People v. Owens CA1/5

Filed 6/14/22 P. v. Owens CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, A160802 Plaintiff and Respondent, v. (San Mateo County Super. Ct. No. 17SF008057A) FREEMAN OWENS, III, Defendant and Appellant.

Freeman Owens, III (appellant) appeals following his convictions, after a jury trial, of second degree murder and other charges. Appellant’s sole claim on appeal is the trial court erred in failing to sua sponte instruct the jury on the lesser included offense of heat of passion voluntary manslaughter. We affirm. BACKGROUND In July 2015, Alejandra L. was dating appellant, who lived in the same apartment complex she did. She was also married and her husband was in jail. She had not told her husband about her relationship with appellant. The victim, Mark Jack, was dating Alejandra’s sister, Monica L. Jack and Alejandra’s husband were very close friends. Jack either knew or suspected Alejandra was dating appellant and was bothered by it because of

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his friendship with Alejandra’s husband. Monica testified there was underlying tension between Jack and appellant but they “were cordial with each other.” Alejandra testified there were no issues between the two. She also testified she had slept with Jack before starting her relationship with appellant. On the day of the shooting, Monica came over to Alejandra’s apartment about 2:00 p.m. Alejandra smoked marijuana and Monica had a Xanax. Later, a few others joined them and they all sat outside drinking, except for Alejandra who did not drink. About 6:00 p.m., Jack arrived and began drinking with the group. Appellant was not there. At some point, Monica and Jack left to buy more alcohol and brought it back to the group. They were both drunk but not “falling over drunk.” Monica testified she first saw appellant that day around 9:20 p.m. Jack and appellant shook hands. At some point, Jack called Monica over to his car and said they were leaving. Alejandra was in the backseat, but Monica did not know what they had been talking about. When Monica approached the car, Alejandra asked Monica if they were “good” and Monica responded yes. Jack told them “if he says we’re not good we’re not good.” Monica did not know what was going on. Alejandra said something like, “I’ve chosen you. I’ve always chosen you,” and walked inside to her apartment. Jack began yelling at appellant, saying something like, “Boo, ask about me.” Jack and appellant were standing about 20 feet apart. Appellant, who now had a gun in his hand, told Jack, “ ‘You’re talking too much now,’ ” and then shot Jack multiple times. Monica went to Jack, and appellant pointed his gun at her and said something like, “I should finish this.” Alejandra told him “No,” and appellant left. Monica called 911 shortly before 10:00 p.m.