IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 16, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DANNY RAY POPLIN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 07F00063)
The opinion of the court was delivered by: Butz , J.
P. v. Poplin CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted defendant Danny Ray Poplin of first degree murder of a fetus (Pen. Code, §§ 187, subd. (a), 189--count one),*fn1 infliction of corporal injury on the mother of his child (§ 273.5, subd. (a)--count two), and assault upon the mother with a deadly weapon, a knife (§ 245, subd. (a)(1)--count three). The jury found that defendant personally used a knife (§ 12022, subd. (b)(1)) in the commission of all counts, personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) in the commission of count two, personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of count three, and personally inflicted injury resulting in the termination of a pregnancy (§ 12022.9, subd. (a)) in the commission of counts two and three. The trial court found that defendant had a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12.) He was sentenced in April 2010 to state prison for a determinate term of 13 years plus an indeterminate term of 50 years to life.*fn2
On appeal, defendant contends his murder conviction must be reversed because (1) the trial court erroneously denied his requests to instruct the jury sua sponte on voluntary manslaughter, and (2) CALCRIM No. 522 on provocation is prejudicially misleading where, as here, no voluntary manslaughter instruction is given. We shall affirm the judgment.
Defendant and Vanessa Roberts, both of whom are deaf, met at a New Year's party in 2001 and began dating. In October 2002, Roberts gave birth to their son and they moved in together. Defendant abused Roberts emotionally and physically during their relationship. On one occasion, he threatened her with a knife because he did not want her to go to a store. As a result of his repeated physical abuse of Roberts, defendant had misdemeanor domestic violence convictions in July 2003, March 2004, and December 2004.
When defendant was released from jail in 2006, he moved into Roberts's apartment. In September 2006, their relationship was going poorly and defendant left for three days. While he was away, Roberts visited their friends, Mary, Leon, and Matt, a group of deaf people who lived upstairs in the apartment complex. The group used methamphetamine that evening and Roberts departed at 3:00 a.m.
When defendant returned, he heard a false rumor that Roberts had slept with Matt. Defendant immediately confronted Roberts about the rumor, and she told him she had not slept with Matt. He did not believe her, and he continued to raise the issue over the next several months.
In October 2006, Roberts learned that she was pregnant. Defendant accompanied her to medical appointments. In November 2006 they learned that the baby was a boy.
Despite the pregnancy, defendant continued to physically abuse Roberts. In December 2006, he began to question her about whether he was the child's father,*fn3 and he continued to question whether she had slept with Matt.*fn4 At another point defendant said that he would hit her if she claimed the baby was his, but he would not hit her if she said the baby was not his. When she told him she had not slept with Matt, defendant punched her in the eye.
On December 31, 2006, the anniversary of when they began dating, defendant and Roberts planned to stay home with their child. They rented movies and bought fast food. Roberts ate and took a nap. When she awoke, defendant, who had been drinking during the day, was seated in a chair and appeared to be angry. Roberts went to the bathroom and sat on the toilet. Defendant entered the bathroom and struck Roberts in the face. Roberts put her hands up to defend herself. Defendant asked, "is that Matt's sperm in you." Roberts said, "no, it's not," left the bathroom, and tried to escape out the front door.
Before Roberts could leave the house, defendant grabbed her by the back of the neck and pulled her onto a couch. When he went to the kitchen, she again moved toward the front door. He caught her, held up a 13-inch butcher knife, and asked, "did Matt put his sperm in you?" When she again said "no," he stabbed her in the abdomen. Then he withdrew the knife and stabbed her again. When he again withdrew the knife, she observed "massive blood" and what she perceived to be the "baby['s] [or her own] body parts" protruding from the wounds.
Defendant "freaked out" and repeatedly said "I don't want to go to jail." The son, who had turned four years old in October, cried and screamed after witnessing the stabbing. The three of them walked two blocks to the apartment of Roberts's mother.
The son told his grandmother, "My daddy hurt my mommy. He killed my baby brother." Roberts arrived with her intestines protruding from her stomach. Emergency personnel arrived, and Roberts was taken to a hospital and underwent surgery at 7:22 p.m. The baby was delivered by C-section at 7:30 p.m. on December 31, 2006, but was stillborn.*fn5
I. Voluntary Manslaughter Instruction
Defendant contends his murder conviction must be reversed because the trial court denied his request to instruct the jury on the elements of voluntary manslaughter "as an essential definitional ingredient of the element of malice aforethought in the crime of murder." Relying on dictum in People v. Carlson (1974) 37 Cal.App.3d 349 (Carlson), defendant reasons "a manslaughter intent aimed at the woman carrying the fetus can . . . , pursuant to the doctrine of transferred intent, be transferred to the fetus that is actually killed. In this way, [defendant] was in fact legally entitled in this case to an instruction on voluntary manslaughter." We are not persuaded.
Defendant filed a motion to admit evidence and instruct the jury on the offense of voluntary manslaughter. (§ 192, subd. (a).) The motion acknowledged People v. Dennis (1998) 17 Cal.4th 468 (Dennis), which holds that voluntary manslaughter is not a lesser offense of murder when the victim is a fetus. (Id. at p. 510.) However, the motion argued that disallowance of the lesser included offense violated defendant's federal due process and equal protection rights.
The prosecution responded that the California Supreme Court and Courts of Appeal have repeatedly held that the crime of manslaughter does not apply to the killing of a fetus.
The motion was heard and denied without argument from either side.
"'Murder is the unlawful killing of a human being with malice aforethought. [Citation.] A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. [Citation.]' [Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] 'But a defendant who intentionally and unlawfully kills lacks malice . . . in limited, explicitly defined circumstances: either when the defendant acts in a "sudden quarrel or heat of passion" [citation], or when the defendant kills in "unreasonable self-defense"--the unreasonable but good faith belief in having to act in self-defense [citations].' [Citation.] Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder [citation]." (People v. Breverman (1998) 19 Cal.4th 142, 153-154 (Breverman).)
"Such heat of passion exists only where 'the killer's reason was actually obscured as the result of a strong passion aroused by a "provocation" sufficient to cause an "'ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.'"' [Citation.] To satisfy this test, the victim must taunt the defendant or otherwise initiate the provocation." (People v. Carasi (2008) 44 Cal.4th 1263, 1306 (Carasi).)
"Under the Penal Code, as was true under common law, a fetus is not a 'human being' within section 187's definition of murder as 'the unlawful killing of a human being . . . .' (Keeler v. Superior Court (1970) 2 Cal.3d 619, 628, 631.) After Keeler, the Legislature amended section 187 specifically to include as murder 'the unlawful killing of . . . a fetus . . . .' [Citation.] The Legislature made no similar amendment to section 192's definition of manslaughter as 'the unlawful killing of a human being without malice.' As a result, the unlawful killing of a human being, or a fetus, with malice aforethought is murder, but only the unlawful killing of a human being can constitute manslaughter. [Citation.] There is no crime in California of manslaughter of a fetus." (Dennis, supra, 17 Cal.4th at pp. 505-506.)
Instructions on lesser included offenses are required only where there is "'"'evidence from which a jury composed of reasonable [persons] could . . . conclude'" that the lesser offense, but not the greater, was committed.'" (People v. Moye (2009) 47 Cal.4th 537, 553.) Because there was no evidence negating malice, instructions on voluntary manslaughter were not required. (Ibid.)
Defendant counters that he acted upon heat of passion initiated by Roberts (Carasi, supra,44 Cal.4th at p. 1306), and that this heat of passion "can . . . , pursuant to the doctrine of transferred intent, be transferred to the fetus that is actually killed" (citing Carlson, supra, 37 Cal.App.3d 349). Because intent can be transferred in this manner, defendant reasons that he was entitled to an instruction on voluntary manslaughter. We disagree.
As noted, the function of heat of passion evidence is to negate the element of malice that otherwise inheres in a homicide. (Breverman, supra, 19 Cal.4th at pp. 153-154.) Defendant was not charged with attempted murder of Roberts, and the parties did not litigate whether he intended his stab wounds to kill Roberts, as opposed to the fetus. Nor did the parties litigate whether Roberts's death was likely but defendant was consciously indifferent to that prospect. (See People v. Rios (2000) 23 Cal.4th 450, 454 (Rios).) Thus, the parties did not litigate whether defendant acted toward Roberts with malice that heat of passion could negate. Even if there was sufficient evidence of defendant's "sexual jealousy" toward Roberts, the evidence did not show a resulting intent to kill Roberts in the heat of passion or a resulting conscious disregard of the prospect of her death from the stab wounds. Even if the evidence had shown one of those results, there was no evidence that the sexual jealousy had been caused by Roberts, as opposed to defendant himself. (Carasi, supra,44 Cal.4th at p. 1306.)*fn6
Because defendant did not intend to kill Roberts, no such intent could be transferred from her to the fetus. Defendant's reliance on Carlson, in which the husband killed the wife in the heat of passion and, by the same physical act, also killed her fetus, is misplaced. (Carlson, supra, 37 Cal.App.3d at p. 355.)*fn7
In any event, the holding of Carlson is that there is no crime of voluntary manslaughter of a fetus. (Carlson, supra, 37 Cal.App.3d at p. 355.) Nothing in Carlson suggests that defendant was entitled to a jury instruction on a nonexistent crime.
Defendant claims the prosecution's burden to prove malice aforethought beyond a reasonable doubt includes the obligation to negate heat of passion and imperfect self-defense; thus, instructions on voluntary manslaughter were required. The argument rests primarily on Justice Kennard's dissenting opinion in Breverman, supra, 19 Cal.4th at page 187. There Justice Kennard opined: "Given the manner in which California has structured the relationship between murder and voluntary manslaughter, the complete definition of malice is the intent to kill or the intent to do a dangerous act with conscious disregard of its danger plus the absence of both heat of passion and unreasonable self-defense. Where, as here, there is sufficient evidence of heat of passion to support a voluntary manslaughter verdict, murder instructions that fail to inform the jury it may not find the defendant guilty of murder if heat of passion is present are incomplete instructions on the element of malice." (Breverman, at pp. 189-190 (dis. opn. of Kennard, J.).)
Defendant does not contend he (1) acted upon a sudden quarrel or heat of passion initiated by the fetus (Carasi, supra,44 Cal.4th at p. 1306; Breverman, supra, 19 Cal.4th at pp. 153-154), or (2) believed in good faith that he had to act in self-defense against the fetus (Breverman, at pp. 153-154). Nor could defendant so contend, because, as he recognizes, the requisite evidence does not exist in this case, or, perhaps, in any other.
We have explained that there was not "sufficient evidence of heat of passion" as to either Roberts or the fetus. (Cf. Breverman, supra, 19 Cal.4th at p. 189 (dis. opn. of Kennard, J.).) For that reason alone, defendant's reliance on Justice Kennard's dissent is misplaced. Because the issue of provocation was not "'properly presented'" in this murder case, the People had no duty to prove beyond a reasonable doubt that the circumstance of provocation was lacking in order to establish the malice element of murder. (Rios, supra, 23 Cal.4th at pp. 461-462.) There was no instructional error.
II. CALCRIM No. 522
Defendant contends CALCRIM No. 522 was "prejudicially misleading" because it was "not given in conjunction with" a voluntary manslaughter instruction. We disagree.
CALCRIM No. 522 (new Jan. 2006) told the jury: "Provocation may reduce a murder from first degree to second degree. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder."
Defendant claims the word "provocation," as commonly understood, "denotes an incitement of some sort external to the person 'provoked.'" Indeed, our Supreme Court has noted that "provocation . . . is the defendant's emotional reaction to the conduct of another, which emotion may negate a requisite mental state." (People v. Ward (2005) 36 Cal.4th 186, 215, italics added (Ward).)
Defendant claims this common understanding is too narrow, because the provocation need not flow from the "conduct of another" (Ward, supra, 36 Cal.4th at p. 215), or, indeed, from any source "external to the person 'provoked.'" For example, People v. Padilla (2002) 103 Cal.App.4th 675 (Padilla) held that a hallucination (a "perception with no objective reality" that was wholly internal to the defendant and unrelated to any external influence) was sufficient to negate deliberation and premeditation so as to reduce murder from first degree to second degree. (Padilla, at pp. 678-679.) In defendant's view, CALCRIM No. 522 would be clearer if the term "provocation" were replaced by the term "heat of passion," which may arise from a hallucination as well as from the conduct of another.*fn8
Defendant has not attempted to show that he committed the murder while under the influence of a hallucination or other factor unrelated to the conduct of another. He claims he was "in a highly-wrought state of emotion, fueled by alcohol, cocaine, and methamphetamine"; however, he nowhere claims that this emotion would have existed but for his interactions with Roberts and, possibly, Matt.*fn9 (Ward, supra, 36 Cal.4th at p. 215.)
Thus, defendant's arguably clearer version of CALCRIM No. 522, inviting jurors to consider internal factors as well as provocative conduct by others, would not have encompassed any trial evidence that was beyond the reach of the given instruction. It is not reasonably probable that jurors instructed as suggested by defendant would have returned a verdict of second degree murder. (Breverman, supra, 19 Cal.4th at p. 178; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Moreover, because there was no evidence upon which the modified instruction would have operated, any error in failing to modify the instruction did not prevent defendant from presenting a defense. Thus, the Chapman standard of prejudice does not apply. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; see also Crane v. Kentucky (1986) 476 U.S. 683, 689-690 [90 L.Ed.2d 636, 644-645].)
Contrary to defendant's suggestion, the trial court could not have cured the alleged deficiency in CALCRIM No. 522 by giving a voluntary manslaughter instruction (CALCRIM No. 570). Although the voluntary manslaughter instruction uses the term "heat of passion," it also requires the jury to consider "whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (CALCRIM No. 570; see Padilla, supra, 103 Cal.App.4th at pp. 678-679.) As Padilla explains, the "heat of passion" described in CALCRIM No. 570 is narrower than the "provocation" described in CALCRIM No. 522 because it does not include heat of passion arising from wholly subjective factors. It is not reasonably probable that defendant could have fared any better had a "clarifying" voluntary manslaughter instruction been given. (Breverman, supra, 19 Cal.4th at p. 178; Watson, supra, 46 Cal.2d at p. 836.)
The judgment is affirmed.
We concur: ROBIE , Acting P. J. MAURO , J.