P. v. Musser
Filed 4/25/13 P. v. Musser CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
GARREN VANCE MUSSER,
Defendant and
Appellant.
2d Crim. No.
B233567
(Super. Ct. No.
1291346)
(Santa
Barbara County)
Garren Vance Musser appeals the judgment following
his conviction for first degree murder. (Pen. Code, §§ 187, subd. (a)/189.)
circumstance allegation that the murder was committed while lying in wait
(§ 190.2, subd. (a)(15)) and an allegation that Musser personally used a
deadly weapon (§ 12022, subd. (b)(1)).
Musser was sentenced to life without possibility of parole, plus a
consecutive one-year term for the weapon enhancement. He contends that the trial court erred by
limiting expert testimony, that the prosecutor committed
insufficient evidence to support the lying in wait special circumstance. He also claims that California's death penalty statute is
unconstitutional and that his sentence constituted
FACTS AND PROCEDURAL HISTORY
On October 3, 2008, Musser met victim Lisa
Zazueta in a bar. Musser and Zazueta
spent the night together at Zazueta's home and had sexual intercourse. During the following two weeks, Zazueta sent
several text messages to Musser seeking to continue their relationship and
expressing romantic feelings towards him.
Having learned that Zazueta was married, Musser responded to her text
messages by stating that he did not want to talk to her, did not want her
texting him, and did not want to see her.
In one text message, Zazueta told Musser she might have gotten pregnant
during the night they spent together.
Musser suggested an abortion if she in fact was pregnant. Zazueta continued sending text messages
attempting to get together with Musser.
On October 18, Zazueta text messaged Musser
stating that she wanted to come to his house that night and have sex with him
one more time. After more text messages
from her, Musser agreed to see Zazueta again, hoping that she would leave him
alone after that. They went to a motel
where they had sex.
On October 19, Zazueta texted Musser stating that
she wanted to have sex with him again.
Musser responded that he never wanted to see her again. On October 20, Zazueta texted that she was
not pregnant but missed him. On October
21, Zazueta telephoned Musser, again trying to get together with him. Musser said no. Text messages from Zazueta followed later the
same day asking for sex and telling Musser that he had broken her heart. Musser again responded by telling her to
leave him alone. On October 22, there
were no Zazueta text messages except a message intended for another person
which was mistakenly sent to him. Musser
responded to the misdirected message and Zazueta responded by stating that she
was, in fact, pregnant and would not get an abortion. Musser was very upset.
At 10:00 p.m. on the evening of October
22, Zazueta telephoned Musser and they talked for 17 minutes. She told him she loved him and was coming
over to his house that night to have sex.
He told her not to come over and that he never wanted to see her
again. Zazueta persisted in stating that
she was coming to his house. After the
telephone call, Musser decided that, if she came to his house, he would kill
her.
Zazueta came to Musser's house shortly after midnight on October 23. She had texted him that she was on her
way. Musser dressed and got a "Smith
and Wesson Home Security" knife from a drawer. He planned to use the knife to kill her. Zazueta arrived at 12:19
a.m.
and Musser went outside. Zazueta walked
up to him. He told her to leave, but she
refused and they talked for a few minutes.
Zazueta would not leave.
Musser pulled out his knife, opened it and held it
at his side for approximately two minutes while he stroked Zazueta's face and
she kissed his hand. Then, Musser cut
Zazueta horizontally across her throat with his knife killing her. The single wound severed her carotid artery,
both jugular veins, and her trachea. Her
head was held to her body only by some muscle tissue and the
Musser retrieved Zazueta's cell phone which would
tie her to him, went into his house, washed, and changed clothes. He threw his bloody clothes in a trash
can. He then called 911 and reported
that there was a dead body lying outside his house.
When police arrived, Musser told them he did not
know Zazueta and just found her lying in front of his house. After finding Musser's bloody clothes, the
knife and other incriminating evidence at the scene, the police detained Musser
and brought him to the police station.
At the police station, Musser quickly confessed to the police and his
family that he had killed Zazueta. His
taped confession to the police was played to the jury during trial.
DISCUSSION
No Error in Limitation on Expert Testimony
Musser contends the trial court erred by limiting
testimony from an expert witness on stalking and the reactions of stalking
victims. Musser's principal defense was
that he killed in a heat of passion provoked by Zazueta's stalking of him and,
therefore, he was guilty only of voluntary manslaughter. He argues that limitations on testimony from
his expert deprived him of his constitutional
right to present a defense. (
(1974) 415 U.S. 308, 315; Chambers v. Mississippi (1973) 410 U.S. 284,
302.) We disagree.
"A
person is qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on
the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) Expert opinion testimony must be
"[r]elated to a subject that is sufficiently beyond
opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a); People v. Watson (2008) 43 Cal.4th 652,
692.) Expert testimony is inadmissible
when it consists of inferences and conclusions which can be
drawn as easily and intelligently by the jury as by the witness. (People v. Valdez (1997) 58
Cal.App.4th 494, 506; see People v. Lowe
(2012) 211 Cal.App.4th 678, 684.)
Accordingly, a trial court has broad discretion to limit or exclude expert
testimony. (People v. Bui (2001)
86 Cal.App.4th 1187, 1196.) We review a
trial court's ruling under the abuse of discretion standard. (People v. McDowell (2012) 54 Cal.4th 395,
425–426.) Application
of ordinary rules of evidence does not infringe upon a defendant's
defense. (People v. Boyette (2002) 29 Cal.4th
381, 427-428.)
Musser offered
expert testimony regarding stalking from psychologist Mindy Mechanic. At an Evidence Code section 402 hearing, Dr.
Mechanic informed the court that she had adopted a very broad definition of
stalking as a pattern of intrusive and unwanted contacts that are likely to
cause distress or fear in the victim.
She stated that under her definition, in contrast to the legal
definition, stalking does not require violence or threats or that the stalking
victim fear for his or her safety.
anger in the victim was sufficient to label behavior as stalking, and that
victims may react with paranoia, confusion or aggression and may suffer
depression and post traumatic stress symptoms.
She explained that certain stalking behavior appears "innocuous"
or "benign" on the surface. In
such cases, male victims often believe they can handle the situation, and are
less likely than women to report stalking to the police or seek restraining
orders. Dr. Mechanic never interviewed
Musser but, based on her review of court documents, stated that she was
prepared to testify that Zazueta had been stalking Musser during the three
weeks before her death.
The court ruled that
much of Dr. Mechanic's anticipated testimony was inadmissible at trial because
it was not sufficiently beyond common experience to assist the jury, and
inferences and conclusions regarding stalking and the reaction of its victims
could be drawn as intelligently by the jurors without her testimony. (See People v. Valdez, supra, 58
Cal.App.4th at p. 506; Evid. Code, § 801, subd. (a).) Specifically, the trial court ruled that Dr.
Mechanic could not opine that Zazueta was stalking Musser or that stalking
caused trauma in its victims. For the
same reason the court excluded testimony regarding the possible reactions of
stalking victims such as paranoia, confusion, aggression, depression, post
traumatic stress, and thoughts of suicide.
The trial court,
however, allowed testimony regarding the reluctance of stalking victims,
especially men, to involve the police or the courts. At trial, Dr. Mechanic testified regarding
her broad definition of stalking as a "pattern of recurring unwanted
intrusion and communications that result in the victim feeling distress or
fear." She testified that stalking
could involve seemingly benign behavior such as telephone calls, stopping at a
house, leaving notes, and sending gifts.
She also testified that men believe they can handle stalking especially
when the stalker is not a stranger, and are less likely to report stalking to
the police than women.
trial court did not abuse its discretion.
As stated in an analogous case, expert testimony on the adequacy of
provocation is not a subject sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact. (People
v. Czahara (1988) 203 Cal.App.3d 1468, 1477-1478.) The "reasonableness of a reaction is
left to the jurors precisely so that they may bring their common experience and
their own values to bear on the question of whether the provocation partially
excused the violence." Experts
"may have specialized empirical knowledge regarding the range of reactions
to a given provocation, or the reaction of the statistically average individual
in a given community. But this
information would not materially assist the jury in its task; the jury must
determine not only if the reaction is ordinary but if it is reasonable, and
that determination depends more on (perhaps unarticulated) community norms than
on empirically discoverable averages."
(Id. at p. 1478.)
Moreover, Musser had
ample opportunity to present expert testimony in support of his heat of passion
defense. The exclusion of certain
testimony did not prevent Musser from making the point that stalking does not
require the victim to fear for his or her safety, and that stalking often
includes seemingly benign behavior.
No
Prejudicial Prosecutorial Misconduct
Musser contends that the
trial court erred in denying a motion for new trial based on prosecutorial
misconduct during argument. He argues that
the prosecutor misstated the law regarding the provocation necessary to reduce
murder to voluntary manslaughter by arguing that the standard is whether a
defendant's response to the provocation was reasonable, rather than whether the
provocation was sufficient to cause an ordinary person to act rashly. We conclude that there was no prejudicial
error.
A prosecutor has wide
latitude to draw inferences from the evidence but it is misconduct for the
prosecutor to misstate the law. (People v. Hill (1998) 17 Cal.4th 800,
829-830, overruled on another ground in Price
v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Under California law, misconduct involves the
use of deceptive or reprehensible methods to persuade the court or jury, but
requires reversal of a conviction only if it is reasonably probable the result would have been more
favorable to the defendant without the misconduct. (People
v. Cole (2004) 33 Cal.4th 1158; see also People v. Cook (2006) 39 Cal.4th 566, 606,
608.) Under
federal law, misconduct requires reversal only when it "infects the trial
with such unfairness as to make the conviction a denial of due
process." (People v. Morales (2001)
25 Cal.4th 34, 44.) We evaluate the
prosecutor's challenged statements in the context of the argument as a whole,
and will not "lightly infer" that the jury interpreted the statements
in their most damaging light. (People
v. Brown (2003) 31 Cal.4th 518, 553–554; People v. Dennis (1998) 17
Cal.4th 468, 522.)
Here, the claimed misconduct
involves the prosecutor's argument regarding a killing committed in the heat of
passion. Malice is negated and a
defendant commits voluntary manslaughter, not murder, when he or she unlawfully
kills another person "upon a sudden quarrel or heat of passion." (§ 192, subd. (a); see People v.
Breverman (1998) 19 Cal.4th 142, 153–154.) Heat of passion has both an objective and a
subjective component. The defendant must
kill while actually in the heat of passion, but the provocation must be
sufficient to arouse passion in an "ordinarily reasonable
person." (People v. Steele
(2002) 27 Cal.4th 1230, 1252–1253.)
The killer's reason must be obscured as the result of a strong passion
aroused by provocation sufficient to cause "a person of average
disposition to act rashly and without due deliberation, that is, from passion
rather than from judgment."
(CALCRIM No. 570.)
Musser relies on
that a determination of heat of passion is based on the defendant's conduct in
response to the provocation rather than whether the provocation itself would
cause an ordinary person to act rashly.
The prosecutor argued that the offense would be voluntary manslaughter
only if "a reasonable
the defendant did." (Id. at p. 223,
italics omitted.) The Court of Appeal
concluded that the prosecutor's statements misstated the law. "How
to the provocation
and the reasonableness
of the response
is not relevant
. . . ." (Id.
at p. 223.) The
cause a reasonable
person to act
rashly, not the reasonableness of the specific reaction.
In the instant case, the
prosecutor told the jury that the test was "whether or not a person of
average disposition would do the same thing in the same or similar circumstance
as the defendant did. . . . So ask yourself would a reasonable person do what
the defendant did in his circumstance."
The trial court sustained a defense objection to this statement. Restating part of her previous statement, the
prosecutor then stated to the jury, "[w]ould a reasonable person do what
the defendant did in the same or similar circumstance." The trial court again sustained a defense
objection. The prosecutor then stated,
"Did the defendant respond as a reasonable person did? And that is absurd that a reasonable person
or a person of average disposition would respond the way the defendant did in
this case." This time, the court
overruled a defense objection, but admonished the jury "to the extent that
they hear instructions on the law that are not consistent with what the Court
has instructed, it's the Court's instructions that count." During rebuttal argument, the prosecutor
stated that "no person . . . of average disposition would have done what
the defendant did in this case."
The court sustained a defense objection to this statement, again
admonishing the jury that to the extent any argument by counsel misstates the
law, the jury must follow the court's instructions.
We agree that the challenged
comments by the prosecutor mixed correct and incorrect statements of law
which could have at least confused the jury.
In substance, the statements incorrectly told the jury that
it should consider whether the circumstances would have provoked a reasonable
person to kill rather than whether the circumstances would have provoked a
reasonable person "to act rashly and without due deliberation, that is,
from passion rather than from judgment."
(CALCRIM No. 570.)
In any event, even if the
prosecutor misstated the law regarding heat of passion, the error was harmless
under any standard. First, the trial
court sustained all but one of the defense objections, and twice admonished the jury to
follow its instructions rather than any inconsistent statements by the
prosecutor. In addition, the
jury instruction given by the trial court correctly set forth the applicable
legal principle.
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were sufficient to cure any prejudice to Musser from the erroneous statements
by the prosecutor. We presume the
jury understood and considered all of the instructions. (People v. Castaneda
(2011) 51 Cal.4th 1292, 1320-1321; People
v. Najera, supra, 138
Cal.App.4th at p. 224.)
Circumstance
Musser contends there was insufficient evidence to
support a finding that the murder was committed while Musser was lying in
wait. We disagree.
In reviewing
the sufficiency of the evidence, we review the entire record in the light most
favorable to the prosecution "to determine whether it contains evidence
that is reasonable, credible, and of solid value, from which a rational trier
of fact could find the defendant guilty beyond a reasonable doubt." (People
v. Silva (2001) 25 Cal.4th 345, 368.)
We do not resolve credibility issues or evidentiary conflicts, and
presume in support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence.
(People v. Boyer (2006) 38
Cal.4th 412, 480.) A reversal is
unwarranted unless there is no substantial evidence to support the finding
under any hypothesis whatever. (
357.)
The
requires an intentional murder, committed under circumstances where there is a
concealment of purpose, a substantial period of watching and waiting for an
opportune time to act, and a surprise attack on an unsuspecting victim
satisfied by a showing "'that a defendant's true intent and purpose were
concealed by his actions or conduct. . . .'"'" The defendant need not be literally concealed
from view. (Ibid.)
The
period of watching and waiting need not continue for any particular amount of
time, provided it is sufficient to show a state of mind equivalent to
deliberation or premeditation. (
purpose, watchful waiting, and a killing during the same time period without a
material interruption or change in purpose.
(See People v. Lewis (2008)
43 Cal.4th 415, 512.)
evidence established that Musser concealed his intent and purpose to kill
Zazueta. He rebuffed her advances but
never took any action by word or deed which indicated any threat of physical
harm. On the night of the murder, Musser
did not lure her to his home in the common sense of the word, but took no
action to prevent Zazueta from coming and knew she was coming with the hope
they would talk and that he would return her affection for him. When Zazueta arrived at his home, Musser
initially acted calmly and without antagonism.
He did not demand that she leave or threaten to call the police or harm
her. Instead, he had the murder weapon
on his person and had decided to use it to kill her.
evidence showed that defendant engaged in a
substantial period of watching and waiting for an opportune time to act.
"Watchful" does not require actual watching; it can include being
"alert and vigilant" in anticipation of the victim's arrival to take
him or her by surprise. (People v.
Sims (1993) 5 Cal.4th 405,
433.) The record shows that he was
waiting for her for a substantial period of time and was on the lookout for her
arrival.
and waiting, Musser launched an attack on the unsuspecting Zazueta from a
position of advantage.
Musser briefly notes that
there was a period of several minutes after Zazueta's arrival and the stabbing
during which he caressed her and tried to convince her to leave him alone. Such a period existed but does not undermine
the evidentiary support for the special circumstance. Before 2000, section 190.2, subdivision
(a)(15) required a killing "while" the defendant was lying in wait,
and case law interpreted the word "while" to require a "temporal
relationship" between the killing and the lying in wait without any
v. Lewis, supra, 43 Cal.4th at pp.
511-515.) In 2000, the language of
special circumstance was amended to substitute "by means of" lying in
wait for "while" lying in wait.
(People v. Superior Court (Bradway)
(2003) 105 Cal.App.4th 297,
307–308.) That change reduced the need
for a temporal connection between the concealment and the killing. (Ibid.) Lying in wait does not require the killing to
occur at the first available opportunity and permits the defendant to maximize
his advantage prior to striking. (People
v. Hillhouse (2002) 27
Cal.4th 469, 501.)
Death Penalty Constitutional
Musser contends that the California death penalty
law violates the Eighth Amendment of the
States Constitution. He argues that
the proliferation of special circumstances permit imposition of the death
penalty in the overwhelming majority of first degree murder cases so as to
eliminate the required "objective basis for
distinguishing a case in which the death penalty has been imposed from the many
cases in which it has not." (People
v. Crittenden (1994) 9 Cal.4th 83, 154.)
We
disagree.
As respondent argues, because
a death sentence was neither sought nor imposed, Musser lacks standing to
challenge the constitutionality of the death penalty. (See In re Cregler (1961) 56 Cal.2d
308, 313.) Even if Musser had standing,
however, his argument lacks merit.
Section 190.2,
subdivision (a) provides that the penalty for first degree murder is death or
life imprisonment without the possibility of parole if one or more of certain
special circumstances have been found.
Here, the jury found Musser guilty of murdering Zazueta while lying in wait. (§ 190.2, subd.
(a)(15).) The prosecution, however, did
not seek the death penalty and Musser was sentenced to life without the
possibility of parole.
or Unusual Punishment
As a separate
constitutional claim, Musser contends that his sentence of life without the
possibility of parole constitutes cruel and unusual punishment because it was
grossly disproportionate to his crime.
We disagree.
Musser has forfeited
this claim because he failed to raise this contention in the trial court. (People v. Russell (2010) 187
Cal.App.4th 981, 993.) We also reject the claim on its merits.
punishment (Cal. Const., art. I, § 17) if it is so disproportionate to the
crime for which it is inflicted that it "shocks the conscience." (People v. Dillon (1983) 34 Cal.3d
441, 478; see also Ewing v. California (2003) 538 U.S. 11, 30; In re
Lynch (1972) 8 Cal.3d 410, 424.) The
federal standard is similar. (Gregg
v. Georgia (1976) 428 U.S. 153, 173; Harmelin v. Michigan (1991) 501 U.S. 957.) In evaluating proportionality, courts consider the
nature of the offense and the offender, punishments for more serious offenses
in the same jurisdiction, and punishment for the same crime in other
jurisdictions. (Solem v. Helm
(1983) 463 U.S. 277, 288, 290–292; In re Lynch, at pp. 425–427.)
voluntary manslaughter and that his sentence was grossly disproportionate to
that crime. He repeats his arguments
that there was insufficient evidence to support the lying in wait special
circumstance and ample evidence to support his heat of passion defense. The jury rejected these claims as have
we. In
addition, Musser admitted that he planned the extremely brutal murder. And, Musser makes no attempt to present an
intrastate comparison of sentences for other crimes or an interstate comparison
of sentences for the same crime. His
argument fails on this basis alone.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We
concur:
GILBERT, P. J.
YEGAN, J.
Jean
Dandona, Judge
Superior
Court County of Santa Barbara
______________________________
Derek K. Kowata, 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, Steven D. Matthews, Supervising Deputy
Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and
Respondent.
All statutory
references are to the Penal Code unless otherwise stated.
defined as: "Any person who willfully, maliciously, and
repeatedly follows or willfully and maliciously harasses another person and who
makes a credible threat with the intent to place that person in reasonable fear
for his or her safety, or the safety of his or her immediate family is guilty
of the crime of stalking, punishable by . . . imprisonment in the state
prison."
