P. v. Renteria

Filed 8/22/08 P. v. Renteria CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James

A. Stotler, Judge. Affirmed as modified.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was a live-in caretaker for his brother Jimmy and his sister-in-law Bernice. Appellant felt they mistreated him, so one day, following an argument with Jimmy, he shot them both to death. At trial, he argued he acted in the heat of passion and was therefore guilty only of manslaughter. However, the jury convicted him of murdering Bernice in the first degree, and Jimmy in the second. Now, for the first time, he contends the court should have instructed on the defense of unconsciousness. He also claims the court erred in responding to the jurys questions about the provocation component of manslaughter, sentencing him to consecutive terms and imposing a parole revocation fine. We agree, as does the Attorney General, the fine was improper and must be stricken. However, finding appellants remaining arguments unmeritorious, we affirm the judgment in all other respects.

FACTS

Born in 1949, appellant was the youngest of six children in his family. He lived at home and took care of his mother until she passed away in 1994, and then he moved in with his sister Lucy in Victorville. In 2003, he went to stay with Jimmy and his wife Bernice because they were having health problems; Jimmy was having kidney surgery and Bernice was diabetic. Appellant agreed to be their caretaker, but it was not an easy job. The work was taxing, and Jimmy and Bernice were highly demanding and critical of him. Nevertheless, appellant stayed with them longer than he had promised two months rather than two weeks before moving back to Lucys place.

About a year later, in the fall of 2004, Jimmy talked appellant into coming back to his house. Appellant was to receive free room and board, in exchange for taking care of Jimmy and Bernice and keeping up their home. Things were tolerable at first, but eventually Jimmy and Bernice returned to their old ways. They yelled at appellant, belittled his work, and called on him at all hours. They also expected him to do elaborate household repairs on top of his daily chores. With rarely a moment to himself, appellant became increasingly stressed, describing the situation as a pressure cooker. But he did not think there was much he could do to improve his lot. He considered Jimmy a hotheaded bully, and he felt Bernice always took Jimmys side. Appellant felt powerless to object to their escalating demands.

In February 2005, the situation intensified after Jimmy received an unexpected tax bill. He told appellant he would have to start paying rent in the amount of $400 per month. Having no money, appellant began looking for a job. However, he was 56 years old and had little work experience. Nothing came his way. Not only was the job search coming up empty, it took away from his caretaking duties, which did not sit well with Jimmy and Bernice. They were unsympathetic to appellants plight, and in early April, Jimmy told him he would have to move out unless he could come up with the rent.

Over the next few days, appellant became increasingly stressed as he continued in vain to look for work. He felt angry and betrayed over the fact Jimmy and Bernice were going to kick him out of their house after all he had done for them. After a long, futile day of looking for work on April 6, appellant couldnt bring himself to go home. Instead, he stayed out all night wandering the streets and putting his thoughts about Jimmy and Bernice to paper.

In his journal, he wrote: I have had enough of both of them. But Im not going to let them throw me away like toilet paper. No they are going to pay for all the bad times they put me through. Im going to put both of them down like the dogs they are. . . . When I get back tonight [Im] going to put them out of my misery [and] put them both out like light bulbs going bad. Its pay back time, pay back big time. I will kill them both tonight. [Im] only waiting for the right time to strike.

Appellant also wrote a list of reasons for killing Jimmy and Bernice, which included the phrases hate them and they used you. Contemplating what he would do after the killing, appellant wrote of taking Jimmys gun collection and credit cards and going to Las Vegas. He also made a note to tell the workers at the dialysis center where Bernice went for treatment that she was in the hospital.

Although appellant wrote of killing Jimmy and Bernice that night, he did not return to their home until about 11:00 the following morning. He tried to explain his situation to Jimmy, but Jimmy told him he would have to move out because he was not living up to his end of the bargain. Feeling frustrated and betrayed, appellant left the house and walked around for a couple of hours. Then, at about 3:00 p.m., he returned to the house. His anger building, he tried once again to convince Jimmy to change his mind.

Jimmy did not budge. In no uncertain terms, he told appellant he wanted him gone by the weekend. When appellant protested he would have to live on the street, Jimmy told him you do what you have to do. He then turned to the television and told appellant to stop bothering him.

Appellant walked over to a nearby filing cabinet and retrieved a .357 revolver. He had some difficulty removing the gun from its case, but once he got it out, he turned to Jimmy and fatally shot him in the back of the head.

The gunshot startled appellant. After seeing Jimmy slump to the floor, he heard Bernice calling out from the bathroom. As she made her way into the hallway, appellant walked over to her with gun in hand. She asked appellant what the fuck he was still doing at the house and raised her hand. Thinking she was going to grab him, appellant fired the gun. The shot missed Bernice, but appellant promptly stepped back and fired again. This time, the bullet struck Bernice in the chest, killing her. She was 69 years old.

Appellant walked outside and sat in the backyard. He figured the police would come, but they never did. For the next three days, he stayed at the house and pondered his fate. When the worker from the dialysis center came to pick up Bernice for her treatment, he told him she was in the hospital. He also put a do-not-disturb sign on the front door and took the phone off the hook. After practicing Jimmys signature, he cashed some of Jimmys checks and got money with his credit card. Then he gathered up Jimmys gun collection and headed north in Jimmys car.

After a brief stop at sister Lucys house, he drove to Las Vegas, where he rented a room and pawned Jimmys guns. Before long, though, the police tracked him down and took him into custody. On April 16, nine days after the shooting, he spoke to investigators about what he had done. He said, I dont remember getting [the gun]. . . . I didnt know what I was doing. All I know is I opened . . . the case. I had to use something to open the case. It was locked. He claimed he did not remember pointing the gun at Jimmy or pulling the trigger, but did remember hearing the shot and seeing Jimmy fall to the floor. Asked why he didnt just walk away after their final argument, he said I should have. I thought about it. I was so seething with anger at that point in time that I guess I lost I just lost it.

Appellant claimed his memory was similarly lacking with respect to the circumstances surrounding Bernices death. He told the investigators the gun just went off when he shot her, and he had no recollection of pulling the trigger. As for his journal entries about Jimmy and Bernice, he said he was just venting and did not actually intend to kill them.

At trial, appellant testified at length regarding his emotional state at the time of the shootings. He said, I just felt totally gone. . . . I was so angry, I was so upset, I didnt know what I was doing. I was feeling rage. I was feeling . . . totally upset, totally gone, totally, totally out there. I . . . felt like I had lost complete control of everything. Claiming he must have been in a fog, he said he could not remember shooting either Jimmy or Bernice. He surmised, I guess I boiled over . . . . I dont even think I knew what I was doing. I was gone. I had no thoughts whatsoever. I just did what I did.

The prosecution argued appellant was guilty of first degree premeditated murder, but the defense argued he was guilty only of manslaughter because he was provoked and killed in the heat of passion. Consistent with the defense theory, the court instructed the jury that provocation may reduce a murder to manslaughter. It also instructed that if the provocation is insufficient to do so, it still has bearing on the issue of premeditation and may reduce a murder from first to second degree. In the end, the jury convicted appellant of murdering Jimmy in the second degree and Bernice in the first degree. It also found true allegations appellant discharged a firearm causing death and committed multiple murders. The court sentenced him to consecutive prison terms of life without the possibility of parole and 15 years to life.

I

Appellant contends the court erred in failing to instruct the jury sua sponte on the defense of unconsciousness. We disagree.

Unconsciousness,if not induced by voluntary intoxication, is a complete defense to a criminal charge. [Citations.] To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist where the subject physically acts but is not, at the time, conscious of acting. [Citation.] (People v. Halvorsen (2007) 42 Cal.4th 379, 417; see generally Pen. Code,  26 [the class of people who are incapable of committing crimes includes those persons who committed the act charged without being conscious thereof].)

Appellant did not ask the court to instruct on the defense of unconsciousness. Nevertheless, [i]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This sua sponte duty extends to defenses, such as unconsciousness, if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. [Citation.] (Id. at p. 157; see, e.g., People v. Rogers (2006) 39 Cal.4th 826, 887.)

During closing argument, defense counsel asked the jury to examine appellants mental state, but not for the purpose of determining whether he was unconscious at the time of the shootings. Rather, he argued appellants state of mind was relevant to ascertain the right crime he should be punished for. It was defense counsels position that appellant acted in the heat of passion, and therefore he was guilty of manslaughter, not murder. In so arguing, defense counsel repeatedly emphasized he was not asking the jurors to walk [appellant] out the door. So he was certainly not relying on the defense of unconsciousness. Accordingly, instructions on that defense were required only if there was substantial evidence to support it and the defense was not inconsistent with appellants theory of the case.

Neither of these necessary conditions was satisfied. The only evidence supportive of an unconsciousness defense consisted of appellants own statements. He told the police and the jury he had no recollection of firing the shots that killed the victims. Describing himself as being in a fog and out of it, he claimed he was totally gone when he pulled the trigger. But he also said he was feeling frustrated and angry at that time. And he admitted he actually thought about leaving the house after he and Jimmy argued for the last time. The fact he stayed at the house and went for a gun indicates he made a conscious, albeit tragically unsound, decision to kill his brother.

Appellant also admitted he had trouble getting the gun out of its case. He said the case was locked and he had to use something to get it open. Again, this indicates appellant was aware of things and exercised some degree of judgment before the shootings. He may have been in a highly emotional state, but he seems not only to have known what he was doing, but to have been conscious of doing it. And he recalled why he did it: He wanted to kill his brother because he was angry about the way things were going with him.

Appellant also had an ax to grind against Bernice. After seeing Jimmy slump to the floor, he heard her call out and walked over to her. By his own admission, he shot her because she raised her hand and he thought she was going to grab him. This shows he was consciously reacting to the situation before him. Indeed, appellants statements show he remembered almost everything that happened during the shootings, except pulling the trigger. But the law is clear: A defendants own testimony that he could not remember portions of the events, standing alone, [is] insufficient to warrant an unconsciousness instruction. (People v. Froom (1980) 108 Cal.App.3d 820, 829-830 [] [evidence defendant was forgetful and told a psychiatrist he awakened after the crime was committed did not entitle defendant to an unconsciousness instruction]; People v. Heffington (1973) 32 Cal.App.3d 1, 10 [] [there is no ineluctable rule that a defendants inability to remember supplies an evidentiary foundation for an unconsciousness instruction]; cf. People v. Coston (1947) 82 Cal.App.2d 23, 40 [] [a defendants mere statement of forgetfulness, unsupported by any other evidence, is at most very little evidence of unconsciousness at the time of performing a particular act].) (People v. Rogers, supra, 39 Cal.4th at p. 888.)

Appellant relies on People v. Wilson (1967) 66 Cal.2d 749 and People v. Bridgehouse (1956) 47 Cal.2d 406 in support of his position that instructions on unconsciousness were required. But in those cases, the defendants could recall very little of the shootings they committed. In contrast, appellants statements make clear that, for the most part, he did not lack awareness of his actions during the course of the offenses. (People v. Halvorsen, supra, 42 Cal.4th at p. 418 [discussing Wilson and Bridgehouse].) The complicated and purposive nature of his conduct in [obtaining the gun], aiming at his victims, and shooting them in vital areas of the body suggests the same. That he did not, by the time of trial, accurately recall certain details of the shootings does not support an inference he was unconscious when he committed them. (Ibid.) Therefore, the court did not err in failing to instruct on the defense of unconsciousness. (Ibid.; People v. Rogers, supra, 39 Cal.4th at p. 888.)

And even if there had been substantial evidence of unconsciousness, instructions on that defense would have been improper as being inconsistent with appellants theory of the case. Faced with overwhelming evidence of premeditation, defense counsel made a tactical decision not to seek an outright acquittal of his client. In fact, as noted above, he emphasized to the jurors he was not asking them to set appellant free. He argued appellants passion doesnt excuse his behavior, doesnt justify it, doesnt walk him out the door. It just explains it. [] And this isnt a case where were saying hes not responsible for his crimes. . . . [Instead, we are] trying to pinpoint the emotional state that he was experiencing at the time when he committed these horrible acts . . . and trying to fit the right crime with the right facts.

This was a perfectly reasonable strategy. Had defense counsel sought an acquittal on the facts of this case, he would have been over-playing his hand. That hand included written evidence that appellant hated the victims and wanted to kill them. And it included evidence that he carefully weighed the pros and cons of doing so just hours before he did them in. Such vivid and powerful evidence of premeditation and deliberation is vanishingly rare in homicide cases, even in the most egregious ones involving first degree murder.

Given the terrible facts he had to work with, defense counsel was wise not to swing for the fences. Had he invoked the defense of unconsciousness, the jurors may well have questioned his credibility or become resentful. As it was, defense counsel appeared to make a reasonable point. By simply inviting the jury to mitigate, as oppose to excuse, appellants actions, he gave himself and his client a chance. The tactic worked, too, at least in part. Instead of convicting appellant of first degree murder for killing Jimmy, the jury convicted him of murder in the second degree. Defense counsel came that close to two second degree convictions on one of the strongest first degree murder cases ever to reach this court.

Counsels strategy and tactics were sound. Because instructions on unconsciousness would have been inconsistent with that strategy and those tactics, we cannot say the trial court erred in failing to give them.^[1]

II

Appellant also asserts the court erred in failing to adequately respond to the jurys questions about the provocation component of manslaughter. Again, we disagree.

Pursuant to CALCRIM No. 522, the court instructed, 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 murder or manslaughter.

Pursuant to CALCRIM No. 570, the court further instructed, While no specific type of provocation is required to reduce murder to manslaughter, the provocation must be such that it would have caused an ordinary person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.

During deliberations, the jury sent the court a note that asked:

A) Is there any further law on 522. Provocation: Effect on Degree of Murder?

B) Is the standard the same 570 (Sic.)

With the parties consent, the court answered these questions as follows:

A. Yes. If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to voluntary manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.

B. No. The provocation necessary to reduce murder to voluntary manslaughter is explained in CALCRIM 570.

Later that same day, the jury submitted another question to the court on the subject. It wanted to know, Does the ordinary person standard apply to provocation and 1st vs. 2nd degree? The court, again acting with the parties consent, told the jury the answer was no.

Appellant concedes that this was a correct response. (See People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295 [whether the provocation precluded the defendant from deliberating . . . requires a determination of the defendants subjective state].) Nevertheless, he contends the court should have further explained that the provocation required to reduce the degree of murder, unlike that required to reduce murder to manslaughter, need not come from the victim.

Appellant fails to cite any authority that directly supports the giving of such an instruction. Moreover, he acknowledges his attorney expressly approved of the courts answers to the jurys questions. In so doing, counsel waived appellants right to challenge those answers on appeal. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193; People v. Medina (1990) 51 Cal.3d 870, 902.)

Anticipating this conclusion, appellant contends his attorney was ineffective for failing to propose a response to the jurors questions that would have allowed them to consider any and all sources of provocation in determining whether he was guilty of second degree murder. However, as the Attorney General points out, there was nothing in the courts instructions that prevented the jury from so doing. Therefore, the jury was free to consider sources of provocation other than the victim in assessing the degree of murder of which appellant was guilty.

Having said that, it does not appear this issue was even on the jurys radar screen. Judging by its second question, it was not concerned with the source of the provocation, but whether appellants response to it should be viewed by an objective or a subjective standard. Under these circumstances, we cannot say defense counsel was ineffective for failing to propose further instructions on the law of provocation. Counsels performance did not fall below prevailing professional norms, nor is it reasonably likely appellant would have obtained a more favorable result had counsel handled the matter differently. (See Strickland v. Washington (1984) 466 U.S. 668.) There is no basis here for disturbing appellants convictions.

III

In imposing consecutive sentences for the murders, the court relied on the fact appellant killed two people. Appellant contends this was an improper justification because the reason the court sentenced him to life in prison without the possibility of parole for murdering Bernice is because the jury found true the special circumstance allegation that he committed multiple murders. (See Pen. Code,  190.2, subd. (a)(3).) In other words, he contends the courts decision to impose consecutive sentences for the murders was improper because it made dual use of the fact he committed multiple murders.

However, appellant never objected to his sentence on this basis below, and thus the claim has been waived. (People v. Scott (1994) 9 Cal.4th 331, 353 [waiver rule applies where the trial court purportedly erred because it double-counted a particular sentencing factor]; People v. de Soto (1997) 54 Cal.App.4th 1, 7-8 [same]; People v. Erdelen (1996) 46 Cal.App.4th 86, 91 [same]; People v. Brandon (1995) 32 Cal.App.4th 1033, 1054 [same].)

Alternatively, appellant contends his attorney was ineffective for failing to raise the dual-use issue at the time of sentencing. However, the rule appellant invokes in presenting his dual-use claim California Rules of Court, rule 4.425(b) applies only to consecutive determinate terms. (See Cal. Rules of Court, rule 4.403.) Because appellant was sentenced to consecutive indeterminate terms, he cannot avail himself of that rule. (See People v. Murray (1990) 225 Cal.App.3d 734, 750.)

Moreover, appellant admits that, besides the multiple victim circumstance, there were several other aggravating factors the victims vulnerability and appellants abuse of their trust to name two that would have justified consecutive sentences in his case. Relying on Cunningham v. California (2007) 549 U.S. 270, he argues those factors could only be found applicable if they were submitted to the jury and determined to be true beyond a reasonable doubt. However, the Cunningham decision applies only to a trial courts decision to impose the upper term for a particular offense; it does not apply to a courts decision to impose consecutive sentences for multiple offenses. (People v. Black (2007) 41 Cal.4th 799, 820-823.)

Therefore, even if counsel had objected to appellants sentence as being violative of the dual-use proscription, it is not reasonably likely appellant would have received a more favorable sentence. Accordingly, the failure to object did not constitute ineffective assistance of counsel.

IV

Lastly, appellants claim, and the Attorney General agrees, the court erred in imposing a parole revocation restitution fine. (See Pen. Code, 1202.45.) The fine was improper because appellant was sentenced to life in prison without the possibility of parole. (People v. Petznick (2003) 114 Cal.App.4th 663, 687.) We will modify the judgment accordingly.

DISPOSITION

Appellants parole revocation fine is stricken, and as so modified the judgment is affirmed in its entirety.

BEDSWORTH, ACTING P. J.

WE CONCUR:

OLEARY, J.

ARONSON, J.

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^[1] Having determined unconsciousness instructions were unwarranted for lack of evidence and as being inconsistent with appellants theory of the case, we need not address the Attorney Generals claim the instructions were also improper because the defense of unconsciousness is limited to cases where the defendants acts are nonvolitional. We express no opinion on this claim.