Opinion
A128100
09-23-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LOREN WOODS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 5-090948-1)
A jury convicted defendant Robert Loren Woods of second degree murder for the killing of his estranged wife. At trial, defendant admitted the killing but maintained he acted in the heat of passion and was guilty of voluntary manslaughter only. On appeal, defendant contends the trial court prejudicially abused its discretion and denied him a fair trial by (1) precluding his trial counsel from asking prospective jurors whether they would have difficulty following the court's instructions regarding his heat of passion defense, and (2) permitting a defense witness to be impeached with a 20-year-old theft conviction. We find no prejudicial error, and affirm the judgment.
I. BACKGROUND
Defendant was charged by information with murder. (Pen. Code, § 187.) The information further alleged that during the commission of the crime defendant personally used a knife. (Pen. Code, § 12022, subd. (b)(1).) Defendant pleaded not guilty and denied the knife-use allegation. A jury trial commenced on February 11, 2010. A. Prosecution Case
Defendant and Elnora Caldwell were married in 2002. Defendant cheated on Caldwell with other women during the marriage. On May 23, 2008, Caldwell was granted a five-year restraining order and defendant was ordered to stay at least 100 yards away from Caldwell and her Oakland residence.
Despite the restraining order, Caldwell's son, Nolan Lewis, heard defendant at the front door of his mother's Oakland apartment several times yelling for Caldwell to open the door. Around June 2008, Eugene Danezlar began a romantic relationship with Caldwell. Occasionally while at Caldwell's apartment Danezlar heard knocking on her bedroom window. Once when police came to the apartment to investigate an incident, Danezlar saw a black pickup truck with a loud muffler system drive past the front of the apartment. Defendant had such a vehicle.
On October 6, 2008, at approximately 11:00 p.m., Oakland Police Officer Chris Craig received a report of a restraining order violation. Craig made contact with defendant by phone. Defendant admitted the violation, but explained he ran into Caldwell in a bar and was trying to reconcile with her. She eventually borrowed his cell phone to call police because she felt he was harassing her and violating the restraining order. He handed her the phone not expecting she would actually call the police. Defendant told Craig he did not know Caldwell's telephone number or where she lived.
On October 25, defendant was staying at his friend Reginald Allen's studio apartment, sleeping on his couch, and paying Allen a little bit of money for the favor. He had been staying there for a week or two. Although Allen knew defendant owned a black pickup truck, the previous day he had parked a rental car at Allen's home.
About 3:30 or 4:00 p.m. on October 25, Allen ran into defendant in front of Allen's building. Defendant was upset and crying and "complaining about nothing's going well. Everything's just not going right." He told Allen he missed Caldwell and wanted her back. Defendant asked Allen to do a favor for him. He had bought a necklace for Caldwell, and asked Allen to go to her apartment and give the necklace to her. Defendant gave Allen her address and apartment number, and told him to get Caldwell to return with him so defendant could talk to her. Allen went to Caldwell's residence, knocked on the door, and gave her the boxed necklace. He told her how defendant was feeling and also that he wanted to see her. She became concerned and asked Allen to take her to defendant. Allen drove her back to his residence. Defendant was waiting there in his truck. Before going inside his residence, Allen saw Caldwell get into the truck with defendant.
About 6:00 p.m. on October 25, 2008, Richard Mazzera was driving on Fish Ranch Road in Berkeley, above the Caldecott Tunnel, when he saw a black pickup truck parked on the side of the road with its passenger door ajar. As Mazzera slowed down, thinking he might stop and offer assistance, he saw a middle-aged African-American couple in the truck. It appeared to Mazzera the couple was arguing and the woman, later identified as Caldwell, had her hands in the air. Thinking the argument might escalate into something worse, Mazzera thought he should get the truck's license plate number and let them know he was present. After pulling alongside, he slowly backed up so he could see the license plate. From that position, Mazzera could see the couple was "really arguing," and it looked like the man, later identified as defendant, was "thrusting" and "punching" or "striking" the woman. She had her arms up as the man "was being violent toward her." Mazzera watched as the man slid the woman out of the truck and "shove[d] her away."
The woman walked on the passenger side of the truck toward the rear, toward Mazzera saying, "Help me," in a pleading voice. Mazzera could see she was bloody. Before she could reach Mazzera's vehicle she fell face first onto the concrete between the two vehicles, and was motionless. Mazzera realized other people had stopped behind him on the street. He heard a woman's voice scream, "Stop, stop," and then saw defendant pulling away in his truck. Thinking one of the other persons present at the scene could attend to Caldwell, Mazzera took off to follow defendant's truck.
Martin Reed was driving with his sister and nephew on Fish Ranch Road at 6:00 p.m. on October 25 when he saw a black pickup truck parked on the side of the road with a woman falling out of it. He pulled up ahead of the truck and could see the woman collapse facedown on the road in his rear-view mirror. Reed got out of his vehicle and went to see if he could help the injured woman. She was bleeding from the neck and coughing up blood. Reed asked Caldwell who had done this to her, and both he and another person at the scene felt she was trying to say, "My husband." Caldwell eventually lost consciousness. A doctor who came by tried to resuscitate her, but she died before an ambulance arrived.
Mazzera stayed with defendant as he was driving at a high rate of speed along Grizzly Peak Boulevard. Mazzera was trying unsuccessfully to reach the police via his cell phone. At one point defendant pulled over and waved for Mazzera to pass him, but Mazzera stopped a safe distance back and waited for defendant to move. Defendant eventually pulled out and drove on, with Mazzerra following. On a straight portion of the road, Mazzera saw defendant throw things out of the side of his truck. It looked like a purse and some papers. The chase continued at speeds up to and over 90 miles per hour until defendant reached a highway and Mazzera lost sight of him.
Nolan Lewis came by his mother's apartment sometime after 6:00 p.m. on October 25 to say hello and pick up a jacket. He saw defendant circle the block three times in his truck before parking in Caldwell's driveway and entering her apartment. Knowing about the restraining order, Lewis found it odd defendant was there, and followed him in. Lewis saw defendant washing his hands in his mother's bathroom. He dialed 9-1-1 on his mother's telephone and then put the phone down. He went to the bathroom and said, "So you're in my mom's fucking house now?" Defendant moved fast at that point to leave the apartment, telling Lewis, "Oh, your mother's down the hill," which Lewis interpreted to mean she was a few blocks away on Grand Avenue. Angry over defendant's invasion of his mother's privacy and violation of the restraining order, Lewis grabbed a chair and used it to break one of the windows on defendant's truck as he drove off.
At 7:00 p.m. on Grand Avenue, defendant walked up to a parked police car, and told the officers inside, "I think I need to be arrested." When one of the officers asked why, he told them in a calm, detached tone of voice, "I think I may have just committed murder." Defendant was immediately arrested.
A police search of Caldwell's residence showed a telephone off its hook, a cell phone on the counter in the bathroom, and a set of keys to the apartment with blood on them. The police found blood on the bathroom sink counter and blood on a washcloth sitting behind the faucet. A search of the area where Mazzera had seen defendant toss things from the truck turned up Hallmark greeting cards and a cell phone charger with blood stains on them. No purse or bag was found.
The autopsy of Elnora Caldwell showed she had sustained seven stab wounds. One wound to the right side of her neck below her earlobe had penetrated her right external carotid artery. Another wound near the center of Caldwell's chest had gone three and one-half inches deep, penetrating the right ventricle of her heart. Caldwell suffered other stab wounds to the inner right breast, upper right chest, upper left abdomen, upper right arm, and right forearm. She also had faint scrapes on her neck consistent with the blade of a knife having been held up against her throat. She bled to death from the combination of the wounds to her carotid artery and heart.
In its closing argument, the prosecution asked the jury to find defendant guilty of first degree murder or, if it could not find premeditation and deliberation beyond a reasonable doubt, for a verdict of second degree murder. B. Defense Case
Defendant conceded he had killed Caldwell, but argued he was guilty of only voluntary manslaughter.
Defendant testified on his own behalf. He met Caldwell in 1996. They had developed a strong romantic bond, and lived together for a couple of years before getting married in 2002. They maintained separate residences after getting married. Defendant and Caldwell had many common interests and were physically very affectionate and passionate with one another. Defendant admitted he had one "quick fling" with another woman in 2003, and Caldwell eventually found out about it.
When Caldwell broke off their relationship in 2008, defendant desperately tried to reconcile with her. In April 2008, he went to the Nordstrom department store in San Francisco where Caldwell worked to talk to her. On May 2, 2008, he waited for Caldwell at the Powell Street BART station after work and again tried to talk to her. He got onto a BART train with her even though she told him she did not want to talk. On May 9, 2008, defendant was served with notice Caldwell was seeking a restraining order against him. After that, defendant did not see Caldwell again until August 2008.
In August, defendant saw Caldwell standing at a bus stop. He stopped and asked her if she needed a ride. She smiled and nodded and got into his vehicle. They parked a few blocks away and talked for awhile after which he dropped her at a location where she was meeting her friend. Later that evening, defendant ran into Caldwell and her friend at a bar in Oakland. They talked pleasantly and he eventually offered her a ride home when the bar was closing. After dropping Caldwell's friend off in Berkeley, defendant and Caldwell returned to his apartment where they had consensual sex. Following that incident, the two had consensual sex two more times in September, initiated in both cases by Caldwell contacting defendant.
In October 2008, defendant ran into Caldwell in a bar. He tried talking to her, but she was upset with him because he had broken her screen door the last time he went to her house in an attempt to talk to her. Caldwell asked defendant how he would feel if she were to call the police. He did not believe she would, so he handed her his cell phone and told her he would leave if she made the call. She proceeded to call the police, and gave the phone back to defendant. He left and later that evening a police officer obtained his telephone number from dispatch and called him. He admitted violating the restraining order.
Several days later, defendant had a friend of his deliver an envelope to Caldwell containing $100 to fix a lock she believed he had broken on her security gate, along with a new dead-bolt lock and Caldwell's new medical insurance card (because she was getting her medical coverage through his employment).
Defendant had been employed by the City of Oakland for 15 years prior to his arrest. During the summer of 2008, he began having serious financial difficulties with the Internal Revenue Service (IRS) due to unpaid back taxes. The IRS began garnishing a substantial amount of defendant's wages in October 2008. As a result, defendant could no longer pay his apartment rent and became homeless. He began living out of his truck and occasionally sleeping on friends' couches. He kept a kitchen steak knife in his truck for protection when he was sleeping in the truck. He also purchased "super" burritos to eat late at night and would use the knife to cut them in half.
Defendant had been suspended without pay from his job from January to April 2008.
Due to his personal and financial problems during this time period, defendant was anxious, angry, confused, and depressed. He was worried and scared, and not sleeping well.
A friend of defendant's, Louis Griffin, testified he asked defendant to help him move his belongings to a new apartment. Griffin remembered the move took place on a Wednesday night, starting between 7:30 and 8:30 p.m. They had loaded defendant's truck and defendant was driving them to Griffin's new residence when defendant saw Caldwell standing on the street and asked her if she wanted a ride. She hesitated for a second, but agreed and got into the front passenger seat next to defendant. Defendant drove to Caldwell's house, parked, and walked her home while Griffin waited in the truck. Defendant came back more than an hour later looking very happy. He told Griffin everything was going to be okay and he and Caldwell were going to get back together.
Defendant testified he and Caldwell stood outside her apartment and spoke for about 20 minutes.
Defendant testified that on October 23, 2008, the day after helping Griffin move, he went to a jewelry store in San Francisco to buy Caldwell an anniversary present. He bought her a crystal bracelet costing more than $250 to match a crystal necklace he had purchased for her the year before. He also bought several anniversary cards for her. On one of them he had written: "Baby, my love, you and only you taught me to love and forgive, and most of all, love in spite of. You're the only one in my world. R. Woods. Baby, please be mine." On another he wrote: "Baby love, '08, please come back home. R. Woods."
On October 25, 2008, defendant's friend, Reginald Allen, delivered the bracelet and cards to Caldwell at her apartment. Defendant was surprised when Allen returned with Caldwell, but he was happy to see her. At first, they sat in his truck and had a cordial conversation. Caldwell took the bracelet out of the box and defendant helped her put it on her wrist. Eventually they started driving around. Defendant could not recall the locations they went to although he remembered Sequoia Lodge because it was one of the places where he and Caldwell had sex on a prior occasion.
Eventually they ended up at the Fish Ranch Road location. They were still driving when Caldwell suddenly took the bracelet off and threw it at defendant. She yelled at him, "Here, you probably just took your dick out of a bitch last night." She also called him a "dog ass motherfucker" twice. Defendant stopped the car and was trying to understand what was happening. He was trying to calm her down. At some point, he "snapped," he "lost it." The words "went right through" him and rattled him. He became enraged and grabbed the kitchen knife he had in the truck, and began stabbing her.
Defendant could only recall parts of what happened after that. He was scared and he took off up the hill. He did not remember throwing objects from his truck. He did not know why he went to Caldwell's apartment: "At first I didn't know. I mean, I didn't know. I just saw the keys and I made the decision to go over there. And while I was over there I thought about a time—I thought about there possibly being another man. And there was times—there was one time when she had some rubbers in her drawer, and I thought about that time." Defendant went through Caldwell's underwear drawer before going to the bathroom to wash his hands. He left when Caldwell's son confronted him, got into his truck, drove a short distance to Grand Avenue, and turned himself in when he saw a police car because he knew he had done something terrible and had to face it. He told the officer, "I think you need to arrest me. I think I hurt my wife real bad." C. Verdict, Sentencing, and Appeal
The jury found defendant guilty of second degree murder and found the knife-use allegation true. The trial court sentenced defendant to 15 years to life on the second degree murder conviction, plus a consecutive one-year term for the knife use. Defendant timely appealed.
II. DISCUSSION
Defendant contends the trial court prejudicially abused its discretion and violated his federal constitutional rights by (1) precluding the defense from asking prospective jurors whether they would have difficulty following the court's instructions regarding his heat of passion claim, and (2) permitting a key defense witness to be impeached with a 20-year-old theft conviction despite no intervening criminality. A. Jury Voir Dire
1. Facts
During jury voir dire, defendant's trial counsel attempted to question a prospective juror about whether the juror would be able to follow the court's instructions regarding heat of passion killings. The following exchange took place:
"[DEFENSE COUNSEL]: Okay. There's something further that I didn't bring up yesterday, but this may very well become part of the case. Not only is the prosecution required to prove each element beyond a reasonable doubt, if there is a showing that the incident, the offense, was committed in the heat of passion, then not only does the prosecutor have to prove the elements of the crime of murder, they have to prove beyond a reasonable doubt that the offense was not committed in the heat of passion.
"[PROSECUTOR]: Objection, Your Honor.
"THE COURT: I think we're pre-trying the case at this point.
"[DEFENSE COUNSEL]: Can you follow that law? Meaning
"[PROSECUTOR]: Objection. Your Honor.
"THE COURT: Counsel, let's stay away from the facts of the case.
"[DEFENSE COUNSEL]: If that instruction is given can you follow that?
"[PROSPECTIVE JUROR]: Which instruction is given?
"[DEFENSE COUNSEL]: If the instruction that the prosecutor is required to prove beyond a reasonable doubt that it was not committed in the heat of passion.
"THE COURT: Okay. Let's be more general, if she can follow the law."
Later, out of the presence of the venirepersons, defense counsel asked the court to reconsider its ruling that he could not question prospective jurors specifically about their ability to follow heat of passion instructions. Counsel explained he did not intend to pre-instruct the jury on any facts or suggest any conclusions, but he did want to explore whether prospective jurors had "strong feelings about the idea of killing somebody, and that there not being any lesser offenses, that a killing is a killing, a murder is murder, . . . and that to reduce it to manslaughter is not something that they're inclined to do."
The trial court rejected counsel's request, explaining jury voir dire is limited by law to determining whether there is a basis for a "for cause" challenge to a prospective juror. The court stated it would be acceptable to ask prospective jurors "broadly" if they will follow the law with regard to any lesser offenses, but inquiring about specific defenses is inappropriate because that would be asking them "to pre-try what the result is going to be, . . . whether or not they'll vote for a particular verdict." According to the court, allowing questioning about a specific lesser offense would require pre-instruction: "[W]e have to instruct them on what that [lesser offense] really means, and then we're going to spend an hour trying to instruct them on what heat of passion is, as opposed to voluntary manslaughter. . . . [¶] . . . [¶] . . . [V]oir dire is not the appropriate time for this. And by just using the label it's meaningless to a jury, because saying heat of passion is truly meaningless to a jury who doesn't know what that means legally."
Voir dire continued the following day, and at one point Prospective Juror No. 57 volunteered to the court she would have difficulty accepting evidence the killing was done in a fit of passion: "[Prospective Juror No. 57]: . . . Something was said yesterday, the defense attorney said something that only came up once, something about something done in a fit of passion. [¶] . . . [¶] . . . That wouldn't fly very well with me. [¶] . . . [¶] I don't cater to something like that, you know, I mean, I just don't believe in it. I believe you have to control yourself to not hurt your ownself [sic] or someone else." At defense counsel's request, the trial court excused Prospective Juror No. 57 for cause.
After the prospective juror was excused, defense counsel renewed his request to voir dire prospective jurors regarding whether they would be open to receiving evidence of a killing committed in the heat of passion. He argued the excused prospective juror personified his concern that some jurors do not believe in the heat of passion defense. The court again rejected counsel's request in relevant part as follows: "The heat of passion is a term of art. And I think . . . if you asked anyone of the people in this audience what heat of passion meant you would get that many answers to what that meant. And none of them would be the correct legal definition of it. [¶] In order to educate this jury about what heat of passion means in a legal sense we would have to go through the instruction, and each of you would argue your points, without any evidence having been taken. [¶] Voir dire is not . . . the appropriate time to instruct them on the law. . . . [¶] The obligation of the jury is to follow the law as the Court states it to them. I believe that it is a proper inquiry to ask them will they follow the law, even though they may disagree with it? . . . [¶] There are many laws that people do disagree with but they will follow it because they believe in the structure and the system. [¶] . . . [¶] Heat of passion voluntary manslaughter falls in that category. I am happy to let you inquire whether or not they will follow the law as to any lesser offenses that they are instructed upon."
At the sentencing hearing, defendant's trial counsel filed a new trial motion on the grounds the court's ruling precluding voir dire of prospective jurors regarding the issue of "heat of passion" violated defendant's Sixth and Fourteenth Amendment rights. The trial court denied the motion, citing the reasons previously stated on the record.
2. Applicable Law
" '[T]he right to unbiased and unprejudiced jurors [has long been held to be] an inseparable and inalienable part of the right to a trial by jury guaranteed by the constitution.' [Citation.] 'Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled.' [Citation.] Yet, trial courts have 'great latitude in deciding what questions should be asked on voir dire.' " (People v. Earp (1999) 20 Cal.4th 826, 852.)
Voir dire in criminal cases is governed by Code of Civil Procedure section 223, which provides in relevant part as follows: "In a criminal case, the court shall conduct an initial examination of prospective jurors. The court may submit to the prospective jurors additional questions requested by the parties as it deems proper. Upon completion of the court's initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any or all of the prospective jurors. The court may, in the exercise of its discretion, limit the oral and direct questioning of prospective jurors by counsel. . . . Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause. [¶] The trial court's exercise of its discretion in the manner in which voir dire is conducted, including any limitation on the time which will be allowed for direct questioning of prospective jurors by counsel and any determination that a question is not in aid of the exercise of challenges for cause, shall not cause any conviction to be reversed unless the exercise of that discretion has resulted in a miscarriage of justice, as specified in Section 13 of Article VI of the California Constitution." (Italics added.)
The California Standards of Judicial Administration section 4.30(b)(24), implementing Code of Civil Procedure section 223, allows the trial court to control the manner in which voir dire is conducted.
A trial court has broad discretion in deciding what questions should be asked during voir dire. (Mu'Min v. Virginia (1991) 500 U.S. 415, 424; People v. Earp, supra, 20 Cal.4th at p. 852.) To be constitutionally compelled, it is not enough that particular questions might be helpful. Rather, the trial court's failure to ask the questions must render the defendant's trial fundamentally unfair. (Mu'Min v. Virginia, at pp. 425-426; People v. Holt (1997) 15 Cal.4th 619, 661.)
A "[d]efendant ha[s] no right to ask specific questions that invite[] prospective jurors to prejudge [an issue] based on a summary of the . . . evidence [citation], to educate the jury as to the facts of the case [citation], or to instruct the jury in matters of law." (People v. Burgener (2003) 29 Cal.4th 833, 865.) Subject to that limitation, either party is entitled to ask prospective jurors questions specific enough to determine if those jurors harbor bias that would cause them not to follow an instruction on the issues presented in the case. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 47.)
3. Analysis
Defendant's voir dire argument does not depend on distinguishing this case factually or legally from any other murder case in which the jury is to be instructed on the lesser offense of voluntary manslaughter based on heat of passion. Thus, he is arguing it is constitutional error as a matter of law in all such cases to prevent the defendant from asking prospective jurors whether they could follow the law regarding heat of passion. We note as an initial matter defendant cites no case, state or federal, holding or suggesting the risk of juror bias on this issue is so substantial that courts should have no discretion to prevent inquiry about it during voir dire.
Defendant cites cases involving proposed voir dire questions on other legal issues. Each case concerns relatively simple factual or legal predicates that could be understood by prospective jurors without a lengthy exposition of the evidence or instructions to be offered at trial. (See People v. Abilez (2007) 41 Cal.4th 472 [holding it was proper for prosecutor to ask prospective jurors whether they had developed any principled reservation about voting for death after filling out their questionnaires and undergoing voir dire]; People v. Cash (2002) 28 Cal.4th 703 [ trial court erred in barring defense counsel from inquiring whether prospective jurors would automatically vote for the death penalty if defendant had previously committed murder]; People v. Chapman (1993) 15 Cal.App.4th 136 [error to bar inquiry whether prospective jurors would be biased against defendant because he had previously been convicted of a felony]; United States v. Allsup (9th Cir. 1977) 566 F.2d 68 [error not to permit defense counsel to ask whether any member of the panel " 'feels he could not clearly sit on this case because evidence of insanity or lack of mental capacity might be introduced into evidence' "].) None of these cases address whether a legal term of art such as "heat of passion" is a proper subject matter for inquiry during voir dire when the legal definition of the term is worlds apart from its different possible meanings to a layperson.
The "heat of passion" instructions given in this case were quite lengthy and elaborate: "To reduce an unlawful killing from murder to manslaughter upon the ground of sudden quarrel or heat of passion the provocation must be of the character and degree as . . . naturally would excite and arouse the passion, and the assailant must act under the influence of that sudden quarrel or heat of passion. [¶] The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted him were such as would have aroused the passion of the ordinarily reasonable person faced with the same situation. Legally adequate provocation may occur in a short or over a considerable period of time. [¶] The question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from passion rather than from judgment. [¶] If there was provocation, whether of short or long duration, but of a nature not normally sufficient to arouse passion, or if sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if an unlawful killing of a human being followed the provocation and had all the elements of murder, as I have defined it, the mere fact of slight or remote provocation will not reduce the offense to manslaughter. [¶] To reduce a killing upon a sudden quarrel or heat of passion from murder to voluntary manslaughter, the killing must have occurred while the slayer was acting under the direct and immediate influence of the quarrel or heat of passion. Where the influence of the sudden quarrel or heat of passion has ceased to obscure the mind of the accused and sufficient time has elapsed for angry passion to end and for reason to control his conduct, it will no longer excuse express or implied malice and reduce the killing to voluntary manslaughter. The question as to whether the cooling period has elapsed and reason has returned is not measured by the standard of the accused but the duration of the cooling period is the time it would take the average or ordinarily reasonable person to have cooled the passion and for that person's reason to have returned. [¶] Neither fear, revenge, nor the emotion induced by and accompanying or following an intent to commit a felony . . . nor any . . . or all of these emotional states in and of themselves constitute the heat of passion referred to in the law of manslaughter. Any or all of these emotions may be involved in a heat of passion that causes judgment to give way to impulse and rashness. Also, any one or more of them may exist in the mind of a person who acts deliberately and from choice, whether the choice is reasonable or unreasonable. [¶] The distinction between murder and manslaughter is that murder requires malice, where manslaughter does not. [¶] When the act causing the death, although unlawful, is done in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [¶] To establish that a killing is murder and not manslaughter the burden is on the People to prove beyond a reasonable doubt each of the elements of murder, and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel."
Defendant sees no such complication in asking jurors for their views about "heat of passion" killings. He places special reliance on People v. Williams (1981) 29 Cal.3d 392 (Williams), which held the trial court erred in refusing to allow the defendant to ask prospective jurors whether they would willingly follow an instruction to the effect that a person has a right to resist an aggressor by using necessary force and has no duty to retreat. (Id. at pp. 398, 412.) The trial court had been willing to permit a general question about whether the prospective jurors would follow self-defense instructions even if they disagreed with the law. (Id. at p. 398.) The People contended the more specific question violated a rule that jurors are not to be tested based on their knowledge of the law. (Id. at pp. 409-410.) To this the court responded, "It appears from the face of the questions however that their answers require no preexisting knowledge of legal doctrines, but only an expression of the venireman's attitude toward those doctrines, the relevant content of which is contained in the questions'" (Id. at p. 410, italics added.) Defendant in this case argues "[h]ere, as in Williams, the question proposed by the defense did not require prospective jurors to have any preexisting knowledge of concepts like 'heat of passion killing' or 'voluntary manslaughter.' Rather, the defense was interested only in prospective jurors' general attitudes towards those concepts, such as, for example, whether remaining prospective jurors had biases similar to those volunteered by prospective juror no. 57."
Defendant's reliance on Williams is unpersuasive for a number of reasons. First, we simply do not agree it would be practical to ask jurors about their "general attitudes" toward the concept of a killing in the heat of passion. The words have a special legal meaning that required several paragraphs of instructions from the court to explain. Prospective Juror No. 57 voiced reservations about excusing harmful acts because they were "done in a fit of passion," but we have no way of knowing whether Prospective Juror No. 57 understood the "heat of passion" doctrine does not exonerate a defendant charged with an unlawful killing, or that it is not the defendant's emotions that determine its application, but the manner in which an ordinarily reasonable person in his place would have reacted to the same circumstances. Without carefully pre-instructing the prospective jurors about the law on this subject, a juror's "general attitude" about it provides no useful information about possible bias or difficulty following the instructions.
Second, in Williams, the court had before it the particular question defense counsel sought to ask of prospective jurors and was therefore in a position to evaluate whether the question would have required pre-instructing the jury or delving into the evidence to be presented. Here, defendant never articulated specific questions he wanted to ask during voir dire, and has still not done so. For Williams's reasoning to apply here, defendant would have had to articulate to the trial court a question about the "heat of passion" doctrine that showed on its face no preexisting knowledge of legal doctrines would be required to formulate a meaningful response, and provided the relevant content of the doctrine in the question itself. Having failed to do so, defendant is not in a position to claim the trial court erred in precluding him from opening this subject up during voir dire.
Finally, we note Williams "[left] intact the considerable discretion of the trial court to contain voir dire within reasonable limits," and "reaffirm[ed] that it is not 'a function of the examination of prospective jurors to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.' " (Williams, supra, 29 Cal.3d at p. 408.) To the extent any vitality is left in Williams after the enactment of Proposition 115 (see People v. Leung (1992) 5 Cal.App.4th 482, 494), we do not find it demonstrates any abuse of that discretion here.
The trial court did not abuse its discretion or violate defendant's rights under the Sixth or Fourteenth Amendments by precluding voir dire questions specific to whether prospective jurors would have difficulty following legal instructions pertaining to heat of passion killings. B. Impeachment of Witness Griffin
Defendant contends the trial court abused its discretion and violated his Fourteenth Amendment right to a fair trial by permitting defense witness, Louis Griffin, to be impeached with his 1989 prior conviction for a theft-related crime.
1. Facts
Defendant moved in limine for an order precluding his witnesses from being subject to impeachment based on prior felony convictions or other conduct. At the hearing on the in limine motions, the prosecutor advised that the only defense witness with a prior felony conviction was Louis Griffin, who had a 1989 felony grand theft conviction. Defense counsel argued the conviction had little probative value for impeachment purposes since it took place nearly 20 years ago and there was no evidence Griffin had not led a law-abiding life since that time. At the court's request, defense counsel summarized Griffin's expected testimony, and explained that its relevance was "just to establish . . . there was contact between [defendant] and [Caldwell] . . . in the days leading up to the incident." Finding Griffin's credibility was going to be "in some respect at issue," the court allowed the impeachment evidence to be used, but provided the felony would be described as a "theft-related offense with no detail . . . other than that." To preempt the issue at trial, defense counsel asked Griffin near the conclusion of his direct testimony if he had suffered a felony conviction for a theft-related offense in 1989, to which Griffin answered affirmatively.
In his closing argument, the prosecutor introduced his discussion of the moving incident testified to by Griffin and defendant as follows: "Now, whether you believe this incident or not, it's not really material to your finding, I don't think. But I think their testimony is incredibly highly suspicious." Before going on to discuss the testimony, the prosecutor referenced the impeachment evidence once, as follows: "Let's talk about [Griffin]. He's the first defense witness. We know he's a felon." The prosecutor went on to question Griffin and defendant's entire story about the October 22 moving incident by pointing out certain highly implausible aspects of it: (1) the two men would have had to go completely out of their way and greatly lengthen their trip in order to have run into Caldwell in downtown Oakland; (2) although it would take four trips to move all of Griffin's belongings, they left the truck empty enough on the first trip that there was room in the front and back seats for Caldwell and Griffin to both have seats; and (3) despite not having begun the move until 7:30 or 8:30 in the evening, Griffin let defendant drive Caldwell home and leave him sitting alone in the truck for one hour and ten minutes while Caldwell and defendant socialized outside her apartment. The prosecutor characterized this as "the most bizarre, unusual moving pattern I have ever heard."
2. Analysis
We will assume without deciding that Griffin's 20-year-old theft conviction was too remote in time to constitute proper impeachment material. We nonetheless conclude, applying either the state or federal harmless error standard, that any error in allowing its use had no effect on the verdict in this case.
On appeal, defendant contends the October 22 encounter was significant in showing how his hopes were dashed on October 25 when Caldwell assertedly threw the bracelet back at him. This is wholly unpersuasive. In his closing argument, defendant's trial counsel had little to say about the substance or significance of Griffin's testimony beyond claiming it explained why defendant purchased the cards and jewelry on October 23 and assertedly felt optimistic and forward-looking at that time. Any relevance this evidence might have had on that point was entirely neutralized, however, by the undisputed testimony of defendant's friend, Reginald Allen, that defendant was upset and crying and complaining nothing was going well for him in the hours immediately preceding the killing. Defendant's alleged optimism a few days earlier seems inconsequential at that point in explaining his state of mind when he killed Caldwell since his hopes had already been dashed and he was crying and depressed about his future by the afternoon of the killing. By defendant's own account at trial, it was Caldwell's unexpected appearance with Allen on the 25th, her acceptance of the bracelet, and the fact she spoke cordially with him and accompanied him on a long ride that revived his hope. Whether or not the passions of an ordinarily reasonable person would have been aroused when that hope was allegedly dashed by Caldwell's sudden anger at him, defendant has not convincingly explained why his claimed contact with Caldwell three days earlier has any probative value on that question.
Defendant offered no contrary account of his mood.
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We also reject defendant's claim the evidence on the heat of passion issue was close. There was compelling evidence defendant had been stalking Caldwell for months. Defendant admitted he followed her to her place of work and accosted her at a BART station in April and May 2008. Caldwell's son and her boyfriend testified defendant repeatedly sought to contact her at her residence. It was undisputed she had obtained a restraining order against him and had called the police on October 6 when he approached her at a bar. It was also undisputed that Caldwell agreed to see him on the afternoon of the killing because she was concerned about his mental state. Defendant's claim that Caldwell nonetheless welcomed contact with him and fed his hope for a reconciliation was all based either on his own uncorroborated testimony or, in the case of Griffin's testimony, on a highly improbable story. But even if all of the defense evidence is credited, it shows at most Caldwell's behavior toward defendant was erratic and unpredictable in the months preceding the killing. After the conflicting signals Caldwell allegedly sent him throughout this time period, it does not stand to reason that an ordinarily reasonable person in defendant's position would have let his hopes get so out of control during the October 25 car ride that Caldwell's change of mood would have caused him to react with uncontrollable passion or rage. By defendant's own admission, his first reaction to her mood change was to ask her what was going on and try to calm her down. He "lost it" and became "rattled" only when she called him an insulting name. Defendant's entire story of what led up to and triggered his killing rage may have been enough to get to a jury on the issue of heat of passion, but it fell far short of creating a reasonable doubt on that question. Based on our review of the entire record, we find beyond a reasonable doubt that whether or not the jury heard witness Griffin had a prior conviction could not have affected its deliberations on the heat of passion issue.
III. DISPOSITION
The judgment is affirmed.
Margulies, J.
We concur:
Marchiano, P.J.
Banke, J.