P. v. Pulley
Filed 3/22/13 P. v. Pulley CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT G. PULLEY,
Defendant and Appellant.
D060502
(Super. Ct.
No. SCD231564)
APPEAL from
a judgment of the Superior Court
of
County, Louis R. Hanoian, Judge. Affirmed.
I.
INTRODUCTION
Defendant
Robert G. Pulley appeals from a judgment
of conviction entered after a jury convicted him of
criminal threat. The murder victim
was Pulley's neighbor. The victim of the
battery and criminal threat was Pulley's son.
On appeal,
Pulley contends that there is insufficient evidence to support the murder conviction. He first argues that his conviction for
second degree murder based on the shooting of his neighbor must be reversed
because "the only reasonable conclusion from the evidence was that [he]
acted with the legal justification of defending against harm to a person within
one's home or . . . his property." He argues in the alternative that even if
this court does not agree that the evidence demonstrated that his act of
shooting his neighbor was justified, his conviction for
to voluntary manslaughter because the evidence supports a finding that he acted
under the heat of passion, and does not support a finding that he acted with
implied or express malice.
Pulley also
contends that the trial court should have granted his motion to sever for trial
a fourth count charging him with making a criminal threat against his wife—a
count on which he was acquitted—from the other three counts in the case.
We reject
all of Pulley's contentions on appeal, and affirm the judgment.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
A.
1.
On November 11, 2010, Pulley and his wife Angela had been
drinking alcohol. At 9:37 p.m., Angela called 911 because Pulley
wanted to go to a bar, and she felt that he had already had too much to
drink. A recording of the 911 call was
played for the jury. On the recording,
Pulley can be heard shouting that he had a gun and that he was going to kill
himself and kill his wife. He also
shouted that Angela had threatened him, pulled a gun on him, and tried to kill
him.
Angela told the dispatcher that
Pulley had a .45-caliber gun, but said that she was not worried about her
safety. The dispatcher told Angela that
she had to take seriously what Pulley was saying. Angela told the dispatcher that there were
other guns in the house, but that those guns were locked in a safe.
Another dispatcher located Pulley's
address through the automatic firearm system and determined that there were
four or five firearms registered at that address. The dispatchers sent 15 police units to the
Pulley residence on Brown Street
in Oceanside.
When officers reached the Pulley
residence, they heard a loud argument between and man and woman. The front door to the house was open, but a
security screen door was closed. An
officer could see Pulley, with his arms crossed, facing the door. Angela had her back to the door and was
saying to Pulley, " 'Put it away, just put it away.' " Pulley was heard saying, " 'Fuck
that. If they want me, I'm right here.'
"
Angela came out of the house and
was met by Oceanside Police Sergeant Carl Regalado. Angela told Regalado that Pulley had a
.45-caliber handgun. Officers set up a
perimeter around the house. Pulley
refused to come out of the house. After
approximately two hours, officer started to leave, concluding that there was
not probable cause to arrest Pulley for making criminal threats because Angela
had told the police that she was not in fear for her safety.
Angela testified at trial that she
never felt fearful of Pulley during this incident.
2.
At approximately 12:30
a.m. on December 25, 2010,
Sergeant Regalado responded to a noise complaint call from the 3900-block of Brown
Street in Oceanside. The only house that appeared to have anything
going on was that of the Misaalefua family, who lived across the street from
Pulley's house. The garage door at the
Misaalefua residence was up, and there were fewer than a dozen people in the
garage. Regalado spoke with Jimmy
Misaalefua, the host of the party, told him about the noise complaint, and
talked with him about ways that the group could be quieter. Misaalefua was cooperative and apologetic. After talking with Misaalefua, Regalado left.
At 1:53 a.m., Regalado returned to
Brown Street in response to a call for police assistance called in by
paramedics who had arrived in response to what had originally been a call for
medical assistance. An earlier call from
Pulley's son, Matthew, stating that a woman had fallen and needed medical
assistance had resulted in a paramedic and fire response. When Regalado arrived, he saw four
firefighters restraining Pulley, who was on the ground in front of his
residence. The firefighters explained
that when they arrived in response to the medical call, Pulley told them that
he had a shotgun in the house. The
firefighters asked Pulley not to go inside until they administered medical aid,
but Pulley ignored them and started to go into the house. At that point, the firefighters felt that it
was necessary to restrain Pulley.
Regalado and other officers
completed a safety sweep of the residence.
They found Angela upstairs, in bed, covered with blankets. Officers called out to her but got no
response. They then tapped on her
shoulder and were able to awaken her.
Angela acted as if she had been unaware that the police were there, and
told the officers that she was fine and did not need any help.
Matthew explained
that he and Pulley had gotten into a fistfight earlier that evening. Matthew did not want to authorize an arrest
of Pulley, but he did not want to go back into his house. Officers gave Matthew a ride to a nearby
restaurant, and Pulley was released at his residence.
At trial,
Matthew testified that his mother had fallen while trying to break up a
physical altercation between Matthew and his father. Matthew called the fire department to check
on his mother and make sure she was not hurt.
According to Matthew, the fight between him and his father had started
when Matthew and his father were talking about the Marines and the Army, and
Pulley "felt disrespected."
During the altercation, Pulley poured a drink on Matthew, and Matthew
went outside to cool off. When Pulley
went outside to apologize, Matthew threw Pulley into the pool. Matthew then went inside and began teasing
Pulley. Pulley hit Matthew in the face,
knocking him down. Matthew then went
outside and challenged Pulley to fight.
When Pulley walked outside to meet Matthew, Matthew grabbed a golf club
and started antagonizing Pulley. At this
point, Pulley started to walk back into the house, and said that he needed to
get away before he shot, stabbed, or killed Matthew. Matthew told the police that Pulley had made
direct threats, saying, "I'm gonna kill him, I'm gonna shoot him and stab
him." Matthew said that he knew
that Pulley was capable of carrying out the threats.
3.
a.
Dexter Ena, Misaalefua's nephew, was at Misaalefua's
house on Christmas Eve for a family gathering.
Ena saw Pulley walking toward Misaalefua's house and asked Misaalefua
who Pulley was. Misaalefua responded
that Pulley was a neighbor. Ena walked
to the back of the garage to get a beer from a refrigerator. When he returned, he saw Pulley and
Misaalefua walking toward the street.
Misaalefua had his arm around Pulley and it appeared that they were
talking in a friendly manner.
Ena walked toward the street. When he got to the end of the driveway, he
saw Pulley fall to the ground.
Misaalefua was standing over Pulley, and Ena assumed that they were
fighting. Ena ran to where Misaalefua
was standing and asked what was going on.
Misaalefua told Ena to " 'leave it alone.' " Another of Ena's uncle's, Matt Young, ran
over to try to separate Misaalefua and Pulley.
Pulley got up from the street and
said to Misaalefua, " 'I thought we were friends.' " Pulley then assumed a fighting stance. Young tried to push Misaalefua back, and Ena
grabbed Pulley and told him to calm down.
Once Misaalefua and Pulley were separated, Ena let go of Pulley. Pulley started walking back to his house. As he was walking toward the house, he looked
back at Misaalefua and said, " 'I got something for you. I got something for you, mother fucker.'
" Misaalefua yelled back something
like, " 'All right, mother fucker.
Let's go. Bring it on.' "
As Pulley walked toward his house,
Misaalefua followed him. Ena attempted
to stop Misaalefua, telling him to leave it alone and to let Pulley go. Misaalefua told Ena to "shut up"
and continued following Pulley, who had gone into his garage and then into his
house. When Misaalefua walked into
Pulley's garage, Ena, who had been following, stopped just outside the
garage. Misaalefua took off his shirt
and Ena assumed that he was preparing to fight.
Misaalefua waited approximately five to 15 feet outside the inner garage
door.
Ena and Young tried to convince
Misaalefua to return to his house with them.
Ena then heard Misaalefua say, " 'What are you going to do with
that? Shoot me[?]' " Immediately after Misaalefua said that, Ena
heard a gunshot. After the gunshot,
Misaalefua said, " 'Is that all you got?
Is that all you got?' "
Pulley and Misaalefua then started wrestling, and Ena heard more shots.
Ena moved through the garage and
tried to shield himself behind a car.
Young ran up to the left side of a car that was parked in the
garage. Misaalefua was fighting with
Pulley over the gun. Young reached the
two men before Ena could. When Young got
to the men, they all fell down. Young
yelled at Pulley to let go of the gun.
Pulley was on top of Misaalefua
when Ena got to them, and Young was on top of Pulley, trying to get the
gun. Misaalefua said, " 'Get this
mother fucker off of me.' " Ena
told Pulley to let go of the gun, and tried to pull the gun away from
Pulley. As Ena tried to get the gun
away, Pulley bit Ena, and Ena hit Pulley.
At that point, Young and Pulley both partially fell off of
Misaalefua. Ena told Misaalefua, "
'Let's move, let's go.' "
Misaalefua just kept repeating, " 'Get this guy off of me, get this
mother fucker off of me.' " As
Misaalefua spoke, his voice started to fade.
Ena kept trying to hit Pulley to make him to let go of the gun. This continued until the police arrived.
Sao Young, Misaalefua's
sister-in-law, called 911 at 2:43 a.m., which was only 13 minutes after
Sergeant Regalado had cleared the earlier call involving Pulley and his
son. Sao Young reported that someone had
been shot, and that her husband, Matt Young, was wrestling with someone who was
holding a gun.
Sergeant Regalado returned to Brown
Street in response to a call about shots being fired. When Regalado arrived, he saw several people
engaged in a struggle inside Pulley's garage.
Misaalefua was on the ground with his eyes closed. A pool of blood was forming around him. Two women were standing over Misaalefua,
crying and grabbing at him. Two men were
struggling to restrain Pulley.
Regalado grabbed Pulley's right arm
and Pulley released a small semi-automatic handgun. As Regalado tried to hold onto Pulley's arm,
Pulley stiffened in a manner that made Regalado think that Pulley was trying to
grab the gun. Regalado held Pulley's arm
tighter, picked up the gun, and moved it beyond Pulley's reach. Regalado then handcuffed Pulley with the
assistance of other officers.
Misaalefua subsequently died at the
hospital as a result of a gunshot
wound to the chest.
b.
Detective William Wallace
interviewed Pulley on December 25, 2010.
A video of the interview was played for the jury at trial. During the interview, Pulley told Wallace
that when officers arrived at his home the first time on December 25, he was
thrown to the ground, put in handcuffs, and placed in a patrol car for
approximately 30 minutes. Pulley said
that at the time he did not know why this was happening. When the police finally left, he walked over
to Misaalefua's house to apologize for the disturbance. According to Pulley, as he started to
apologize to Misaalefua, Misaalefua hit him and knocked him to the ground. Pulley got up, asked Misaalefua what was
wrong with him, and then ran back to his house because Misaalefua was
"just going crazy." Pulley ran
to the front door, went inside the house and grabbed his gun. He ran around to the garage to close the garage
door, but someone was standing near the door and it would not close. Pulley ran outside and said, "Get the
hell off my property," or something to that effect. He explained to Wallace that after that
point, he did not remember what happened, other than that he had been tackled.
Pulley told
Wallace that he kept his .25-caliber pistol in a china cabinet by the front
door in case of a home invasion. He
owned a number of guns and kept another gun by his bed. Pulley explained that he grabbed the gun from
the china cabinet on his way to close the garage door. Pulley said that he did not remember the gun
going off, and also did not remember taking the safety off of the gun to
prepare to use it. Pulley admitted that
he had had "lots of weapons training" from his military experience,
and said that he did not normally take the safety off of a gun when he grabbed
one.
Pulley told
Wallace that he had been drinking vodka that night.
c. Other
evidence
The parties stipulated that
Pulley's blood alcohol level at the time of the shooting was approximately .19
percent. Misaalefua's blood alcohol level
at the time of his death was .18 percent.
A criminalist with the San Diego
County Sheriff's Department Crime Laboratory analyzed the Browning .25-caliber
pistol and two expended cartridge cases.
The pistol was working properly.
It required six pounds of pressure to pull the trigger. The pistol had a magazine safety mechanism,
which meant that it would not fire if there was no magazine in the weapon. The gun also had a manual safety.
The criminalist determined that the
muzzle of the gun had been less than six inches from Misaalefua at the time it
was fired.
A firearm expert testified that the
pistol used in the shooting required a six-pound trigger pull, and that this
was on the heavy side for a .25-caliber automatic pistol. In order to activate the safety of the .25
Browning pistol, a person must execute a very deliberate action, which makes it
a relatively safe weapon.
4.
Pulley and
Angela had been married for 21 years.
Their relationship had been volatile.
In 1993, Angela filed for a restraining order, alleging that Pulley hit
her on the side of the head when he was drunk.
The blow had caused her ear to ring for hours afterward. The court granted the
a dismissal of the order a month later.
In 1994,
Pulley came home drunk and began wrestling with and tickling his then
eight-year-old son to the point that the child started crying. Angela said, "[T]hat's enough. Enough."
She tried to separate the two.
Pulley swung at Angela and hit her in the face, breaking her nose in
three places. Angela did not call the
police, but she took her children and drove herself to the hospital. After this incident, Angela applied for a
restraining order, which the court granted.
She subsequently moved to dismiss that restraining order, as well.
B.
On May 3, 2011, the San Diego
County District Attorney filed an information charging Pulley with one count of
murder (Pen. Code, § 187, subd. (a); count 1)
one count of misdemeanor battery (§
242; count 3); and two counts of criminal threats (§ 422; counts 2 and 4). With respect to the murder, the information
alleged that Pulley intentionally and personally discharged a firearm resulting
in death (§ 12022.53, subd. (d)) and personally used a firearm (§ 12022.5,
subd. (a)).
A jury found Pulley guilty of
second degree murder (count 1), battery (count 3), and one count of making a
criminal threat directed at his son (count 2).
The jury also found true the firearm allegations charged in connection
with count 1. The jury found Pulley not
guilty of one count of making a criminal
threat directed at his wife (count 4).
The court sentenced Pulley to 40
years to life in state prison. Pulley
filed a timely notice of appeal.
III.
DISCUSSION
A.
committed murder
Pulley
first contends that the evidence is insufficient to support his conviction for
second degree murder because, he asserts, the only reasonable conclusion that a
fact finder could reach from the evidence presented at trial is that he acted
with legal justification in defending himself within his home. Pulley's argument is, in essence, that the
evidence established justified self-defense as a
only reasonable inference from the evidence is that he had legal justification
to kill Misaalefua.
When the sufficiency of the
evidence is challenged, the court is not required to
" ' "ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable
doubt." [Citation.] Instead the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution,
found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" (People
v. Johnson (1980) 26 Cal.3d 557, 576; see also Jackson v. Virginia (1979) 443 U.S. 307, 319.)
"In determining whether a
reasonable trier of fact could have found defendant guilty beyond a reasonable
doubt, the appellate court 'must . . . presume in support
of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.' [Citations.] The court does not, however, limit its review
to the evidence favorable to the respondent. . . . '[O]ur task . . . is
twofold. First, we must resolve the issue
in the light of the whole record—i.e.,
the entire picture of the defendant put before the jury—and may not limit our
appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of
each of the essential elements . . . is
respondent simply to point to "some" evidence supporting the finding,
for "[n]ot every surface conflict of evidence remains substantial in the
light of other facts." ' [Citation.]" (People
v. Johnson, supra, 26 Cal.3d at
pp. 576-577, quoting People v. Bassett
(1968) 69 Cal.2d 122, 138.)
Pulley
relies on the presumption created by section 198.5 as support for his argument
that his conduct in killing Misaalefua was legally justified. Section 198.5 provides:
"Any person using force intended
or likely to cause death or great bodily injury within his or her residence
shall be presumed to have held a reasonable fear of imminent peril of death or
great bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or household,
who unlawfully and forcibly enters or has unlawfully and forcibly entered the
residence and the person using the force knew or had reason to believe that an unlawful
and forcible entry occurred.
"As used in this section, great
bodily injury means a significant or substantial physical injury."
Section 198.5 was created "to
permit residential occupants to defend themselves from intruders without fear
of legal repercussions, to give 'the benefit of the doubt in such cases to the
resident . . . .'
[Citation.]" (
996, 1005.)
Pulley argues that it was incumbent
on the prosecution to prove beyond a reasonable doubt that Pulley's conduct in
shooting Misaalefua was without legal justification, and that there is
have determined that he acted without that legal justification. A review of the record establishes that there
is sufficient evidence that Pulley's conduct was not legally justified under
section 198.5.
Pulley acknowledges that the jury
was properly instructed concerning self-defense, voluntary manslaughter, and
defense of home or property. With
respect to defense of home and property, the jury was instructed with CALCRIM
No. 506, as follows:
"The defendant is not guilty of
murder or manslaughter if he killed to defend himself or any other person in the
defendant's home. Such a killing is
justified, and therefore not unlawful, if:
"1. The defendant reasonably
believed that he was defending a home against Jimmy [Misaalefua], who violently or
riotously or tumultuously tried to enter that home intending to commit an act
of violence against someone inside;
"2. The defendant reasonably
believed that the danger was imminent;
"3. The defendant reasonably
believed that the use of deadly force was necessary to defend against the
danger; AND
"4. The defendant used no more
force than was reasonably necessary to defend against the danger.
"Belief in future harm is not
sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was
imminent danger of violence to himself or someone else. Defendant's belief
must have been reasonable and he must have acted only because of that
belief. The defendant is only entitled
to use that amount of force that a reasonable person would believe is necessary
in the same situation. If the defendant
used more force than was reasonable, then the killing was not justified.
"When deciding whether the
defendant's beliefs were reasonable, consider all the circumstances as they
were known to and appeared to the defendant and consider what a reasonable
person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable,
the danger does not need to have actually existed.
"A defendant is not required to
retreat. He is entitled to stand his
ground and defend himself and, if reasonably necessary, to pursue an assailant
until the danger of death/bodily injury has passed. This is so even if safety could have been
achieved by retreating.
"The People have the burden of
proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you
must find the defendant not guilty of murder or manslaughter."
We presume
that the jury understood and followed this jury instruction (see
610, 670), and thus we further presume that the jury properly considered
whether the People met their burden of proving that Pulley was not justified in
killing Misaalefua. There is sufficient
evidence to support a conclusion that the killing of Misaalefua was not
justified. In particular, there is
sufficient evidence to support a conclusion that Pulley used more force than
was reasonable in shooting Misaalefua.
Pulley and
Misaalefua got into a physical altercation after Pulley walked over to
Misaalefua's house on the night in question.
The evidence demonstrates that Pulley fell to the ground, either because
he stumbled or because he was knocked down by Misaalefua, as the two were
walking together toward Pulley's house.
At that point, Pulley started to threaten Misaalefua, saying, "I
got something for you. I got something
for you, mother fucker." This
clearly took place before either man arrived at Pulley's house. After these events, both men continued toward
Pulley's home. Pulley entered the house
through an interior garage door, while Misaalefua stood in the garage, between
five and 15 feet away from that interior door, waiting for Pulley to
return. The jury could have reasonably
inferred that Misaalefua was not attempting to enter Pulley's home, and that
Pulley could have avoided the entire incident if he had simply remained inside
his house.
Instead,
Pulley grabbed a firearm from inside his house and went back out to the garage
where Misaalefua was standing. When
Misaalefua saw the gun he said, " 'What are you going to do with
that[?] Shoot me[?]' " Without any further physical threat from
Misaalefua, Pulley fired a shot at Misaalefua.
Only then did the two men begin to physically wrestle, and Pulley fired
another shot.
It is clear
from these facts that Pulley increased the violence in this altercation by, as
the prosecutor argued, bringing a gun to what was, essentially, a
fistfight. Further, because Misaalefua
did not attempt to follow Pulley into Pulley's house, the jury could have
reasonably concluded that the fight had essentially ended when Pulley walked
inside the house and closed the door.
Instead of locking the door or calling the police, Pulley grabbed a gun
and walked back out to the garage and did what he had earlier essentially
threatened to do, i.e., he gave "something" to Misaalefua. The jury could have concluded that in
retrieving a gun and shooting an unarmed man, Pulley used more force than was
reasonably necessary to protect himself or his house, and thus, that the
presumption of justification embodied in section 198.5 had been overcome by
contrary evidence.
Given the state of the evidence, we
must uphold the jury's conclusion that Pulley was not justified in killing
Misaalefua. Although, as Pulley has
argued on appeal, a jury might have concluded that his conduct was justified,
as long as the circumstances reasonably justify the jury's findings, we will
not reverse the jury's verdict simply because the evidence might support a
contrary conclusion. (
Cal.App.3d 361, 408.) The circumstances
more than reasonably support the jury's rejection of the justification defense
in this case.
B. There
is sufficient evidence that Pulley acted with malice, such that his conviction
for second degree murder need not be reduced to voluntary manslaughter
Pulley
argues that even if this court disagrees that the only reasonable conclusion
from the evidence is that he acted with legal justification, this court should
nevertheless reduce his conviction to voluntary manslaughter on the ground that
the evidence demonstrates, at most, that he acted pursuant to the heat of
passion, and that there is thus insufficient evidence that he acted with the
requisite malice required for second degree murder. We reject this argument, as well.
We apply the same standards for
reviewing a claim of insufficiency of the evidence that we set out in part
III.A., ante, in considering Pulley's
related sufficiency claim.
Murder is the unlawful killing of a
human being "with malice aforethought." (§ 187, subd. (a).) Pulley was convicted of second degree murder,
which is "the unlawful killing of a human being with malice aforethought
but without the additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree
murder." (People v. Knoller (2007) 41 Cal.4th 139, 151 (Knoller).) Malice may be
either express (as when a defendant manifests a deliberate intention to take
away another person's life) or implied.
(People v. Blakeley (2000) 23
Cal.4th 82, 87.) "Malice is implied
when the killing is proximately caused by ' "an act, the natural
consequences of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the life of another
and who acts with conscious disregard for life." ' [Citation.]
In short, implied malice requires a defendant's awareness of engaging in
conduct that endangers the life of another . . . ." (Knoller,
supra, at p. 143.)
Malice may be, and often must be,
proved by circumstantial evidence. (See
938, 945-946; People v. James (1998)
62 Cal.App.4th 244, 277.) "One who
intentionally attempts to kill another does not often declare his state of mind
either before, at, or after the moment he shoots. Absent such direct evidence, the intent
obviously must be derived from all the circumstances of the attempt, including
the putative killer's actions and words.
Whether a defendant possessed the requisite intent to kill is, of
course, a question for the trier of fact."
(People v. Lashley,
Pulley contends that the evidence
showed that he acted not with express or implied malice, but instead, pursuant
to the heat of passion, such that the element of malice was negated. He argues that the prosecution failed to
prove malice aforethought because it failed to prove the absence of provocation
and heat of passion beyond a reasonable doubt.
Pulley maintains that we should find that provocation and heat of
passion existed as a matter of law, and reduce the offense to voluntary
manslaughter. We reject Pulley's
contentions.
"Where an intentional and
unlawful killing occurs 'upon a sudden quarrel or heat of passion' (§ 192,
subd. (a)), the malice aforethought required for murder is negated, and the
offense is reduced to voluntary manslaughter—a lesser included offense of
murder." (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) Heat of passion has both objective and
subjective components. (
549 (Moye).) To satisfy the objective component, the
claimed provocation must be sufficient to cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection, from
passion rather than from judgment. (
provocation . . . must be caused by the victim [citation],
or be conduct reasonably believed by the defendant to have been engaged in by
the victim." (Id. at pp. 549-550.) A defendant may not " ' "set up his
own standard of conduct and justify or excuse himself because in fact his
passions were aroused. . . ." ' "
(People v. Cole (2004) 33
Cal.4th 1158, 1215-1216, quoting People
v. Steele (2002) 27 Cal.4th 1230, 1252.)
"To satisfy the subjective element of this form of voluntary
manslaughter, the accused must be shown to have killed while under 'the actual
influence of a strong passion' induced by such provocation." (Moye,
supra, at p. 550.)
Pulley correctly points out that
when murder and voluntary manslaughter are under consideration, the burden is
on the prosecution to prove, beyond a reasonable doubt, the absence of a sudden
quarrel or heat of passion, in order to establish the malice element of
murder. (People v. Rios (2000) 23 Cal.4th 450, 454.) However, "[e]ven if defendant's
testimony provided some evidence of provocation for the jury to consider, it
remains the jury's exclusive province to decide whether the particular facts
and circumstances are sufficient to create a reasonable doubt as to whether the
defendant acted under a heat of passion.
[Citations.]" (
350.) " 'The jury [is] not
required to accept defendant's version of the killing. [Citations.]'
[Citation.]" (
534, 537.) Here, the trial court
properly instructed the jury as to both murder and voluntary manslaughter and
we " 'credit jurors with intelligence and common sense' [citation]
and presume they generally understand and follow instructions [citation]." (People
v. McKinnon, supra, 52 Cal.4th at p. 670.)
The question before this court is
whether, examining the entire record in the light most favorable to the
judgment, a reasonable jury could have found that Pulley harbored the malice
necessary to support a second degree murder conviction. We conclude that there
was ample circumstantial evidence of an intent to kill (express malice), as
well as evidence of an awareness of the risk to life and action in conscious
disregard for life (implied malice).
The evidence showed that after
having engaged in an altercation with Misaalefua, Pulley walked back to his
house, saying, "I got something for you." He went into his house and retrieved a loaded
gun. Pulley took off the safety of the
gun, which required a very deliberate action, and walked back out to where
Misaalefua was waiting. Pulley then shot
at Misaalefua at close range, twice.
pull the trigger each time. Shooting at
a person from very close range is a strong indicator of an intent to kill. (People
v. Chinchilla (1997) 52 Cal.App.4th 683, 690; see also People v. Lashley, supra,
1 Cal.App.4th at p. 945 ["The very act of firing a .22-caliber rifle
toward the victim at a range and in a manner that could have inflicted a mortal
wound had the bullet been on target is sufficient to support an inference of
intent to kill." Shooting at point
blank range "undoubtedly creates a strong inference that the killing was
intentional"].) Beyond this, there
was evidence that Pulley was clearly aware of the dangerousness of bringing a
loaded gun outside during an altercation, and taking the safety off, such that
the jury could have inferred that Pulley acted with conscious disregard for
life.
Even if Pulley was upset due to the
altercation with Misaalefua, the evidence demonstrated that Pulley had
separated himself from Misaalefua and that he had time to cool off and
rationally consider his actions. Instead
of remaining inside his house, or even reengaging in an unarmed physical
confrontation with Misaalefua, Pulley purposefully retrieved a gun, walked back
out to his garage, and shot his neighbor at close range. Although the initial altercation had come to
an end, Pulley clearly decided not only to continue it, but to escalate it. From this evidence, the jury could have reasonably
concluded that Pulley intended to kill Misaalefua, and that he was not
sufficiently provoked or acting under the heat of passion when he shot at
Misaalefua, so as to reduce the crime from murder to manslaughter. Pulley in effect is asking this court to
reweigh the evidence and to reach a result different from the result that the
jury reached. However, that is not our
role in examining the sufficiency of the evidence to support a conviction.
C. The
trial court did not abuse its discretion in denying Pulley's motion to sever
the charge in count 4 from the other counts
Pulley
contends that the trial court denied him a fair trial by denying his motion to
sever count 4, the charge arising from the threats to his wife on November 11,
2010, from the remaining counts.
The statutory authorization for
joinder of criminal charges is set
forth in section 954. That section
provides in relevant part:
"An accusatory pleading may
charge two or more different offenses connected together in their commission,
or different statements of the same offense or two or more different offenses
of the same class of crimes or offenses, under separate counts, and if two or
more accusatory pleadings are filed in such cases in the same court, the court
may order them to be consolidated."
In this case, it is clear that all
of the offenses charged were of the same class, in that they were all violent
crimes against another individual (battery, criminal threats, murder). The offenses thus met the requirements of
joinder under section 954, which Pulley concedes.
Even where criminal charges are
properly joined pursuant to section 954, however, a trial court may exercise
its discretion to order separate trials in the interests of justice. "[A] determination as to whether
separation [of the trial of offenses] is required in the interests of justice
is assessed for abuse of discretion."
(People v. Alvarez (1996) 14
Cal.4th 155, 188.)
"In the context of severing
charged offenses, we have explained that 'additional factors favor
joinder. Trial of the counts together
ordinarily avoids the increased expenditure of funds and judicial resources
which may result if the charges were to be tried in two or more separate
trials.' [Citation.] Accordingly, when the evidence sought to be
severed relates to a charged offense, the 'burden is on the party seeking
severance to clearly establish that there
is a substantial danger of prejudice requiring that the charges be separately
tried.
[Citations.]' " (
1040, 1050, italics added.)
"Whether a trial court abused
its discretion in denying a motion to sever necessarily depends upon the
particular circumstances of each case.
[Citations.] The pertinent factors
are these: (1) would the evidence of the crimes be cross-admissible in separate
trials; (2) are some of the charges unusually likely to inflame the jury
against the defendant; (3) has a weak case been joined with a strong case or
another weak case so that the total evidence on the joined charges may alter
the outcome of some or all of the charged offenses; and (4) is any one of the
charges a death penalty offense, or does joinder of the charges convert the
matter into a capital case.
[Citation.] A determination that
the evidence was cross-admissible ordinarily dispels any inference of
prejudice. [Citations.]" (
Generally, in determining whether
the trial court abused its discretion in denying a motion to sever, an appellate
court must examine the record that was before the trial court at the time of
its ruling. (People v. Mendoza (2000) 24 Cal.4th 130, 161.) However, "[e]ven if a trial court's
severance or joinder ruling is correct at the time it was made, a reviewing
court must reverse the judgment if the 'defendant shows that joinder actually
resulted in "gross unfairness" amounting to a denial of due
process.' [Citation.]" (Id.
at p. 162.)
Pulley contends that the evidence
concerning the incidents in counts 1 through 3 and the incident in count 4
would not have been cross-admissible, and further contends that the evidence
was fairly strong as to the first three counts, but relatively weak as to count
4.
threat against Pulley's wife prejudiced the jury against Pulley and made the
jury less likely to conclude that he acted in self-defense or lacked the
requisite mental state for second degree murder. The record does not support Pulley's
contentions.
Specifically, it is clear that the
evidence pertaining to counts 2, 3, and 4 would have been cross-admissible in
separate trials of those counts because those counts all involved domestic
violence perpetrated by Pulley against members of his family. Evidence Code section 1109 makes evidence of
a defendant's commission of other uncharged
acts of domestic violence admissible in an action in which the defendant is
accused of an act of domestic violence.
This dispels an inference of prejudice from the joinder of these
offenses. Further, even if we were to
assume that evidence as to the charge in count 4 would not have been
cross-admissible with respect to the murder charge in count 1, we would still
not conclude that Pulley demonstrated the existence of prejudice from the
joinder of these charges. Pulley's
suggestion that the joining of an allegedly weak case (count 4) somehow
bolstered the admittedly strong case against him in counts 1 through 3 makes
little sense. The fact that the jury
acquitted Pulley of the charge in count 4 indicates that the jury was not
convinced that he committed that crime.
It seems unlikely that the jury would have used evidence of a crime for
which they acquitted him to conclude that Pulley was a bad character who was
likely to have committed murder. It is
clear that the jury considered each count on its own merits, and that it did
not rely on some generalized notion of Pulley's bad character to find him
guilty of any particular charge. There
is simply no indication of any prejudicial "spillover" effect from
the joining of the counts in this case.
Similarly, there is no reason to
believe that the presentation of evidence pertaining to count 4 was likely to
inflame the jury against Pulley generally.
The evidence pertaining to the criminal threat charge involving Pulley's
wife was not particularly egregious. If
anything, the concern would be that the joining of count 1, the murder charge,
might be likely to inflame the jury against the defendant and make it more
likely that the jury would want to punish Pulley for the other charged offenses, including count 4. However, the jury did not convict Pulley on
count 4. It would thus not be reasonable
to conclude that the jury was inflamed by the murder charge in count 1, such
that it was more likely to convict him of count 4.
To the extent that Pulley is
arguing that it is not only the evidence of the criminal threat against his
wife that was prejudicial, but also the prosecutor's presenting evidence of his
uncharged acts of domestic violence in 1993 and 1994, we reject this argument,
as well. First, the jury was
specifically instructed that it could "not conclude from this evidence
that the defendant has a bad character or is disposed to commit crimes." We presume that the jury followed this
instruction. (See, e.g.,
574.) Indeed, it seems that the jury did
not use this evidence to conclude that Pulley had a bad character or was
disposed to commit crimes, since the jury acquitted him on count 4—one of the
domestic violence counts.
Further, it was clearly within the
trial court's discretion to join the charges in counts 1 through 3, since they
were all of the same class and occurred on the same date and close in
time. In fact, Pulley does not argue
that the joinder of counts 2 and 3 with count 1 was erroneous or
prejudicial. Because counts 2 and 3
related to domestic violence toward Pulley's son, the evidence going to
Pulley's earlier uncharged acts of domestic violence would have been admissible
as to these counts, even if count 4 had been severed and prosecuted in a
separate trial. Thus, any presumption of
prejudice arising from the admission of this other bad acts evidence as a
result of the joinder of count 4 with the other counts is dissipated.
We conclude that the trial court's
ruling on Pulley's severance motion was not an abuse of discretion at the time
it was made, and further conclude that the joinder of these charges in a single
trial did not result in "gross unfairness" amounting to a denial of
due process. It is simply not reasonably
probable that Pulley would have obtained a more favorable verdict in separate
trials of counts 1 through 3, and count 4.
Pulley was acquitted on count 4, and the jury convicted him of second
degree murder on count 1, a lesser offense than the charged first degree
murder. Pulley was not deprived of his
right to a fair trial or due process.
IV.
DISPOSITION
The judgment of the trial court is
affirmed.
AARON, J.
WE CONCUR:
HALLER,
Acting P. J.
IRION,
J.
name="_ftn1" title="">[1] Although
Ena's testimony was that there were "more gunshots," it seems clear
from the evidence that Pulley fired a total of two times.
name="_ftn2" title="">[2] All
statutory references are to the Penal Code unless otherwise specified.
