California Court of Appeal Jul 31, 2013 No. D054988AUnpublished
Filed 7/31/13 P. v. Anunciation CA4/1 Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D054988
Plaintiff and Respondent,
v. (Super. Ct. No. INF056054)
MICHAEL ANUNCIATION,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, James S.
Hawkins, Judge. Affirmed.
Marcia R. Clark for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lynne McGinnis and Donald W.
Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Michael Anunciation's appeal of the judgment sentencing him to prison after a jury
found him guilty of second degree murder is again before us after transfer from the
California Supreme Court. Anunciation contends the trial court erred by (1) admitting
expert testimony conveying a nontestifying forensic pathologist's autopsy findings, in
violation of his Sixth Amendment right to confront adverse witnesses; (2) admitting
the questioning was brief, polite, and courteous or lengthy, aggressive, confrontational,
threatening, intimidating, and accusatory." (Aguilera, at p. 1164.)
b. Application to This Case
Applying the foregoing principles to this case, we conclude substantial evidence
supports the trial court's findings that Anunciation voluntarily participated in the
interviews, and reinitiated questioning after requesting a lawyer.1 Anunciation called
Buompensiero of his own accord, agreed to meet with him, and asked for a ride to the
station. After Anunciation said he wanted a lawyer, Buompensiero told Anunciation he
was free to leave, and Anunciation acknowledged he was free to leave and knew how to
leave. At that point, Anunciation reinitiated the conversation, saying "What do you want
to ask me?" Anunciation left the sheriff's station after the first interview on his own. He
also willingly accepted another ride from a detective to go to his mother's house, and
agreed to return to the station for more questions. Additionally, having reviewed the
1 Our conclusion Anunciation was not in custody makes it unnecessary for us to decide whether his reinitiation of communication with Buompensiero would be sufficient to satisfy the exception, under Edwards and Minnick, that permits questioning by police after a defendant has requested counsel but then reinitiates " 'communication, exchanges or conversations with the police.' " (Minnick, supra, 498 U.S. at p. 152; Edwards, supra, 451 U.S. at pp. 484-485.)
17
videotapes and transcripts of the interviews, we agree with the trial court's
characterization of the questioning as "low-key, slow questions, no heavy-handed tactics
. . . not intense, persistent, or accusatory." The questioning remained so throughout both
interviews.
We further conclude Anunciation was not in custody during the police interviews.
Anunciation called Buompensiero of his own accord and indicated he was willing to
answer questions, both before and during the interview. Anunciation was not restrained
during the interviews, which took place over a period of approximately two hours. He
repeatedly acknowledged he understood he was free to go, and he actually left the station.
He willingly accepted a ride home from officers and agreed to return to the station to
answer additional questions. The detective's questioning remained low-key and
conversational. A reasonable person in Anunciation's circumstances would have felt free
to terminate the questioning and leave. (Cf. U.S. v. Norris (9th Cir. 2005) 428 F.3d 907,
911 [defendant was not in custody when he voluntarily accompanied officers to police
station; was told his cooperation was voluntary, he was free to terminate the interview at
any time and he was not under arrest; was never restrained in any way; and, upon
completion of interview, was taken home by officers]; U.S. v. Kim (9th Cir. 2002) 292
F.3d 969, 974-975 ["If the police ask—not order—someone to speak to them and that
person comes to the police station, voluntarily, precisely to do so, the individual is likely
to expect that he can end the encounter"]; Green v. Superior Court (1985) 40 Cal.3d 126,
131-135 [concluding a reasonable person would not have felt in custody when defendant
18
voluntarily accompanied officers to station for interview, and officers questioned
defendant intermittently in detailed way over total period of two hours within locked
room and advised him he could leave if he wished]; People v. Spears (1991) 228
Cal.App.3d 1, 22, 25 [concluding defendant was not in custody during hour-long
interview at police station in which officers were "courteous and polite" and told
defendant at various times he was free to leave].)
Anunciation contends certain facts compel a finding he was in custody, including
that he was already the focus of Buompensiero's investigation when he was questioned
and the interview took place in the homicide unit's interrogation room at the sheriff's
station. We disagree. Even a direct statement to a person under interrogation that he is a
prime suspect is not dispositive unless it also "would have affected how a reasonable
person in that position would perceive his or her freedom to leave." (Stansbury, supra,
511 U.S. at p. 325; accord, In re Joseph R. (1998) 65 Cal.App.4th 954, 960.) Here,
although Anunciation knew from Fletcher that Buompensiero considered him a suspect,
Buompensiero did not mention it during Anunciation's interviews. Given the atmosphere
of the interviews, Anunciation's voluntary cooperation, and the fact that he came and
went, a reasonable person would have felt free to leave, despite being at the sheriff's
station and under suspicion. (Cf. Beheler, supra, 463 U.S. at pp. 1122, 1125 [suspect not
in custody despite being target of police investigation, where he accompanied police
willingly to station house for questioning].)
19
Anunciation also argues that because he was "released" from custody only briefly
between the first and second interviews and then "recapture[d]," it was evident that the
police statements that he was free to go were never true, and there was a "taint" that
remained from his request for an attorney that lasted through the second interview. We
disagree, given our conclusion that he was not in custody. Moreover, the cases that
Anunciation relies upon as showing custody are inapposite. (See, e.g., People v. Esqueda
(1993) 17 Cal.App.4th 1450, 1482 [police took defendant immediately from crime scene,
prevented him from going to hospital with his injured wife, and never told him he was
free to leave]; People v. Storm (2002) 28 Cal.4th 1007 [Supreme Court did not rule on
whether defendant accused of lying after flunking a polygraph examination was in
custody].)
In sum, the totality of the circumstances shows Anunciation was not "in custody"
when he admitted strangling Shallenberger to death.2 Miranda therefore did not require
suppression of the admission as having been obtained in violation of Anunciation's Fifth
Amendment right against compulsory self-incrimination.
2 Because we have concluded Anunciation was not in custody when he was given the Miranda warnings in the second interview, we need not address his contention he did not validly waive his Miranda rights by acknowledging the warnings and continuing to answer questions thereafter. (See Ochoa, supra, 19 Cal.4th at p. 401 [where suspect not in custody, " 'Miranda simply [did] not come into play,' " and no waiver was needed].)
20
C. The Trial Court Did Not Prejudicially Err by Refusing to Instruct the Jury on Voluntary Manslaughter
Anunciation complains the trial court prejudicially erred by refusing his request
that the jury be instructed on voluntary manslaughter as a lesser included offense of
murder. He contends such instructions should have been given because there was
substantial evidence from which the jury could have found he killed Shallenberger in the
heat of passion or in unreasonable self-defense. Anunciation further contends it is
reasonably probable the jury would have found him guilty of voluntary manslaughter
rather than second degree murder had the requested instructions been given. We shall set
forth additional pertinent background and then explain why any trial court error in
refusing to give voluntary manslaughter instructions was harmless.
1. Additional Pertinent Background
After the close of evidence, Anunciation asked the trial court to instruct the jury
on voluntary manslaughter as a lesser included offense of murder. Anunciation argued
that based on his statements to police, which the People introduced as evidence, and
Cohen's testimony about the physiological response to a bite on the penis, a reasonable
jury could conclude that Anunciation killed Shallenberger in response to the provocation
of being bitten or the perceived threat of imminent bodily harm. Anunciation therefore
sought instructions on voluntary manslaughter based on heat of passion and imperfect
self-defense. (See CALCRIM Nos. 570, 571.)
21
The People opposed Anunciation's request. They argued voluntary manslaughter
instructions should not be given because there was no substantial evidence that
Shallenberger's biting of Anunciation's penis during fellatio induced such an intense
emotional response in Anunciation that he lost all reason and judgment, or caused or
threatened to cause such serious bodily injury that Anunciation believed he needed to
respond with deadly force.
The trial court refused to give the voluntary manslaughter instructions requested
by Anunciation.
2. Legal Analysis
We need not, and do not, decide whether the trial court erred by not instructing the
jury on voluntary manslaughter because any such error was harmless. A defendant who
seeks reversal of a conviction based on trial court error generally must show the error was
"prejudicial," i.e., it "resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13;
People v. Archerd (1970) 3 Cal.3d 615, 643.) In particular, "in a noncapital case, error in
failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and
theories thereof which are supported by the evidence must be reviewed for prejudice
exclusively under [People v.] Watson [(1956) 46 Cal.2d 818, 836]. A conviction of the
charged offense may be reversed in consequence of this form of error only if, 'after an
examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it
appears 'reasonably probable' the defendant would have obtained a more favorable
outcome had the error not occurred (Watson, [at p.] 836)." (People v. Breverman (1998)
22
19 Cal.4th 142, 178 (Breverman).) In conducting review under Watson, we "focus[] not
on what a reasonable jury could do, but what such a jury is likely to have done in the
absence of the error under consideration. In making that evaluation, an appellate court
may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result." (Id. at p. 177; accord, People v. Beltran (2013)
56 Cal.4th 935, 956 (Beltran).) Under this standard, Anunciation has not shown the
prejudice required for reversal.
The evidence supporting Anunciation's conviction of second degree murder was
"relatively strong." (Breverman, supra, 19 Cal.4th at p. 177, italics omitted.) To
establish second degree murder, the People had to prove Anunciation unlawfully killed
Shallenberger "with malice aforethought," but without willfulness, premeditation,
deliberation or other additional elements that would make the killing first degree murder.
(§§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) "Malice is
implied when a person willfully does an act, the natural and probable consequences of
which are dangerous to human life, and the person knowingly acts with conscious
disregard for the danger to life that the act poses." (People v. Gonzalez (2012) 54 Cal.4th
643, 653.) Here, Anunciation's admission that he choked Shallenberger until he turned
blue and dropped to the floor, Cohen's testimony that Shallenberger died of manual
strangulation after being severely beaten for several minutes, and the photograph of
23
Shallenberger's head showing some of his injuries convincingly indicated that
Anunciation killed Shallenberger with implied malice. (See People v. Pool (2008) 166
Cal.App.4th 904, 908 ["in strangling [the victim], defendant . . . acted with knowledge of
the danger to and conscious disregard for life"]; People v. Matta (1976) 57 Cal.App.3d
472, 480 ["the jury could have easily inferred malice from the repeated violent beatings
appellant inflicted upon the victim which ultimately resulted in his death"].) Further,
Anunciation's initial false statement to police that he and Shallenberger did not have oral
sex on the day of the killing,3 and his later statement that he fled the scene after choking
Shallenberger until he turned blue and collapsed, "reflected consciousness of guilt."
(Beltran, supra, 56 Cal.4th at p. 957 [flight from crime scene]; see also People v. Kimble
(1988) 44 Cal.3d 480, 496 [" 'False statements deliberately made by defendants to
arresting officers concerning matters within [defendants'] own knowledge, and relating to
the issue of guilt or innocence, "cogently evidence consciousness of guilt and suggest that
there is no honest explanation for incriminating circumstances." ' "].) Thus, strong and
uncontradicted evidence established Anunciation's guilt of second degree murder.
By contrast, the evidence Anunciation committed voluntary manslaughter rather
than murder was "comparatively weak." (Breverman, supra, 19 Cal.4th at p. 177, italics
omitted.) A defendant lacks the malice required for murder and is guilty of voluntary
manslaughter, a lesser included offense of murder (Id. at p. 154), when he kills in a
3 Sperm cells containing DNA matching Anunciation's profile were found in Shallenberger's mouth on the day of the killing. 24
"sudden quarrel or heat of passion" (§ 192, subd. (a)), or in "imperfect self-defense"
(People v. Rogers (2006) 39 Cal.4th 826, 883 (Rogers)). Manslaughter based on a
sudden quarrel or heat of passion requires provocation by the victim that would cause an
ordinary person of average disposition to lose reason and judgment and to act rashly.
(People v. Manriquez (2005) 37 Cal.4th 547, 583-586 (Manriquez).) Manslaughter based
on imperfect self-defense requires the defendant to have acted in the actual but
unreasonable belief that he needed to kill the victim to defend himself against imminent
danger of death or great bodily injury. (People v. Valencia (2008) 43 Cal.4th 268, 286
(Valencia).) Here, Anunciation contends "there was considerable evidence from which
[the] jury might have deduced that [he] acted out in either rage or fear," and if the jury
had been instructed on these theories of manslaughter, there was a " 'reasonable chance' "
the jury would have found him guilty of manslaughter rather than murder. (Italics
omitted.) Specifically, Anunciation asserts the combination of his own statements to
police that Shallenberger bit his penis during fellatio and Cohen's testimony that such a
bite could have caused pain that generated a rush of adrenaline "supported the defense
theory that [he] reacted without reflection to a perceived threat in the moment with an
explosive rage that was commensurate with either heat of passion or imperfect
self[-]defense." As we shall explain, however, this evidence does not make it reasonably
probable the jury would have found Anunciation guilty of voluntary manslaughter had it
been instructed on that offense.
25
Anunciation's statements to police do not support his manslaughter theory. He
never told police he was enraged or felt threatened by Shallenberger. In fact, when
Buompensiero asked Anunciation whether he had gotten into "a scuffle" or "a fight" with,
or was "mad at," Shallenberger, Anunciation responded, "No." Anunciation also never
told police he experienced any degree of pain when Shallenberger bit his penis. During
the police interview, Anunciation told Buompensiero the bite did not cause bleeding; and
when he was later arrested and booked, Anunciation did not tell police his penis hurt or
required medical attention. In fact, the only emotion Anunciation ever told police he
experienced in connection with the bite to his penis was disgust: Anunciation was
"grossed . . . out" when Shallenberger, while performing fellatio, started "choking" and
"bit on" his penis. This "statement said little suggesting [Anunciation] believed he had to
[strangle Shallenberger] to death to defend against imminent death or great bodily
injury." (Valencia, supra, 43 Cal.4th at p. 286.) Nor does Anunciation's statement
suggest "anger, fury, or rage" (Manriquez, supra, 37 Cal.4th at p. 585), or some other
" '[v]iolent, intense, high-wrought, or enthusiastic emotion' " (People v. Borchers (1958)
50 Cal.2d 321, 329), that would "cause an ordinary person of average disposition . . . to
lose reason and judgment" (People v. Thomas (2012) 53 Cal.4th 771, 813 (Thomas)).
The disgust briefly felt by Anunciation does not qualify as the type of "extreme intensity
of the heat of passion required to reduce a murder to manslaughter." (Beltran, supra, 56
Cal.4th at p. 950.)
26
Cohen's testimony, on which Anunciation also relies in support of his voluntary
manslaughter theory, actually undermines that theory. As we noted in part I., ante,
Cohen testified a bite to the penis would cause pain, which in turn would cause a
discharge of adrenaline and a reflexive response to avoid the biter. But Cohen made clear
the amount of adrenaline released in response to such a bite would not be significant, and
the associated avoidance response would be short-lived. When asked specifically
whether the reflexive response induced by a bite to the penis during fellatio could explain
the injuries inflicted on Shallenberger, Cohen responded, "Of course not." Cohen thus
expressly and emphatically disagreed with Anunciation's theory that he reacted to being
bitten on the penis "with an explosive rage that was commensurate with either heat of
passion or imperfect self[-]defense."
Other evidence introduced at trial is also inconsistent with Anunciation's theory of
voluntary manslaughter. There was evidence Anunciation did not suffer any serious
injury to his penis from Shallenberger's bite. Anunciation told Buompensiero the bite did
not cause bleeding; and when Anunciation was arrested and booked, police performed a
physical examination in which they specifically looked for but observed no injury to his
penis. There was also evidence Shallenberger presented no threat of harm to
Anunciation. Shallenberger was a frail octogenarian who wore an ankle brace and
walked with a cane. Shallenberger had paid to perform fellatio on Anunciation on
multiple occasions over the course of "a couple years." The evidence thus showed that
any bite to Anunciation's penis was minor and occurred during a consensual sex act with
27
an enfeebled, elderly man who had paid Anunciation for sex in the past. Given these
additional facts, it is not reasonably probable the jury would have concluded Anunciation
killed Shallenberger because the bite caused him to become "so inflamed as to lose
reason and judgment" (Thomas, supra, 53 Cal.4th at p. 813) or to believe he "need[ed] to
defend against imminent danger 'to life or great bodily injury' " (Valencia, supra, 43
Cal.4th at p. 286).
Anunciation also argues the length of the jury deliberations in the first trial
indicates this was a close case between murder and manslaughter, and therefore the
refusal to instruct the jury in the second trial on manslaughter was prejudicial. He
asserts: "Merely to state the contrast between the length of deliberations in the first and
second juries is to demonstrate the prejudice of the error here." More specifically, he
points out that the first jury, which received voluntary manslaughter instructions, "was
unable to reach a verdict after more than five days of deliberations"; but the second jury,
"with no manslaughter instructions and thus no choice but murder, . . . returned a verdict
in less than one day." From this disparity, Anunciation contends "the evidence presented
a close question as to whether the crime was murder or manslaughter, and when an error
goes to a central issue in a case where the facts are close, that error cannot be deemed
harmless." We are not persuaded.
Appellate courts "have sometimes inferred from unduly lengthy deliberations that
the question of guilt was close." (People v. Cooper (1991) 53 Cal.3d 771, 837.)
Anunciation cites several cases in which reviewing courts concluded a case was close in
28
part because the jury deliberations that produced the verdict being challenged on appeal
were lengthy. In none of the cited cases, however, did the court conclude (or even
consider) that a retrial that produced a verdict after a few hours of deliberations was a
close case because in a prior trial a different jury deliberated for days but was unable to
reach a verdict. "It is axiomatic, of course, that a decision does not stand for a
proposition not considered by the court." (People v. Harris (1989) 47 Cal.3d 1047,
1071.) In any event, "the fact that a jury may have deliberated for a long period of time
permits more than a single interpretation" (In re Pratt (1999) 69 Cal.App.4th 1294,
1322); and an interpretation that is plausible as to an initial trial may not be plausible as
to a retrial, because the jurors in the two trials will be different, different evidence may be
presented, and the witnesses' credibility may change. In fact, the trial court here refused
to instruct the second jury on voluntary manslaughter in part because "this time, different
than last time, we have Cohen not agreeing with" Anunciation that the killing was a
"[r]eflexive reaction." Given this and other differences between the two trials, "to
conclude that [the second trial] was a 'close case' in light of the jury's action [in the first
trial] 'in the absence of more concrete evidence would amount to sheer speculation on our
part.' " (People v. Houston (2005) 130 Cal.App.4th 279, 301.) To demonstrate the
prejudice required for reversal, however, Anunciation may not rely on "speculation as to
the jury's deliberative process." (People v. Sassounian (1986) 182 Cal.App.3d 361, 404,
fn. 46; see also People v. Gray (2005) 37 Cal.4th 168, 230 ["pure speculation . . . will not
support a reversal of the judgment"].)
29
In sum, Anunciation's retrial did not present a close case between murder and
manslaughter. "Given the strong evidence supporting [Anunciation's] murder conviction
and the comparatively weak evidence of any legally adequate provocation [or any threat
of imminent death or great bodily injury], a different result was not reasonably probable."
(Beltran, supra, 56 Cal.4th at p. 957.) Any error in the trial court's refusal to instruct the
jury on voluntary manslaughter based on heat of passion of imperfect self-defense was
therefore harmless. (Rogers, supra, 39 Cal.4th at pp. 867-868; Breverman, supra, 19
Cal.4th at pp. 177-178.)
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.
30
AI Brief
AI-generated · verify before citing
Holding. The court held that the admission of expert testimony regarding autopsy findings prepared by a nontestifying pathologist did not violate the defendant's Sixth Amendment confrontation rights, and that the defendant's statements were not obtained in violation of his Fifth Amendment rights because he was not in custody during the interviews.
Issues
Whether the admission of expert testimony relaying findings from a nontestifying pathologist's autopsy report violated the Sixth Amendment confrontation clause.
Whether the defendant's statements to police were obtained in violation of his Fifth Amendment right against compulsory self-incrimination.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The facts that [the expert] related to the jury were not so formal and solemn as to be considered testimonial for purposes of the Sixth Amendment's confrontation right, and criminal investigation was not the primary purpose for recording the facts”
“We further conclude Anunciation was not in custody during the police interviews.”