(Super. Ct. No. CRF08297)
The opinion of the court was delivered by: Murray , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Billy David Mulkey was charged with the second degree murder of Keith Hendricks. (Pen. Code, § 187, subd. (a)*fn1 -- count I.) As to the second degree murder charge, it was further alleged that defendant intentionally and personally discharged a firearm (a rifle). (§ 12022.53, subds. (b), (c) & (d).) Defendant was also charged with three counts of assault with a firearm (a shotgun) involving three alleged victims: Amanda Cavagnaro, Brian Maudlin, and Everett Hawkins. (§ 245, subd. (a)(2) -- counts II, III & IV.) The case proceeded to a jury trial at which defendant testified. Only defendant and the victim were present at the time of the shooting, so defendant was the only eyewitness to what occurred when the victim was killed. The jury found defendant guilty of second degree murder and found true the firearm allegation. The jury acquitted defendant on the remaining charges.
Following denial of defendant's new trial motion grounded on claims of instructional error, the trial court sentenced defendant to a state prison term of 15 years to life for the second degree murder conviction and a consecutive state prison term of 25 years to life for the firearm enhancement. Defendant appealed.
On appeal, defendant contends that the trial court erred when it: (1) refused to instruct on involuntary manslaughter, (2) incorrectly instructed on antecedent threats related to imperfect self-defense, (3) instructed the jury with CALJIC No. 2.21.2, and (4) denied defendant's verbal posttrial motion, which he now characterizes as a "request to discharge his retained counsel." We reject defendant's arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim here, Keith Hendricks, was shot and killed by defendant. After initially denying that he shot the victim, defendant eventually admitted to law enforcement and at trial that he did. The focus at trial was how the shooting occurred and the level of defendant's culpability for the homicide.
A. Prosecution's Case-In-Chief
On June 22, 2008, the victim and his wife Rosales Hendricks were at their residence on Wild Rose Way in Yuba County. Mrs. Hendricks's mother, Wanda Tallen, lived one block away on Wild Rose Way. Defendant lived next to Tallen. With the Hendricks's permission, several individuals lived in a trailer on the Hendricks's property, including Everett Hawkins, Ashley Hays, Amanda Cavagnaro, and Brian Maudlin.
The victim was five feet eight inches tall and weighed approximately 160 pounds. He had a "crippling" bone disease, walked "bent over" with a swing in his hip, and had an arthritic hand. The victim had previously sustained a gunshot wound to his right hand necessitating surgical reconstruction.
On the evening of June 22, 2008, around 6:00 to 7:00 p.m., Mrs. Hendricks received a telephone call from Tallen, who complained that defendant's dogs had gotten loose and attacked Tallen's dogs. The victim, dressed only in silk boxer shorts and wearing sandals, drove to his mother-in-law's house to assess the situation. After visiting Tallen, the victim drove toward defendant's property by himself. According to Mrs. Hendricks, the victim was upset. Indeed, this was not the first time the victim had discussed defendant's dogs with defendant.
Ten to 15 minutes after the victim left, Mrs. Hendricks heard two gunshots. Hawkins, Hays, Cavagnaro, and Maudlin also heard two gunshots. The second shot occurred within seconds of the first.
Before the gunshots, Maudlin heard the victim screaming at defendant about the dogs, saying "your fucking dogs are chewing my dogs up back up on grandma's property again. You need to keep your dogs on a leash or p[e]nned up."*fn2 Preceding the gunshots, Hays heard both the victim and defendant yelling.
Following the two gunshots, Hawkins, Hays, Cavagnaro, and Maudlin spotted the victim's truck heading away from defendant's property, and they watched as the truck briskly passed the trailer on the Hendricks's property. The victim was not known to drive fast on that road (which was rocky and heavily rutted), so the rapid pace of the truck was unusual. The driver had something like a towel covering his face but based on his hair, the witnesses could tell that the driver was not the victim.
After the truck passed by the trailer, instead of going toward the Hendricks's homestead, the truck turned the other direction and was later heard crashing into a rock. When Hawkins and Maudlin reached the truck, it was still running and nobody was inside. Hawkins heard somebody running through the bushes and Maudlin heard a similar noise.
Concerned about the gunshots, Hawkins, Maudlin, and Cavagnaro drove to defendant's house. When they arrived at defendant's property, they found defendant standing on his property holding a shotgun. They mentioned the gunshots and inquired "over and over" about the victim, but defendant did not respond. Defendant looked up, stared off into space and uttered something about trying to be a good neighbor, or never wanting problems with his neighbors, or people "always starting --." What defendant said was jumbled and difficult to understand. Defendant ejected two shells from his gun, one of which was spent. Hawkins handed the spent shell to defendant and kicked the other shell into the bushes. Cavagnaro tried to step around defendant with her flashlight to look for the victim, but defendant pointed the shotgun at the trio and told them to get off his property. Hawkins thought the shotgun was not loaded. Nevertheless, they left defendant's property and went to the Hendricks residence, after which law enforcement was contacted.
2. The sheriff's investigation and defendant's statements
Deputies from the Yuba County Sheriff's Department, including Kai Jahnsen and William High, were dispatched to the scene at approximately 9:30 p.m. that night. The deputies met defendant at the entrance to his property. Defendant appeared nervous and sweaty.
The deputies informed defendant that they had received information that a neighbor had come to talk to him about a problem with dogs, shots were fired and the neighbor never returned. Defendant stated that his neighbor had left. The deputies indicated that they wanted to make sure he was not on the property and not injured. Defendant reluctantly allowed the deputies on his property.
Deputy High discovered a shotgun shell on the ground and picked it up. Deputies Jahnsen and High also observed what appeared to be a puddle of blood on the ground that was still moist and partially dried. Defendant claimed that the puddle came from a dog he had killed a few days earlier. When the deputies inquired as to the location of the carcass, defendant stated that he had burned it and showed the deputies the burn pile where the conflagration supposedly occurred. The deputies did not find any carcass or animal bones there. When the deputies inquired as to the gunshots heard earlier that evening, defendant stated that he had fired a few rounds to bring the dogs back home.
Detectives were called to defendant's property. Sergeant Million, the lead investigator, responded to the scene somewhere around midnight or the early hours of the morning on June 23 and spoke with Deputies High and Jahnsen. Deputy Jahnsen drove defendant to the Brownsville substation and Sergeant Million followed.
At the substation, Sergeant Million interviewed defendant for five to six hours with breaks in between. During the interview, defendant repeatedly denied shooting the victim. Defendant explained that the victim drove to defendant's property and a dispute ensued over the dogs. At one point, defendant's dogs were running behind the victim. Defendant feared the dogs were gathering in a pack formation, so defendant shot twice over the top of the dogs to scare them back to their pen. Everything calmed down, the victim drove off and defendant did not see him again. At some point thereafter, some people who were yelling and screaming approached defendant. Defendant unloaded his shotgun in front of them and told them to leave. Million raised the possibility of defendant shooting the victim accidentally, when attempting to scare off the dogs, or in self defense, but defendant persistently denied shooting the victim. Defendant mentioned that the victim had threatened him before, had threatened him on the night of the shooting, and had threatened to shoot him in the past. Defendant further indicated that everyone in the area carries a gun because of mountain lions, and that the victim usually carried a gun. According to Sergeant Million, defendant seemed "startled and dazed" and was animated at times during the interview. Defendant commented that things seemed gray in his mind and were in a blur, and he explained that his brain had been damaged by Depakote and Lithium. Nevertheless, on multiple occasions during the interview, defendant "adamantly" denied that he had shot the victim. After the interview, defendant was transported to the main sheriff's office in Marysville.
Meanwhile, at defendant's residence, Deputy Brett Felion conducted a crime scene investigation in the early hours of June 23. The deputies had obtained a search warrant to search defendant's property. During the search, Deputy Felion found the victim's body in a wheelbarrow, covered by a tarp that was held in place by a tire. The body was located approximately 111 feet from the blood pool the deputies had discovered earlier. The deputies discovered a pistol grip shotgun lying on the seat of a Ford F250 located on defendant's property, not far from the victim's body.
At approximately 9:50 a.m. on June 23, Detective Michael Williamson interviewed defendant at the sheriff's office. Defendant had told another detective that he wanted to speak to somebody, so Detective Williamson met with him. Defendant informed Detective Williamson that he killed "Keith" (the victim) and that he was "just beginning to remember." Defendant explained that the victim drove up to defendant's property and approached defendant. The victim was angry and yelling about defendant's dogs getting loose. Defendant was carrying a 30/30 rifle that he always carried when he walked around his property. Defendant stated that he was shocked and scared by the victim's approach. The two exchanged words and, at some point, the victim pushed defendant and began slapping at him. Defendant conceded that he shot the victim, causing the victim to fall onto the ground. Defendant stated that he fired twice, but he could not remember the details of the second shot. Defendant acknowledged that the victim did not have a gun, knife or any other weapon. Upon seeing the victim on the ground, defendant could see the gunshot wound to the chest. Defendant attempted to stop the bleeding, but it was too severe and the victim died. Defendant explained that he put the body in a wheelbarrow and moved it, and that the body was still hidden in the wheelbarrow under a tarp near a trailer at the end of his driveway. Detective Williamson discussed the possibility that defendant had been driving the victim's truck and the accounts of witnesses who observed a person driving the truck with a rag covering his or her face. Defendant did not recall driving the victim's truck, but acknowledged that he used paper towels to wipe his face and that is possibly what the witnesses had observed.
Later in the afternoon of June 23, Sergeant Million visited with defendant in a holding cell. Million asked defendant where the rifle was and defendant told Million where he had placed it. Based on defendant's directions, the deputies at the scene found the 30/30 lever-action rifle concealed in the brush on defendant's property. The rifle had been wedged in the brush some 15 to 30 feet off the trail as if to hide it.
On the morning of June 24, Sergeant Million spoke with defendant about his admission to detective Williamson that he shot the victim. Defendant stated that the victim had approached him, the victim swung on him, and because defendant felt he had no choice, he shot the victim.
Later on June 24, Detective Williamson relayed information from the victim's autopsy to Sergeant Million. Sergeant Million spoke with defendant again, hoping to clarify how the victim received his gunshot wounds. Defendant told Million that the victim had approached him in an angry manner. Defendant verbally described what occurred and physically demonstrated as he spoke. Defendant was holding a dog in his left hand and he had his lever-action rifle in his right hand down at his side. The victim slapped the dog out of defendant's hand and then swung at defendant with his right fist. As the punch followed through and missed, defendant stepped back, grabbed his rifle with both hands and, from his hip, fired a shot at the victim. As defendant was falling back, he worked the lever action at hip level and fired a second shot. Initially, defendant said the victim had fallen onto his back when the second shot was fired. The autopsy information indicated that one shot entered the front portion of the victim's torso and another shot entered the back of victim's torso, so Million pointed out that what defendant described could not have happened. He asked defendant if he shot the victim in the back while the victim lay on the ground. Defendant stated that he would never do that, and then explained that the first shot spun the victim around and then defendant shot the victim in the back and the victim landed face-first on the ground. Defendant then rolled the victim onto his back, noticed that he had multiple wounds, and stated "why did you do that[?]"
Defendant stated that his wife was inside a building on the property, and she came out at one point. Defendant told her everything was okay and to go back inside. Defendant did not recall driving the victim's truck and crashing it, but he affirmatively stated that his wife did not drive the truck. Defendant tried to put the victim's body in the truck, but he could not lift the body inside. Eventually defendant put the victim in a wheelbarrow, pushed him a distance, and placed a tarp over the victim. Defendant recalled people confronting him after the shooting and inquiring about the victim's whereabouts. Defendant unloaded his shotgun in front of them because he did not want to shoot them or harm them.
According to Sergeant Million, defendant appeared to be more rested and had more memory of the incident on June 24 as compared to defendant's previous interaction with Sergeant Million on June 23. Sergeant Million acknowledged that defendant told him during the interview on June 24 that he believed he had no choice and did not mean to shoot, that he never planned to shoot, that the shooting just happened under the circumstances, and defendant described the shooting as "the gun went off."
Sergeant Million testified that a 30/30 lever-action rifle does not chamber a round automatically after being fired. Instead, the shooter must manually move the lever action to chamber another round of ammunition. He testified that it is preferable to carry this weapon with the hammer half-cocked because that position is a safety mechanism. The rifle will not accidentally discharge by touching the trigger or dropping it when the hammer is in the half-cocked position.
The autopsy revealed two gunshots to the torso. One bullet entered the victim's upper left chest and traveled from left to right, penetrating the right side of his heart and the right lung, exited just below his right armpit, and reentered the right arm. Bullet fragments were recovered from the right arm. The path of this bullet was very slightly upward, maybe five degrees at the most.
The other bullet entered through the upper back, about three quarters of an inch to the right of the spine, penetrated the left lung, exited the chest, reentered through the top of the left armpit, and exited the outside surface of the upper left arm. This bullet traveled more steeply upward relative to the body than the chest wound. Either shot individually was fatal.
Based on the assumption that the shot to the left chest was first, the pathologist opined that the victim had been turned away from the shooter when that shot was fired, resulting in the left-to-right trajectory. "The shot [to the back] would follow if [the victim] continued to turn and wound up completely turned around with a second shot falling to his back with him also collapsing away from the direction of the shooter, causing the bullet to pass at a more upward angle as it went through his body."
Based on the location of the exit and re-entry wound in the armpit, the forensic pathologist opined that the victim's right arm would have been down at his side when the chest wound was inflicted, but he could not give an opinion about the position of the left arm. However, the left arm would have been down at the victim's side when the gunshot wound to the back was inflicted based on the location of the exit and re-entry wound in the armpit, and because the victim's right arm was broken, that arm probably also would have been down when the victim was shot in the back.
Based on the stippling on the skin around both entry wounds, the forensic pathologist estimated that the shots were fired from approximately three to three and a half feet away. Had the muzzle been closer, there would have been more stippling around the entry wounds and the pattern of stippling would have been smaller. Also, at six to eight inches, gunpowder soot would be present.
1. Testimony of Phillip Routan
Phillip Routan had known defendant for 15 years and had met the victim probably eight to 15 times. Routan did not recall that the victim walked with a limp and he did not notice anything significant about the way the victim walked. On a single occasion about a year before the shooting, Routan observed the victim carrying a holstered pistol on defendant's property. Routan asked the victim about the pistol and the victim pulled it out and uttered some offensive term, but he did not threaten anyone with the gun. Routan did not know why defendant discharged his firearm at the victim, but if Routan were there at the time, he would have assumed the victim was armed and "it would have put [defendant] in a heightened state of being."
At approximately 10:00 p.m. on the night of the shooting, defendant called Routan and told him to drop everything, "get up to the mountain," and get defendant's wife out of there -- it was an emergency. Although Routan asked defendant what was wrong, defendant did not elaborate and instead just said, "[G]et up here. It's an emergency. Get up here now." Routan set out for defendant's property but was eventually stopped by deputies on the scene.
Defendant testified that he and the victim were longtime friends, "like family." They had an inconsistent relationship but "kept a peaceful rapport." Despite a hand operation, the victim had a good handshake and could handle a pistol. Within a month prior to the shooting, defendant had seen the victim "run like a gazelle."
Defendant owned and kept guns on his property, which he referred to as "mountain lion country." Defendant is a "Black Powder enthusiast" and has "been invited to join" such clubs as the "Sierra Muzzle Loaders." He indicated he had received firearm training in the Coast Guard, where he served for four years.
Defendant had previously observed the victim with a revolver and a rifle. The victim had a gun almost every time defendant saw the victim.
On one occasion, the victim stuck a rifle in defendant's face when defendant was trying to move some items on a pallet down the road. The victim's eyes were dilated and he looked wild. The victim's attitude changed when defendant stated he was glad to see the victim.
Occasionally defendant would visit the Hendricks residence whereupon defendant would be informed by Mrs. Hendricks that the victim was "off the hook," meaning that he was very angry. Defendant would "have a smoke" with the victim and "calm him down." Defendant "finally surmised" that the victim's anger spurts stemmed from the fact that he was "out of drugs," specifically methamphetamine. A mutual neighbor had informed defendant that the victim and others "were doing crank." One time defendant thought he saw methamphetamine crystals on a serving tray in the victim's room.
Earlier on the day of the shooting, the victim visited defendant's property while defendant was working on a dog pen. The victim stated that defendant's dogs had attacked one of Tallen's dogs and that defendant needed to apologize to her. Both the victim and defendant were concerned about the dog situation.
Subsequently, defendant visited Tallen's house with his wife to make peace. After defendant examined the injured dog, defendant concluded that the dog had been injured by cable or wire. Tallen was glad to see defendant and when defendant left Tallen's residence, everything was fine.
Defendant then visited the Hendricks residence to inform the victim that he had made peace with Tallen. Defendant tried to explain that his dogs had not harmed Tallen's dog. The victim stated that he "didn't give a damn or something" and if defendant's "dogs come over on the property anymore, he would shoot them." Defendant responded that if the dogs went onto the victim's property and the victim shot them, "there is nothing I can do." Defendant then "turned around and left in peace," but the victim had a "threatening attitude."
When defendant returned home, he noticed that two of his dogs had escaped from the pen, and he went looking for them in the woods. He carried his rifle because "the mountain lion was around" and his dogs typically yielded when signaled by his rifle. When defendant's wife screamed "Billy," he returned and noticed that the victim was on defendant's driveway wearing only silk-looking boxer shorts. Defendant was troubled by the victim's yelling.
Defendant had his dog "Scout" in his arm. He put the dog down and placed his 30/30 rifle in his left hand. Defendant said "peace, brother" to the victim. The victim was standing with the sun directly behind him. Defendant testified he "couldn't see anything" because he had sweat in his eyes. He could only "see where [the victim's] figure was." Defendant did not know whether the victim was carrying a firearm but defendant did not see one. There was, however, "something silver" in the victim's hand that "reflected from the sun."
The victim walked up to defendant as defendant descended a hill. Later during direct examination, defendant testified that he could see the victim's eyes and the victim looked "really mad, really angry." Defendant further observed that the victim's eyes were "really black and dilated." Defendant "knew he'd been doing crank."
Standing right in front of defendant, the victim said "I'm sick and tired of you and your God damn dogs, and I'm going to kill all your dogs and you too." The victim swung at defendant with an object in his right hand. Defendant testified that he did not know what the object was. He did not know whether it was a knife or a gun. Defendant moved back, holding his right hand up. The victim made contact about four or five inches above defendant's right wrist, leaving a mark that Sergeant Million later pointed out to defendant. Then the victim came back around with his left hand and slapped defendant on the top of his head and grabbed defendant's rifle. Defendant pulled back on the rifle. Defendant's hand came back on the hammer as he fell backward onto his elbows and the gun went off as he hit the ground. When asked whether the gun fires without pulling the trigger, defendant explained that he "think[s] if the hammer goes down" on his rifle then "the gun goes off." When the victim grabbed the gun and defendant pulled back on it, defendant's "hand slipped down the rifle." Defendant explained that "[i]t's possible when your hand is sliding down the rifle for the hammer and the trigger to get depressed and for the firing mechanism just to be released." Had the gun not fired, defendant believed the victim was going to kill him.
Defendant testified that he was "[p]ositive" the victim remained standing after the first shot was fired. The sun was still behind the victim and defendant could see the victim's silhouette. There was gravel under defendant's feet and defendant fell down onto his elbows again. Defendant testified that "the gun went off again" -- "that's when the second shot evidently went off." The direct examination concluded as follows:
"[DEFENSE COUNSEL]: Do you remember if you cocked the gun the second time, and it's a yes ...