P. v. Herbert

Filed 12/15/08 P. v. Herbert CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed.

Kevin D. Sheehy, 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, Peter Quon, Jr., Angela M. Borzachillo, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant, a nursing assistant who worked in a group home for children with cerebral palsy and other disabilities, was convicted of second degree murder. The evidence showed that she struck one of the children in her care and lacerated the childs liver, causing the childs death. On appeal, she contends that because there was substantial evidence to support an instruction on voluntary manslaughter, the courts refusal to give such an instruction was error. She also contends that the courts effort to clarify the definition of conscious disregard for human life was misleading to the extent that it deprived her of a finding by the jury of each element of second degree murder. She argues that each error, standing alone, requires reversal of her conviction, or in the alternative, that the two errors were cumulatively prejudicial.

PROCEDURAL HISTORY

Defendant was charged with premeditated murder. (Pen. Code, 187, subd. (a).) At the conclusion of the trial, the prosecutor conceded that there was no evidence of premeditation, and the case was submitted to the jury with instructions on second degree implied-malice murder and on involuntary manslaughter as a lesser included offense. The jury returned a verdict of second degree murder. Defendant was statutorily eligible for probation, but the court elected to impose a sentence of 15 years to life. Defendant filed a timely notice of appeal.

FACTS

Marrisa C., a severely mentally retarded 10-year-old girl with cerebral palsy, lived in a group home for disabled children called Baker House. Defendant was a nursing assistant in the home who normally worked the graveyard shift, alone, caring for six disabled children. There was evidence that defendant did not like Marrisa, who engaged in some distasteful behaviors. On the night in question, defendant spoke to a coworker on the telephone around 1:30 a.m. The coworker could hear another child, Anthony, crying. Anthony was also severely disabled and could not turn himself in bed. The coworker recognized Anthonys cry as his way of indicating discomfort and advised defendant several times to turn him. Defendant refused, saying he could turn himself.

At 3:45 a.m., Corporal Hoxmeier of the Riverside County Sheriffs Department responded to a 911 call about a child not breathing at Baker House. He found defendant in the living room with Marrisa. Marrisa was unconscious and not breathing, but had a weak heartbeat. Paramedics arrived shortly after that and transported Marrisa to the hospital, where she later died.

Defendant told conflicting stories about what had happened. Ultimately, she admitted that she had become exasperated and then angry at Marrisa, who would not stop biting at her hands, a behavior Marissa often engaged in. Defendant hit Marrisa twice in the chest, once while the child was lying on her back on the floor.

Marrisa weighed 62 pounds, while defendant weighed 220 pounds. Although defendant claimed she had not struck the child with much force, the blows lacerated Marrisas liver, causing massive internal bleeding which led to Marrisas death. A forensic pathologist testified that Marrisas injury was consistent with being struck by a person of defendants size. The injury could not have been caused by CPR, even if improperly performed.

A worker who arrived later in the morning discovered that Anthonys face was red and swollen, with a crescent-shaped injury near one eye. Defendant told her that Anthony had a rash.^[1] The other worker observed that the rash appeared to be blood which had been partially wiped away. Anthonys bed rail was also broken. The worker also discovered a large amount of hair in Marrisas bed and on her pajamas.

When defendant was employed at a different facility owned by the same company, a quadriplegic child with cerebral palsy suffered a cut on his head during defendants shift. Defendant said the child had fallen out of bed. As a coworker examined the childs injury, defendant approached. The child, who could not speak, reacted with alarm to defendants presence. A pair of bloody socks was later found in the laundry. Defendant was transferred to a facility for children who were less medically fragile. She acknowledged that the transfer was so the child . . . wouldnt be harmed again.

LEGAL ANALYSIS

THERE WAS INSUFFICIENT EVIDENCE TO REQUIRE AN INSTRUCTION ON VOLUNTARY MANSLAUGHTER

Defendant asserts that the court erred when it refused her request for an instruction on heat-of-passion voluntary manslaughter. She focuses her argument primarily on the reasons given by the court for refusing the instruction. Our task, however, is not to review the trial courts reasons for denying a request for an instruction on a lesser offense. A trial court must instruct the jury on a lesser included offense if there is substantial evidence which would justify the conclusion that the lesser offense was committed but the greater offense was not. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Accordingly, our task is to review the record independently to determine whether there is substantial evidence which would have permitted a jury composed of reasonable people to determine that defendant committed voluntary manslaughter rather than second degree murder. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) We conclude that there is not sufficient evidence to require an instruction on voluntary manslaughter.

Heat-of-passion voluntary manslaughter occurs when a person, acting with conscious disregard for life and knowing that his or her conduct endangers the life of another, intentionally or unintentionally kills in a sudden quarrel or heat of passion. (People v. Lasko (2000) 23 Cal.4th 101, 104, 108-110.) The crime has both a subjective component and an objective one: The killers reason must actually be obscured as the result of a strong passion, and his passion must be aroused by a provocation which is sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from passion rather than from judgment. (People v. Breverman, supra, 19 Cal.4th at p. 163.) No specific type of provocation is required. (Ibid.)

Defendant asserts that the following evidence supports an instruction on voluntary manslaughter: Just before her encounter with Marrisa, defendant, who was sleep-deprived, fighting a cold and not feeling well, had a lengthy, loud and agitated phone conversation with her coworker, during which another child in her care had been crying, loudly, for 10 to 15 minutes, demanding her attention. When Marrisa refused to stop biting her hands, defendant became exasperated and angry and struck Marrisa, causing the fatal injury.

This evidence is insufficient to warrant an instruction on voluntary manslaughter. Circumstances which are not attributable to the victim do not constitute legally sufficient provocation, even though they might be sufficient to prove that the defendant subjectively acted in a heat of passion. This includes the defendants mental or emotional state which existed independently of any provocation by the victim. (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) Rather, the provocation must be caused by the victim or result from conduct which the defendant reasonably believed to have been engaged in by the victim. (People v. Manriquez, supra, 37 Cal.4th at p. 583.) Thus, defendant was entitled to the instruction only if Marrisas own conduct constituted legally sufficient provocation. Marrisas failure to stop biting her hands and to stop struggling when defendant tried to subdue her is not conduct which is so provocative that an average person would become so inflamed as to lose reason and judgment. (Id. at p. 586.) Consequently, the court correctly refused the requested instruction.

THE COURT DID NOT MISINFORM THE JURY OF THE ELEMENTS OF IMPLIED-MALICE MURDER OR INVOLUNTARY MANSLAUGHTER

In response to the jurys request for more clarification regarding the term []conscious disregard for human life[] and knowing something is a dangerous act to human life, the court explained as follows:

[F]irst and foremost of all, I want to refer you back to [Judicial Council of California Criminal Jury Instructions, CALCRIM Nos. 520 and 580], because thats the definitions [sic] of the two crimes.^[[2]] And basically, for second-degree murder, you need to have an element of what we call implied malice. And that is defined as a conscious disregard for human life. Thats implied malice. [] And if you have implied malice, or a conscious disregard for human life, then its second-degree murder. [] If you dont have that conscious disregard for human life, or if you dont have malice, then its involuntary manslaughter. . . . [] But to give you some further explanation, Implied malice involves an element of viciousness and extreme indifference to human life. It is when a defendant makes a voluntary choice to commit a person-endangering act. Let me repeat that. Implied malice is when a defendant makes a voluntary choice to commit a person-endangering act.^[[3]] [] And, ultimately, you have to make the decision based upon all of the evidence presented during the course of the trial, whether the defendant had knowledge or didnt have knowledge that something was dangerous to human life, and that whether she did, when she acted, had implied malice or didnt have implied malice, or acted with a conscious disregard for human life or didnt act with a conscious disregard for human life.

The court also provided the jury with additional copies of CALCRIM No. 520 and No. 580, as the jury had requested.

Defendant complains that the courts explanation omitted three essential sub-elements of implied malice and misdescribed the fourth sub-element. She argues that the courts explanation permitted the jury to convict her of second degree murder without having to decide whether she knew that her act of hitting Marrisa in the chest was dangerous to human life and appears to contend that the courts explanation also permitted the jury to convict her without having to determine whether she deliberately committed an unlawful act which caused the death of another person and that the killing was without lawful excuse or justification.

We disagree. In reviewing a claim of instructional error, we consider the jury instructions as a whole, and we consider each instruction in the context of the entire charge to the jury. (People v. Haskett (1990) 52 Cal.3d 210, 235; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) We will reverse a conviction only if there is a reasonable likelihood that, in the context of the instructions as a whole, the jury understood the courts explanation as the defendant asserts. (People v. Kelly (1992) 1 Cal.4th 495, 525-526.) Here, the courts explanation was in response to the jurys request for clarification of specified portions of the definition of implied malice. The court explicitly referred the jury back to the instructions which state all of the elements of implied-malice second degree murder and of involuntary manslaughter. The courts explanation contains no language which could reasonably be understood to omit the other elements of second degree murder, including knowledge that defendants acts were dangerous to human life and that her actions must actually have caused the childs death. Moreover, CALCRIM No. 580 emphasizes that the difference between murder and involuntary manslaughter is the defendants knowledge that his or her act was dangerous to human life and his or her willful and conscious disregard for the risk such conduct poses to the life of another person.

We also see no error in equating implied malice with a voluntary choice to commit a person-endangering act or eliminating the word deliberately. In the context of implied malice, deliberately merely means that the defendant was aware that his or her conduct endangered the life of another. (People v. Knoller (2007) 41 Cal.4th 139, 143.) The court explained that concept clearly in this case.

Because the courts explanation was a correct statement of the law and was not reasonably subject to the interpretation defendant asserts, it does not require reversal of her conviction. (See People v. Kelly, supra, 1 Cal.4th at pp. 525-526.)

Because we have found no error, we need not address defendants claim of cumulative error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Gaut

J.

/s/ King

J.

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^[1]Defendant was not initially arrested or taken for questioning because the cause of Marrisas death was not readily apparent. In fact, the pathologist initially assumed that Marrisa had died of natural causes. He only realized that her death was possibly a homicide when he opened her abdomen during the autopsy and discovered a large amount of blood in the abdominal cavity.

^[2]CALCRIM No. 520, as given in this case, provides:

The defendant is charged [in Count 1] with murder.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant committed an act that caused the death of another person;

[AND]

2. When the defendant acted, she had a state of mind called malice aforethought.

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 she unlawfully intended to kill.

The defendant acted with implied malice if:

1. She intentionally committed an act;

2. The natural consequences of the act were dangerous to human life;

3. At the time she acted, she knew her act was dangerous to human life;

AND

4. She deliberately acted with conscious disregard for human life.

Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.

As given in this case, CALCRIM No. 580 provides:

When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.

The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.

The defendant committed involuntary manslaughter if:

1. The defendant committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed;

AND

2. The defendants acts unlawfully caused the death of another person.

The evidence may show that the defendant committed the following crime: battery.

An instruction tells you what must be proven in order to prove that the defendant committed battery.

An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

In order to prove murder, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for human life. If the People have not met either of these burdens, you must find the defendant not guilty of murder.

^[3]The sentence within the internal quotation marks appears to be derived from People v. Summers (1983) 147 Cal.App.3d 180. (Id. at p. 184, quoting People v. Love (1980) 111 Cal.App.3d 98, 105-106.)