Opinion
B196974
7-1-2008
THE PEOPLE, Plaintiff and Respondent, v. KENT WESLEY HOLMAN, Defendant and Appellant.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Kent Wesley Holman (appellant) appeals from the judgment entered following a jury trial resulting in his convictions of two counts of first degree murder (Pen. Code, § 187, subd. (a); counts 1 & 2) with findings appellant personally used a firearm and intentionally discharged a firearm proximately causing death (§ 12022.53, subds. (b) & (c)) and of multiple murder special circumstance (§ 190.2, subd. (a)(3)). Appellant was also convicted of arson of a structure (§ 451, subd. (c); count 3) and first degree burglary with a finding that a principal was armed with a firearm (§§ 459, 12022, subd. (a)(1); count 4). In sentencing appellant, the trial court selected the arson as the principal term, imposing a middle term of four years. It ordered the term imposed for the count 4 burglary and principal-armed finding stayed pursuant to section 654. For the murders in counts 1 and 2, it imposed two fully consecutive terms of life without the possibility of parole, each enhanced by a term of 25 years to life for the discharge of a firearm.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends that (1) there was Marsden error (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)); (2) the record fails to show a knowing, intelligent, and voluntary waiver of appellants right to be present during the trial proceedings; (3) due process required the jury to be instructed as to a lesser included offense of voluntary manslaughter; (4) the trial court improperly refused to define the term "provocation" as it appears in CALCRIM No. 522; (5) the trial court abused its discretion when it denied the motion for a new trial; and (6) cumulative error requires the judgment be reversed.
We affirm the judgment.
FACTS
1. The Trial Evidence
A. The Peoples Case-in-Chief
On August 5, 2005, appellant drove the six hours from St. George, Utah, to his brother LaVar Holmans (LaVar) West Covina condominium. With him, appellant brought a loaded Intertec Tec 9 nine-millimeter semiautomatic pistol. Shortly before 8:43 p.m. that evening, appellant set fire to one car inside the Holmans garage by means of lighter fluid, Duraflame matches, and briquettes that he had just purchased at a local Stater Bros. Market. The car fire spread throughout the garage. Then appellant went to the front door of LaVars condominium and shot his brother and his brothers wife, Adeline Holman, in the living room/dining room of the condominium. Appellant drove home to St. George, Utah, taking his pistol with him.
At 4:49 a.m. the following morning, on August 6, 2005, he turned himself in to the St. George police in Utah. He told a St. George police officer that he had had an altercation with his brother in California and that he believed that his brother was dead. The officer testified that appellant appeared to be distraught.
Later that day, on August, 6, 2005, a West Covina homicide detective and a St. George police detective searched appellants yellow Geo Storm vehicle, which was parked in the St. George Police Departments parking lot. In the Geo Storm, they found a black attaché case that contained the Intertec pistol and a Stater Bros. Market receipt for the items appellant had purchased and used to set LaVars car on fire. At trial, the prosecutor played the markets security videotape of appellant inside the store purchasing these items. Ballistics tests revealed that appellants Intertec pistol was the murder weapon.
At trial, an eyewitness testified that just before the West Covina Fire Department arrived to put out the garage fire, she was standing looking at the smoke rising from the Holmans garage. She saw a man who looked like appellant run from the area of the front walk of LaVars condominium to a yellow Geo Storm parked in a red zone near one outdoor gate to the condominium complex. (The complex was comprised of two-story attached residences with unattached single-story garages. Patios separated the residences from the unattached garages. LaVars condominium was located near one of the two exterior gates for the complex.) The man who was carrying the black attaché case put it into the Geo Storm and quickly drove out of the complex. At trial, the eyewitness was positive that appellants yellow Geo Storm was the vehicle she had observed.
After the shootings, two West Covina homicide detectives examined the Holmans condominium, and criminalists collected evidence. At trial, one of the detectives testified to the specifics of the condition of the crime scene. The physical evidence and witness interviews indicated that appellant had set the fire in the garage and then had run to the condominiums front door. The Holmans were at home relaxing in their living room/dining room area: Adeline Holman was sitting on the sofa in the living room completing a crossword puzzle, and LaVar was working on paperwork at the dining room table. Appellant had shot Adeline Holman in the chest through the front door and then entered the condominium and confronted LaVar in the dining room. Appellant shot LaVar numerous times in the arm, chest, abdomen, and temple. Before or after appellant shot LaVar at close range in the temple, LaVar fell through the dining rooms sliding glass door onto the patio that separated the two-story condominium from its garage. The sliding glass window was shattered. When LaVar fell, he was holding a set of keys in his hand. At trial, the ballistics expert testified that appellants pistol did not have a hair trigger. It had to be deliberately pulled each time it fired, and when tested, the pistol was in proper working order.
Witnesses testified that prior to the shooting, LaVar and appellant were involved in a dispute over a piece of St. George property known as Lot 54. Appellant had built a residence on that lot with a loan from his brother LaVar and a loan from his credit union. Appellant currently owed LaVar $165,000 secured by a trust deed on Lot 54. The residence on Lot 54 was near completion, and appellant was living in the residence with his new wife, Dorothy Holman (Dorothy). LaVar was using a private foreclosure procedure in order to obtain repayment of the loan, and appellant had filed a lawsuit to prevent the foreclosure. The foreclosure had triggered strong feelings in appellant, and during the morning of August 5, 2005, appellant had virtually destroyed the 3,600 square foot, almost-completed residence he had built on Lot 54. After inflicting severe damage to his residence, appellant drove to West Covina and fatally shot LaVar and his wife.
The debt arose from a loan appellant had proposed and obtained from LaVar in which appellant borrowed money to build residences on four St. George lots to sell for a profit. At some point, the remaining balances on the loans on the other residences and lots had been rolled over into the remaining $165,000 balance on the mortgage on Lot 54, the last lot to be sold.
According to LaVars St. George attorney, David Hunter (Hunter), for at least several weeks prior to the shooting, Hunter had been negotiating with appellant to settle the dispute. Hunter believed that LaVar was amenable to a settlement, but Hunter still had to ascertain the value of Lot 54 and its residence with an inspection and an appraisal. During Hunters discussions with appellant in LaVars absence, appellant had directed threats at LaVar. Specifically, on July 28, 2005, Hunter asked appellant, "[W]hat would satisfy you out of this case?" Appellant replied that "[t]he only satisfaction Ill ever get out of this case is seeing LaVar dead on a cold slab in a morgue." During that conversation, appellant claimed to have purchased "insurance" that would ensure that LaVar would gain nothing if LaVar prevailed in the lawsuit. Appellant also made veiled threats to Hunter and to another member of Hunters law firm.
B. The Defense
Appellant did not testify on his own behalf.
In defense, Dr. Kyle Boone (Boone), a clinical neuropsychologist, testified that she had administered a battery of tests to appellant while he was in custody. Dr. Boone testified that her testing revealed that appellant had frontal lobe damage. Appellant had told her during her evaluation that he had difficulties with his thinking skills, especially when he was under stress. Her testing failed to reveal any malingering. Appellants I.Q. was well within the average range. However, appellant tested as impaired or essentially functioning as if he was mentally retarded in the area of executive functioning and the ability to override and stop behavior once set in motion that is inappropriate to the situation. By executive functioning, Dr. Boone explained that she meant appellant had an impairment in figuring out an appropriate solution to a problem.
Dr. Boone explained that frontal lobe damage would affect appellants logic and ability to make an appropriate and rational judgment. She opined that appellants impulse control was affected. Also, if appellant was attempting to make decisions under stress, he would have no ability to deliberate. Typically, frontal lobe damage results in poor judgment, difficulty thinking through consequences, and difficulty organizing behaviors.
A psychiatrist, Dr. Gregory Cohen (Cohen), testified to his opinion that appellant suffered from a lifetime course of varying degrees of a mood disorder, specifically a depressive disorder, which at times was quite debilitating. Appellant had suffered several major depressive episodes and was hospitalized in 1987. Apart from depression, during such episodes, appellant had suffered insomnia and was suicidal. Appellant had a lifelong history of nocturnal epileptic attacks. That kind of epilepsy and the medication taken for the epilepsy causes brain damage. Dr. Boones testing had revealed frontal lobe damage that might have been the result of appellants cyanotic birth. Appellant had a family history of suicide: his father, a brother, and an uncle had committed suicide. This indicated that appellants depression may well have had a genetic origin. Before the shooting, appellant was experiencing marital problems, financial problems, a failing business, and legal and family difficulties. These would constitute stressors that would increase his depression.
Dr. Cohen said that appellant had claimed that he became depressed in attempting to resolve the foreclosure and his lawsuit. The doctor revealed that a depressive episode, the frontal lobe damage, and the potential damage from the epilepsy or the medication can create difficulties in thinking that affect a persons judgment and mental function. The doctor said that appellant reported having been raised by LaVar as a child. Appellant claimed that various incidents that had occurred during his childhood left him resenting LaVar, who was an extremely successful businessman.
Dorothy testified that during the 15 months preceding the shooting, appellant had suffered increasingly depressed thoughts and some difficulties sleeping. Appellant had paranoid thoughts about his brother hurting him. Dorothy described several incidents, including one in which several youths were outside their residence at night. Appellant had believed the youths, who ran away, were sent by LaVar to kill him. Dorothy said that just prior to 7:30 a.m. on August 5, 2005, appellant flew into a rage because he had wanted Dorothy to telephone the tenant she had living in her trailer. Dorothy explained that as one alternative to resolving the foreclosure, appellant had considered moving out, and he wanted to get started on that project. Dorothy was storing an appliance dolly at her trailer. Dorothy told appellant that she wanted to wait until later in the morning to telephone her tenant. Appellant became angry, and she told him that she was leaving the residence and departed. When she returned home later that morning, appellant had irreparably damaged the residence. Later that afternoon, someone telephoned her to tell her about the shootings.
Dorothy said that during the negotiations with Hunter in July 2005, appellant had driven to West Covina to speak to LaVar, but LaVar had refused to discuss the matter. On August 4, 2005, Hunter had told appellant that LaVar could not be reached that weekend to respond to a settlement offer appellant had made; Hunter claimed that LaVar was out of town. Dorothy testified that appellant had borrowed $110,000 or $120,000 from a credit union to build the residence on Lot 54. In 2005, an appraiser told them that if the residence was completed, it would be worth approximately $315,000.
A Los Angeles County deputy coroner testified that in 1996 another brother of appellants and LaVars, Ray B. Holman, had committed suicide by shooting himself.
2. The Trial Proceedings with Respect to Counsel and the Waiver of Presence
The homicides were committed on August 5, 2005. The preliminary hearing was held on February 16, 2006. On March 6, 2006, the information was filed, and appellant was arraigned. On March 6, 2006, trial counsel informed the trial court that appellant wanted to make a Marsden motion (Marsden, supra, 2 Cal.3d 118).
A. The March 6, 2006, Marsden Hearing
Outside the presence of the prosecutor, appellant complained that he had been in custody for five months. Trial counsels interviews with him for the past five months had been limited to five minutes after their court appearances, and his total time with counsel had not exceeded one hour. Appellant claimed that he had been promised various things by trial counsel and that trial counsel had not followed up. He complained that his charges were serious and that he wanted new counsel.
Trial counsel explained the critical facts of the case to the trial court. Trial counsel characterized the circumstances in appellants case as straightforward. He said that the circumstances of the homicides suggested that the People would decline to seek the death penalty. If the People declined to seek the death penalty, then he would proceed with preparing the case as appellant wanted, essentially by focusing on the wrongs done by LaVar concerning the property dispute. If the People decided to seek the death penalty, then trial counsel would concentrate on convincing them otherwise. Trial counsel said that he understood appellants concerns, but right now the focus was on whether the prosecution would seek the death penalty. Trial counsel indicated that he had a paralegal assigned to assist him with appellant, and soon appellants requests would be fulfilled.
Appellant protested that he was not concerned about the property dispute, but about representation. Appellant wanted the redacted discovery he had been promised. He had had difficulties contacting his trial counsel, and trial counsel was not following up on any of his requests nor anything that appellant had provided. Appellant said that the jail video visits had either been canceled by trial counsel or canceled by the jail because of technical difficulties.
The trial court agreed that the jail housing situation made it difficult for trial counsel and for interviews to take place. It told appellant that the trial courts and trial counsels hands were tied until the District Attorneys office made the decision concerning the death penalty. Also, trial counsel had no obligation to hand over discovery—most of the time, counsel would not provide discovery to their clients. Trial counsel, the paralegal, and the investigator had his reports, and witness names and addresses would have to be redacted.
Appellant replied that he was unaware that he had an investigator. The trial court told appellant, "[T]hat will be done." After listening to appellants complaints, the trial court concluded there was no reason to appoint new counsel, and it denied the Marsden motion.
B. The November 2, 2006, Marsden Hearing
Trial commenced on November 9, 2006. At the November 2, 2006, readiness conference in the master calendar court, trial counsel told the trial court that he believed he would be ready for trial on November 8, 2006. In turn, the trial court inquired whether appellant personally would be ready. Appellant said, "No," and told the trial court that he had a Marsden motion.
On this occasion, appellant submitted his complaints in a letter. The master calendar court held a hearing out of the presence of the prosecutor.
In the letter, appellant complained that his trial counsel had wrongfully disclosed "protected medical information" concerning appellant and his extended family to the media. Appellant claimed that the disclosure violated the Health Information Privacy Act (HIPA). He said that trial counsel had admitted that he had disclosed the information for the purpose of biasing the jury pool. Appellant asked to be appointed as "cocounsel pro. per." in order to have access to the law library. He complained of a jail transfer to Los Angeles Mens Central Jail and then to the "Twin Towers," where he was housed with a mentally-ill inmate who beat him up. Appellant said that after the beating, he had been transferred back to Wayside. However, at Wayside, there was no privacy for the interviews with the defense psychiatrist. He was interviewed in circumstances where his medical information again had been disclosed to others.
In his letter, appellant said that developments made it impossible for appellant to trust and to work with his trial counsel and those persons his trial counsel was using to prepare his case. He claimed that the report was prepared after the three-hour visit "under bad conditions," which had violated his privacy, could not be relied upon by the trial court, and "should be inadmissible." Appellant said that these disclosures also had violated his rights under the Americans with Disabilities Act (ADA). As the trial court and trial counsel were responsible for the violation of his rights under the ADA, he had a conflict of interest with trial counsel, and trial counsel should be removed and appellant should be appointed "[in propria persona] according to his Constitutional right."
Appellant made the following complaints of trial counsels misconduct: (1) trial counsel had failed to investigate appellants claims that the victim made prior threats against him; (2) one witness had lied during an application for citizenship, and trial counsel had asked appellant to overlook and not to report this transgression to the immigration authorities; (3) trial counsel told appellant that the prosecutors heart was no longer in the case because the prosecutor had been passed over for promotion, which appellant believed was "an incitement not to report a know[n] crime which is not legal for [trial counsel] to do"; (4) trial counsels actions showed that he did not believe appellants defense and that he supported the prosecutor; (5) trial counsels actions created an atmosphere of distrust making it impossible for appellant to work with trial counsel; (6) past attempts to clear up the mistrust have failed because of repeated misconduct by trial counsel; (7) the trial court was involved in violating appellants HIPA and ADA rights, and a change of venue was appropriate; (8) the misconduct was not attributable to appellant as he had been cooperative in waiving time as requested. Appellant repeated that he wanted "pro. per. status" so he could present the trial court with citations to support this motion or the appointment of a new attorney.
During the hearing on the motion, the trial court denied appellants motions to be given cocounsel status and for a change of venue. The trial court told appellant that the HIPA was not violated by any disclosures.
Appellant protested that trial counsel had turned over confidential information to the media and that his niece had picked up a copy of the newspaper article in question and mailed it to his sister. Then, appellants sister called him and was upset. The article had disclosed the familys medical history.
Trial counsel replied that he had not released any medical records to the press. He had been interviewed by a reporter. He had told her generally that he did not expect the prosecution to seek the death penalty as his client suffered from depression that apparently ran in the family. Also, the family had a history of suicides. Trial counsel protested to the trial court that such information was already in the public domain. In any event, the information was part of their defense.
Appellant asserted that trial counsel had told him that releasing such information would bias the jury pool, which would benefit the defense.
Trial counsel acknowledged that the disclosure was for the purpose of biasing the jury pool, but explained that his purpose was to save appellants life. Trial counsel said that upon his request, the trial court had appointed two mental health professionals to serve as defense experts. He said that for the convenience of medical experts, the jail normally transferred Wayside inmates downtown for interviews. Trial counsel did not have appellant transferred downtown to "torment" him. He said that appellant had complained to him about housing conditions in the Los Angeles Mens Central Jail, and trial counsel had arranged for his transfer to the Twin Towers. Dr. Boone had a problem gaining admittance to the Twin Towers, so she made arrangements for an interview at Harbor-UCLA. Trial counsel admitted that the medical evaluations had caused appellant to be "bounce[d]" around.
The trial court told appellant that housing difficulties had nothing to do with his case. Nor were they relevant to obtaining new counsel.
Appellant asserted that trial counsel and the trial court had appointed these people, and thus, the medical personnel were their agents. He argued that accordingly, there was some "contingent liability." Appellant complained that none of these interviews had been confidential.
The trial court told appellant that there was no "liability." Whether the interviews were conducted in confidence was a matter between appellant and the medical professionals. Also, these complaints failed to trigger the appointment of new counsel. Appellant asked for a stay to litigate the point "[in] a higher court." The trial court refused the request.
Trial counsel reminded the trial court that appellant had previously made an issue about trial counsel and his coworkers pressuring appellant to sign the waiver of a jury determination of penalty, which the District Attorneys office required at the point at which it declined to seek the death penalty. Appellants complaint had been made to Judge Horan. Trial counsel reminded the master calendar court that the waiver had been explained to appellant before he signed it, and the waiver was voluntary. Nevertheless, appellant had immediately complained to Judge Horan that he had been tricked or pressured into giving up his right to a jury trial and to an appeal.
Appellant said that trial counsel was misstating his point.
Trial counsel commented that he believed that they had cleared up this point with appellant. Furthermore, appellants true complaint was with the wording of the waiver. With respect to the beating at the Twin Towers, neither trial counsel nor the medical professionals were responsible for that. As to the immigration issue, trial counsel had requested that appellant not antagonize a prospective witness as they anticipated the witness would give favorable testimony for the defense.
Appellant asked the trial court how such a witness would assist him if the witness had perjured himself on a federal issue. He claimed that the witnesss testimony would be worthless.
The trial court told appellant that his problem was that he wanted to direct his case and that he did not know the law. Appellant insisted that the witness should be prosecuted for lying on an immigration application. The trial court told appellant that all of that was irrelevant.
Trial counsel added that regarding appellants request for pro. per. status, appellant had acted in propria persona in civil matters in Utah.
The trial court told trial counsel that appellants request to proceed in propria persona was untimely; this case was 14 months old. The trial court inquired of appellant personally as to whether he could be ready to try the case in propria persona the following Wednesday, November 8, 2006. Appellant said, "No, Sir."
The trial court denied the Marsden motion, as well as appellants request to proceed in propria persona.
C. The November 17, 2006, Trial Proceedings
On November 9, 2006, the master calendar court transferred the case to a trial court to start the trial. On that same date, the trial commenced.
On November 16, 2006, the prosecution rested its case-in-chief. Two defense witnesses were called and then Dorothy began her testimony. First thing in the morning on November 17, 2006, trial counsel told the trial court that appellant had asked to be absent from the remaining proceedings. Trial counsel informed the trial court that he had discussed the absence with appellant and had attempted to talk him out of it.
Appellant told the trial court that he wanted to spend the rest of the trial in the lockup.
The trial court told appellant personally that it assumed that appellant had fully discussed this matter with trial counsel. Also, its observations during the trial were that appellant was cooperating with his trial counsel throughout and communicating frequently with counsel. It admonished appellant that if he absented himself from the courtroom, appellant would have no input, and his trial counsel would not have the advantage of the information that appellant knew, as well as appellants active participation in the defense. The trial court asked whether appellant understood its admonishment, and appellant replied that he understood. Appellant explicitly waived his right to be present during all the proceedings in the trial.
The trial court asked appellant whether he understood that he had a right to confront witnesses. Appellant replied, "My attorney has that right. I dont." The trial court then fully explained appellants constitutional right to confrontation to him. The trial court asked, "[A]gain, do you understand that you have that right?" Appellant said, "I understand I have that right." The trial court told appellant that for right now, it was assuming that appellant may not testify. It advised appellant: "You have the right to testify; you have the right not to testify. Do you understand you have those rights?" Appellant replied, "I understand I have those rights." The trial court advised appellant that he had an overall right to present a defense, and it was up to appellant as to whether or not he chose to testify. Appellant replied that only his counsel had such a right. Appellant elaborated that he had "not approved of the defense [trial counsel was] presenting" and added: "I have made two Marsden motions to have [trial counsel] removed. They have been denied. We have had ineffective counsel throughout this entire thing, and the court has run over the top of us."
The trial court responded that it was going to hold another Marsden hearing. Out of the presence of the prosecutor, the trial court inquired about the request for new appointed counsel.
Appellant replied that he had no new complaints. He explained that he had previously addressed his complaints to the master calendar court and submitted a letter to that court listing all his complaints. Appellant said: "I do not want to participate in these proceedings anymore. Appellant complained that his "life [wasnt] worth an extra half an hour of deliberation or cross-examination because its more important to keep [the trial] on track." He told the trial court that he would prefer to return to the lockup and let "you do whatever you want to do." He said that if there was "potential recourse that I have through the appellate courts, Id just as soon take it there because I think I can get more integrity there. If the entire system is so broke, theres no integrity there either, then so let it [be]. Im 67 years old. You cant take that much from me. [¶] So its fine."
The trial court told appellant that so far, during appellants trial, it had not cut off the presentation of evidence in the interests of expediency. Appellant complained that the previous day, the trial court had permitted Hunter to testify about documents that Hunter knew nothing about and thereby injected hearsay into the trial evidence. Appellant said: "I see the direction that things are going here in this court. Theres no way in the world that what I have to say is going to mean a thing. . . . So let it run its course. Well deal with it afterwards." Appellant claimed that he had never been properly represented and that things had been "manipulate[d]." He wanted a revocation of the waiver that he had signed when the prosecution declined to seek the death penalty. He claimed that he had signed the waiver without informed consent and that the waiver was "ambiguous."
Trial counsel commented that he had tried to explain to appellant that waiver of his right to a jury trial with respect to the death penalty amounted to a mere formality. Signing the waiver was required to avoid the death penalty, and it did not otherwise affect appellants trial and sentencing rights. Appellant responded that he did not believe one word of that. Appellant complained that he had been pressured by five deputy public defenders into signing the waiver, and he had given up his right to a jury trial on sentencing.
The trial court asked whether appellant had any other reasons to complain about trial counsel.
Appellant replied that currently, he did not have counsel. He claimed that additionally, he was upset and could not concentrate well enough to give the trial court a proper itemization of his complaints. The trial court asked whether appellant could give the trial court an idea about why he was not being properly represented. Appellant replied that he had given trial counsel specific instructions that trial counsel had failed to follow. Appellant again asserted that he could not itemize all the occasions on which trial counsel had not done as he had directed, and he needed to refer to his notes. Then he claimed that the deputy sheriffs had damaged all his papers and that the conditions in the jail are "absolutely atrocious."
The trial court asked appellant to be more specific. Appellant replied that he could do so with time, but he could not set out the details on the spur of the moment. He explained, "Im not functioning properly."
The trial court asked appellant whether there was anything trial counsel had not done. Appellant replied that his trial counsel had violated the HIPA and the ADA. He explained that trial counsel had released specific confidential medical information to the San Gabriel Valley Tribune in violation of the HIPA.
The trial court asked whether appellant had any further complaints. Appellant repeated that he could not detail them currently. He asked the trial court to finish up so that he could deal with "it" on appeal.
Trial counsel explained that appellant had made his previous Marsden motions before Judge Hunt. Also, with respect to the death penalty waiver, Judge Horan had explained to appellant that the waiver amounted to giving up his right to a jury trial on the issue of the death penalty. Trial counsels coworkers and his supervisor had merely assisted trial counsel to explain the nature of the waiver to appellant. As for the complaint about the disclosure, appellant was referring to a newspaper article that repeated what trial counsel had told the trial court during open proceedings in the courtroom. Trial counsel had been later approached by the reporter, and trial counsel did speak to her, but he did not disclose appellants medical records to the press. Trial counsel had disclosed medical records only to Dr. Cohen and Dr. Boone.
Appellant protested that it did not matter whether his medical records were released; what was critical was that the information was released. Appellant repeated that his medical records were received "in confidence" and deliberately disclosed.
Trial counsel said that probably, at the time he spoke to the reporter, he had not yet received appellants medical records. Additionally, his conversation with the reporter had nothing to do with medical records. The trial court commented that what appellant was upset about was the disclosure of an attempted suicide.
Appellant repeated that trial counsel had breached his duty of confidentiality with appellant and violated the HIPA. The trial court inquired about the information disclosed. Appellant said that he did not know as trial counsel would not provide him with the newspaper article in question, despite his request. His family members saw the article, and "there [were] repercussions," and "people were upset." The trial court asked again what was disclosed, and appellant replied that he did not see the article, but "the items [that trial counsel had] disclosed [were] protected information."
The trial court told appellant that as it understood the complaint, appellant was asserting there had been a disclosure of his attempted suicide. Trial counsel added that he did not recall now what he had said to the trial court during the court hearing that was reported by the newspaper article. The trial court pointed out to appellant that his defense was his medical history. Appellant agreed, but he protested "[t]heres an appropriate time and place, and through the newspapers is not the appropriate time and place."
The trial court asked whether there was anything else. Appellant replied that there "[were] other things," but that in "the stress [of the moment,]" he was incapable of producing them.
Trial counsel told the trial court that appellant had earlier submitted to the trial court a letter itemizing his complaints, as well as a Faretta request. (Faretta v. California (1975) 422 U.S. 806.)
The trial court denied the Marsden motion. It said that there was no reason to believe that trial counsel could not continue to effectively represent appellant. It also said, "Any deterioration in [the] relationship—" Appellant interrupted and said, "I made that clear that I couldnt work with him." The trial court continued and said that the apparent teamwork it had seen in the courtroom belied appellants claims. The trial court told appellant that if he remained in the courtroom, it was the trial courts belief that trial counsel would be able to fully and adequately represent him.
The trial court denied appellants request to proceed in propria persona as they were nearing the end of the trial. It said that it doubted whether appellant would be able to effectively examine the defense experts.
Trial counsel asked for permission to inquire of appellant, and appellant interjected that "Im not speaking to [trial counsel] anymore." At trial counsels suggestion, the trial court inquired whether appellant was ready to represent himself at this point, and appellant replied in the negative.
Again, the trial court had appellant expressly waive his rights to be present and to testify. Appellant added that if he had different counsel, "it would be a different story."
Trial counsel put on the record that in his opinion and in order to mitigate the charges, it was critical that appellant testify. Trial counsel explained his opinion in factual terms. He said that he had advised appellant that the prosecution evidence was sufficient to prove first and second degree murder. Appellants only chance of being convicted of a lesser offense was to testify. The defense had substantial evidence in mitigation of the offense: appellant had a mental condition and frontal lobe impairment, which prevented deliberation and premeditation. Appellant had a small chance of persuading the jury that killing Adeline Holman was an accident, as well as of persuading the jury that appellant was guilty only of involuntary manslaughter. Trial counsel said that he had previously explained this to appellant. But trial counsels explanations failed to have any "impact" on appellant. It might be that the best trial counsel could do for appellant was to secure second degree murder convictions. He had advised appellant to testify. He explained that appellant "ha[d] the backing of the forensic experts." Appellants testimony was his only chance to avoid obtaining life terms.
The trial court asked appellant whether he had heard trial counsels evaluation of his situation. Appellant replied that he heard it and disagreed. Appellant said that he believed that the trial court had more discretion at sentencing than trial counsel claimed, regardless of the jury verdicts. Appellant added that he had no confidence in the discretion of the trial court as already, he had observed the trial court abusing its discretion.
The trial court advised appellant that if he did not testify during the trial, certain statements he had made to Dr. Cohen and Dr. Boone about the events of the homicides would be inadmissible. Thus, if appellant failed to testify, his defense would be affected.
Appellant told the trial court that he "would give that testimony if [he] had different counsel." He repeated that his trial counsel was ineffective and that he had no confidence in trial counsels ability to "get out all the things that are necessary." As he had ineffective counsel, he was declining to work with trial counsel. Appellant said, "If the court will not accept that, then the court can take its course and let it run."
Trial counsel remarked that possibly, appellant misunderstood the effect of prospective guilty verdicts. He explained to appellant that the trial court was bound to impose the punishment provided for by statute; the trial court did not have the discretion appellant claimed it had. The trial court reiterated this point.
Appellant replied: "Your discussion of these facts here as you have, indicating my lack of knowledge and understanding of the things, just goes to verify the ineffectiveness of counsel that Ive had."
The prosecutor proposed obtaining a written section 977 waiver of presence from appellant. First, appellant claimed that he had no glasses, and then when the waiver was read to him, he refused to sign it.
The trial court said that at the beginning of each session, it would bring appellant into the courtroom just to make sure he had not changed his mind about being present. Also, the trial court would secure nonprescription eyeglasses for appellant.
The trial court continued with Dorothys testimony. At appellants request, he remained in the lockup. The jury was admonished that it was not to consider appellants absence in reaching a verdict.
D. The Remaining Proceedings
During the afternoon session of November 19, 2006, appellant indicated for the record that his absence was voluntary. Appellant added that, "Its only voluntary as long as he remains the attorney."
During the morning session of the November 20, 2006, proceedings, appellant waived his right to be present in the courtroom. Again, he told the trial court that as long as he was represented by trial counsel, he was absenting himself. He complained that the waiver of the penalty phase of the trial was in actuality a deal between his attorneys office and the prosecutors office to deny him full funding for his defense.
During the afternoon session of November 20, 2006, after discussing jury instructions, the trial court told appellant that they had reached the end of the evidentiary phase of the trial. The trial court inquired whether he wanted to remain outside the courtroom. Appellant said, "Yes, for the same reasons." It inquired whether appellant wanted to testify. Appellant said, "No, Sir."
At the commencement of proceedings on November 21, 2006, appellant indicated that he wanted to be present for final argument. The trial court had appellant remain in the courtroom for the rest of the trial and sentencing proceedings. The trial court admonished the jury that it was "not to give any thought" to appellants prior absence and his return to the courtroom.
DISCUSSION
I. The Marsden Motion
Defendant contends that the trial court committed Marsden error by failing to appoint new counsel. He claims that the appointment of new counsel was necessary as the record discloses that he and trial counsel were embroiled in an irreconcilable conflict.
We disagree.
A. The Relevant Legal Principles
1. Compelling the Appointment of New Appointed Counsel
"Under the Sixth Amendment right to assistance of counsel `"`[a] defendant is entitled to [the substitution of new appointed counsel where] the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (People v. Memro (1995) 11 Cal.4th 786, 857.) Furthermore, `"`[w]hen a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance." (People v. Roldan (2005) 35 Cal.4th 646, 681 (Roldan).) We review the courts rulings for an abuse of discretion. (Ibid.) "The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendants right to assistance of counsel. [Citation.]" (People v. Smith (2003) 30 Cal.4th 581, 604 (Smith); accord, Roldan, supra, at p. 681.)
"`By choosing professional representation, the accused surrenders all but a handful of "fundamental" personal rights to counsels complete control of defense strategies and tactics. [Citations.]" (In re Horton (1991) 54 Cal.3d 82, 95.) "When the decision is whether to testify [citation] . . ., it is only in case of an express conflict arising between the defendant and counsel that the defendants desires must prevail. In the latter situation, there is no duty to admonish and secure an on the record waiver unless the conflict comes to the [trial] courts attention." (Roldan, supra, 35 Cal.4th at pp. 673-674; accord, People v. Hinton (2006) 37 Cal.4th 839, 873-874; People v. Bradford (1997) 15 Cal.4th 1229, 1332.)
Also, "[a] defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1162.) Tactical disagreements between the defendant and his attorney do not by themselves constitute an `irreconcilable conflict. `When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" and can make all but a few fundamental decisions for the defendant. (People v. Carpenter (1997) 15 Cal.4th 312, 376.)" (People v. Welch (1999) 20 Cal.4th 701, 728-729.)
"A defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney. [Citation.] Moreover, the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness. [Citation.] . . . . `[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. [Citation.]" (Smith, supra, 30 Cal.4th at p. 606.)
2. An Actual Conflict of Interest
"`"Conflicts of interest may arise in various factual settings. Broadly, they `embrace all situations in which an attorneys loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests." [Citation.]" (Roldan, supra, 35 Cal.4th at p. 673.) "An actual conflict of interest means `a conflict that affected counsels performance—as opposed to a mere theoretical division of loyalties. (Mickens v. Taylor (2002) 535 U.S. 162, 171, italics omitted.) . . . . To obtain a reversal for this type of error [under the federal Constitution], `the defendant need not demonstrate specific, outcome-determinative prejudice. [Citation.] But he must show that an actual conflict of interest existed and that that conflict adversely affected counsels performance. [Citations.] [¶] `"To show a violation of the corresponding right under our state Constitution, a defendant need only demonstrate a potential conflict, so long as the record supports an `informed speculation that the asserted conflict adversely affected counsels performance. [Citations.]" [Citation.] "But `[p]ermissible speculation giving rise to a conflict of interest may be deemed an informed speculation . . . only when such is grounded on a factual basis that can be found in the record." [Citations.]" (People v. Roldan, supra, 35 Cal.4th at pp. 673-674; accord, People v. Dunkle (2005) 36 Cal.4th 861, 914-915 (Dunkle).)
"`"To determine whether counsels performance was `adversely affected, we have suggested that [Cuyler v.] Sullivan [(1980) 446 U.S. 335], requires an inquiry into whether counsel `pulled his punches, i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission." [Citations.]" (Dunkle, supra, 36 Cal.4th at p. 914.)
B. The Analysis
During the initial Marsden motion, appellants complaints of trial counsel were premature. The parties had barely finished the preliminary hearing. The trial courts inquiry revealed that essentially, appellant failed to appreciate his procedural posture and that efforts at trial preparation at that point would be unproductive until the prosecution decided whether it was seeking the death penalty. The trial court elicited all of appellants complaints about his trial counsel. Then it explained that trial counsel was proceeding as he should be and that trial counsels failure to drive to Wayside for extensive interviews was unnecessary with appellants very straightforward case. The trial court told appellant that giving him copies of the discovery so early in the proceedings was not in appellants best interests. At that point, the trial court properly exercised its discretion by refusing to appoint new counsel.
Appellants next two Marsden motions occurred on the eve of and during trial. Again, the trial court inquired into appellants complaints. The exhaustive inquiries revealed how appellant and trial counsel were functioning as a team and communicating. The record indicates that trial counsel had fully prepared appellants defense, afforded appellant adequate representation at trial, and attempted to present a psychiatric defense to the charges on appellants behalf. Trial counsel also planned to argue that Adeline Holmans death was accidental or the circumstances of her death were mitigating. Appellants complaints indicate that he failed to appreciate that it was trial counsels duty to direct the defense with appellants assistance, and not vice-versa. In a number of respects, appellant reached conclusions about the law that failed to conform to reality. He acted in conformity with these misconceptions, instead of listening to trial counsel and the trial court.
Appellants refusal to testify removed from the jury facts that might have resulted in mitigating the offense and the punishment: how the shootings occurred, appellants subjective beliefs that he was provoked, and strong evidence of his mental state during the homicides. Prior to deciding not to testify, appellant was advised by his trial counsel and by the trial court of the importance of his testimony and that he had erroneously concluded that the trial court had the discretion to order mitigated punishment, when no such discretion existed. Appellant refused to listen and declined to testify. The master calendar court and the trial court conducted an adequate inquiry to illuminate appellants complaints and properly exercised discretion by concluding that there was no reason to appoint new counsel.
This record fails to demonstrate an irreconcilable conflict resulting in a total lack of communication that prevented an adequate defense. Any tactical disagreement between appellant and trial counsel, and appellants lack of cooperation with trial counsel, do not require a reversal. Until appellant absented himself from the proceedings, the trial court had observed that appellant had been cooperating and communicating with his trial counsel. Any lack of communication arose not from something trial counsel had done, but appellants subjective mistrust of trial counsel and his failure to listen to the trial court when it explained to him that trial counsel was affording him adequate representation. (People v. Welch, supra, 20 Cal.4th at pp. 728-729.)
There is no evidence in this record of an actual conflict of interest that affected trial counsels performance. Apart from whether there was an actual conflict of interest, no reversal is required because it was not trial counsels acts that resulted in the "pulling of punches" that prevented the presentation of a complete defense. (Dunkle, supra, 36 Cal.4th at p. 914.) The failure to put on a full defense was caused by appellants unreasonable refusal to testify, not trial counsels actions. Appellant was not entitled to a substitution of counsel so that he would have a "`meaningful relationship" with his trial counsel. (Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, 1026 (Schell) [there is no conflict where the defendant sabotages or fails to make reasonable efforts on his end to develop the relationship, and a defendant is not entitled to a meaningful relationship with his counsel].) Furthermore, the decisions cited by appellant—Schell, supra, 218 F.3d 1017, Daniels v. Woodford (9th Cir. 2005) 428 F.3d 1181 (Daniels), and Plumlee v. Sue del Papa (9th Cir. 2005) 426 F.3d 1095—do not require a different result.
The Schell court held that when there is a complaint of an irreconcilable conflict with counsel, the trial court must inquire into the nature and extent of the conflict. The trial court also must determine by its questioning whether the conflict deprived the defendant of the representation guaranteed by the Sixth Amendment, and if so, whether the defendant suffered prejudice from such irreconcilable conflict. (Schell, supra, 218 F.3d at pp. 1027-1028; see Plumlee v. Masto (9th Cir. 2008) 512 F.3d 1204, 1211.) The trial court here made that exhaustive inquiry that revealed defendants relationship with his counsel. It disclosed that there was no ineffectiveness or lack of communication between appellant and his trial counsel. Also, the inquiry revealed sufficient information about how trial counsel and appellant were functioning as a team so as to disprove appellants claims that there was an irreconcilable conflict.
The decision in Plumlee v. Sue del Papa, supra, 426 F.3d 1095 is also of no assistance to appellant. That decision was vacated and amended and then published, as amended, in Plumlee v. Del Papa (9th Cir. 2006) 265 F.3d 910. On August 10, 2007, a rehearing was granted. In Plumlee v. Masto, supra, 512 F.3d 1204, the Ninth Circuit en banc denied that defendants petition for a writ of habeas corpus. That court held that pursuant to Cuyler v. Sullivan (1980) 446 U.S. 335, 350, there was no conflict of interest in that "the lawyers own private interest and those of [his] client" were found to be incompatible. (Plumlee v. Masto, supra, 512 F.3d at p. 1210.)
The court in Plumlee v. Masto, supra, 512 F.3d at page 1210 explained that all the defendant had shown in his petition was that his "relationship with his public defender was dysfunctional due to his subjective distrust of the office and that this created a `conflict." That court pointed out that defendants dissatisfaction with his trial counsel was wholly subjective. The court cited Morris v. Slappy (1983) 461 U.S. 1, 13 to 14 (Morris), and reiterated that there was no Sixth Amendment right to develop a "meaningful relationship" with trial counsel. (Plumlee v. Masto, supra, at pp. 1210-1211.) Before or during trial, the Plumlee trial court had made a detailed inquiry into the issue of the defendants relationship with his trial counsel and determined there was no basis for the defendants unwillingness to cooperate with counsel. Consequently, the court en banc concluded that defendants case could properly be characterized as falling into the category of cases similar to Morris, and there was no Sixth Amendment violation. (Plumlee v. Masto, supra, at p. 1211.)
In Daniels, supra, 428 F.3d at pp. 1999-1201, the court held that a complete break-down in communication between counsel and the defendant requires a substitution of counsel and that a constructive denial of counsel is presumably prejudicial. We conclude that our case is distinguishable from Daniels as it falls within the Morris category. (Morris, supra, 461 U.S. at pp. 13-14.) Furthermore, insofar as the Daniels decision sets a different standard than we apply in California, this court declines to follow that decision. (Daniels, supra, at pp. 1999-1201; see People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3 ["we are not bound by decisions of the lower federal courts, even on federal questions"].)
The decision in Roldan, supra, 35 Cal.4th at pages 674 to 675 does not support appellants claim. There, the defendant complained of an actual conflict of interest in that his threat to kill defense counsel had caused trial counsel to become so concerned for his own safety that counsel had "pulled his punches" and conducted a less-than-vigorous defense. In refusing to reverse the judgment, the court held that in the first instance, it is up to the trial court to discern whether there was a true conflict or the defendant is attempting to manipulate the proceedings. On appeal, that record supported the trial courts evaluation of the relationship between the defendant and his counsel. (Roldan, supra, pp. 676-677.)
The decision in Dunkle, supra, 36 Cal.4th at pages 914 to 915, is distinguishable. On appeal, the defendant made a claim of a conflict of interest at the penalty phase of his death penalty trial because the penalty defense centered on the defendants current mental state, and trial counsel had testified during a second competency hearing on the same subject. The Dunkle court said that there, trial counsel had a psychiatrist testify at the penalty phase to appellants current mental state. It explained that each case must be determined on its own facts. It held that a trial counsel who testifies during the competency phase does not necessarily create an obligation to withdraw from representation and an obligation to testify about the same matters during the penalty phase. It concluded that by failing to withdraw, that trial counsel was not laboring under an actual conflict of interest. (Id. at p. 916.)
In our case, no conflict of interest was created by comments made by trial counsel in court about appellants mental condition or his defense. Nor is any actual conflict shown by the disclosure to the medical experts. Appellant has not demonstrated that he has any viable legal cause of action against trial counsel that sets up an actual conflict of interest that affected the quality of trial counsels representation. (See Roldan, supra, 35 Cal.4th at p. 675; People v. Horton (1995) 11 Cal.4th 1068, 1106.) There was no pulling of punches here.
II. Absence from the Proceedings
Appellant contends that his absence from the courtroom while three defense witnesses testified requires a reversal because the trial court failed to obtain a knowing, intelligent, and voluntary waiver of his presence during the trial.
The contention lacks merit.
A. The Relevant Legal Principles
The federal and state Constitutions and the state Legislature recognize and protect a criminal defendants right to be present at trial. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Pen. Code, §§ 977, subd. (b)(1) & (2), 1043 subds. (a) & (b).) However, this right is not absolute. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.) In a noncapital felony case, "a trial court may continue a trial in a custodial defendants absence after the trial has commenced in the defendants presence." (Id. at p. 1206.) A defendant may waive his or her constitutional right to be present during a critical stage, provided the waiver is knowing, intelligent, and voluntary. (People v. Moon (2005) 37 Cal.4th 1, 20-21.) Consent to proceed in the defendants absence does not require explicit oral or written consent. (Gutierrez, supra, at p. 1206.)
B. The Analysis
On appeal, appellant argues that his waiver of presence was "involuntary" because it was "prompted only by his inability to trust" trial counsel. Additionally, appellant urges that when he refused to sign a section 977 waiver and said that he failed to recognize trial counsels representation, the trial court at a minimum should have made arrangements for appellant to listen to the trial proceedings in the lockup via video or audio hookup. Appellant is not complaining about the quality of his waiver. His complaint is that his reason for waiving his presence was his dissatisfaction with trial counsel, and thus, the waiver was invalid.
The instant waiver of the right to be present during the proceedings is controlled by section 1043, subdivision (b)(2), as appellant was present when the trial commenced. Section 977 plays no part in our analysis. (People v. Gutierrez, supra, 29 Cal.4th at p. 1204.) Also, the waiver of a defendants right to be present may be made orally and need not be in writing. (Id. at p. 1206.)
In pertinent part, section 1043 provides, as follows: "(a) Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial. [¶] (b) The absence of the defendant in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases: [¶] . . . [¶] (2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent. [¶] . . . [¶] (d) Subdivisions (a) and (b) shall not limit the right of a defendant to waive his right to be present in accordance with Section 977. . . ." (§ 1043, subds. (a), (b), (2), & (d).)
The trial court here found no reasonable basis for appellants refusal to cooperate with his trial counsel, no irreconcilable conflict, and no need for the trial court to substitute new counsel, which would have aborted the trial. Implicit in the trial courts ruling was the trial courts conclusion that appellants dissatisfaction with his trial counsel was entirely subjective. Appellant was not entitled to obtain a reversal of the judgment on appeal by manipulating the proceedings as he tried to do here. Appellants right to be represented by competent trial counsel and his right to be present during all the critical proceedings of the trial are not interrelated. All that was necessary for a valid waiver of appellants presence was an on-the-record voluntary, knowing, and intelligent waiver of the right to be present. (See People v. Gutierrez, supra, 29 Cal.4th at p. 1206.) We conclude that appellants oral waiver of his presence in the open court after he was advised of his right to be present constitutes such a valid waiver. (§ 1043, subd. (b)(2); People v. Mayfield (1997) 14 Cal.4th 668, 738.)
Further, a defendant is not entitled to juggle his constitutional rights in such a way that by the simple expedient of not cooperating with his trial counsel, he forces the trial court to choose between two constitutional demands in the hopes that the trial court will reach the wrong choice. (See People v. Floyd (1970) 1 Cal.3d 694, 707, disapproved on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36 [appellant attempted to "juggle" demands for a speedy trial and effective trial counsel].) Appellants refusal to take advantage of the opportunity to be present in the courtroom during his trial was an attempt to force the trial courts hand on the issue of substituting counsel, which, had the trial court done so, would have aborted the trial. Appellant should not be rewarded for this attempted manipulation of the proceedings.
Moreover, any claim that the trial court was required to provide a means for appellant to see or hear the proceedings from the lockup is waived. No request for an audio or video feed was made in the trial court, and consequently, such a point is forfeited on appeal. Further, this court is unaware of any authority requiring that in these circumstances, a defendant must be provided with video or audio devices in order to see or listen to the proceedings from the lockup.
III. The Request for an Instruction on Voluntary Manslaughter
Appellant contends that he was entitled upon his request to a jury instruction, such as CALCRIM No. 570, setting out the elements of voluntary manslaughter based on heat of passion.
We disagree.
A. Background
The trial court charged the jury as to reasonable doubt and with respect to homicide (CALCRIM No. 500), murder with malice aforethought (CALCRIM No. 520), and the degrees of murder (CALCRIM No. 521). In CALCRIM No. 522, it charged on provocations effect on the degree of the murder, as follows: "Provocation may reduce a murder from first degree to second degree. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder."
In pertinent part, CALCRIM No. 521 provides as follows: "The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [Italics in original.] [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." (Italics added.)
It instructed on evidence of mental impairment (CALCRIM No. 3428), which informed the jury that they could consider any mental impairment a defendant had only for the purpose of whether the defendant acted with the intent or the mental state required to commit the crime.
During the discussion of jury instructions, trial counsel requested the trial court charge with CALCRIM No. 570, as to a lesser included offense of voluntary manslaughter based on heat of passion. The prosecutor objected. The prosecutor argued that "contentious, civil litigation" failed to support a claim of adequate provocation. Trial counsel replied that he was basing his request for the instruction on "everything": the foreclosure, the lawsuit, the long history of resentment because of perceived wrongs done by LaVar, appellants rage as displayed by the destruction of his own home, and a confrontation at the West Covina condominium. He asserted that there was sufficient circumstantial evidence of appellants feelings to justify an instruction on voluntary manslaughter and argued: "Its provocation, sudden quarrel, heat of passion, the strong emotions, the anger, the rage, the passion."
In more detail, trial counsel asserted that he could reasonably argue to the jury that the evidence was not inconsistent with the following scenario. Appellant set the fire in the garage and started to leave the complex in his car. He saw LaVar approach. Appellant retrieved his firearm upon leaving his car because he was afraid of LaVar based on his perception that LaVar had made threats against him previously; i.e., the three strange youths appellant had seen outside his St. George residence one night. The hole in the West Covina condominiums front door was caused when the screen door was shoved into the firearm. An altercation continued inside the condominium. At some point, appellants arm was knocked, and appellant accidentally fired, wounding Adeline Holman. The altercation continued, and LaVar fell through the sliding glass window. At that point, the Tec pistol jammed, and appellant tried to unjam the gun. There may have been an accidental discharge that struck LaVar, and appellant left the condominium.
The trial court replied that with respect to voluntary manslaughter, it was satisfied that there was insufficient evidence of provocation and heat of passion to support a voluntary manslaughter instruction. Even if the trial court considered appellants claim after the shooting to the St. George police officer that appellant had had an "altercation" with LaVar, that reference might have just been a reference to the shooting. But even assuming that it was a reference to a "back-and-forth" between appellant and LaVar, the instruction had the effect of asking the jury to speculate as to what had happened at the condominium. It also invited speculation about what, if anything, LaVar did that was significant enough to constitute provocation. After explaining its thinking to trial counsel, the trial court concluded there was no evidence of provocation by the victim.
Addressing appellant, the trial court said that trial counsel and the trial court had done their best to persuade appellant that there were negative consequences to the refusal to testify, but appellant would not listen. Unfortunately, without appellants testimony, the evidence failed to demonstrate heat of passion and adequate provocation.
Trial counsel argued that the evidence demonstrated by the background of the dispute—the private foreclosure by LaVar and the lawsuit filed by appellant—that appellant felt despair, hopelessness, a sense of loss, anger, resentment, and rage against LaVar. On the morning of August 5, 2005, appellant had destroyed the residence he had spent five years building with a loan of $120,000. After the homicides, appellant turned himself in and was visibly upset and emotional. Appellant told the St. George police officers that there had been an "altercation." Trial counsel urged that the evidence supported a verdict of voluntary manslaughter with respect to LaVar, and "transferred intent" with respect to Adeline Holman.
When the trial court refused to instruct as to voluntary manslaughter, trial counsel requested CALCRIM No. 522, as to provocation reducing first degree murder to second degree murder. The trial court agreed to give the instruction. Trial counsel then asked the trial court to define the term "provocation" in that instruction in the same terms it would have instructed on voluntary manslaughter. Trial counsel asserted: "And the definition is essentially heat of passion by series of events over [a] considerable period of time. We have high wrought emotions in this case. We have long-standing provocation on the part of LaVar against [appellant]."
The trial court asked trial counsel, "What are you asking for specifically?" Trial counsel replied, "The jury needs an adequate definition of provocation. I would refer the trial court to People v. Thomas." The trial court asked, "What definition do you want me to give?" It observed that the decision in Thomas contained no definition for the term provocation. Trial counsel suggested that the trial court should define provocation, for example, as "any enthusiastic emotion, any violent emotion, any high wrought emotion, anger, rage, resentment, hurt, sense of abandonment, sense of betrayal—" The trial court told trial counsel that such terms were the results of provocation, not a definition of that term. Trial counsel replied that his position was that "provocation is [the] equivalent to passion, sudden quarrel, heat of passion."
The trial court told trial counsel that "there [were] times [when] terms are best [left un]defined." Trial counsel suggested another definition: `"Heat of passion does not require anger, rage, or any specific emotion. They can be any violent or intense emotion that causes a person to act without due deliberation and reflection." The trial court refused the request.
B. The Relevant Legal Principles
"`The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 866.) "`[T]he existence of "any evidence, no matter how weak" will not justify instructions on a lesser included offense . . . . [Citation.] Rather, substantial evidence must exist to allow a reasonable jury to find that the defendant is guilty of a lesser but not the greater offense. [Citation.] `"`Substantial evidence is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive." [Citation.]" (People v. Valdez (2004) 32 Cal.4th 73, 116, fn. omitted.)
The court in People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1244 (Kanawyer) summarized the relevant legal principles concerning instructing on voluntary manslaughter, as follows: "`[F]or voluntary manslaughter, "provocation and heat of passion must be affirmatively demonstrated." [Citations.] ([People v.] Steele [2002] 27 Cal.4th 1230, 1252.) [¶] `The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago in interpreting the same language of section 192, "this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances," because "no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253, italics added; People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144 (Gutierrez).)
"Thus, `"[t]o satisfy the objective or `reasonable person element of this form of voluntary manslaughter, the accuseds heat of passion must be due to `sufficient provocation." (Gutierrez, supra, 28 Cal.4th 1083, 1144, citing People v. Wickersham (1982) 32 Cal.3d 307, 326 (Wickersham), disapproved on another ground in [People v.] Barton [(1995)] 12 Cal.4th 186, 201.) Furthermore, `[t]he 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. (People v. Lee (1999) 20 Cal.4th 47, 59 (Lee), italics added.)" (Kanawyer, supra, 113 Cal.App.4th at p. 1244.)
Also, "`the killing must be "upon a sudden quarrel or heat of passion" (§ 192); that is, `suddenly as a response to the provocation, and not belatedly as revenge or punishment. Hence, the rule is that, if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter."" (Kanawyer, supra, 113 Cal.App.4th at p. 1244.) "`"[T]here is no specific type of provocation required by section 192 and . . . verbal provocation may be sufficient." [Citation.] [Citations.] [¶] . . . [P]rovocation can arise as a result of a series of events over time . . . ." However, "where the claimed verbal provocation occurred some time before the crime, . . . the Supreme Court has said there is insufficient evidence of provocation as a matter of law . . . . [Citations.]" (Kanawyer, supra, 113 Cal.App.4th at p. 1245.)
"Due process requires that the jury be instructed on a lesser included offense only when the evidence warrants such an instruction. [Citations.]" (Gutierrez, supra, 28 Cal.4th at p. 1145.)
C. The Analysis
Appellant argues that the trial court "did not disagree that the longstanding animosity between appellant and his brother, as well as the litigious acrimony regarding [Lot 54], including the foreclosure notice, could be viewed by the jury as provocation. However, the [trial] court did not believe there was any evidence of provocation after appellant left Utah to drive to West Covina." He asserts that the trial court reasoned that because appellant failed to testify, it had to refuse the instruction. He urges that the true issue was whether there was a cooling period, not whether there was provocation. He urges that the issues that the trial court focused on in refusing CALCRIM No. 520 were issues for the jury and that there was sufficient circumstantial evidence to support instructions on voluntary manslaughter.
This court finds no merit in the arguments. Appellant has produced no authority to support a claim that commencing a private foreclosure for the purpose of collecting an overdue loan, and participation in the lawsuit appellant filed in response to the foreclosure, amounts to adequate provocation by the victim. Indeed, lawsuits are instituted for the very purpose of resolving legal disputes without violence. Nor does the record show that the trial court ever reached a conclusion that the foreclosure and appellants lawsuit amounted to sufficient provocation. We agree with the trial court that the evidence is insufficient to show adequate provocation by the victim.
Appellant argues that there was adequate provocation because there is an inference from appellants admissions to the St. George police that there was an "altercation," which may have been precipitated by LaVar at his home after the fire or at entry. However, appellants speculative theories again fail as, given the circumstantial evidence of the condition of the crime scene, LaVar would have been protecting his wife and residence. Such conduct by the victim fails to demonstrate adequate provocation. Furthermore, the evidence was only speculative with respect to whether there was any altercation.
Moreover, as the trial court pointed out, it was appellants decision not to testify. That meant that there was a gap in the record regarding appellants state of mind at the moment of any confrontation with LaVar and Adeline Holman. This was crucial as the six-hour drive from St. George, Utah, to West Covina, California, was adequate to serve as a cooling-off period. In the absence of appellants testimony, his previous threats, his purchase of the powerful pistol, its possession during the drive to West Covina, the deliberate purchase of arson supplies, and the physical evidence at the scene suggested only murder. (People v. Sakarias (2000) 22 Cal.4th 596, 620 [speculation is insufficient predicate for a jury instruction].)
IV. The Failure of the Trial Court to Define "Provocation"
Appellant contends that the failure to define the term "provocation" as it appears in the pattern instruction CALCRIM No. 522 was reversible error, and the omission amounted to constitutional error.
This contention is also meritless.
The facts supporting the contention are adequately set out in the "Background" accompanying the prior contention.
A trial court must give instructions, even in the absence of a request, on all general principles of law "`"closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case."" (People v. Wickersham (1982) 32 Cal.3d 307, 323, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201; accord, People v. Montoya (1994) 7 Cal.4th 1027, 1047; People v. Cummings (1993) 4 Cal.4th 1233, 1311.) This necessarily includes correct instruction on all essential elements of the charged offense. (Wickersham, supra, at p. 323.)
The trial court has a sua sponte duty to define for the jury any term having a technical meaning peculiar to the law. (People v. Howard (1988) 44 Cal.3d 375, 408; People v. Pruett (1997) 57 Cal.App.4th 77, 81.) As noted in People v. Estrada (1995) 11 Cal.4th 568, a word or phrase has a technical, legal meaning that requires clarification only if it "has a definition that differs from its nonlegal meaning." (Id. at p. 574.)
The direction given to the jury in CALCRIM No. 522 is based on the following text found in People v. Thomas (1945) 25 Cal.2d 880, 903: "Provocation of a kind, to a degree, and under circumstances insufficient to fully negative or raise a reasonable doubt as to the idea of both premeditation and malice (thereby reducing the offense to manslaughter) might nevertheless be adequate to negative or raise a reasonable doubt as to the idea of premeditation or deliberation, leaving the homicide as murder of the second degree; i.e., an unlawful killing perpetrated with malice aforethought but without premeditation and deliberation."
Appellant argues "provocation" in this context has a "technical legal meaning that went far beyond the way the term is normally understood in the English language." For example, "provocation may entail a series of events over a period of time." Without explaining why, appellant claims that had the trial court defined "provocation" for the jury, "it is reasonably probable appellant would not have been convicted of first degree murder . . . ."
This court concludes that the trial courts ruling was correct. In the context of CALCRIM No. 522, provocation has no technical legal meaning. For the jury to properly apply the instruction, all it had to do was to apply the ordinary English meaning of that word. According to the Merriam-Webster online dictionary, "to provoke" is "1a: archaic: to arouse to a feeling or action b: to incite to anger," or "2 a: to call forth (as a feeling or action): EVOKE <provoke laughter> b: to stir up purposely <provoke a fight> c: to provide the needed stimulus for <will provoke a lot of discussion>." "Provocation" is "1: the act of provoking: incitement," or, "2: something that provokes, arouses, or stimulates."
http://www.merriam-webster.com/dictionary/provocation
Appellant argues that the legal principle from People v. Wharton (1991) 53 Cal.3d 522, 571-572, provides a proper definition of provocation in this context. However, that amplification was not what appellant asked for in the trial court. Moreover, the Wharton definition unduly narrows the concept of provocation in the context of murder. Provocation in the context of CALCRIM No. 522 is any provocation within the ordinary meaning of the word that is less than the "adequate provocation" that reduces murder to manslaughter.
Furthermore, in CALCRIM No. 521, the jury was told the following: "A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated." As the same principle is stated in other language in CALCRIM No. 521, the trial court did not err by refusing to further define provocation in the context of murder.
V. The Motion for New Trial
Appellant contends that the trial court improperly denied his motion for a new trial.
The contention is unpersuasive.
A. Background
During Hunters trial testimony, the prosecutor asked Hunter, "Were there any other statements that you heard [appellant] make on the 28th of July that were threats?" Hunter replied, "He made statements that he knew where I lived, and he knew where Nathan Fisher lived, which was concerning because we had received word that there was a hit list compiled." Defense counsel objected, and the trial court observed in the jurys presence that the latter part of Hunters reply was nonresponsive. It ordered Hunters statement about the "hit list being compiled" be stricken and admonished the jury to "disregard the rest of that answer."
Before sentencing, trial counsel made the new trial motion. Trial counsel argued that Hunter was guilty of "misconduct" as the attorney had blurted out the information about the attorneys having heard that appellant had compiled a "hit list." He asserted that "in effect, witness . . . David Hunter acted as a prosecuting attorney who, as a member of the Utah State Bar, engaged in deliberate misconduct in his testimony before the jury, which misconduct was not and could not have been cured by the [trial courts] admonition to disregard that testimony." Trial counsel asserted that this "outrageous misconduct" by the "victims advocate" deprived appellant of a fair trial and warranted a new trial on non-statutory grounds.
Without comment, the trial court denied the motion for a new trial.
B. The Analysis
1. Denial of the Motion for New Trial
On appeal, appellant argues that he was prejudiced by Hunters testimony about the "hit list." He claims that once the jury heard that remark, there was no way to unring that bell, and the witnesss blurted-out testimony denied him a fair trial.
We review a trial courts ruling on a motion for a new trial under a deferential abuse-of-discretion standard. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.)
In People v. Wharton, supra, 53 Cal.3d at page 565, the court held that a mistrial may be granted where an incident that is prejudicial occurs during trial, and the prejudice cannot be cured by admonition or instruction. That court said that "a witnesss volunteered statement can . . . provide the basis for a finding of incurable prejudice." (Ibid.)
While the volunteered statement of a witness, which is prejudicial, can be the cause of a mistrial, the prejudicial information here failed to render the trial fundamentally unfair. The evidence of guilt was overwhelming. There was no question as to appellants identity as the assailant. The only issue was appellants state of mind as he entered LaVars condominium. There was testimony that appellant had previously threatened LaVar in front of Hunter and another attorney from Hunters law firm. Appellants threats indicated that he had a plan for killing those involved in the foreclosure, particularly, his brother LaVar. Appellant told the attorneys shortly before the shooting that the only satisfaction he wanted from the lawsuit was to see LaVar on a cold slab in a morgue. The damage to the residence on Lot 54, the homicides, and the arson indicate that appellant was acting for the purpose of revenge. The evidence concerning the scene of the murders indicates that appellant set LaVars garage on fire, surprised his brother and Adeline Holman in their condominium, and killed the couple in cold blood, repeatedly shooting LaVar in his vital organs and then shooting him in the temple at close range. The record fails to support any theory that Adeline Holman had provoked appellant or was killed accidentally. It is unreasonable to believe that absent this one isolated comment, appellant would have been acquitted or convicted of the lesser included offense of second degree murder.
2. Ineffective Trial Counsel
Appellant makes an additional claim of ineffective trial counsel. He argues that trial counsel was constitutionally ineffective because he failed to move immediately for a mistrial. "To establish ineffective assistance of counsel, a defendant must show that (1) counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. [Citation.] `A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694.)" (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
Although defendant characterizes the omission as incompetence, a mere failure to object to evidence rarely amounts to ineffective trial counsel. (People v. Sheldon (1989) 48 Cal.3d 935, 951.) Trial counsel may well have decided to wait until a later time to ask for a mistrial based on Hunters blurted-out testimony. The trial court had already ordered the speculative testimony stricken. When Hunter made the remark, trial counsel would not have wanted to direct more attention to the testimony by asking for an immediate recess to make a motion for a mistrial. If the trial court had concluded that Hunters testimony denied appellant a fair trial, it would have granted the later motion for a new trial. In any event, trial counsels failure to make an immediate motion for a mistrial was nonprejudicial. As we determined, infra, the blurting out of the hit list comment did not deny appellant a fair trial.
VI. Cumulative Error
Appellant asserts that there are cumulative errors, which combined, require a reversal of the judgment and a new trial. However, this court concludes there is no error. Accordingly, there is no cumulative error to serve as the predicate for the contention. (People v. Coryell (2003) 110 Cal.App.4th 1299, 1309.)
DISPOSITION
The judgment is affirmed.
We concur:
Ashmann-Gerst, J.
Chavez, J.