor:] “If it’s a big
deal for the defense, that’s fine. . . . [¶] [Trial
court:] Then I’ll give the answer as
worded with the exception of the last paragraph pertaining to a defendant
suffering from a mental abnormality be deleted.
[¶] [Defendant’s counsel:]
The last sentence, yes, I would ask that that last sentence be deleted.
[¶] [Trial court:] All
right. So we hope this works. Okay.â€
Defendant and the Attorney General agree that the trial court responded
to the jury’s question with the trial court’s proposed response except that the
last sentence was omitted.
The
Attorney General contends that defendant forfeited his contention that the
trial court erred in responding to a question posed by the jury because
defendant failed to object to the final form of the trial court’s answer to the
jury’s question. We agree.
Acquiescence
by defendant’s counsel in the trial court’s response to the jury’s question
forfeits a claim of error on appeal as to that response. (People
v. Rogers (2006) 39 Cal.4th 826, 877.)
In People v. Harris (2008) 43
Cal.4th 1269, the defendant claimed that during its deliberations, the jury
demonstrated confusion over the sentencing choices by asking the trial court
for a definition of a phrase in a jury instruction. The court stated, “[the d]efendant complains
that the court’s answer was ‘essentially . . . no response at
all,’ and amounted to ignoring the jury’s request for a definition. He has waived this argument by specifically
agreeing below to the court’s handling of the jury’s question. (People
v. Turner (2004) 34 Cal.4th 406, 437 [20 Cal.Rptr.3d 182, 99 P.3d 505]; see
also People v. Martinez [(2003)] 31
Cal.4th [673,] 698.)†(
contention that a court’s response to a jury inquiry regarding its instructions
was incorrect and stating, “if defendant favored further clarification, he
needed to request it†and “[h]is failure to do so waives this claimâ€];
402 [rejecting a claim that the court gave an insufficient response to a jury
inquiry about deadlock, stating “this claim is waived by defense counsel’s
agreement with the trial court that informing the jury of the consequences of a
deadlock would have been improperâ€]; People
v. Bohana (2000) 84 Cal.App.4th 360, 373 [“[w]here, as here, appellant
consents to the trial court’s response to jury questions during deliberations,
any claim of error with respect thereto is waivedâ€].)
Defendant’s
counsel stated that she did not have any objection to the portion of the trial
court’s proposed response that was ultimately read to the jury, stating that it
“obviously is appropriate.â€
name="_ftnref4" title="">[4] In response to the trial court’s inquiry of
defendant’s counsel as to how she would answer the jury’s question, she
responded “That the average person would act rashly without due
deliberation.†The trial court’s answer
mirrored how defendant’s counsel suggested that the jury’s question be
answered. The trial court responded to
the jury’s question by stating, inter alia, that,“[T]he defendant must have
killed while subjectively under the influence of strong passion aroused by
provocation sufficient to lead an ordinary person of average disposition to act
rashly and without due deliberation and reflection and from passion rather than
from judgment.â€
Defendant
contends he did not forfeit his contention because his counsel requested that
the trial court question the jury about what they were seeking. Defendant’s counsel made her request to the
trial court to question the jury in the context of the second paragraph of the
proposed response because she did not “think we can make the assumption that
they are factoring in the mental illness issue.†The request by defendant’s counsel was not
made regarding whether the jury was asking if a finding of manslaughter may be made on the basis
that an average person would have been provoked to kill. Pursuant to the objection by
defendant’s counsel the trial court omitted the second paragraph of the
proposed response from the response ultimately provided to the jury. Defendant no longer requested that the trial
court question the jury about what information the jurors were seeking.
Credit
Defendant contends that the
abstract of judgment should be corrected to reflect the custody credits the
trial court awarded him. The Attorney
General agrees.
At the sentencing hearing, the trial court
awarded defendant 1,409 days of custody credit consisting of 1,409 days of
actual custody credit. The abstract of judgment
states that defendant was not granted any custody credits.
“[A] trial
court’s oral sentence governs if it is different from what appears in a minute
order or an abstract of judgment [citations] . . . .†(People
v. Wynn (2010) 184 Cal.App.4th 1210, 1221; People v. Walz (2008) 160 Cal.App.4th
1364, 1367, fn. 3; People v.
Mitchell (2001) 26 Cal.4th 181, 185.)
Accordingly, the abstract of judgment should be corrected to reflect the
trial court’s oral pronouncement that defendant is awarded 1,409 days of
custody credit consisting of 1,409 days of actual custody credit.
DISPOSITION
The abstract of judgment shall be
corrected to state that defendant is awarded 1,409 days of custody credit
consisting of 1,409 days of actual custody credit. We otherwise affirm the judgment.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
TURNER,
P. J.
ARMSTRONG,
J.
name="_ftn1" title="">[1] All
statutory citations are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] As
discussed post, although at the
sentencing hearing the trial court stated that defendant was awarded 1,409 days
of actual custody credit, the abstract of judgment states that defendant was
not granted any custody credits. The minute
order does not mention custody credits.
