APPEAL from a judgment of the Superior Court of San Bernardino County, John M. Tomberlin, Judge. Affirmed. (Super. Ct. No. FVI025111)
The opinion of the court was delivered by: Irion, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Timothy George Pscholka appeals his conviction of the first degree murder of Ronald Stringer, contending the trial court erred by not specifically instructing the jury that if it found Pscholka committed murder but had reasonable doubt whether the murder was first or second degree, it could only find him guilty of second degree murder. We hold the trial court did not err because the instructions actually given to the jury adequately conveyed this point, and therefore we affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Pscholka and Stringer had known each other for several years when Pscholka, a handyman, agreed to help Stringer fix up a property Stringer had bought in Lucerne Valley. Stringer promised Pscholka a weekly salary, room and board, a vehicle, a cellular telephone and "a home for the rest of [his] life there." Stringer did not keep all of these promises, however. For example, Stringer stopped paying Pscholka the weekly salary after four months even though Pscholka worked for a year, eventually took the vehicle away and never provided a telephone. These broken promises made Pscholka feel "frustrated" towards Stringer.
The relationship between the two men was further strained when, approximately two weeks before he was killed, Stringer took Pscholka to help out with some construction projects at Stringer's brother's house in Utah. Stringer's brother paid Pscholka $500, and Pscholka gave Stringer $300 of that money to keep for him. After they returned to California, Stringer left Pscholka in Lucerne Valley for several days without adequate money, food, beer or cigars. When Pscholka asked Stringer for return of the $300 about a week later, Stringer did not give it to him. These incidents made Pscholka feel "frustrated," "unhappy" and "very upset" towards Stringer.
Matters became worse when Stringer's son showed up with a friend at the Lucerne Valley property the day before Stringer died. Stringer, his son and his son's friend walked around the property and discussed various projects that needed to be done, but they did not include Pscholka in their conversation. Pscholka viewed Stringer's son as a "threat to [his] life" because the son had once told Pscholka "[t]o fit in and do things his way"; he had "very intimidating tattoos like he's been in a gang or jail"; and "[h]e always brought guns with him" to the Lucerne Valley property. Stringer's son's visit therefore made Pscholka feel "alienated" and "very suspicious."
The next day Pscholka and Stringer's relationship irretrievably broke down. After having worked around the property for a few hours, Pscholka decided to quit working because it was too hot to continue. Stringer was not pleased and kept on "bugging" Pscholka to do more work. Pscholka tried to ignore him but became so "frustrated" that he decided to leave the property to "blow off, any like build up." Pscholka asked Stringer if he could use the motorcycle to take a ride but Stringer refused, so he decided to go for a walk instead. Pscholka had traveled down the road only a short distance when he realized he had no money and turned back. Upon his return, Pscholka noticed Stringer had placed a chair at the entry gate and faced it away from the property, which Pscholka considered "a threat . . . [t]hat somebody's gonna get [him], because they're waiting for [him], [he's] being waited on. Um, [he's] uh, going to [lose] [his] physical health because of this person that can sit here and uh, wait for [him]." Pscholka was so "piss[ed] off" and "frustrated" that he picked up a "pry bar" and searched the property for Stringer so the two of them could "get down to this nitty gritty."
When Pscholka eventually found Stringer seated on a motorized scooter*fn1 near the chicken coop, Pscholka shouted obscenities at him. When Stringer "start[ed] moving forward to get up," Pscholka "whacked him in the arm" with the pry bar. Stringer kept moving towards Pscholka, who "got scared [be]cause [he did not] know if [Stringer]'s . . . got his . . . revolver, or somebody's on the property." Pscholka therefore "hit him in the arms again" and he "went down." Pscholka was "scared" that Stringer might get up, so he kicked him in the head at least 20 times with steel-toed boots. Once Pscholka started doing so, he thought to himself that he "can't let the man up, until he's [obscenity omitted] dead," and so Pscholka "decided to kill him." When Stringer "started getting up again," Pscholka "went and got [a] steel pipe," "came back and . . . beat him in the head, hit him once and then hit him again. And then just threw the pipe down. And you know, it was over. [Pscholka] knew for sure . . . ."
After he killed Stringer, Pscholka searched Stringer's pockets for the $300 he had given to Stringer for safekeeping, but found only $4; removed his bloodied pants and boots and threw them in a trashcan; donned clean clothes; drove one of Stringer's vehicles into town to buy beer and cigars; and then returned home to sleep.
When Pscholka awoke at around 4:00 the next morning, he telephoned the police. The police took Pscholka into custody. After waiving his Miranda*fn2 rights, Pscholka gave a video- and audio-recorded interview in ...