Opinion
B159624.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN ROSE, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.
Michael John Rose appeals from the judgment entered after a jury convicted him of second degree murder. (Pen. Code, § 187, subd. (a).) For the reasons set forth below, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In accord with the usual rules on appeal, we state the facts in the manner most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.)
At around 4 a.m. on March 19, 2001, Melanie Pacheco was killed by a shotgun blast to the back of the head while seated in a chair in the living room of the apartment she shared with her boyfriend, defendant and appellant Michael John Rose. Rose was eventually convicted of second degree murder (Pen. Code, § 187, subd. (a).) He received a sentence of 15 years to life on the murder charge, plus a consecutive term of 25 years to life under a gun-use enhancement statute. (& sect; 12022.53, subd. (d).) Roses defense rested on his contention that he accidentally shot Pacheco during a heated argument. The primary issue on appeal is whether the prosecution introduced sufficient evidence to prove that the shooting did not occur during the heat of passion in order to negate Roses voluntary manslaughter defense.
All further section references are to the Penal Code.
Neighbor John Kirk told the police that at around 4 a.m. on March 19, 2001, he was awakened by the sounds of an argument in Roses apartment. He heard a female voice say, "What, are you going to commit suicide now?" Five seconds later he heard a "pop," then heard a male voice say, "Melanie" and "Oh, my God, my life is over; my life is over." Kirk had heard the same couple argue before.
Rose phoned his good friend Justin Harmon about half an hour after the shooting. According to Harmon, a hysterical Rose said, "Im in the worse shit Ive ever been in, in my life" because he had accidentally shot Pacheco. Rose told Harmon that he and Pacheco had been drinking and arguing that night, that he pulled out his shotgun in order to make a false suicide threat, and that the gun went off after Pacheco lunged for it. Harmon told Rose to phone the police, but Rose declined because the police were too "liberal" in California. Rose also said the shooting did not look like an accident. Rose said he would kill himself because that was the only solution. He told Harmon that Pachecos body was turning blue and that he was moving the body into a closet and covering Pachecos head. In a later phone call from Rose, Rose told Harmon he was angry because Harmon informed Roses "surrogate mother," Leslie Shell, what had happened. Rose asked Harmon to tell Shell that Rose had been joking. When Harmon phoned Rose back, Rose told Harmon he had been joking. Harmon asked to speak with Pacheco, but Rose said she was out and asked Harmon to call later. Harmon notified Los Angeles police officers, who came to Roses apartment.
The officers found a nearly incoherent Rose in the bathtub. Rose had apparently ingested large quantities of over-the-counter sleep aids and cold remedies in an attempt to kill himself. Pachecos body was found on the closet floor. A shotgun was leaning against the wall. A shell casing was found behind the television and two shotgun rounds were found under Pachecos body. Rose had left a will in which he wrote, "I am very sorry, Melanie" and "I want it to be known that her death was accidental."
Although Rose did not testify at his trial, his tape recorded statement to the police was placed in evidence. Rose began the interview by denying that he shot anybody or that he even had a girlfriend. He quickly admitted that Pacheco had been his girlfriend and that he accidentally shot her. Rose told the police that he and Pacheco argued frequently. The night of the shooting, they had been drinking at a nearby club when Pacheco became convinced that Rose wanted to be with another woman. Pacheco left the club and went home without Rose. When he returned home, their argument continued. According to Rose, Pacheco was screaming and throwing things at him. She shoved him and he shoved her back. Rose grabbed his 12-gauge shotgun and pointed it at Pacheco in an attempt to scare her and get her to "shut up." Rose checked the safety to make sure it was on. According to Rose, Pacheco stopped throwing things at him but did not shut up. Pacheco lunged for the gun and kicked at it, causing the gun to go off accidentally about a foot from her head. Rose kept the shotgun loaded and knew it was loaded when he picked it up. He had been in the military and was experienced in handling many types of firearms. He was trained that the last thing you do is put your finger on the trigger and that you do so for one reason only — to fire. After Pacheco was shot, Rose tried to wash her blood off the walls and "everything."
Expert testimony established that Pacheco had been shot in the back of the head while seated in a chair, that the shot came from behind her right ear from a distance of three to four feet away, and that it was physically impossible for her to have been shot while grabbing the shotgun barrel at the time. Tests on the shotgun confirmed that the safety was in good working order and it took nearly nine pounds of pressure to pull the trigger.
DISCUSSION
1. Heat Of Passion Evidence
A murder conviction requires proof of malice, which may be express or implied. Express malice exists when the defendant manifests the intent to kill. Implied malice exists when the defendant performs an act knowing that its natural consequences are dangerous to life and does so with a conscious disregard for life. (§§ 187, 188; People v. Whitfield (1994) 7 Cal.4th 437, 450, 868 P.2d 272; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102-104, 840 P.2d 969.) A defendant who lacked malice when he killed because he was provoked to act in the heat of passion is guilty of voluntary manslaughter. (People v. Rios (2000) 23 Cal.4th 450, 460.) The claimed provocation is measured against both an objective and subjective standard: it must have actually obscured the defendants reason and it must have been sufficient to cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection. (People v. Lee (1999) 20 Cal.4th 47, 59, 971 P.2d 1001.) When heat of passion is properly at issue, the prosecution bears the burden of disproving that defense beyond a reasonable doubt. (People v. Rios, supra, at p. 462.)
Pointing to evidence that he and Pacheco had a history of sometimes violent quarrels and that they were in the middle of an on-going, sometimes physical altercation before the shooting, Rose contends there was insufficient evidence to disprove that he acted in the heat of passion. His contention ignores both the physical evidence and Roses statements to others about what happened.
Rose told the police that he pointed the shotgun at Pacheco to make her stop yelling and throwing things at him and in order to scare her. He never told anyone, however, that he fired the gun as a result of their dispute. Instead, he consistently maintained that he checked to be sure the safety was on and that the gun went off accidentally after Pacheco grabbed for it. In short, while the evidence might show that he pointed the weapon in the heat of passion, Roses own words show that he did not fire in the heat of passion. His version was also completely at odds with the physical evidence, which showed that Pacheco was shot from behind at a distance of three to four feet while she was seated in a chair and that there was no way she could have been shot while grabbing the shotgun. When asked by the police how Pacheco could have been shot in the back of the head, Rose had no explanation. The jury was thus free to disregard Roses version of events.
Relying solely on the physical evidence and Roses own statement to the police, the jury learned that Pacheco was shot in the back of the head while seated and could easily infer from this that Rose, who was experienced with guns and knew when to put a finger on the trigger, intentionally applied the nine pounds of pressure required to fire the shotgun. The evidence also showed that Pacheco had several contusions to her upper arms and an area of hemorrhaging over her small bowel, all caused by blunt force trauma occurring before her death. The transcript of Roses police interview shows that the officers spotted a fresh bruise on a knuckle on his left hand, and the jury could have found that Rose punched Pacheco several times before she died. Right after the shooting, Rose phoned a friend to report the "accidental" death, then tried to convince the friend and his surrogate mother that he had been joking and that Pacheco was still alive. He did not phone the police but instead hid the body and tried to wipe up Pachecos blood. This evidence is consistent with an intent to kill and a calculated attempt to cover up that killing. It is also at odds with a truly accidental shooting. The evidence, therefore, supports a finding beyond a reasonable doubt that Rose did not act in the heat of passion. (People v. Lasko (2000) 23 Cal.4th 101, 112-113, 999 P.2d 666 [evidence strongly suggested intent to kill where defendant smashed victims skull with baseball bat, had once threatened to kill victim, did not call for help, and tried to clean up the crime scene; second degree murder conviction affirmed because jury would not likely have found defendant guilty of manslaughter].)
2. Section 12022.53 Gun Use Enhancement
In addition to a term of 15 years to life for the murder charge, the court imposed a consecutive term of 25 years to life under section 12022.53, subdivision (d). Known as the "10-20-life" law, section 12022.53 was enacted in 1997 to substantially increase the penalties for using a firearm in the commission of certain designated felonies. The Legislature found "that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and deter violent crime." (Stats. 1997, ch. 503, § 1.) Murder is among the applicable designated felonies and qualifies for an additional, consecutive term of 25 years to life. (§ 12022.53, subds. (a)(1),(d).) Rose challenges this additional term on three grounds: (1) it violates section 654s proscription against multiple punishments for the same criminal act or for a necessarily included offense; (2) it violates his equal protection rights under the California and federal constitutions; and (3) it amounts to cruel and unusual punishment under the California and federal constitutions.
The first contention was considered and rejected in People v. Hutchins (2001) 90 Cal.App.4th 1308 (Hutchins), which held that section 654 did not apply to section 12022.53 for two reasons: First, section 12022.53 stated that it was to apply notwithstanding any other provisions of law (§ 12022.53, subds. (d),(g),(h)); and second, because section 12022.53 was a sentence enhancement for murder, which could be committed in any number of ways without the use of a firearm, and was designed to increase the punishment for crimes committed with a firearm. (Hutchins, supra, at pp. 1313-1314.) Because murder may be committed without the use of a firearm, it seems clear enough that section 12022.53 does not create a new offense which is necessarily included within the crime of murder. (See People v. Wolcott (1983) 34 Cal.3d 92, 101-102, 192 Cal. Rptr. 748, 665 P.2d 520 [discussing section 12022.5 firearm use enhancement].) Based on these authorities, we conclude that section 654 was not violated and that Rose was not otherwise punished twice for the same conduct.
Rose bases his equal protection argument on the supposed disparity that results because section 12022.53 applies to murder and attempted murder, but not to crimes such as manslaughter, attempted manslaughter or assault with a deadly weapon. The equal protection guarantees of the California and federal constitutions are nearly identical. In general, they are violated when the state adopts a classification that affects similarly situated groups or individuals in an unequal manner. (People v. Alvarez (2001) 88 Cal.App.4th 1110, 1114-1115 (Alvarez ).)
The court in People v. Taylor (2001) 93 Cal.App.4th 318 (Taylor) considered an equal protection challenge to the 10-year enhancement imposed for the defendants firearm use during an attempted robbery under section 12022.53, subdivision (b). The defendant contended his equal protection rights were violated because the statute did not apply to assault with a firearm. In rejecting that challenge, the Taylor court applied the rational basis test, concluding that the statute bore a rational relationship to a legitimate state purpose: the Legislatures stated goal of deterring firearm use by criminals. (Id. at p. 322.) As part of its holding, the appellate court disagreed with defendants contention that the crimes of assault with a deadly weapon and attempted robbery posed the same risks: "An assault is simply an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another. (§ 240.) Attempted robbery, on the other hand, almost always, albeit not necessarily, involves the application of violence. The Legislature may well have determined the reason why most defendants are convicted of only attempt to commit robbery is that the intended victims resisted, sometimes with serious consequences, the demands of the defendant to turn over property." (Id. at pp. 322-323.) Thus, the rational basis test was satisfied. (Id. at p. 323.)
The Alvarez court considered an equal protection challenge to section 12022.53, subdivision (d) by a murder defendant who contended the law unfairly distinguished between similarly situated murderers who used other deadly weapons. The appellate court held that the rational basis standard applied to the Legislatures sentencing choice, but did not reach a holding on that ground. Instead, the court analyzed the defendants claim under the more rigorous strict scrutiny test, which applies to deprivations of fundamental interests. Using that test, the Alvarez court found that the statute was justified by the states compelling interest in punishing and deterring violent crimes committed through gun use. (Alvarez, supra, 88 Cal.App.4th at pp. 1116-1119.)
We believe Taylor and Alvarez were both well-reasoned and applicable here. As the Taylor court noted, assault requires no more than an unlawful attempt, combined with present ability, to seriously injure someone. Manslaughter and attempted manslaughter are committed with a less culpable intent than murder or attempted murder, which require malice aforethought. Given the more heinous conduct and state of mind required for murder, we hold under both the rational basis and strict scrutiny tests that no equal protection violation occurred.
Roses final constitutional challenge to section 12022.53 rests on his contention that its application amounted to cruel and unusual punishment under the California and federal constitutions. According to Rose, the punishment is too severe based on the elements of section 12022.53, subdivision (d) and is also extreme given his previously clean record, his military service, his education, prior employment history, and the fact that his suicide attempt caused kidney damage and neurological damage to his legs. The same or similar arguments have been rejected by other courts. (Taylor, supra, 93 Cal.App.4th at p. 324; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214-1216; People v. Martinez (1999) 76 Cal.App.4th 489, 494-498.) We find the reasoning of these cases sound and join them in rejecting Roses contentions.
DISPOSITION
For the reasons set forth above, the judgment is affirmed.
We concur: COOPER, P.J., and BOLAND, J.