IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 21, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANGUS MACINTYRE, DEFENDANT AND APPELLANT.
(Santa Cruz County Super.Ct.No. F13512)
The opinion of the court was delivered by: Duffy, J.
P. v. MacIntyre CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Angus MacIntyre of the first degree murder of his former worker's compensation attorney and the theft of his car. On appeal he claims that the trial court misinstructed the jury on second degree murder principles and erroneously permitted the prosecution to introduce evidence of threats he made to third parties. We find no entitlement to reversal and will affirm the judgment.
A jury convicted defendant of the first degree murder of Jay Broombecker. (Pen. Code, §§ 187, subd. (a), 189.) It found true an allegation that defendant intentionally discharged a firearm, causing death or great bodily injury. (Id., § 12022.53, subd. (d).) It also convicted defendant of unlawfully taking a motor vehicle. (Veh. Code, § 10851, subd. (a).) The trial court sentenced defendant to 53 years' to life imprisonment.
I. Prosecution Case
A. The Defendant
Defendant,*fn1 a military veteran, had strongly held political views. Next to the American flag he had sewn on his Carhartt vest, he had had a seamstress stitch the legend "Try burning this one." He was obsessed with what he perceived as the degenerate state of the United States, which in his view had come to be dominated by, e.g., "filthy [expletive] wetbacks" and "[expletive] immigrant slime liberals that [expletive] run this country." He was angry that Bloombecker, his worker's compensation attorney, sympathized with leftist points of view. During closing argument at defendant's murder trial, the prosecutor acknowledged that "Angus MacIntyre is nuts. . . . You listened to the man testify, and he's got this thought process that is not rational. . . . [¶] However, . . . he isn't nuts in any way that excuses his behavior in the law."
B. The Killing of Jay Bloombecker
In November 2000, defendant filed a claim for worker's compensation benefits arising from his former job as a bulldozer operator. He declared that because of a job-related back injury he could not work at all, but his erstwhile employer disputed the claim. In October of 2001 he retained Bloombecker to represent him on his worker's compensation claim. Defendant began to clash with Bloombecker and his office staff, complaining about his physical pain and a doctor's recommendation that he see a psychologist to help deal with the worker's compensation claim. He believed that the attorney was both gay and a "communist bastard."
Eventually, in 2005, defendant's worker's compensation case settled, and on favorable terms, but defendant continued to fume about it. Defendant told Bloombecker that he had been cheated out of a fair settlement and left angry messages about the outcome. At one point defendant sent Bloombecker a letter declaring that he would take unspecified action if the attorney did not provide better assistance. It appears that defendant sent this letter after the case settled.
Defendant also believed that Bloombecker continually slighted him on the ground that he was insane. Bloombecker, defendant testified in his case-in-chief, would tell defendant that he was crazy.
Defendant carried with him sufficient rage that he told a number of people, including strangers, that he wanted to kill Bloombecker. In two cases he made these comments weeks before he committed the killing. The individuals to whom defendant communicated his desires testified at trial. In some of the conversations he was matter-of-fact about his thinking. Speaking to one man, a patron defendant encountered at a Santa Cruz bar, defendant declared, "I want to hunt the SOB down and put a bullet in his head," "I want to get my .45 pistol and shoot him in the head," specifically in "the back of the head." Defendant told the bar patron that once in prison he would be able to get medical care for his back. Defendant told another individual that it bothered him that Bloombecker, as defendant perceived him, was politically leftist.
Defendant also displayed hostility toward third parties. He left a telephone message about 2:00 a.m., laced with ethnic slurs, threatening to kill former fellow employees. He also left phone messages for Cynthia Kollerer, a claims adjuster on his worker's compensation claim, containing vulgar and profane language and threatening her life.
On June 14, 2006, nine months after defendant last saw Bloombecker, he located him at his office and made good on his threats. He killed Bloombecker with a .45-caliber pistol. Red-faced, he came home and told his roommate that he had killed the attorney. The next day defendant later went to a diner in an agitated state and told the owner and another patron what he had done. Then defendant and the diner patron went to the Santa Cruz Superior Court for defendant to surrender. Defendant told a sheriff's deputy that he had killed Bloombecker and that the gun he used could be found in Bloombecker's car, which defendant had taken.
In a confession that was video-recorded and played to the jury, defendant told Santa Cruz police investigators that he had premeditated the killing of Bloombecker. Defendant explained that he had been planning the "[p]re-meditated, first degree" murder of Bloombecker for "about a month" before the killing; he also said that he had been contemplating the killing for "[a] long time." He was determined to obtain "revenge" for the mistreatment to which he felt Bloombecker had subjected him.
During his confession, defendant also told police that he killed Bloombecker on his third visit of the day to the attorney's office. The first two times he had not been able to locate Bloombecker. When he finally did locate Bloombecker he tried to shoot him but his .45-caliber pistol jammed, so he cleared the round from the gun and then was able to fire the fatal shot as Bloombecker attempted to call the police. He operated in a stealthy manner in carrying out the killing.
After shooting Bloombecker, defendant found Bloombecker's car keys and drove off in the attorney's car.
II. Defense Case
Defendant testified on his own behalf. On direct examination, he told the jury that he had been "thinking about" committing the killing "for a little while," meaning, defendant clarified elsewhere in his testimony, "[a]bout three weeks." The prosecutor cross-examined defendant on this topic: "You admit you murdered him?" Defendant answered "Yeah." "You admit it was premeditated?" Again defendant answered "Yeah." The prosecutor suggested, "you made a decision," and defendant agreed: "I understood that I made a decision, yes." "When you went to the law office, you went there to kill him, didn't you?" "I had it on my mind, yeah," defendant answered. "It was premeditated, wasn't it, Mr. MacIntyre?" "I thought about it, I did," defendant answered. Defendant would have desisted, however, if Bloombecker had "apologized and offered to admit his crimes." Defendant explained that he was provoked to commit the killing and killed only as a "final choice" after exhausting all other possibilities to obtain justice on his worker's compensation claim.
Defendant confirmed that he visited Bloombecker's office three times on the day he killed him, carrying a gun, although on the first visit he meant only to confront him verbally. On the third and fateful attempt defendant was carrying two fully loaded magazines in his left pocket. Before shooting Bloombecker, he told him, "I'm going to use it [the gun] to put your head on the end of a pike."
Defendant attempted to shoot Bloombecker but the gun failed to discharge. "I saw that the first round had jammed so I . . . worked the . . . stuck round loose. It ejected out of the gun. I let the slide go. Another round entered into the chamber." This newly chambered round enabled defendant to fire the fatal shot immediately after clearing the jammed round.
At sentencing, the trial court heard victim-impact statements and then permitted defendant to speak. In his allocution, defendant admitted killing the attorney--"if I wouldn't have killed him, somebody else would have," he contended. Defendant called his victim a "monster" whose worker's compensation law practice had destroyed lives and asserted that the attorney "got what he deserved." The court characterized these remarks as "self-serving garbage" and told defendant that he was "sick" and "perverted" before pronouncing sentence.
I. Instructing on Second Degree Murder
Defendant claims that the trial court violated his right to due process of law, specifically his right to present a defense, under the Fourteenth Amendment to the United States Constitution when, at his request, it gave an erroneous instruction on second degree murder. In defendant's view, the instructional language, which his counsel was careless to have sought, prevented the jury from considering his unreasonable but honestly held beliefs about provocation, beliefs that sufficed to reduce the proper conviction from first degree murder to murder in the second degree.
In substance, this is a claim of instructional error under state law on which defendant has overlaid a constitutional due process gloss. Our resolution of defendant's state law claim therefore will yield the answer to his due process claim. "[R]ejection on the merits of a claim that the trial court erred . . . necessarily leads to rejection of the newly applied constitutional 'gloss' as well. No separate constitutional discussion is required in such cases, and we therefore provide none." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5.)
At the request of defense counsel, the trial court instructed the jury that it should return a second degree murder verdict if it found that defendant was provoked and that the provocation prevented him from premeditating. The court defined the nature of the "necessary provocation" as "any conduct by the victim, or conduct reasonably believed by the defendant to have been engaged in by the victim, . . . which arouses in the defendant any violent, intense, high-wrought or enthusiastic emotion that causes the defendant to act without deliberation or premeditation." (Cf. CALCRIM No. 522.) In defendant's view, the court erred by including the word reasonably in its instruction because, unlike heat of passion voluntary manslaughter, second degree murder contains no requirement that the provocation be objectively reasonable. He theorizes that as long as the provocation or perceived provocation put him in such a mental state as to prevent him from premeditating and deliberating, he could be guilty only of second degree murder, and it is immaterial whether or not his belief that Bloombecker was provoking him was objectively reasonable. His defense, he asserts, was that the victim drove him to a homicidal rage by inadequate representation and belittling him, and that the instruction undercut this defense by disallowing a second degree murder verdict unless the jury found that defendant was reasonable to perceive the victim as such a malign individual.
Neither party believes that the doctrines of invited error or waiver apply here. (See Pen. Code, §§ 1259, 1469.) We will proceed to the merits of defendant's claim.*fn2
As we will explain, it is questionable whether in these circumstances the trial court should have allowed an instruction on second degree murder at all.
Defendant, to be sure, believes he was entitled to such an instruction, and moreover an accurate one; he relies on "the rule that even when provocation is inadequate to negate the existence of malice so as to reduce the offense to manslaughter, the trial court must nonetheless instruct . . . on second degree murder if there is evidence from which the jury could find that the defendant's decision to kill was a direct and immediate response to the provocation such that the defendant acted without premeditation and deliberation." (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705.) In defendant's view, the response need only have been subjectively understandable as arising from defendant's anger and not objectively justifiable as reasonable. "The test of whether provocation or heat of passion can negate deliberation and premeditation so as to reduce first degree murder to second degree murder . . . is subjective." (People v. Padilla (2002) 103 Cal.App.4th 675, 678.)
Defendant's claim confronts immediate problems. Even though defendant's mental state may have led him to a subjective perception that Bloombecker was his enemy, there was no substantial evidence of any kind of legally cognizable provocation, whether subjective or objective. The facts of this case point toward a classic premeditated and deliberate murder, i.e., "cold, calculated judgment, including one arrived at quickly [citation], and . . . evidenced by planning activity, a motive to kill, or an exacting manner of death. [Citation.] Such state of mind 'is manifestly inconsistent with having acted under the heat of passion--even if that state of mind was achieved after a considerable period of provocatory conduct.' " (People v. Carasi (2008) 44 Cal.4th 1263, 1306.)
To justify a second defendant murder instruction there must be evidence not just of any kind of provocation generically, but of provocation precipitating, as Fenenbock said, "a direct and immediate response." (People v. Fenenbock, supra, 46 Cal.App.4th at p. 1705; accord, People v. Wickersham (1982) 32 Cal.3d 307, 329, overruled on another ground in People v. Barton (1995) 12 Cal.4th 186, 201.) The provocation must belie or negate the idea that defendant premeditated the murder, as Wickersham explained: "Thus, where the evidence of provocation would justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately, the trial court is required to give instructions on second degree murder under this theory. The fact that heated words were exchanged or a physical struggle took place between the victim and the accused before the fatality may be sufficient to raise a reasonable doubt in the minds of the jurors regarding whether the accused planned the killing in advance." (Wickersham, supra, at p. 329.)
"In the present case," the Wickersham court concluded, "there was such evidence. The jury could have found that appellant did not form the intent to kill her husband until after he had mentioned the gun, come toward her, and tried to grab it from her." (Wickersham, supra, 32 Cal.3d at p. 329.) "The jury could have found that appellant did not premeditate but rather acted upon a 'sudden and unconsidered impulse.' " (Id. at p. 330.)
In contrast to the principles and facts set forth in Wickersham, the record here offers defendant no support. The parties have not alerted us to any substantial evidence of lack of premeditation and deliberation. Seldom have we seen a case in which premeditation and deliberation were so solidly shown. Defendant repeatedly testified that he premeditated and deliberated the murder, thinking about it for weeks, casing Bloombecker's office repeatedly on the day of the killing, and methodically clearing a jammed round from the gun when it failed to fire on defendant's first attempt. He affirmed his testimony during his allocution before being sentenced. Even if one discounts his testimony and allocution as coming from a deranged individual, strong independent evidence established long-standing premeditation and deliberation: defendant had gone around town telling people (at times matter-of-factly) about his homicidal plan for weeks before he carried it out. Defendant offered specifics to one interlocutor about how he would execute Bloombecker--he would shoot him in the head--and the killing conformed to those specifics.
Under the circumstances of this case, it is doubtful that a second degree murder instruction was required at all, and defendant probably received an unjustified benefit by the trial court's giving one, even if the instruction should have omitted the reference to reasonableness.
Except perhaps when the prosecution proceeds on a felony murder theory, which was not the case here, "it is settled that '[s]econd degree murder is a lesser included offense of first degree murder.' " (People v. Taylor (2010) 48 Cal.4th 574, 623.)
"A criminal defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and an erroneous failure to instruct on a lesser included offense constitutes a denial of that right. To protect this right and the broader interest of safeguarding the jury's function of ascertaining the truth, a trial court must instruct on an . . . offense that is less serious than, and included in, a . . . greater offense . . . , whenever there is substantial evidence raising a question as to whether all of the elements of the charged greater offense are present." (People v. Huggins (2006) 38 Cal.4th 175, 215.) Thus, " ' "such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude" ' that the lesser offense, but not the greater, was committed." ' [Citation.] The classic formulation of this rule is expressed in People v. Webster  54 Cal.3d 411, 443: 'When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense . . . .' " (Ibid.)
As alluded to, the parties have not pointed us to substantial evidence that would meet the foregoing standard, i.e., that defendant was guilty of second degree murder and not first degree murder.*fn3 Thus, it is unlikely that defendant was entitled to any instruction on second degree murder. (People v. Carasi, supra, 44 Cal.4th at pp. 1306, 1308.)
Against these fundamental difficulties, defendant can offer only implausible speculation. In his view, the following reasons justify his view that the murder may not have been premeditated and deliberate, which we answer seriatim:
(1) Provocation may arise from "a series of events over a considerable period of time." (People v. Borchers (1958) 50 Cal.2d 321, 328.)
That, however, begs, i.e., overlooks, the fundamental question whether there was material provocation, i.e., provocation precipitating "a direct and immediate response." (People v. Fenenbock, supra, 46 Cal.App.4th at p. 1705.) Defendant said it himself to the Santa Cruz police: he wanted "revenge" against Bloombecker. He contemplated the killing for weeks, bringing up the topic within the hearing of numerous individuals in Santa Cruz. It is settled that a revenge motive vitiates any notion of voluntary manslaughter (People v. Carasi, supra, 44 Cal.4th at p. 1306), and in these circumstances (see People v. Siplinger (1967) 252 Cal.App.2d 817, 820-822), we think it does not suffice to reduce first degree murder to second degree murder either (see id. at p. 824).
(2) Even if defendant did cool off at times in the months preceding the shooting, there was substantial evidence that his anger was "newly aroused in the minutes preceding the shooting."
That may be, but defendant showed himself capable of premeditation and deliberation in the company of angry or paranoid outbursts, and it is only speculation to argue that any anger defendant may have felt in Bloombecker's office moments before he shot him canceled, obviated, reduced, or derailed the weeks of premeditation and deliberation he had engaged in about killing him.
(3) Defendant did not tell the witnesses who testified against him that he was going to kill Bloombecker, but only that he would like to do so.
Even if we granted full credit to defendant's interpretation of the record, it would remain an insurmountable obstacle to his contention that statements of inclination to do something bear on intent or plan. (See People v. Anderson (1990) 52 Cal.3d 453, 476-477.)
(4) At the same time that defendant was admitting at trial that he committed a premeditated murder, he was insisting that he was provoked, and if the provocation was sufficient it would be legally inconsistent with a conviction of first degree premeditated and deliberate murder.
As we have stated, however, the record does not point to any substantial evidence to justify a second degree murder conviction on a provocation theory, i.e., evidence not just of provocation generically, but of provocation precipitating "a direct and immediate response." (People v. Fenenbock, supra, 46 Cal.App.4th at p. 1705; accord, People v. Wickersham, supra, 32 Cal.3d at p. 329.)
There was no reversible error under state law, and defendant is not entitled to relief under the due process clause of the Fourteenth Amendment to the United States Constitution.
II. Permitting the Introduction of Evidence of Threats to Third Parties
Defendant contends that the trial court violated his Fourteenth Amendment due process rights by permitting the prosecution to introduce evidence of threats he made against Cynthia Kollerer and his former fellow employees at the job site.
Though couched in constitutional terms, this is in essence a state-law claim that the evidence was irrelevant (see Evid. Code, §§ 210, 350), improper character evidence under Evidence Code section 1101, and substantially more prejudicial than probative and hence inadmissible under Evidence Code section 352. The same constitutional gloss considerations apply here as we applied to defendant's claim of instructional error. (People v. Lewis and Oliver, supra, 39 Cal.4th 970, 990, fn. 5.)
The trial court resolved the parties' motions in limine regarding this evidence ~(CT 93-97, 272-275)~ by permitting it to be introduced as relevant to "undermining . . . [defendant's] claim of provocation specific to the acts of Mr. Bloombecker as opposed to all these other people he was mad at[.]" ~(RT 7; see RT 10.)~
Thereafter, as mentioned, the jury heard evidence that defendant left threatening phone messages for Kollerer and his former fellow employees. Defendant's threats against Kollerer prompted a California Highway Patrol investigation and resulted in multiple misdemeanor convictions for making criminal threats by telephone (Pen. Code, §§ 422, 653m, subd. (a)).
"On appeal, 'an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence . . . .' " (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)
The parties dispute the nature of the threats and their concomitant admissibility. The People argue that this evidence was admissible as comprising generic threats. "A generic threat is admissible 'where other evidence brings the actual victim within the scope of the threat.' " (People v. Crew (2003) 31 Cal.4th 822, 842.) The character evidence prohibition contained in Evidence Code section 1101 does not bar the introduction of such evidence. (People v. Lang (1989) 49 Cal.3d 991, 1013-1016.) Defendant argues that he made no generic threats, but rather threats to or about specific individuals, and so the generic threat rule does not apply and the evidence could not be admitted under that doctrine. Defendant is correct about the nature of the threats, but a generic threat is a floor, not a ceiling; threats against specific individuals that bear on intent, plan, and the like are likewise admissible. (See People v. Manson (1976) 61 Cal.App.3d 102, 141 ["declarations to foment bloodshed, even without specific reference to a particular victim, are relevant because the actual method and manner of the killings substantially conformed to" them].) "It is only necessary that the threats show 'some connection with the injury inflicted on the deceased.' " (Id. at p. 140.)
Defendant next argues that the evidence was minimally probative and substantially prejudicial, partly because it was unduly inflammatory and partly because it was improperly cumulative, and so should not have been admitted. We disagree. The trial court did not abuse its discretion in ruling, as noted, that the evidence tended to undermine any portion of his defense that might rest on notions of provocation by Bloombecker specifically. It was not the kind of evidence that " ' " 'uniquely tends to evoke an emotional bias against a party as an individual' " [citation] or . . . would cause the jury to " ' "prejudg[e]" a person or cause on the basis of extraneous factors.' " [Citation.]' " (People v. Foster (2010) 50 Cal.4th 1301, __ [2010 Cal. LEXIS 11680, *59].) Nor was it unduly cumulative. Defendant argues that it was so because the better evidence came from the witnesses who testified regarding his comments about killing Bloombecker. But "trial courts are not required to exclude all cumulative evidence and if evidence has substantial relevance to prove material facts which are hotly contested and central to the case, it is not 'merely cumulative.' [Citations.] And while [the] testimony portrayed defendant as a dangerous person inclined to violence, the trial court was not obliged for this reason to exclude it." (People v. Lang, supra, 49 Cal.4th at p. 1016.) Of course this was a pretrial ruling, meaning that the court had to rely on the parties' representations. (See id. at p. 1015.) Depending on the manner in which matters proceeded at trial, defendant could have been within his rights to ask the court to revisit the ruling. Defendant testified, however, that Bloombecker provoked him in a manner that accounted for his killing of him, so we need not consider that scenario.
In sum, defendant's evidentiary claim is without merit, and no violation of his constitutional due process rights occurred.
The judgment is affirmed.
WE CONCUR: Rushing, P. J. Elia, J.