IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 25, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DEMARIO RICHARD WIGGINS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F05496)
The opinion of the court was delivered by: Robie , Acting P. J.
P. v. Wiggins
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Demario Richard Wiggins guilty of the second degree murder of his girlfriend and unlawful possession of a firearm. It also found he personally used and discharged a gun to inflict the fatal injury.
On appeal, defendant contends the trial court erred in failing to instruct sua sponte on the lesser included offense of sudden quarrel/heat of passion voluntary manslaughter. We affirm.
Defendant and his girlfriend, Tersha Brown, shared an apartment on Garden Highway. They argued frequently.
In the late afternoon of the shooting, the couple's downstairs neighbor heard a moaning upstairs; a few minutes later, he saw defendant run down the stairs. Defendant returned minutes later with the apartment manager, and the neighbor joined them upstairs. Tersha was on the floor, a gun was near her feet, and the manager was on the phone with a 911 operator.
Tersha died of a gunshot wound to the head; she had been shot behind the right ear.
In a dumpster between defendant's apartment and the manager's office, police found a GAP bag pierced by a bullet hole that contained cash, a spent bullet casing, an empty gun magazine, and marijuana.
Forensic tests established that the spent casing in the GAP bag was expended from the gun in defendant's apartment, and that the same gun fired the bullet that killed Tersha.
Defendant's right hand and the GAP bag tested positive for gunshot residue.
From the lack of stippling marks to Tersha's skin, the coroner's investigator hypothesized at trial that the gun could have been shot through the bag.
Responding officers observed that defendant had injuries to his upper left arm, his stomach, chest, and to the back of his neck, but at trial they could not recall whether the injuries were fresh or old.
Defendant was charged with first degree murder as to which it was alleged he intentionally and personally used a firearm in the commission of the offense.
Tersha's friend Jodi testified at trial that Tersha telephoned her about two weeks before the shooting sounding fearful, crying, and hysterical. Tersha said she had "had a fight" with defendant, during which he had bitten her arm and put a gun to her cheek. Defendant threatened to burn down her grandmother's house if Tersha called the police.
About half an hour before the shooting, Tersha telephoned Jodi, again sounding hysterical. Tersha kept repeating "he left, he left," and said she was going to be late for an appointment, and defendant apparently did not care if he made her late. But soon defendant returned to the apartment, alone, and Tersha hung up.
The People also introduced evidence that in 1998, during an argument with his then-girlfriend, defendant poked her in the eye, slapped her, pushed her, kicked her, and dragged her along the ground.
Defendant did not testify. The defense challenged the adequacy of the People's evidence and proffered a variety of theories of defense: that the shooting was an accident, because defendant did not believe the gun was loaded; that he acted without malice, although he might have acted negligently; and that he had no motive to shoot Tersha.
The jury was instructed on theories of first degree murder, second degree murder, and involuntary manslaughter.
The jury found defendant guilty of the first degree murder charge. It found him guilty of second degree murder and found he intentionally used a firearm to kill Tersha. It also found him guilty of unlawful possession of a firearm by a felon.
"In a criminal case, a trial court must instruct on general principles of law relevant to the issues raised by the evidence, even absent a request for such instruction from the parties. [Citation.] The obligation extends to instruction on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present, but not when there is no evidence that the offense committed was less than that charged. [Citation.]" (People v. Cruz (2008) 44 Cal.4th 636, 664.) "[A] trial court must instruct on provocation/heat of passion as a theory of manslaughter, if supported by substantial evidence, even when the defendant objects on the basis that the instructions would conflict with his theory of the defense. [Citation.]" (Ibid.; see also People v. Barton (1995) 12 Cal.4th 186, 195.)*fn1
"However, the 'substantial' evidence required to trigger the duty to instruct on such lesser offense is not merely 'any evidence . . . no matter how weak' [citation], but rather '"evidence from which a jury composed of reasonable [persons] could . . . conclude"' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Cruz, supra, 44 Cal.4th at p. 664.) We review de novo the question of whether the trial court erred in failing to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
Manslaughter is an unlawful killing without malice. Malice is presumptively absent when a defendant kills "upon a sudden quarrel or heat of passion" (§ 192, subd. (a)), provided that the provocation is sufficient to cause an ordinarily reasonable person to act rashly and without deliberation, and from passion rather than judgment. The offense is thus reduced to voluntary manslaughter -- a lesser included offense of murder. (People v. Breverman (1998) 19 Cal.4th 142, 153-154; People v. Cruz, supra, 44 Cal.4th at p. 664.)
A heat of passion theory of manslaughter has both an objective and a subjective component. (People v. Moye (2009) 47 Cal.4th 537, 549; People v. Cole, supra, 33 Cal.4th at pp. 1215-1216.) To satisfy the objective or "'reasonable person'" element of this form of voluntary manslaughter, "'"the accused's heat of passion must be due to 'sufficient provocation.'" [Citation.]' [Citation.] . . . 'The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]'" (Moye, at pp. 549-550; see also People v. Avila (2009) 46 Cal.4th 680, 705; People v. Breverman, supra, 19 Cal.4th at p. 163.) To satisfy the subjective element of this form of voluntary manslaughter, "the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. [Citation.]" (Moye, at p. 550; see also People v. Cole, supra, 33 Cal.4th at pp. 1215-1216 [defendant must actually, subjectively, kill under heat of passion].)
The record here contains no evidence to support an instruction on sudden quarrel/heat of passion manslaughter.*fn2 There was no evidence of Tersha's conduct between the time defendant arrived in the apartment and the shooting, let alone any evidence she acted in an objectively provocative way. (See People v. Moye, supra, 47 Cal.4th at pp. 549-550.) During closing argument, defense counsel acknowledged as much: because "there's no evidence whatsoever as to exactly what was going on in that room prior to the gun being discharged," he urged the jury to conclude it is not possible to know what was going on between defendant and Tersha just before the gun was fired. That Tersha was upset within half an hour of the shooting because defendant was "late" and would cause her to miss an appointment provides no evidence she later spoke or acted toward defendant in a manner "sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (People v. Moye, supra, 47 Cal.4th at pp. 549-550.) Nor does the fact that defendant had some physical injuries of indeterminate age at the time of the shooting provide evidence from which a reasonable jury could draw any conclusion about Tersha's conduct immediately before the shooting.
Nor was there any evidence from which a jury could conclude that defendant actually killed in the heat of passion. (People v. Manriquez (2005) 37 Cal.4th 547, 585 [subjective element of sudden heat of passion killing not met where no showing that defendant exhibited anger, fury, or rage when he started firing handgun at victim].) Absent evidence "'defendant in fact did act under [the heat of passion]'" (People v. Cameron (1994) 30 Cal.App.4th 591, 601), no instruction was warranted.
The judgment is affirmed.
We concur: BUTZ , J. MAURO , J.