California Court of Appeal Dec 4, 2013 No. E054852Published
Before: King
Synopsis
[CERTIFIED FOR PARTIAL PUBLICATION* ]
Filed 12/4/13
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054852
v. (Super.Ct.No. RIF10001458)
BENJAMIN JAMES BOATMAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge.
Affirmed with directions.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Anthony
Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part III B. through H.
1
I. INTRODUCTION
Defendant and appellant, Benjamin James Boatman, shot his girlfriend, Rebecca
Marth, in the face, killing her. Defendant said the shooting was an accident. At trial, he
argued that although he was criminally negligent, he did not commit murder. A jury
convicted him of first degree murder (Pen. Code, § 187 subd. (a))1 and possession of
marijuana for sale (Health and Saf. Code, § 11359). The jury also found true two
enhancement allegations that defendant personally and intentionally discharged a firearm
that caused great bodily injury or death (Pen. Code, § 12022.53, subd. (d)) and the
offenses were committed while defendant was released from custody pending trial on
another felony offense (Pen. Code, § 12022.1).
Defendant was sentenced to an indeterminate term of 25 years to life on the
murder conviction plus an additional 25 years to life for the firearm enhancement. In
addition, the court sentenced defendant to a determinate term of three years on the
possession of marijuana conviction to be served concurrent to the indeterminate sentence.
The court imposed, and did not stay, a two-year consecutive term for the on-bail
enhancement.
In the published portion of our opinion, we address defendant’s contention that the
evidence is insufficient to support the conviction for first degree murder. Because we
conclude that there is substantial evidence that defendant committed murder, but
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
insufficient evidence to support the first degree murder elements of premeditation and
deliberation, we will reduce the murder conviction to second degree murder. We will
address other contentions in the unpublished portion of the opinion.
II. SUMMARY OF FACTS
At approximately 3:30 a.m. on March 18, 2010, defendant was released from jail
on bail. He walked home, where he lived with his father (Jim), a sister (Hanna), an older
brother (Brandon), and a younger brother (Brenton).2 Brandon’s girlfriend, Victoria
Williams, was also staying there at that time.
After talking with Brenton for awhile, defendant and Brenton drove to Marth’s
house, picked her up, and returned home. Defendant had been dating Marth for about
one year and, he testified, was in love with her. However, defendant also had an ex-
fiancée and was conflicted about whom he wanted to be with.
Around 7:05 a.m., Officer Eric Hibbard responded to a report of a shooting at
defendant’s house. When he arrived, he saw Brenton leaning up against the fender of a
white Cadillac holding Marth in his arms. Marth had been shot in the face. Shortly after
Officer Hibbard placed Marth on the ground, defendant came running out of the house
with blood on his clothes and face. Defendant told Officer Gregory Hayden to “[c]all the
ambulance for my girlfriend.”
2 To avoid confusion and meaning no disrespect, we will refer to the Boatmans by their first names.
3
With both defendant and Brenton detained, Officer Hibbard and two other officers
conducted a safety sweep of the house. Inside, the officers found Brandon, Williams, and
Hanna. Upon entering the bedroom where Marth had been shot, Officer Hibbard saw
bloodstains on the bed and pillow. He also saw some marijuana and marijuana
paraphernalia in the room. A trail of blood led Officer Hibbard from the bedroom to the
kitchen. Officer Hibbard saw a black revolver on the kitchen floor. Both the floor and
revolver appeared to be wet with water. The revolver contained five live .38-caliber
rounds, as well as one fired round. During a subsequent search of the room where Marth
was shot, a box containing a semiautomatic handgun, a box of .38-caliber bullets, and a
duffel bag containing a sawed-off shotgun and a box of shotgun shells were found.
Brandon’s bedroom shares a wall with the room in which Marth was shot. On the
day of the shooting, Williams (who was in Brandon’s room) told an investigating officer
that she was awoken by a “[l]oud screaming argument between a guy and a girl for at
least three minutes.” She said she did not know where the yelling was coming from and
that she could not tell what the “[l]oud screaming” was about. At trial, Williams did not
remember characterizing the sounds she heard as “loud screaming,” and said she was
awoken by “loud talking.” A couple of minutes after hearing the “loud talking,”
Williams heard a gunshot. Immediately afterward, Williams heard a commotion and
screaming; “it seemed like someone was panicking, like yelling or screaming like out of
fear.”
4
Defendant was taken to the police station by a Riverside police officer. On the
way to the police station, defendant asked the officer if he knew if Marth was okay.
Defendant said: “I can’t lose her. I would do anything for her. How is someone
supposed to go on with their life when they see something like that? We were just going
to watch a movie.” Defendant was crying with his head down for most of the trip.
Defendant was interviewed by two homicide detectives. He gave different
versions of what had happened that day and admitted at trial that he lied to the officers.
In the first version, defendant claimed that Marth had accidentally shot herself. He said
he was showing her a gun he had recently purchased; he did not tell her it was loaded;
and as she was playing around with it, she accidentally shot herself.
In defendant’s second version, he said he shot Marth, but claimed the shooting
was accidental and that he did not think the gun was loaded. He explained that they were
sitting on the couch; Marth pointed the gun at him, he pushed the gun away, and she
pointed it at him again; he then took the gun, pointed it at her, and accidentally shot her.
In the third version, defendant said he knew the gun was loaded. He described the
events this way: “She pointed it at me. I slapped it away. She pointed it at me. I
slapped it away. We both knew it was loaded. And then I went like that and I cocked
back the hammer just jokingly and it slipped, pow.” He later added: “I pulled it back
. . . . [¶] . . . [¶] . . . and it slipped. [¶] . . . [¶] . . . Like I didn’t get to pull it all the
way back.” In this version, defendant claimed that his finger was not on the trigger. At
5
trial, this version was placed in doubt by a criminalist with an expertise in firearms who
testified that, because of the multiple safeties on the gun, the gun could not be fired by
pulling the hammer back and releasing it before it is fully cocked.
Defendant testified at trial. He stated that after a few restless nights in jail, he was
released on bail around 3:30 a.m. and walked home. Along the way, he sent a text
message to Marth to tell her he was going to come get her. He arrived at his house
around 5:00 a.m. He and Brenton picked up Marth around 5:30 that morning and
returned to their house. Defendant and Marth were happy to see each other.
After the three returned to defendant’s house, they planned to smoke a “blunt”—a
cigarillo in which the tobacco has been removed and replaced with marijuana—and
watch a movie. After showering, defendant took some Xanax and Norcos pills.
Defendant said that these pills typically make him feel drunk and euphoric and that on the
day in question the drugs made him disoriented.3
Defendant and Marth were in a bedroom that had been converted from a back
patio. Defendant went to his safe, which contained marijuana and money, and began
weighing the marijuana and counting the money. Marth said, “[h]ey, baby.” Defendant
turned around and saw Marth pointing a gun at him. Marth had apparently retrieved the
gun from underneath defendant’s pillow. Defendant was not worried because he trusted
Marth. He slapped the gun away and continued to weigh the marijuana.
3The detective who interviewed defendant testified that he did not notice that defendant had any symptoms of being under the influence of drugs during their interview.
6
At this point, a mosquito landed on Marth, causing her to “scream[] a little bit.”
She “jumped up, started waving her hands, doing a whole bunch of girly stuff . . . .” In
order to tease her, defendant “grabbed the mosquito, and . . . brought it closer to her, and
she got even more upset.” To make up for the teasing, defendant gave Marth a hug and a
kiss, then went back to weighing his marijuana.
When defendant turned around, Marth was sitting on the edge of the bed pointing
the gun at him again. The bed did not have a frame and was low on the floor. Defendant,
who had just finished putting the marijuana back into the safe on the floor, was squatting
and about “eye to eye” with Marth. He took the gun away from Marth and pointed it at
her. He knew the gun was loaded when he received it and it “had to be loaded because
[he] didn’t take the bullets out.” He cocked the hammer back, but did not intend to
threaten or shoot her. He was “[j]ust kind of being stupid[.]” Defendant then described
what happened next:
“[DEFENDANT:] She slapped the gun, and as soon as she slapped the gun, the
gun went off. I almost dropped it. I tried to grab hold of it. Still the gun didn’t drop. As
soon as I squeezed it, it went off.
“Q. Okay. Why are you squeezing it?
“A. I didn’t want to drop it. I didn’t want anything to happen. I guess just a
reaction.
“Q. Okay.
7
“A. You drop something; you try not to drop it.
“Q. Did you sit there and think this through step by step or was it kind of more an
instinctive reaction?
“A. It just happened so quick. It just happened. I didn’t think about it at all.”
Immediately after the shot, defendant told Brenton “to call the cops,” which he
did. Defendant tried to give Marth mouth-to-mouth resuscitation. When Marth told
defendant she could not breathe, defendant and Brenton took her outside to the driveway
in front of the house “to get her help.”
Defendant went back into the house to get his keys. From inside the house, he
heard sirens and panicked. Defendant grabbed the gun and rinsed it off in an attempt to
wash off the fingerprints. He tossed the gun into the bottom of a kitchen cabinet. He
then ran outside where he was met by police officers.
A recording of Brenton’s 911 call was played to the jury. Brenton lied to the 911
operator, telling her his name was “Paul” and that he did not know who had shot Marth.
Defendant can be heard in the background of the telephone call crying and repeatedly
saying things like, “[n]oooo,” “[b]aby,” and “[b]aby are you alive, baby . . . .”
A forensic pathologist estimated that the gun was fired roughly 12 inches from
Marth’s face. She arrived at this estimate based on evidence of stippling, “a phenomenon
where some of the gunpowder comes out of the gun and actually tattoos and burns the
skin.” The doctor also opined on the trajectory of the bullet: “Essentially the projectile
8
entered just to the left side of her nose. It was recovered in the back portion of her neck a
little bit to the right. And so the trajectory would have been front to back, slightly left to
right, and slightly downward.”
Marth’s best friend, Heather Hughes, testified that she and Marth had exchanged
text messages in the hours before the shooting. A text sent at 10:29 p.m. on March 17,
2010 (the night before defendant was released from jail) read: “Going to sleep soi [sic]
can wake up when [defendant] calls.” At 4:24 a.m. on March 18, 2010, Marth texted:
“[Defendant’]s out.” Two minutes later she sent: “I alrea[d]y fuckin wish he was locked
back up.....[O]mg [you] have no clue.” At 7:02 a.m., Marth wrote: “Just were [sic]
fighting ...with him right now.”
III. DISCUSSION
A. Sufficiency of the Evidence of First Degree Murder
Defendant contends the evidence was insufficient to find him guilty of first degree
murder. We agree. Although the evidence is sufficient for reasonable jurors to have
found that defendant killed Marth with malice aforethought, there is insufficient evidence
to support the finding that the killing occurred with premeditation and deliberation.
1. Standard of Review
A state court conviction that is not supported by sufficient evidence violates the
due process guarantees of the federal and California Constitutions, and is therefore
invalid. (People v. Rowland (1992) 4 Cal.4th 238, 269.) In determining whether a
9
criminal conviction is supported by sufficient evidence for purposes of federal due
process, a reviewing court must “determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443
U.S. 307, 318, fn. omitted.) In Jackson, the Supreme Court explained that “this inquiry
does not require a court 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, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has
been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is
preserved through a legal conclusion that upon judicial review all of the evidence is to be
considered in the light most favorable to the prosecution.” (Id. at pp. 318-319, fn.
omitted.)
The standard under our state Constitution is “identical.” (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 87.) As our state Supreme Court has explained, we “must
review the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is reasonable, credible
and of solid value—such that a reasonable trier of fact could find the defendant guilty
10
beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial
evidence is evidence that “maintains its credibility and inspires confidence that the
ultimate fact it addresses has been justly determined.” (People v. Conner (1983) 34
Cal.3d 141, 149.) The “whole record” includes “the entire picture of the defendant put
before the jury” and is not limited “to isolated bits of evidence selected by the
respondent.” (Id. at p. 577.) This standard is the same regardless of whether the People
primarily rely on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.)
2. Background Principles
Murder is the unlawful killing of a human being with malice aforethought. (§ 187,
subd. (a).) Malice may be either express or implied. Express malice exists when there is
a deliberate intention unlawfully to take away the life of a fellow creature. (§ 188.) It is
implied when no considerable provocation appears or when the circumstances attending
the killing show an abandoned and malignant heart. (§ 188.) This statutory definition of
implied malice “is quite vague” and “‘has never proved of much assistance in defining
the concept in concrete terms.’ [Citation.]” (People v. Chun (2009) 45 Cal.4th 1172,
1181.) Courts have interpreted the statutory language to mean that malice is implied
“when a killing results from an intentional act, the natural consequences of which are
dangerous to human life, and the act is deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life.” (People v. Cook (2006) 39
Cal.4th 566, 596.)
11
Here, defendant concedes that the evidence, viewed favorably to the prosecution,
is sufficient to support a jury’s finding of implied malice. We agree. Defendant told
interviewing officers he knew the gun was loaded and intentionally cocked the hammer
back, albeit “jokingly”; the hammer slipped, causing the gun to fire and kill Marth. The
jury could have easily concluded that pointing a loaded gun at someone and pulling the
hammer back is an intentional act, the natural consequences of which are dangerous to
human life, and that defendant deliberately did so with knowledge of such danger and
with conscious disregard for Marth’s life, even if, as defendant said, “it was just all in
play.” There is thus sufficient evidence to establish that defendant acted with malice
aforethought and committed murder.
There are two degrees of murder. Section 189 defines first degree murder as
“murder which is perpetrated by means of a destructive device or explosive, a weapon of
mass destruction, knowing use of ammunition designed primarily to penetrate metal or
armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and
premeditated killing, or which is committed in the perpetration of, or attempt to
wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder
which is perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict death, is
murder of the first degree. All other kinds of murders are of the second degree.”
12
In People v. Thomas (1945) 25 Cal.2d 880, our state Supreme Court construed the
meaning of “willful, deliberate, and premeditated” in light of the phrase’s placement
among the specifically enumerated instances of a killing perpetrated, among other ways,
during arson, rape, robbery, burglary, or mayhem. (Id. at p. 899.) Applying the ejusdem
generis rule of statutory construction, the court stated: “By conjoining the words ‘willful,
deliberate, and premeditated,’ in its definition and limitation of the character of killings
falling within murder of the first degree the Legislature apparently emphasized its
intention to require as an element of such crime substantially more reflection than may be
involved in the mere formation of a specific intent to kill.” (Id. at p. 900, italics added.)
In People v. Bender (1945) 27 Cal.2d 164, the Supreme Court explained the need
to distinguish deliberation and premeditation from malice aforethought. Malice
aforethought is “an essential element of the crime of murder whether it be of the first
degree or of the second degree . . . . [¶] . . . [¶] . . . [and] is not synonymous with the
elements of deliberation and premeditation . . . .” (Id. at p. 180.) “Obviously, if malice
aforethought necessarily included or presupposed a deliberate and premeditated intent[,]
then all murder would be of the first degree because any homicide, to constitute murder at
all, must be an unlawful killing with malice aforethought; and the Legislature would be
guilty of an utterly meaningless classification of murder into two degrees, with no field in
which the second could operate. Likewise it is obvious that the mere intent to kill is not
the equivalent of a deliberate and premeditated intent to kill.” (Id. at p. 181.)
13
Deliberation, the Bender court stated, “‘means careful consideration and
examination of the reasons for and against a choice or measure.’ [Citation.]” (People v.
Bender, supra, 27 Cal.2d at p. 183.) Premeditation “means ‘To think on, and revolve in
the mind, beforehand; to contrive and design previously.’ [Citation.]” (Ibid.) Relying on
the Thomas court’s emphasis on reflection, the court concluded that “‘[t]he true test is not
the duration of time as much as it is the extent of the reflection.’” (People v. Bender,
supra, at p. 185, quoting People v. Thomas, supra, 25 Cal.2d at p. 900.)
These principles underpin more recent statements of premeditation and
deliberation. “The very definition of ‘premeditation’ encompasses the idea that a
defendant thought about or considered the act beforehand.” (People v. Pearson (2013)
56 Cal.4th 393, 443.) “Deliberate” means “‘“‘formed or arrived at or determined upon as
a result of careful thought and weighing of considerations for and against the proposed
course of action.’ [Citation.]” [Citation.]’” (People v. Houston (2012) 54 Cal.4th 1186,
1216.) Thus, “‘[a]n intentional killing is premeditated and deliberate if it occurred as the
result of preexisting thought and reflection rather than unconsidered or rash impulse.’”
(People v. Pearson, supra, at p. 443.)
Courts have also emphasized that “‘“[t]he process of premeditation and
deliberation does not require any extended period of time. ‘The true test is not the
duration of time as much as it is the extent of the reflection. Thoughts may follow each
other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’
14
[Citations.]” [Citation.]’” (People v. Houston, supra, at p. 1216.) Judicial reliance on
this language, however, has led to criticism that courts have “collapsed any meaningful
distinction between first and second degree murder.” (People v. Solomon (2010) 49
Cal.4th 792, 812, citing Mounts, Premeditation and Deliberation in California:
Returning to a Distinction Without a Difference (2002) 36 U.S.F. L.Rev. 261, 327-328.)
In response, our state Supreme Court reaffirmed the significance of “preexisting
reflection, of any duration” to distinguish first degree murder (based on premeditation
and deliberation) from second degree murder. (People v. Solomon, supra, at p. 813;
accord, People v. Houston, supra, 54 Cal.4th at p. 1217.)
Here, the only direct evidence of defendant’s mental state at the time of the
shooting is defendant’s statements to investigators and his testimony at trial. Although
his statements regarding the shooting were inconsistent in significant respects, there is
nothing in any of his statements to indicate that he considered shooting Marth beforehand
or carefully weighed considerations for and against killing her. The evidence of such
premeditation and deliberation, if any, was circumstantial.
The use of circumstantial evidence in proving first degree murder was discussed in
People v. Anderson (1968) 70 Cal.2d 15 (Anderson). The court stated: “Given the
presumption that an unjustified killing of a human being constitutes murder of the
second, rather than of the first, degree, and the clear legislative intention to differentiate
between first and second degree murder, [a reviewing court] must determine in any case
15
of circumstantial evidence whether the proof is such as will furnish a reasonable
foundation for an inference of premeditation and deliberation [citation] or whether it
‘leaves only to conjecture and surmise the conclusion that defendant either arrived at or
carried out the intention to kill as the result of a concurrence of deliberation and
premeditation.’” (Id. at p. 25.)
An inference is a “conclusion reached by considering other facts and deducing a
logical consequence from them.” (Black’s Law Dict. (8th ed. 2004) p. 793, col. 2.) “The
strength of an inference may vary widely. In some circumstances, the preliminary facts
may virtually compel the conclusion. In other circumstances, the preliminary facts may
minimally support the conclusion. But to constitute an inference, the conclusion must to
some degree reasonably and logically follow from the preliminary facts. If, upon proof
of the preliminary facts, the conclusion is mere guesswork, then we refer to it by such
words as speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the
dignity of an inference.” (People v. Massie (2006) 142 Cal.App.4th 365, 373-374.)
The defendant in this case gave multiple false versions of how Marth was shot.
The question of whether a defendant’s false denials of wrongdoing can support an
inference that he committed the charged crimes was recently addressed in People v.
Velazquez (2011) 201 Cal.App.4th 219. In rejecting such an inference, the Velazquez
court stated: “The prosecution bears the burden to prove each element of the crimes
charged. [Citation.] That burden is not met through mere disbelief of defendant’s denial
16
that he committed the crimes. ‘A reasonable inference “‘may not be based on suspicion
alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.’”
[Citation.] It must logically flow from other facts established in the action.’ [Citations.]
Disbelief of defendant’s testimony, without more, does not constitute ‘other facts’ from
which logically flows the conclusion, beyond a reasonable doubt, that defendant did that
which he denied doing.” (Id. at p. 231.)
3. Analysis
The Anderson court provided guidelines “for the kind of evidence which is
sufficient to sustain a finding of premeditation and deliberation.” Such evidence “falls
into three basic categories: (1) facts about how and what defendant did prior to the actual
killing which show that the defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing—what may be characterized as ‘planning’
activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim
from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference
of motive, together with facts of type (1) or (3), would in turn support an inference that
the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing
of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’
[citation]; (3) facts about the nature of the killing from which the jury could infer that the
manner of killing was so particular and exacting that the defendant must have
intentionally killed according to a ‘preconceived design’ to take his victim’s life in a
17
particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or
(2). [¶] Analysis of the cases will show that this court sustains verdicts of first degree
murder typically when there is evidence of all three types and otherwise requires at least
extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).”
(Anderson, supra, 70 Cal.2d at pp. 26-27.)
To illustrate planning evidence, Anderson discussed the case of People v. Hillery
(1965) 62 Cal.2d 692, in which “the defendant’s surreptitious conduct[,] subjection of his
victim to his complete control, and carrying off of his victim to a place where others were
unlikely to intrude, can be described as ‘planning’ activity directly related to the killing.”
(Anderson, supra, 70 Cal.2d at p. 27.) In another case, planning evidence was found
when the defendant left the victims to retrieve a rifle from his car and, after killing one
victim, manually loaded a second shot into the gun’s chamber to kill the second victim.
(People v. Thomas (1992) 2 Cal.4th 489, 517.) There was also planning evidence in
People v. Young (2005) 34 Cal.4th 1149, where the defendant, after being denied entry to
a house, crashed through a living room window armed with a gun before killing a
resident inside the house. From such evidence, the jury could infer that the “defendant
‘considered the possibility of murder in advance’ . . . .” (Id. at p. 1183.)
The present case lacks any planning evidence whatsoever. Defendant, along with
his younger brother, picked up Marth from her house and drove back to his home, not to
a remote or isolated location. The house was occupied by four other people who could
18
identify him. There is no evidence that defendant left the room or the house to get a gun,
or that he even moved from his squatting position on the floor. Indeed, the only evidence
regarding his possession of the gun was that he took it away from Marth just prior to the
shooting. Defendant testified that he did not intend to shoot Marth. Although the jury
could refuse to believe such testimony, such disbelief cannot support an inference “that
defendant did that which he denied doing.” (People v. Velazquez, supra, 201
Cal.App.4th at p. 231.)
Defendant’s behavior following the shooting is of someone horrified and
distraught about what he had done, not someone who had just fulfilled a preconceived
plan. Immediately after the fatal shot, defendant tried to resuscitate Marth and directed
his brother to “call the cops.” Defendant could be heard crying in the background during
the 911 call. He asked the first officer who arrived to call an ambulance and, when being
taken to the police station, he cried and asked rhetorically how someone could “go on
with their life when they see something like that.” The evidence not only fails to support
an inference of a plan to kill Marth, but strongly suggests a lack of a plan to kill. Even
viewed in the light most favorable to the prosecution, there is no evidence of planning.
There is little or no relevant motive evidence here. The Attorney General points to
Marth’s text messages to Hughes and asserts that the jury may have inferred that
“[defendant] was in a bad mood after being released from custody and he was angry with
[Marth].” Other than the references to the text messages, the Attorney General does not
19
cite to evidence defendant was in a “bad mood” or “angry” with Marth. Even if such a
mood or anger can be reasonably inferred from Marth’s texts and could suggest the intent
to kill, it is, at most, weak evidence of a motive suggesting premeditation and
deliberation. The second Anderson factor refers not merely to a motive to kill, but to the
kind of motive that “would in turn support an inference that the killing was the result of a
‘pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than
‘mere unconsidered or rash impulse hastily executed.’” (Anderson, supra, 70 Cal.2d at p.
27, italics added.) The text messages and the evidence of a loud screaming argument,
which the Attorney General relies on, do not suggest this kind of motive. To the
contrary, any evidence of defendant’s “bad mood” or “anger with the victim” indicates a
motive to kill based on “‘unconsidered or rash impulse hastily executed,’” not the sort of
“‘pre-existing reflection’” and “‘careful thought and weighing of considerations’”
required to find premeditation and deliberation. (Ibid.)
As for the manner of killing evidence, defendant shot Marth in the face. As noted
above, this manner of killing supports the finding of malice necessary to convict
defendant of murder. To support first degree murder, however, the prosecution must
show more than an intent to kill. (People v. Koontz (2002) 27 Cal.4th 1041, 1080
(Koontz).) It must still establish that the gunshot to the face was pursuant to a
“‘preconceived design’ to take his victim’s life . . . .” (Anderson, supra, 70 Cal.2d at p.
27.)
20
Even when manner of killing evidence is strong, cases in which findings of
premeditation and deliberation are upheld typically involve planning and motive evidence
as well. For example, in People v. Cruz (1980) 26 Cal.3d 233, the defendant killed one
of his victims, his wife, by crushing her skull with a pipe and shooting her in the face
with a shotgun. (Id. at pp. 240, 245.) The court held that the finding of premeditation
and deliberation was supported by “all three types of evidence specified in Anderson” (id.
at p. 245); the defendant resented the victims (motive), snuck out of his house to secure a
pipe and load a shotgun (planning), and returned to the house to kill one of his victims by
crushing her skull with the pipe followed by a shotgun blast to the face (manner of
killing). In People v. Mendoza (2011) 52 Cal.4th 1056, the defendant shot a police
officer in the face, killing him. (Id. at p. 1063.) In upholding the first degree murder
conviction, the court relied not only on evidence of the manner of killing, but also on
evidence that the defendant “devised a plan to kill [the officer] once the officer indicated
he would conduct a weapons search,” and had a motive for the killing—to avoid arrest
and parole revocation. (Id. at p. 1070.)
Here, as discussed above, there is no evidence of any plan to kill Marth and little
or no meaningful evidence of a motive to kill her.
Cases that have found sufficient evidence of premeditation and deliberation in the
absence of planning or motive evidence are those in which “[t]he manner of the killing
clearly suggests an execution-style murder.” (People v. Hawkins (1995) 10 Cal.4th 920,
21
956, overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110; see also
People v. Bloyd (1987) 43 Cal.3d 333, 348.) In Hawkins, the victim was found in a ditch
in an open field with two gunshot wounds: one in the back of the neck and one in the
back of the head near the base of the skull. (People v. Hawkins, supra, 10 Cal.4th at p.
956.) There was also evidence that the victim was crouching or kneeling at the time.
(Ibid.) The court concluded: “In sum, although evidence of planning and motive was
indeed minimal if not totally absent in the present case, we conclude that the manner-of-
killing evidence was sufficiently strong to permit a trier of fact to conclude beyond a
reasonable doubt that defendant committed the . . . murder with premeditation and
deliberation.” (Id. at p. 957.) In Bloyd, two people were killed; one victim was lying
down on her back and another was kneeling. The first victim “died from a pointblank
gunshot wound to the head that entered the brain.” (People v. Bloyd, supra, 43 Cal.3d at
p. 342.) The bullet in the second victim “went down, back to front, and left to right,
through the midportion of the brain, and exited just below the ear lobe on the right side.”
(Ibid.) The evidence of “cold and calculated—execution-style killings,” the court
explained, “was very strong evidence of deliberation and premeditation[.]” (Id. at p.
348.)
Here, the Attorney General does not assert that the shooting of Marth was an
“execution-style” murder. Nor is there any evidence from which jurors could reasonably
infer such a manner of killing. None of the events preceding the shooting or its location
22
suggests an execution. Unlike the shots to the head from behind in Hawkins and Bloyd,
defendant and Marth were facing toward each other, and there is no evidence that Marth
was crouching or kneeling at the time. Although the gun was only 12 inches away from
Marth when fired, the bullet completely missed Marth’s brain; and although the gun still
held five live rounds, no second shot was fired. Defendant’s actions immediately
afterward—directing Brenton to call 911 and attempting to resuscitate Marth and seek
medical aid—are not the actions of an executioner. In short, the manner of killing Marth
was not “so particular and exacting that the defendant must have intentionally killed
according to a ‘preconceived design’ . . . .” (Anderson, supra, 70 Cal.2d at p. 27.)
With no evidence of planning or motive and a killing that cannot be described as
“execution-style,” the application of the Anderson factors weigh heavily in favor of
concluding there was insufficient evidence for a reasonable jury to conclude that the
killing was the result of premeditation and deliberation.
As the Attorney General points out, the Anderson factors are not exhaustive or
exclusive of other considerations. Indeed, our Supreme Court has cautioned that an
“‘[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate.
The Anderson analysis was intended as a framework to assist reviewing courts in
assessing whether the evidence supports an inference that the killing resulted from
preexisting reflection and weighing of considerations. It did not refashion the elements
of first degree murder or alter the substantive law of murder in any way.’ [Citation.]”
23
(Koontz, supra, 27 Cal.4th at p. 1081.) The question thus remains whether, in light of the
whole record, there is substantial evidence from which rational jurors could have found
that defendant’s killing of Marth was the result of preexisting thought and the careful
weighing of considerations. (See Jackson v. Virginia, supra, 443 U.S. at pp. 318-319;
People v. Johnson, supra, 26 Cal.3d at pp. 577-578.)
The Attorney General emphasizes three aspects of the evidence to support
premeditation and deliberation. First, the Attorney General argues that defendant did not
shoot Marth during the “[l]oud and screaming argument” heard by Williams, but did so
only after the screaming ended. This, the Attorney General contends, “reasonably
supports the inference that [defendant] had time to consider his actions before [h]e
pointed his Taurus pistol at [Marth’s] face and fired from close range.” However,
“‘“[t]he true test [of premeditation and deliberation] is not the duration of time as much
as it is the extent of the reflection. . . .” [Citations.]’ [Citation.]” (Koontz, supra, 27
Cal.4th at p. 1080.) Thus, the mere fact that a defendant has time to consider his actions
is, without more, insufficient to support an inference that the defendant actually
premeditated and deliberated. Indeed, if the mere passage of time was enough to infer
premeditation and deliberation, then virtually any unlawful killing with malice
aforethought would be first degree murder because premeditation and deliberation does
not require any extended period of time. (See ibid.) As discussed above, however,
premeditation and deliberation is not synonymous with malice aforethought (People v.
24
Bender, supra, 27 Cal.2d at p. 180); it requires “substantially more reflection.” (People
v. Thomas, supra, 25 Cal.2d at p. 900.) Clearly, there must be some evidence that the
defendant actually engaged in such reflection, and not merely had the time to do so.
For this argument, the Attorney General relies on People v. Harris (2008) 43
Cal.4th 1269. In that case, a mother worked at a donut shop and took her daughter to
work with her. (Id. at p. 1277.) The mother tapped at a door to signal the daughter to
open it. As the daughter approached the door, defendant was standing at the service
window. The daughter attempted to open the door for her mother, but could not. The
mother told the daughter to wait on the customer. The daughter took the defendant’s
order and began to prepare it. The defendant then attacked and killed the mother with a
butcher knife. (Ibid.) The court held that there was sufficient evidence of premeditation
and deliberation and explained: “In the time it took for [the daughter] to go from the
door to the service window, and to take and prepare defendant’s order, there was ample
time for him to deliberate and premeditate before attacking [the mother].” (Id. at p.
1287.)
Contrary to the Attorney General’s suggestion, Harris does not hold that
premeditation and deliberation can be inferred whenever the defendant had time to
premeditate and deliberate. The facts in Harris indicate that the defendant had a reason
to be at the service window (to buy donuts) and left his position at the window to go to
the door where he had no reason to be other than to attack the mother. This implies that
25
he made the decision to attack the mother while he was at the service window before
walking to the door to carry out his plan. It was not the mere passage of time that was
significant, but the fact that the defendant’s actions imply that he made the decision to
kill while he was at the service window and then considered the decision as he walked to
the door to commit the murder. Here, by contrast, there is no fact analogous to leaving
the donut store service window or other evidence that defendant had given any thought or
consideration to killing Marth.
Harris was followed in People v. Nelson (2011) 51 Cal.4th 198. The Nelson court
relied on Harris to conclude that the defendant in Nelson “had ample time to premeditate
and deliberate” before attempting to shoot his intended victim. (Id. at p. 213.) The court
did not hold that having such ample time was itself sufficient to infer premeditation and
deliberation. As the court further explained, the defendant “formed an intent to kill and
took several steps to achieve that end. He took up a firearm, climbed out of a moving
car, sat on the window frame, reached across the roof, braced himself, and aimed at Doe.”
(Ibid.) Thus, as in Harris, there was evidence in Nelson that the defendant formed an
intent to kill and then took steps—which took “ample time”—before aiming his gun at
the intended victim. Here, by contrast, there is no substantial evidence from which the
jury could determine the point (if any) when defendant formed the intent to kill or any
steps thereafter taken to fulfill that goal.
26
Next, the Attorney General argues, “[t]he close-range shooting . . . supports a
rational inference by the jury of premeditation and deliberation.” For this argument, the
Attorney General cites to People v. Gonzales and Soliz (2011) 52 Cal.4th 254, People v.
Marks (2003) 31 Cal.4th 197, and Koontz, supra, 27 Cal.4th at page 1082. These cases
are distinguishable from ours in that they all had other types of Anderson evidence in
addition to a close-range shooting.
In Gonzales and Soliz, the defendants were members of a Hispanic street gang.
(People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 263.) They and others were in a
car when they saw two or three African-American men from a rival gang standing in the
driveway of a gas station. (Id. at pp. 268-270.) The defendants recognized the men and
told the driver of the car to go back to the gas station. (Id. at p. 270.) One of the
defendants shot the African-American men. (Id. at p. 269.) When one of the victims
started to crawl away, the shooter walked up and shot him again. (Ibid.) One of the
victims had been shot from behind while kneeling on the ground with the shooter
standing over him; the other had been shot seven times, including two fatal wounds to the
head. (Id. at p. 271.) In holding that there was sufficient evidence of premeditation and
deliberation, the court stated: “Here, the evidence of motive was that defendants targeted
[the victims] for a gang retaliation murder . . . . This motive evidence supported the
inference that defendants, who were armed at the time, had the prospect of retaliation in
mind and quickly decided to commit the murders once they identified potential targets.
27
A reasonable inference, therefore, is that defendants formed the intent to commit
premeditated and deliberate murder as early as when they asked the driver to turn the car
around and return to the gas station to confront [the victims]. . . .” (Id. at p. 295.) As for
“manner” evidence, the court stated: “The manner of killing—a close-range shooting
without any provocation or evidence of a struggle—additionally supports an inference of
premeditation and deliberation.” (Ibid.)
In Marks, the defendant and his girlfriend entered the victim’s taxi without any
money to pay for the ride. (People v. Marks, supra, 31 Cal.4th at p. 206.) They arrived
at their destination and the defendant asked his girlfriend to exit the taxi. (Ibid.) She
went into an alley and then heard a gunshot from where the taxi was parked. (Ibid.) The
defendant shot the driver in the face, killing him. (Ibid.) The Supreme Court stated that
“[t]he shooting . . . manifested all three [Anderson] factors. Defendant ordered [his
girlfriend] out of the taxi, which supports the inference that he did so to remove her from
the scene before he killed. Moreover, if he brought a gun rather than money with which
to pay for the taxi ride, it supports the inference that he planned a violent encounter with
[the victim]. [Citations.] Defendant was found with seven $1 bills, whereas [the victim]
was found with no bills (nor was any money found in the car), which tends to show a
robbery motive. Finally, the manner of the killing, a close-range shooting without any
provocation . . . or evidence of struggle, likewise demonstrates premeditation and
deliberation.” (Id. at p. 230.)
28
In Koontz, the court summarized the facts as follows: “Defendant, having armed
himself in the early morning hours with two concealed and loaded handguns, argued with
the victim in the apartment they shared. When the victim sought refuge in [a security
guard’s office], located in a different apartment in the complex, defendant pursued him
and persisted in the argument . . . . After [the security guard] unsuccessfully exhorted the
two men to resolve their differences . . . defendant said, ‘All right, I’ll settle it.’
Defendant then entered the office, locked the door and pulled a handgun from the
waistband of his pants. After the victim refused defendant’s demand for his car keys,
defendant fired a shot at the victim’s abdomen. He then took active steps to prevent [the
security guard] from summoning medical care, without which the victim was certain to
die.” (Koontz, supra, 27 Cal.4th at pp. 1081-1082.) The court concluded: “Applying the
Anderson guidelines, we easily find evidence of planning (defendant’s arming himself
and following the victim to the [security guard’s] office), motive (to effectuate a
robbery), and a manner of killing indicative of a deliberate intent to kill (firing a shot at a
vital area of the body at close range, then preventing the witness from calling an
ambulance). These facts suffice to support a verdict of premeditated and deliberate first
degree murder.” (Id. at p. 1082.)
Gonzales and Soliz, Marks, and Koontz are easily distinguishable from the present
case. In each case cited by the Attorney General, the evidence indicated the defendants
decided to confront and kill the victims some time prior to the shooting. In Gonzales and
29
Soliz, the armed defendants turned their car around to confront the victims; the defendant
in Marks entered the taxi with a gun without the ability to pay for the cab ride; and the
armed defendant in Koontz pursued the victim to the apartment complex security office
and announced that he would “settle it.” Such evidence supports reasonable inferences
that the killings were planned. Each defendant also had a motive (e.g., gang retaliation or
robbery) that suggested the killing was the result of a pre-existing reflection, careful
thought, and the weighing of considerations. Significantly, in none of these cases did the
Supreme Court indicate that each defendant’s manner of shooting would be sufficient to
support the premeditation and deliberation finding in the absence of evidence of planning
and motive.
Lastly, the Attorney General argues, defendant’s “act of shooting [Marth] does not
bear the characteristics of a rash impulse because he took the time to pull back the
hammer, point the pistol at [Marth’s] face, and fire the weapon.” Pulling the hammer
back on a loaded gun and pointing it at another is certainly evidence of an intentional act
performed with conscious disregard for human life, i.e., acting with implied malice.4
However, the Attorney General provides no authority for the argument that these actions,
without more, are sufficient to support a finding of premeditation and deliberation.
4 We note that cocking, aiming, and firing a revolver essentially describes the act of shooting with a revolver. If these actions could, without more, constitute premeditation and deliberation, we would effectively add killing perpetrated by a revolver to the list of crimes specifically enumerated in section 189 and thereby substantially broaden the scope of first degree murder and eliminate the purposeful division created by the Legislature.
30
Although the cocking of a loaded rifle was one factor supporting such a finding in People
v. Gonzalez (2012) 54 Cal.4th 643, there was also uncontroverted evidence of the
defendant’s plan to attack the victim by ambush with the loaded rifle and a motive to kill
the victim because of a conflict between the victim and the defendant’s brother. (Id. at
pp. 663-664.) There is nothing in Gonzalez to suggest that the mere cocking of the
loaded rifle would be sufficient to support a finding of premeditation and deliberation.
A first degree murder conviction premised upon premeditation and deliberation
requires more than a showing of the intent to kill; it requires evidence from which
reasonable jurors can infer that the killing is the result of the defendant’s preexisting
thought and reflection. (People v. Solomon, supra, 49 Cal.4th at pp. 812-813; Koontz,
supra, 27 Cal.4th at p. 1080.) Here, viewing the evidence in the entire record in the light
most favorable to the prosecution, we conclude that there is ample evidence to support
the jury’s verdict of murder, but insufficient evidence to support the finding that
defendant killed Marth with premeditation and deliberation. We will therefore reduce the
conviction to second degree murder. (See People v. Steger (1976) 16 Cal.3d 539, 553;
§ 1260.)
B. Failure to Instruct, Sua Sponte, on Voluntary Manslaughter
Defendant was charged with first degree murder. At trial, the jury received
instructions regarding the crimes of involuntary manslaughter, first degree murder, and
second degree murder. The court was not requested to, and did not, instruct on voluntary
31
manslaughter. Defendant argues that the court should have instructed the jury, sua
sponte, on voluntary manslaughter under a heat of passion theory because it is a lesser
included offense of murder and there was substantial evidence at trial that the killing was
a “heat of passion” killing. We reject this contention.
The law is well settled on this issue. “‘[A] trial court must instruct on lesser
included offenses, even in the absence of a request, whenever there is substantial
evidence raising a question as to whether all of the elements of the charged offense are
present.’ [Citation.] Conversely, . . . a trial judge has no duty to instruct on any lesser
offense unless there is substantial evidence to support such instruction.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1008.)
Voluntary manslaughter is a lesser included offense of murder. (People v. Beltran
(2013) 56 Cal.4th 935, 942; People v. Breverman (1998) 19 Cal.4th 142, 154.) Thus, in a
murder case, instructions on voluntary manslaughter must be given to the jury if there is
substantial evidence to support it. (People v. Breverman, supra, at p. 160.)
“[T]he existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense, but such instructions are required whenever
evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to
merit consideration’ by the jury.” (People v. Breverman, supra, 19 Cal. 4th at p. 162.)
“‘Substantial evidence’ in this context is “‘evidence from which a jury composed of
32
reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater,
was committed.” (Ibid.)
“[T]he factor which distinguishes the ‘heat of passion’ form of voluntary
manslaughter from murder is provocation. The provocation which incites the defendant
to homicidal conduct in the heat of passion must be caused by the victim [citation], or be
conduct reasonably believed by the defendant to have been engaged in by the victim.
[Citations.] The provocative conduct by the victim may be physical or verbal, but the
conduct must be sufficiently provocative that it would cause an ordinary person of
average disposition to act rashly or without due deliberation and reflection.” (People v.
Lee (1999) 20 Cal.4th 47, 59.)
Thus, in order for the trial court to have had a sua sponte duty to instruct, there
must have been substantial evidence of such a provocation. In our case, there was not.
The evidence includes the text messages indicating that defendant and Marth were
fighting and the testimony by Williams and a police officer that Williams was awakened
by “[l]oud screaming.” Although such evidence suggests a verbal fight or argument
between defendant and Marth, there is no evidence about its duration, nature, or intensity.
Without evidence to determine these facts, the jurors could not reasonably determine if
the argument would have provoked an ordinary person to act rashly or without due
deliberation and reflection. For that reason, there was not substantial evidence that the
33
killing occurred in a heat of passion. Therefore, the trial court had no sua sponte duty to
instruct the jury on that theory.
Defendant asserts that “[g]iven the absence of evidence of deliberation and
premeditation and given [defendant’s] uncontrollable anguish in the immediate aftermath
of the shooting, the worst that can be inferred is that he ‘saw red’ during the . . . heated
argument.” However, the absence of premeditation and deliberation is not affirmative
evidence that defendant acted “rashly or without due deliberation and reflection” as a
result of a provocation.
Defendant further stated that “[t]here is as much evidence that the killing was
committed in the heat of passion as there is that malice was present, because heat of
passion can involve ‘any violent or intense emotion that causes a person to act without
due deliberation and reflection.’” We disagree. There is, as discussed above (and as
defendant concedes), substantial evidence that the killing was committed with at least
implied malice; i.e., as a result of an intentional act, the natural consequences of which
are dangerous to human life, deliberately performed with knowledge of the danger to, and
with conscious disregard for, human life. There is not, however, substantial evidence that
the killing was committed in the heat of passion.
Even if we agreed with defendant that the court had a duty to instruct as to
voluntary manslaughter, the error would have been harmless.
34
The failure to instruct as to a lesser included offense is reviewed under the
Watson5 standard for prejudice. (People v. Moye (2009) 47 Cal.4th 537, 555-556; People
v. Breverman, supra, 19 Cal.4th at p. 178.) Under Watson, a reviewing court will reverse
a judgment “only when the court, ‘after an examination of the entire cause, including the
evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.” (Watson,
supra, 46 Cal.2d at p. 836.) With no evidence that establishes the intensity, duration, or
subject matter of the fight, it is not reasonably probable that the jury would have found
defendant guilty of voluntary manslaughter. Thus, under the Watson standard, any error
was harmless.
C. Giving CALCRIM No. 224 Instead of CALCRIM No. 225
At trial, defense counsel requested that the court instruct the jury with CALCRIM
No. 225. The court denied this request and instead instructed the jury with CALCRIM
No. 224. Defendant claims this was prejudicial error. We hold that the court did err by
giving CALCRIM No. 224, but conclude that the error was harmless.
1. CALCRIM Nos. 224 and 225
“CALCRIM No. 224 is a form jury instruction that describes the manner in which
the jury is to consider circumstantial evidence that the prosecution offers to prove facts
5 People v. Watson (1956) 46 Cal.2d 818 (Watson).
35
necessary to find a defendant guilty.” (People v. Contreras (2010) 184 Cal.App 4th 587,
591.)
CALCRIM No. 224 reads: “Before you may rely on circumstantial evidence to
conclude that a fact necessary to find the defendant guilty has been proved, you must be
convinced that the People have proved each fact essential to that conclusion beyond a
reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the
defendant guilty, you must be convinced that the only reasonable conclusion supported
by the circumstantial evidence is that the defendant is guilty. If you can draw two or
more reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions points to innocence and another to guilt, you must accept the one
that points to innocence. However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are unreasonable.”
“CALCRIM No. 225 is a form jury instruction that describes the manner in which
the jury is to consider circumstantial evidence that the prosecution offers to prove a
defendant’s intent or mental state.” (People v. Contreras, supra, 184 Cal.App.4th at p.
592.)
CALCRIM No. 225 reads: “The People must prove not only that the defendant
did the act[s] charged, but also that (he/she) acted with a particular (intent/ [and/or]
mental state). The instruction for (the/each) crime [and allegation] explains the (intent/
[and/or] mental state) required. [¶] A[n] (intent/ [and/or] mental state) may be proved by
36
circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude
that a fact necessary to find the defendant guilty has been proved, you must be convinced
that the People have proved each fact essential to that conclusion beyond a reasonably
doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the
defendant had the required (intent/ [and/or] mental state), you must be convinced that the
only reasonable conclusion supported by the circumstantial evidence is that the defendant
had the required (intent/ [and/or] mental state). If you can draw two or more reasonable
conclusions from the circumstantial evidence, and one of those reasonable conclusions
supports a finding that the defendant did have the required (intent/ [and/or] mental state)
and another reasonable conclusion supports a finding that the defendant did not, you must
conclude that the required (intent/ [and/or] mental state) was not proved by the
circumstantial evidence. However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are unreasonable.”
The Bench Notes to both jury instructions detail under what circumstances each is
to be read. The Bench Notes for CALCRIM No. 224 (2011) pages 56 and 57 state: “If
intent is the only element proved by circumstantial evidence, do not give this instruction.
Give CALCRIM No. 225 . . . .” Conversely, the Bench Notes for CALCRIM No. 225,
supra, pages 59 and 60 state: “Give this instruction when the defendant’s intent or
mental state is the only element of the offense that rests substantially or entirely on
37
circumstantial evidence. If other elements of the offense also rest substantially or entirely
on circumstantial evidence, do not give this instruction. Give CALCRIM No. 224 . . . .”
Therefore, if the only element that rested substantially or entirely on circumstantial
evidence was the defendant’s intent, CALCRIM No. 225 should have been read. In the
present case, defendant’s intent was the only element that rested substantially on
circumstantial evidence.
In denying defense counsel’s request for CALCRIM No. 225, the trial court judge
explained: “The entire case is circumstantial. So I’m giving [CALCRIM No.] 224.” The
court further stated that the prosecution is “relying on circumstantial evidence as to who
fired the gun. [¶] . . . [¶] . . . And who owned the gun because there were other people
in the room.” On appeal, the Attorney General contends: “[C]ontrary to [defendant]’s
assertions otherwise, the record reveals that the prosecutor relied upon circumstantial
evidence not only to prove the mental state for murder, but also to prove motive and the
manner of killing.”
Both the trial judge and the Attorney General are mistaken. The prosecution was
not relying on circumstantial evidence to prove who fired the gun or who owned the gun.
Defendant, by his own admission, stated that he owned the gun and pulled the trigger.
The lack of any dispute on this point was noted in the prosecutor’s closing argument:
“Murder requires that the defendant committed an act that caused the death of Rebecca
38
Marth. That is undisputed. He did an act that caused her death. [¶] The second element
is that when he acted, he had a state of mind called malice aforethought. . . .”
Although the prosecution relied on circumstantial evidence to prove a motive and
the manner of killing, neither motive nor the manner of killing are elements of the offense
of murder. They are relevant to prove malice aforethought, premeditation, and
deliberation—all mental states.
Because defendant admitted the gun was his and that he was the person who
pulled the trigger, the actus reus in this case did not rely either substantially or entirely on
circumstantial evidence. Accordingly, the only element of the offense of murder that
substantially or entirely relied on circumstantial evidence was the mental state or intent
element: malice aforethought. Thus, the court erred in denying defense counsel’s
request for CALCRIM No. 225.
2. Harmless Error
“Instructional error is subject to harmless error review.” (People v. Whisenhunt
(2008) 44 Cal.4th 174, 214.) When trial error implicates a criminal defendant’s federal
constitutional rights, the reviewing court must “be able to declare a belief that [the error]
was harmless beyond a reasonable doubt” before it can find the error not prejudicial or
harmless. (Chapman v. California (1967) 386 U.S. 18, 24.) If, on the other hand, the
error arises under state law or state procedure, a more forgiving standard of review is
appropriate under the Watson test. (Watson, supra, 46 Cal.2d at p. 836.) Under this test,
39
the error is harmless if there is no “reasonabl[e] probab[ility]” the error affected the
outcome. (Ibid.) A reasonable probability does not mean “more likely than not”; rather,
a reasonable probability exists when there is merely a “reasonable chance, more than an
abstract possibility” of a different outcome. (College Hospital, Inc. v. Superior Court
(1994) 8 Cal.4th 704, 715.)
Under either the Chapman standard or the Watson standard, we hold the error is
harmless. In People v. Rodrigues (1994) 8 Cal.4th 1060 (Rodrigues), the court faced an
analogous situation where the trial court gave CALJIC No. 2.01 rather than CALJIC No.
2.02. (Rodrigues, supra, at p. 1141.) Like CALCRIM No. 224, CALJIC No. 2.01
instructs on the sufficiency of circumstantial evidence to prove guilt; like CALCRIM No.
225, CALJIC No. 2.02 instructs more specifically on the sufficiency of circumstantial
evidence to prove a defendant’s specific intent or mental state. (Rodrigues, supra, at p.
1141.) CALJIC No. 2.02 “‘is designed for use instead of CALJIC [No.] 2.01 in a specific
intent or mental state case in which the only element of the offense which rests
substantially or entirely on circumstantial evidence is the element of specific intent or
mental state.’” (Rodrigues, supra, at pp. 1141-1142, fn. 46.) The defendant in Rodrigues
argued that the court erred in failing to give the more specific CALJIC No. 2.02.
(Rodrigues, supra, at p. 1141.) The Supreme Court explained that it did not need to
decide the merits of the argument, explaining that “[b]ecause the trial court delivered the
40
more inclusive instruction under CALJIC No. 2.01, its refusal to additionally instruct
with CALJIC No. 2.02 clearly was not prejudicial error.” (Id. at p. 1142.)
Here, as in Rodrigues, the more inclusive instruction was given. For that reason,
the refusal to instruct with CALCRIM. No. 225 was not prejudicial error.
D. Inadmissible Evidence/Ineffective Assistance of Counsel
Defendant claims he was denied a fair trial by the admission of audio recordings
of his interviews with police. He argues that portions of the recordings contained
inadmissible character evidence. At trial, defense counsel failed to object to these
portions of the recordings. For that reason, defendant additionally claims he was denied
effective assistance of counsel. We conclude that defendant failed to preserve this claim
on appeal and was not denied a fair trial or effective assistance of counsel.
The challenged portions of the interviews are statements made by defendant to
police officers about his pending criminal cases involving his use of firearms and
statements made about his “gang” or “crew.” When asked if he was “on probation or
anything like that,” defendant said he had “cases pending.” In one case he “got caught
with a firearm.” More recently, he had been charged with “discharging . . . a firearm in
unfashionable manner . . . .” Relative to this charge, he said he bailed himself out on the
morning Marth was shot. When he was later asked if he had ever fired a gun, he
answered, “the gun that I got busted with,” and added, “I had fired right before I got
busted with it and I haven’t fired one since.” The officers also informed defendant that
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“[e]arlier that night people saw you go by . . . the brothers that you guys were having a
problem with . . . . [¶] . . . [¶] . . . [w]ent by the house and shot your gun in the air when
you got down the street.” Defendant responded: “I hate that, no fucking way. I would
never, never shoot my, shoot a gun out of my car.”
Regarding the reference to a gang, defendant told the officers: “When my ex-
fiancé[e] and I started having problems I ran back to the gang. I ran into [Marth]. I
pretty much left my ex-fiancé[e] for her.” The detectives questioned defendant about this