Opinion
A144421
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD EARL SLAUGHTER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC079806A)
A jury convicted defendant Richard Earl Slaughter of first degree murder and DUI- and firearm-related offenses after he stabbed to death his girlfriend, Philomena Anderson-Ashford, drove away from her apartment with a handgun, and crashed into an occupied car. After finding various prior-conviction allegations true, the trial court sentenced him to a term of 96 years and eight months to life in prison.
On appeal, Slaughter claims that (1) the trial court erred by refusing to give his requested jury instructions on perfect self-defense and the lesser included offense of voluntary manslaughter based upon a sudden quarrel or heat of passion; (2) there was insufficient evidence of "bodily injury" to sustain the DUI-related counts; and (3) a five-year sentence enhancement for a prior conviction should not have been imposed. We accept the Attorney General's concession that this enhancement was improper and modify the judgment to strike it, but we otherwise affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Discovery of Anderson-Ashford's Murder.
Slaughter met and started dating Anderson-Ashford in early 2013, and by August he had moved into her apartment in East Palo Alto. On August 12, he killed her by stabbing her repeatedly, including in her eye, and slashing her throat.
The fact of the killing emerged after Slaughter was arrested for driving under the influence when he crashed Anderson-Ashford's car in Redwood City around 9:30 p.m. that night. The crash occurred when he made a sudden turn across a lane of traffic and ran into several parked vehicles, including one occupied by Jose B. The responding officers believed Slaughter was under the influence of alcohol because Slaughter's eyes were red and watery, his speech was slurred, and his breath smelled of alcohol. A loaded handgun and an empty bottle of Remy Martin were recovered from the interior of the car Slaughter had been driving.
Slaughter's blood was drawn at around 12:30 a.m., approximately three hours after the collision, and his blood alcohol content was .18 percent. An expert witness opined that based on this blood alcohol content, a person of Slaughter's size would have had a blood alcohol content of .24 percent three hours earlier.
Around 4:00 a.m. on August 13, after he had been booked into jail, Slaughter informed a sheriff's deputy that he wanted to speak to a homicide detective about "a fresh dead body" in East Palo Alto. Slaughter also indicated that the victim had recently been stabbed to death. A couple hours later, he flagged down another sheriff's deputy and said he "wanted to have somebody go check on a house . . . because he got in an argument with his girlfriend and . . . stabbed her." Slaughter indicated he was concerned because he did not want his girlfriend's adult son to be the first person to discover the body.
East Palo Alto police officers drove to Anderson-Ashford's one-bedroom, ground-floor apartment. After no one answered their knocks, they entered through an open sliding door in the back. Anderson-Ashford's body was in the bedroom, wedged between the bed and a wall. A large blood stain was near the head of the bed and a bloody knife was on the bedspread. More blood stains were on the bathroom walls and in the shower. Anderson-Ashford's cause of death was "[m]ultiple stab wounds and incised wounds," one of which was a deep wound to her throat that could have independently caused death. She had ten stab wounds in her head, including one in her eye, and several defensive wounds to both hands.
B. Slaughter's Police Interviews.
An East Palo Alto detective interviewed Slaughter the afternoon after he was booked into jail and again the following morning. Recordings of portions of both interviews were played for the jury.
During the first interview, Slaughter immediately admitted to killing Anderson-Ashford. He said the couple had had a good relationship until recently. Slaughter was unemployed and attending a job training program, and Anderson-Ashford "bought [him] everything. She treated [him] so well." He began drinking a lot, however, and would get "belligerent." This upset Anderson-Ashford, and Slaughter sensed that "she was pulling away." According to him, she was taking longer to respond to his text messages and being secretive about phone calls she received and her Facebook use, and he suspected she was cheating on him.
Slaughter told the detective that leading up to the murder the couple had a "rough weekend" of arguments. At one point, Anderson-Ashford said that she would " 'shoot' " Slaughter if she caught him cheating and he responded that he would " 'kill [her], too' " if she cheated. Things seemed better, however, on Monday, the day of the murder. Slaughter went to his job training program after dropping Anderson-Ashford off at her job as a counselor at a drug-treatment facility for women. The couple had lunch together, and Slaughter picked her up from work at 5:00 p.m.
Slaughter and Anderson-Ashford returned to the apartment and had sex. While they were lying in bed afterward, discussing what to do for dinner and watching television, a light flashed on Anderson-Ashford's cell phone to indicate an incoming call. Slaughter said, " 'Oh, your phone,' " and she responded, " 'It's nothing.' " Slaughter went outside to smoke a cigarette.
When Slaughter returned to the bedroom, he noticed Anderson-Ashford hanging up her phone. He "asked her what it was and she said it was nobody." Slaughter told the detective that he "snapped right there" and went into the kitchen. He "stood there for a minute, . . . trying to melt that shit down in [his] mind" and thinking that if he "couldn't have her wasn't nobody gonna have her." He then grabbed a butcher knife from the counter.
When Slaughter went back to the bedroom, Anderson-Ashford was still on the bed and indicated that she did not feel like going out and wanted to take a nap. He then asked her who had called her, and she said, " 'Daddy, don't start that shit again. Really. Don't start that please.' " Feeling "hurt" and "betrayed," Slaughter walked around to her side of the bed, and when she saw he was holding a knife, she said, " 'What's wrong with you?' "
According to Slaughter, he then began stabbing Anderson-Ashford in the head. As she struggled and pleaded for her life, blood "squirting" from her, he stabbed her in the eye. Anderson-Ashford said, " 'I can't believe I'm gonna die like this.' " Slaughter then pulled the knife out of her eye and slit her throat. He told the detective, "It was - all I had my mind on; if I can't have her, ain't nobody gonna have her."
Slaughter said that after he cut her throat, Anderson-Ashford rolled off the bed, and he knew she was dead. He went into the bathroom, noticed that her blood was on his face, and showered. Intending to kill himself, he then retrieved a handgun that he knew Anderson-Ashford kept hidden in one of her boots, which were stored at the foot of the bed.
Slaughter left the apartment and drove to a nearby liquor store, where he bought a pint of Remy Martin. He then got on the highway, "gulping" the liquor. The last thing he could remember was planning to get drunk and then shoot himself whenever the police tried to pull him over. He could not remember the collision or "how [he] ended up in Redwood City."
The store's security cameras captured Slaughter making the purchase approximately an hour before the collision.
Slaughter was allowed to call his family on speaker phone toward the end of the first interview. Slaughter told his sister that he had "stabbed [Anderson-Ashford] in the head" because he "thought she was messing around," "got on some stupid jealous shit," and "snapped." He then told the detective that he should be charged with capital murder, saying, "That's premeditation. You know, I thought about it, I went in the kitchen and got the knife and came back. You know? [¶] . . . [¶] I gave it thought and I - with malice."
In the days following the murder, Slaughter made two more telephone calls during which he told other family members that he had killed Anderson-Ashford because he thought she was cheating on him. He also wrote letters to Anderson-Ashford's family indicating that he killed her out of jealousy.
C. Slaughter's Testimony at Trial.
Slaughter testified in his own defense at trial. Although his testimony was consistent in some respects with his prior statements, he claimed for the first time that he killed Anderson-Ashford in self-defense. He said that after he came back into the bedroom from smoking outside and Anderson-Ashford was getting off her phone, they argued, and she "went to the boots" where she stored her gun. He claimed that she then took out the gun, which "caught [him] off guard" because their fights had never escalated to that level, and he went to get the knife. When he returned, she was lying on the bed with the gun in or near her left hand. She asked him what was wrong with him and said, " 'You ain't gonna do what you want to do to me in my house.' " He testified that he then "stabbed her in the hand first . . . [¶] . . . [¶] [b]ecause she had the gun in her [left] hand" and he believed she might shoot him.
Anderson-Ashford's son testified that his mother was right-handed.
Slaughter claimed that as he continued stabbing Anderson-Ashford, attempting to pin her to the bed, the gun was near her on the bed. He said he "had to" stab her so many times: "I was afraid for my life. I mean, the excess, I guess I snapped. I didn't stop fighting until she stopped struggling." On cross-examination, however, Slaughter admitted that by the time he cut her throat Anderson-Ashford no longer posed a threat to him. And he could not explain why, if the gun was near her while he stabbed her, there did not appear to be any blood on the gun when it was recovered despite how much blood she lost.
Slaughter testified that he had not told the police or his family that he acted in self-defense because to all outward appearances he and Anderson-Ashford were "a picture perfect couple" and he did not want to "put [their] business out there." He "felt remorseful" and decided to take responsibility for her death instead of telling the truth. On cross-examination, he explained that he did not consider telling his family members that he thought Anderson-Ashford was cheating on him to be "putting [his] business out there" because he "spoke the truth . . . but . . . didn't go into details."
D. The Verdict and Sentencing.
The jury convicted Slaughter of all five counts with which he was charged: first degree murder, driving under the influence of alcohol and causing bodily injury, driving with a blood alcohol content level of .08 percent or more and causing bodily injury, and—based on a stipulation that on August 12, 2013, he had previously been convicted of a felony—possession of a firearm by a felon and carrying of a loaded firearm in a vehicle in public by a felon. The jury also found true the allegation that Slaughter personally used a knife during the murder.
Slaughter was convicted under Penal Code sections 187, subdivision (a) (murder), 29800, subdivision (a)(1) (firearm possession by felon), and 25850, subdivision (c)(1) (carrying loaded firearm in vehicle by felon) and Vehicle Code section 23153, subdivisions (a) and (b) (DUI-related offenses). All further statutory references are to the Penal Code unless otherwise noted.
This allegation was found true under section 12022, subdivision (b).
After Slaughter waived his right to a jury trial on various prior-conviction allegations against him, the trial court found true that he had three previous convictions for serious felonies that constituted strikes, two in California for assault with a deadly weapon and one in Illinois for robbery. It also found true that he had two prior convictions resulting in a prior prison term.
The trial court found that the assault convictions, which were under section 245, subdivision (a)(1), and the robbery conviction were for serious felonies under section 667, subdivision (a) and strikes under section 1170.12, subdivision (c)(2). The prior convictions with a prison term were found true under section 667.5, subdivisions (a) and (b).
The trial court sentenced Slaughter to 96 years and eight months to life in prison, comprised of a term of 25 years to life for murder, tripled; a term of one year for the allegation of personal use of a knife; a term of three years for one of the prior convictions resulting in a prior prison term; three terms of five years for the prior serious-felony convictions; a consecutive term of eight months for possession of a firearm by a felon, doubled; and a consecutive term of eight months for DUI causing bodily injury, doubled. Sentences for the remaining counts and enhancements were stayed.
II.
DISCUSSION
A. Any Error in the Trial Court's Refusal to Instruct the Jury on Perfect Self-defense or Heat-of-passion Voluntary Manslaughter Was Harmless.
Slaughter claims that the trial court erred by refusing his request for jury instructions on perfect self-defense and the lesser included offense of voluntary manslaughter based upon a sudden quarrel or heat of passion. We conclude that any error in the omission of either instruction was harmless because the jury necessarily decided the factual questions posed by both instructions adversely to Slaughter.
1. Instruction on perfect self-defense.
Slaughter requested a jury instruction on perfect self-defense. The trial court found that there was insufficient evidence to support such an instruction based in part on three factors: according to Slaughter's testimony, he was the aggressor; Anderson-Ashford had defensive wounds on both sides of her hands, establishing that she was not holding the gun while Slaughter was stabbing her; and Slaughter admitted that he was no longer afraid when he cut Anderson-Ashford's throat, which likely caused the fatal wound. The court did, however, decide that an instruction on imperfect self-defense was warranted.
Accordingly, the jury was instructed under CALCRIM No. 521 that Slaughter was guilty of first degree as opposed to second degree murder if "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 completing the acts that caused death. [¶] . . . A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated." The jury was also instructed under CALCRIM No. 571 that Slaughter was guilty of the lesser included offense of voluntary manslaughter if he "actually believed that he was in imminent danger of being killed or suffering great bodily injury" and he "actually believed that the immediate use of deadly force was necessary to defend against the danger" but "[a]t least one of those beliefs was unreasonable."
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) Perfect self-defense is a complete defense to murder. (People v. Moye (2009) 47 Cal.4th 537, 550.) For a killing to be in self-defense, "one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury." (People v. Randle (2005) 35 Cal.4th 987, 994, overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.) Imperfect self-defense also requires an actual belief in the need to defend, but the belief is unreasonable. (In re Christian S. (1994) 7 Cal.4th 768, 773; see also People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262 ["subjective elements of self-defense and imperfect self-defense are identical"].) Such a belief negates malice and therefore reduces murder to voluntary manslaughter. (Christian S., at p. 773.)
A trial court must give a requested jury instruction on perfect self-defense if "the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—unless the defense is inconsistent with the defendant's theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .' " (People v. Salas (2006) 37 Cal.4th 967, 982.)
We need not decide whether there was sufficient evidence to support an instruction on perfect self-defense because any error in the trial court's failure to give the instruction was harmless. The omission of an instruction on a defense is not prejudicial if " 'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.' " (People v. Wright (2006) 40 Cal.4th 81, 98-99; People v. Gana (2015) 236 Cal.App.4th 598, 610.) Here, the jury was instructed on imperfect self-defense and would have convicted Slaughter of voluntary manslaughter, not first degree murder, if it believed that he had an actual but unreasonable belief in imminent danger and the need to defend with deadly force. We accept that in some circumstances the evidence can support an instruction on perfect self-defense but not imperfect self-defense, such as if a defendant claims to have used "lethal force in response to being shot at repeatedly." (People v. Duff (2014) 58 Cal.4th 527, 561-562.) Slaughter offers no theory, however, under which the jury could have found that he had an actual and reasonable belief in imminent danger and the need to defend with deadly force despite rejecting the claim that he had an actual but unreasonable belief in those things. Therefore, he has failed to demonstrate prejudice.
2. Heat-of-passion instruction.
Slaughter also requested a jury instruction on heat-of-passion voluntary manslaughter. The trial court refused the request on the basis there was insufficient evidence of provocation, explaining that even if the jury believed Anderson-Ashford was holding a gun, there was no evidence that she pointed it at Slaughter or verbally threatened to shoot him.
A person who kills while acting "upon a sudden quarrel or heat of passion"—even if exercising a sufficient "measure of thought . . . to form . . . an intent to kill"—has "a mental state that precludes the formation of malice." (§ 192, subd. (a); People v. Beltran (2013) 56 Cal.4th 935, 942.) Thus, the offense of murder is reduced to voluntary manslaughter when the defendant acted upon a sudden quarrel or in the heat of passion. (Beltran, at p. 942.) A person acts upon a sudden quarrel or in the heat of passion if he or she "acts without reflection in response to adequate provocation." (Ibid.) Provocation is legally adequate if it " ' "would cause the ordinarily reasonable person of average disposition to act rashly and . . . from . . . passion rather than from judgment." ' " (Ibid.)
A trial court has the duty "to instruct fully on all lesser necessarily included offenses supported by the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) For this duty to arise, "there must be ' "substantial evidence" [citation], " 'which, if accepted . . . , would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser." ' [Citation.] . . . '[S]ubstantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself.' " (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137-1138.)
We also need not decide whether there was sufficient evidence to require a heat-of-passion instruction because any error in the trial court's omission of this instruction was harmless as well. " 'Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to [the] defendant under other properly given instructions.' " (People v. Peau (2015) 236 Cal.App.4th 823, 830, quoting People v. Lewis (2001) 25 Cal.4th 610, 646.) In particular, as we explained in Peau, a defendant's "conviction of first degree murder renders any failure to give a heat-of-passion instruction harmless because the jury necessarily found that the murder was willful, deliberate, and premeditated." (Peau, at p. 830.) Peau relied on People v. Wharton (1991) 53 Cal.3d 522, which held that a first degree murder verdict establishes "a 'state of mind, involving planning and deliberate action[, that] is manifestly inconsistent with having acted under the heat of passion.' " (Peau, at pp. 830-831, quoting Wharton, at p. 572.)
Here, unlike in Peau, no instruction on provocation was given. (See People v. Peau, supra, 236 Cal.App.4th at p. 829.) But neither Peau nor People v. Wharton rested its holding on the giving of other instructions related to the concept of heat of passion. Indeed, Peau specifically distinguished People v. Berry (1976) 18 Cal.3d 509, which held that a first degree murder verdict did not render the failure to give a requested heat-of-passion instruction harmless (Berry, at pp. 512, 518), on the basis that Berry considered "whether the error was harmless because the jury received some instruction on the concepts of heat of passion and provocation, not whether the error was harmless because the jury found the murder was willful, deliberate, and premeditated and such a finding was inconsistent with a finding that the defendant acted in a heat of passion." (Peau, at pp. 831-832.) Although we agree with Slaughter that the jury's rejection of the theory that he acted in imperfect self-defense "did not resolve the issue of whether he was acting in the heat of passion," the jury did resolve the issue of provocation against him despite the absence of an instruction on that concept because it necessarily found that he did not act "rashly, impulsively, or without careful consideration." As a result, any error in the denial of his request for a heat-of-passion instruction was harmless.
B. There Was Substantial Evidence of "Bodily Injury" to Support the DUI-related Convictions.
Slaughter contends that there was insufficient evidence of "bodily injury" to sustain his DUI-related convictions. We are not persuaded.
The only evidence presented at trial of the collision's physical effects on Jose B. was his own testimony. Jose B. testified that after the crash he experienced "soreness" in his back and neck that lasted "a few weeks, maybe up to a month." The pain "was constant, just varying intensities during the course of the day" throughout this period. He did not seek medical attention, although he took over-the-counter medications "maybe a couple times," and did not miss any work. He testified that he did, however, need to be "extra careful" at his job as a nurse, which "require[d] a lot of physical work," and in particular that he required more help turning and lifting his patients. He also avoided going to the gym for a few weeks because of the soreness.
Slaughter was convicted under Vehicle Code section 23153, subdivisions (a) and (b), which make it unlawful to drive a vehicle while under the influence of alcohol or with a blood alcohol content of .08 percent or more, respectively, and either commit an act that violates the law or fail to perform a duty, "which act or neglect proximately causes bodily injury to any person other than the driver." To evaluate Slaughter's claim that there was insufficient evidence of bodily injury, " 'we review the whole record to determine whether . . . [there was] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.' " (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
The term "bodily injury" has been construed to mean "just what it says—harm or hurt to the body. Common sense requires more for conviction than a 'shaking up' of a person in a car which is in an accident, or fright, or a minor headache; it means very obviously a hurt to the body." (People v. Lares (1968) 261 Cal.App.2d 657, 662; accord People v. Dakin (1988) 200 Cal.App.3d 1026, 1036.) The few published decisions to apply this definition when evaluating the sufficiency of the evidence to support a conviction provide further guidance. In Lares, the Fifth District Court of Appeal held that the standard was satisfied where the victim was diagnosed with an " 'acute back strain,' " spent the night at the hospital, and did not work for a few weeks after the accident. (Lares, at p. 662.) In Dakin, Division Three of this court held there was sufficient evidence of "bodily injury" where the victim "suffered two cuts to his forehead, as well as a severe headache and stiff neck," even though the victim did not seek medical treatment and apparently did not miss any work. (Dakin, at pp. 1029, 1035-1036.) Finally, this division held there was sufficient evidence of "bodily injury" where the victim appeared to be in shock after the accident, was treated by paramedics at the scene, and later complained of "pain in his shoulder and left side." (In re F.H. (2011) 192 Cal.App.4th 1465, 1467-1468, 1473.)
These authorities lead us to conclude that there was sufficient evidence of "bodily injury" in this case. Jose B. experienced persistent soreness in his back and neck for weeks after the collision that required him to alter his daily activities and take medication. This constituted a more-than-fleeting "hurt to the body." (People v. Lares, supra, 261 Cal.App.2d at p. 662.) This is true even though Jose B. did not seek medical treatment and did not miss work: although such circumstances may bolster a finding of "bodily injury," they are not necessary to sustain a conviction under Vehicle Code section 23153. (See People v. Dakin, supra, 200 Cal.App.3d at pp. 1029, 1035-1036.) Substantial evidence supported Slaughter's DUI-related convictions.
C. One of the Five-year Terms Imposed Based on Slaughter's Previous Convictions Must Be Stricken.
Finally, Slaughter contends that the trial court erred by imposing a five-year term under section 667, subdivision (a) for one of his prior California convictions of a serious felony because the conviction occurred in the same proceeding as the other California serious-felony conviction. We agree with him and the Attorney General that this term was improperly imposed.
Section 667, subdivision (a) provides that a person who is convicted of a serious felony and has previously been convicted of a serious felony "shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately." (Italics added.) Here, the trial court imposed three five-year terms under this statute, but two of the previous convictions on which it relied occurred on the same date in the same San Mateo County criminal case. As a result, only one five-year term, not two, could be properly imposed based on these two convictions. (See In re Harris (1989) 49 Cal.3d 131, 133, 136.) We therefore modify the judgment to strike one of the five-year terms.
III.
DISPOSITION
The judgment is modified to strike one of the two five-year terms imposed under section 667, subdivision (a) for the serious-felony convictions in California. As so modified, the judgment is affirmed. The clerk of the superior court is directed to forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.