People v. Bailey CA3

Filed 1/31/22 P. v. Bailey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C091267

Plaintiff and Respondent, (Super. Ct. No. STKCRFE20170012028) v.

CLARENCE KEITH BAILEY,

Defendant and Appellant.

Defendant Clarence Keith Bailey appeals his second degree murder conviction, contending the trial court erred in denying his motion to instruct the jury on excusable homicide based on accident in the heat of passion. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Defendant strangled his girlfriend, S. B., to death. He admitted to officers he had strangled her previously, supposedly to subdue her in their frequent, violent altercations. He also admitted he choked her teenaged daughter once. These prior acts, apparently, resulted in nothing more than a police report. This time, he told officers, S. B. had been drinking, “she was talkin’ shit,” “grabb[ing] me,” and “jumpin’ on top of me” in their bed. He acknowledged being “pretty pissed” and “pretty heated.” “I was trying to just grab her just so she could shut up. And, like, you know, cover her mouth.” He was “up

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on her,” “leaning over her,” “squeezing pretty hard,” as she tried to get him off. When she stopped talking, he ceased. He then noticed she “was spittin’ up some white stuff out on the side of her mouth.” He wiped her mouth, turned over, and went to sleep. Defendant claimed he thought she was sleeping and did not realize she was dead until the next morning. He was remorseful and had not intended to kill her. At trial, a forensic pathologist testified for the prosecution that the white substance around S. B’s mouth was a symptom of asphyxiation, a process that can take several minutes as the lungs fill up with frothy edema fluid, which can overflow through the airways. Additionally, S. B. had marijuana in her system and her blood-alcohol level was 0.33 percent -- high enough, according to two prosecution witnesses, that she would not be able to defend herself effectively. The court instructed the jury on first and second degree murder, as well as voluntary and involuntary manslaughter. The jury found defendant guilty of second degree murder, and the court sentenced him to 15 years to life. DISCUSSION Defendant argues the court erred in refusing his request to instruct the jury with CALCRIM No. 511, which defines excusable homicide based on accident in the heat of passion. He argues, “[g]iven this undisputed history of choking women in the midst of heated arguments -- with no lingering effects from doing so -- a reasonable juror could have believed that [defendant] did not expect or intend choking [S. B.] to kill her this time.” We disagree. We review de novo a trial court’s refusal to instruct the jury. (People v. Licas (2007) 41 Cal.4th 362, 366.) “The trial court has no duty to instruct on a defense that is not supported by substantial evidence.” (People v. Bohana (2000) 84 Cal.App.4th 360, 370.) Taking defendant’s proffered evidence as true and resolving doubts as to its sufficiency in his favor, we must reverse if there is “ ‘ “evidence from which a jury composed of reasonable [people] could have concluded” ’ that the specific facts