P. v. Helsema
Filed 1/30/14 P. v. Helsema CA3
NOT TO BE
PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
JOHN
LAWRENCE HALSEMA,
Defendant and
Appellant.
C073323
(Super. Ct. Nos.
CM036062, CM036509)
A
jury found defendant John Lawrence Halsema guilty of second degree murder,
sustaining an allegation that his personal use of a gun resulted in death. While trial in the present matter was
pending, another jury convicted defendant in a case of manufacturing
a controlled substance (CM036509), for which he received a three-year county
prison term. The trial court resentenced
defendant to a determinate state prison term for the drug conviction, and
imposed a consecutive indeterminate 40-year state prison term for the
present offense (CM036062). As is
pertinent in this appeal, the court also imposed a restitution fine of $280 and
a general fine of $200 (with $580 in fees and assessments).
On
appeal, defendant contends the trial court erred in failing to instruct sua sponte on a theory of voluntary
manslaughter as a result of provocation. He also contends the trial court reimposed a
general fine in connection with his drug conviction, which this court held to
be unauthorized in defendant’s prior appeal, of which we have granted judicial
notice in this appeal. (
We agree there is substantial evidence of provocation, which the trial
court found credible in connection with an instruction on deciding the degree
of murder, but the court otherwise mistakenly believed instructions on
voluntary manslaughter were inapplicable.
We must therefore reverse the judgment for retrial. For guidance in the event of resentencing, unlike
the prior appeal, it is proper to impose a general fine pursuant to Penal Code
section 672[1] in connection with the homicide
conviction (which is what the trial court in fact did) and, on our own
motion, we note that the minimum restitution and parole revocation fines
applicable to the 2012 crime are $240, respectively, not $280.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant
had been living in his “best friend’s” residence since 2011, several months
before the shooting. It
is undisputed that defendant called a dispatcher in February 2012 to
report that he had fatally shot his housemate, Craig Davies (the victim), by
accident nine days earlier, who was still lying where he fell. He told the dispatcher that he had not
reported the death to anyone. There was
a large knife found in the victim’s hand, which the pathologist considered to
be staged because it should have fallen from the victim’s hand after he was
shot. The autopsy determined that the
victim had bled to death within minutes from a single gunshot wound to his
back, which passed through his body on a slightly downward trajectory from right to
left. The victim had methamphetamine in
his system. Defendant gave numerous
accounts of what had happened.
The
first account was to a mutual friend of the two who had stopped by the home
about a week after the shooting to borrow defendant’s guitar. Defendant was outside. He told the friend he had killed the victim
because the victim was going to kill defendant’s dog. The friend knew that defendant was devoted to
his dog, but was surprised that the animal-loving victim would have attempted
to harm it. Defendant gave the friend
the guitar, and told the friend to return and take defendant’s truck and tools
as well, in order to keep them from being seized. (Defendant testified that he offered the
friend any of his belongings, including his dog.) Defendant made it clear that he intentionally
shot the victim, who was in a rage at the time, but had not meant to kill
him. The friend had noticed that the
victim recently “was getting kind of violent,” and had been complaining about defendant’s
dog biting a neighbor (which was a source of tension between defendant and the
victim).[2]
A
second account was to a deputy who responded to the dispatch. The deputy spoke with defendant at the
scene. Defendant told the deputy the
victim had borrowed his gun to euthanize an old stray dog on the property, but
had been unable to perform the act and put the gun back on the bed in
defendant’s room. Defendant brought the
gun out of the bedroom and told the victim that it was not appropriate to leave
a loaded gun on defendant’s bed, intending to demonstrate how to unload
it. The victim knocked a glass out of
defendant’s hand, and defendant went to kick the victim in the rear
end. Defendant stumbled and accidentally
fired the gun when he grabbed at it after it fell out of his hand. Defendant said the encounter had not been confrontational;
they had been “horsing around.”
Defendant had only a rambling and nonresponsive answer about the
victim’s eating habits when the deputy asked about the knife found in the
victim’s hand. Defendant did not mention
his own dog having any involvement in the shooting. Defendant said that he had held off making
any official report of the death in order to receive his Social Security check, which he intended
to give to the victim’s daughter (reiterating this explanation in a later
interview). At trial, on
cross-examination, defendant did not recall anything about this statement to
the deputy.
A
third account was when defendant was interviewed by Detective Philip Wysocki
later that day. Defendant first said
that he and the victim had been engaging in “horseplay”—he again mentioned the
victim slapping a drink out of his hand and his trying to kick the victim in
the rear end, in the process of which defendant lost his grip on the gun he was
holding (which fired when he grabbed at it).
He did not mention anything about his dog being involved or claim that
he felt the victim posed any threat to defendant. When asked about the knife found in the
victim’s hand, defendant at first said he had not seen a knife until after the
shooting. Defendant eventually admitted
to the detective that he had put the knife in the victim’s hand because he
wanted to make it appear that the victim had been the aggressor and defendant
had been acting in self-defense, but he decided simply to tell the truth.[3]
In
an interview with Detective Wysocki two days later, defendant’s account
changed. He abandoned his claim of
horseplay. He was holding the gun
because he wanted to reproach the victim for leaving it loaded on the bed,
where defendant’s dog had knocked it on the floor. During what defendant called a temper tantrum
(in which the victim was briefly turning in circles while holding a knife
after knocking the drink out of defendant’s hand), the victim was insisting
that defendant kill the stray dog that had come onto the property, or else the
victim would kill defendant’s dog.
Defendant did not specifically assert he was acting in defense of
his dog, because he repeatedly stated that he did not think the victim was
capable of intentionally harming the animal (as the victim could not even bring
himself to shoot the injured stray).
However, defendant said he was concerned because he could not see
whether the dog was in the victim’s proximity during the tantrum with the
knife, and he could not let the victim hurt his dog (which meant more to him
than anything). When challenged on the
point, defendant continued to insist on the accidental nature of the shooting;
he claimed the gun fired as he was stepping backward, and he could not recall
pulling the trigger.[4] Defendant specifically
abjured being in a “blind rage” at the time of the shooting, stating “I
don’t get in a blind rage.” He again
admitted that he had put the knife back in the victim’s hand in order to
concoct a scenario of self-defense. He
also said that the victim had been “acting crazier” lately, to which their
mutual friend could attest.
At
trial, defendant testified that he found his gun on the floor of his
bedroom. The victim had said he had
placed it on the bed, so defendant assumed his dog had knocked it onto the
floor. This upset defendant because the
gun was loaded and cocked with the safety off.
Defendant confronted the victim about leaving the gun in that condition
on the bed. In the course of the
argument, the victim became quite agitated and knocked a drink out of
defendant’s hand (something the two of them did frequently, so defendant did
not take it seriously). The victim went
into the kitchen and returned with a knife.
Defendant’s dog was keeping the victim away from defendant. The victim verbally threatened to kill
defendant and his dog, which defendant also did not take seriously. While the victim was circling defendant and
the dog, the gun “went off” (in the classic passive voice employed in such
cases) when defendant raised his arm. Defendant
had not meant either to fire the gun or to kill the victim; defendant believed
it happened because he was in a panic that the victim might hurt his dog while
flailing around with the knife; at the time, he had forgotten that he was even
holding the gun. He described pulling
the trigger as “an involuntary reaction . . . , yes, I pulled
the trigger. I killed Craig. It was an accident.” He likened it to braking without thinking
when someone runs in front of a car. He
looked at the victim and realized assistance was futile because the victim was
already dead. Defendant could not move
the victim from where he lay because he was a heavy man.
DISCUSSION
I.
Instruction on Voluntary Manslaughter
The
trial court agreed to instruct that the presence of provocation could prevent
the deliberation necessary for first degree murder. However, in discussing lesser offenses, the
trial court quoted from a manual on instructions, which cited
1116 (Saille), for the proposition
that in the absence of “an intent unlawfully to kill,” the only lesser
alternatives to murder are involuntary manslaughter or acquittal.[5] The court reiterated the
point on the following day, asserting that the defense theory of an accidental
shooting meant there was a lack of an intent to kill and therefore voluntary
manslaughter was not a lesser option.
Defense counsel concurred in the court’s reasoning, and stated defendant
would not be requesting an instruction on voluntary manslaughter. The trial court erred in two respects.
First,
if the evidence supports a finding of
a lesser offense, a trial court must instruct on it regardless of whether it is
inconsistent with the theory of the defense, and even over the objection of
defendant. “[T]he sua sponte duty to
instruct on lesser included offenses . . . arises even against the
defendant’s wishes, and regardless of the trial theories or tactics the
defendant has actually pursued.” (
142, 162 (Breverman).) Thus, where—as in Breverman—substantial evidence of heat of passion exists, a court
has a duty to instruct on the lesser offense of voluntary manslaughter even
where a defendant claims a killing was accidental. (Id.
at p. 163, fn. 10, citing People
v. Barton (1995) 12 Cal.4th 186, 202 [killing claimed to be accidental
occurred during heated argument; court must instruct on heat of passion and
voluntary manslaughter].)
Second,
the Supreme Court has clarified in the years since Saille that “ ‘an unlawful killing without malice (because of
a sudden quarrel or heat of passion) is voluntary manslaughter, regardless of
whether there was an intent to kill,’ ” as long as implied malice—“a
conscious disregard for life,” in the short-hand formulation—is present. (People
v. Bryant (2013) 56 Cal.4th 959, 967, 968, 969-970, reaffirming
101 and People v. Blakeley (2000) 23 Cal.4th
82.)
The
trial court instructed the jury on a theory of implied malice as a basis for
murder. Although focusing his argument
on premeditated murder, the prosecutor mentioned this as an alternate theory
for finding defendant guilty of murder, pointing out that defendant had his
hand on the trigger with the hammer back and the safety off. Thus, after rejecting defendant’s claim of
accident, the jury could have had an analytic basis for finding second
degree murder if it found implied malice was present, even if defendant did not
intend to kill the victim. On the other hand, the jury could also have
found that actual malice was present and defendant did not in fact deliberate
or was sufficiently provoked to preclude finding deliberation. In either event, voluntary manslaughter would
have been a proper lesser offense.
The
question thus is whether the facts we have summarized above are substantial
evidence that defendant’s reason was clouded
as the result of a strong passion, the cause of which was a type of
provocation sufficient to arouse an intense emotion (other than revenge) in a
reasonable person that overcame the ability to act on the basis of reason. (People
v. Steele (2002) 27 Cal.4th 1230, 1252-1253; People v. Lee (1999) 20 Cal.4th 47, 59-60;
component, the focus is whether the provocation (be it a sudden quarrel or
otherwise) was sufficient to induce the intense
emotion, not whether it was sufficient to provoke a reasonable person
(People v. Beltran (2013) 56 Cal.4th
935, 938-939 (Beltran).)
It
would not appear there is sufficient evidence of provocation through sudden
quarrel. Defendant expressly asserted
that he was not acting in a blind rage as a result of the fight with the
victim, nor felt any apprehension for his own safety, at least at the time of
the shooting.
However,
defendant attested to a state of extreme concern for the safety of his beloved
dog—which was in close proximity to what defendant claimed was an enraged
victim wildly swinging a knife—that distracted him from any other
consideration. While he did not
consistently impart this basis for his actions to the deputy and detective, it
is the explanation that dates back to the first person he encountered after the
shooting. The People point to the
inconsistencies in defendant’s explanations, and his assertion of a theory of
accident, but that is for a jury to resolve; it does not detract from the
substantial nature of the evidence in support of provocation based on this testimony
if credited (as in
otherwise assert that a threat of deadly force to a pet is not a reasonable
basis for experiencing an intense emotion that clouds reason. (See People
v. Bacon (2010) 50 Cal.4th 1082, 1126 [describing defense counsel’s
effort to mitigate prior murder at penalty phase as being provoked by kicking
of pet dog as a “manslaughter-type” theory].)
We
note that the trial court found the presence of at least sufficient provocation
on this basis to instruct that it could preclude the presence of deliberation
if the jury credited it. It is thus
likely that, had the court not been mistaken about yielding to the defense
theory of accident or the need for an intent to kill to establish voluntary
manslaughter, the court would have instructed that provocation could also
mitigate what would otherwise be murder to voluntary manslaughter.
We
cannot agree with the People that it is not reasonably probable defendant would
have obtained a more favorable verdict if the jury had been instructed on the
lesser offense. (Beltran, supra, 56 Cal.4th
at p. 955 [rejecting claim that federal due process rights violated by
ambiguous instruction on provocation]; contra, People v. Thomas (2013) 218 Cal.App.4th 630, 633, 643 [on
remand from the California Supreme Court with directions to consider the issue,
First Appellate District, Division Three, concludes federal due process
requires proof of malice beyond reasonable doubt and therefore failure to
instruct on provocation must be found harmless beyond a reasonable doubt].)[7] The People emphasize that
defense counsel preferred to seek exculpation through accident, which they
assert was “the only viable defense” because the victim was shot in the back
and defendant did not consistently assert provocation. The location of the wound is not
determinative, because defendant asserted the victim was in agitated motion and
thus simply may have turned abruptly just as defendant fired. As for the strategy of defense counsel, this
is not a basis for assessing what a jury
might decide on the conflicting evidence if instructed on provocation and the
lesser offense of voluntary manslaughter.
The mutual friend corroborated defendant’s claim that the victim was
becoming subject to fits of angry violence.
Even with what the prosecution felt was a strong case for premeditated
murder once a defense of accident was rejected, the jury nonetheless convicted
defendant only of second degree murder.
This raises the strong prospect that the jury may have credited the
claim of provocation and relied on it as a basis for finding murder in the
second degree rather than first (as opposed to taking the route of implied
malice). This is all that is necessary
to make the failure to instruct prejudicial and entitle defendant to the
opportunity to convince a jury that voluntary manslaughter is appropriate; we
do not need certainty that this will be the outcome. We will therefore reverse the judgment for
retrial.
II.
The General Fine Is Authorized on Reconviction
As
noted above, we struck the general fine imposed in defendant’s other case
because a fine was already authorized for his manufacturing offense. “The operative language of ADDIN BA xc <@$st> xl 11 s
GGPOXC000002 section 672 is the second phrase
of the first sentence, ‘in relation to which no fine is herein prescribed.’ ” (
ADDIN BA xc <@cs> xl 50 s GGPOXC000008 xhfl Rep xpl 1 l "
104 Cal.App.4th 298" People v. Breazell (2002) 104 Cal.App.4th 298, 302.) “The language used in ADDIN BA xc <@$st> xl 11 s
GGPOXC000002 section 672 demonstrates that it
was meant to provide a fine for offenses for
which another statute did not impose a fine.” (
ADDIN BA xc <@$id> xl 13 s ID xhfl Rep xpl 1 Id., at p. 304, italics added.)
As we noted above, the trial court
imposed a general fine pursuant to section 672 of $200
(with $580 in fees and assessments) at sentencing. Defendant
interprets this fine as impermissibly applying to his other offense (CM036509), and contends it is therefore
unauthorized. This misreads the
record. The trial court, other than
modifying defendant’s sentence in the other case to a state prison placement,
did not revisit any of the fines, fees, or penalty assessments it had previously
imposed in that matter, nor do any of these (or the general fine) appear in the
determinate abstract for the sentence in the other case. The only reference to the other case in the
indeterminate abstract of the sentence in the present case is a direction that
sentence was to be served consecutive to the determinate term in the other case
(as is required by law). None of the
offenses in the present case provide for fines, and therefore the general fine pursuant
to section 672 is authorized. We therefore
reject defendant’s claim of error, and the trial court may properly reimpose it
in the present case if defendant is reconvicted.
III.
The Restitution Fine Must Be Reduced on Reconviction
Our
review of the record has revealed an issue we reach on our own motion for
guidance of the trial court on remand.
As this is a relatively uncontroverted matter reflecting error as a
matter of law, we do not see any purpose in soliciting supplemental briefing
regarding our disposition of it. Should
the People purport to be aggrieved as a result, they may petition for
rehearing. (Gov. Code, § 68081.)
At
sentencing, the trial court stated, “it’s my hope that restitution [to the
victim’s family members] can be paid prior to anything else. So in that event, I will reduce the
restitution fine.” When the court asked
its probation officer for the amount of the statutory minimum, he responded,
“$280” and the court imposed $280 restitution and parole revocation fines.
The
$280 minimum was the amount in effect at the time of sentencing in 2013. However, the minimum in effect at the time of
defendant’s offense in 2012 was $240. (§ 1202.4,
subd. (b)(1).)
Because
this statute is considered punishment for purposes of ex post facto analysis (
1248), the minimum fine in effect at the time of
defendant’s offenses was controlling (see John
L. v. Superior Court (2004) 33 Cal.4th 158, 182, citing
397, 400 [81 L.Ed. 1182] [cannot increase minimum punishment after
commission of offense]). Therefore, in
the event defendant is reconvicted, the trial court should limit the
restitution and parole revocation fines to $240.
DISPOSITION
The
judgment is reversed and the matter remanded to the trial court for retrial.
BUTZ ,
J.
We concur:
ROBIE , Acting P. J.
MAURO , J.
[1] Undesignated statutory
references are to the Penal Code.
[2] About six months earlier,
defendant’s dog had leaped over a fence into the neighbor’s yard and killed a
dog; it also bit the neighbor when he was visiting. Defendant paid the neighbor several hundred
dollars in compensation. The victim
demanded that defendant keep his dog tied up, because he was concerned about
being sued if the dog bit anyone else.
did not
