(Super. Ct. No. 08F04840)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found two brothers, defendants Shawn Christopher Shepherd (Shawn) and Jason Shepherd (Jason), guilty of second degree murder for killing their uncle, David Bishop. The jury acquitted both defendants of first degree murder and rejected for Jason the lesser included offenses of voluntary and involuntary manslaughter. These lessers were not given as options for Shawn. The jury also found Jason guilty of burglary, identity theft, and forgery and Shawn guilty of identity theft and forgery but not burglary.
On appeal, Shawn and Jason raise numerous contentions relating to the evidence, the instructions, and their attorneys' performances. Disagreeing with these contentions but agreeing with Shawn that his abstract of judgment is incorrect, we order his abstract modified and affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2008, Jason and Shawn were living with their uncle Bishop in Bishop's two-bedroom Sacramento apartment. Also living with them were Jason's girlfriend, Monique Sprague, and Sprague's four-year-old son.*fn1
In the middle of the night on Wednesday, May 7, 2008 (when according to Sprague she and Jason were using methamphetamine), Sprague discovered her underwear missing from the dresser she kept in the living room. She told Jason, and he suspected Bishop was the culprit because a few years back Bishop had taken Jason's daughter's and mother's underwear. Jason said he was going to "kick [Bishop's] ass."*fn2
When Bishop came out of the shower and was in his own bedroom, Jason confronted him, and Bishop asked what he had done. Jason told him that he knew what he had done and that he was going to "kick [his] ass." Bishop then pushed Jason, and Jason hit him in the jaw with his fist. Bishop stumbled back, but then, according to Jason, Bishop came at Jason with a pocketknife and tried to stab him. Jason reached out his hand to stop the knife from coming at him. Jason and Bishop wrestled over the knife, and Jason ended up pushing himself off of Bishop. Jason then grabbed a baseball bat that was near the door and hit Bishop on the side of the head two or three times. Bishop fell to the ground in a fetal position away from Jason with his feet tucked up and his head up by the wall. He was bleeding from his ear. He was not moving but sounded like he was breathing. Jason put the knife in his own pocket.
Jason left Bishop's room, and Sprague bandaged his hand in the hallway, which by Jason's estimation took about 10 minutes.*fn3
Jason decided to tie up Bishop "[i]n case he were to . . . wake back up" and retaliate and went back into Bishop's room. Jason had Shawn go into Bishop's room with him and when Shawn did, Shawn stared at their uncle who was still in the same fetal position. Shawn asked Jason "what the hell was going on." Jason yelled at Shawn to either help him find something with which to tie up Bishop or to grab him some rope that was on the floor. Shawn handed Jason some rope. Jason took the rope and grabbed whatever other cords he could find and tied up Bishop's hands, feet, and neck. As Jason was tying Bishop up, he was not fearful of an imminent attack by Bishop. Jason and Shawn were in the bedroom for about 10 minutes.*fn4
Jason then went to Circle K to buy cigarettes. He returned 15 to 20 minutes later and asked Shawn to check on Bishop. Shawn did, and according to Jason, Shawn said Bishop was dead. According to Sprague, Bishop had not died yet, as she heard gurgling sounds coming from Bishop's bedroom through the night or the next morning (which was Thursday, May 8). According to a neighbor who lived beneath Bishop's apartment, somewhere between 8:00 a.m. and 10:00 a.m. on Friday, May 9, which was the neighbor's birthday, she heard a loud thud upstairs followed by a male's voice moaning in pain. The moaning petered out about 10 to 15 minutes later.
Upon Jason's return from Circle K, Jason told Shawn that he was going to cash Bishop's IRS refund check and use the money to leave. Jason asked Shawn and Sprague to help him search for it. Jason found the check, and Sprague forged Bishop's signature on the check. Jason then called a friend and asked him how to cash a check without identification. The friend told him to use a Vcom machine, which is similar to an ATM machine and permitted cashing a government check.
According to Jason, he then made two trips to Vcom machines to cash the check. However, photographs taken by the Vcom machines showed a different person trying to cash the check on each of the two occasions (one appeared to be Jason and the other Shawn) and there was handwriting on the back of one of the Vcom receipts that contained Bishop's identifying information that appeared not to be Jason's handwriting (and could have matched Shawn's). The check was declined both times. Jason pawned Bishop's pool cue to get money to leave town.
On May 9, 2008, at 9:09 a.m., Jason and Shawn rented a U-Haul truck in Sacramento. They drove the U-Haul truck back to Bishop's apartment and loaded his dead body into a garbage can and then into the truck. Jason and Shawn dumped Bishop's body off a bridge in Jackpot, Nevada.
On June 16, 2008, Bishop's body was discovered by kayakers in Twin Falls, Idaho. His body was extensively decomposed. His neck, arms, legs, and ankles were bound together with one continuous rope. The way the rope was tied, if Bishop were to have moved his arms and legs, a slip knot would have tightened around his neck. There was also a green bungee cord wrapped around each ankle and an electric cord wrapped twice around his left foot. There was a laceration on his right frontal scalp and beneath that laceration his skull was fractured. The cause of death was blunt force head injuries that could have been caused by a baseball bat.
The Court's Instruction On The Right To Self-Defense
By An Initial Aggressor (CALCRIM No. 3471) Was Correct
Jason contends the court's instruction on the right to self-defense by an initial aggressor was incorrect, in violation of his federal constitutional rights. The court instructed pursuant to CALCRIM No. 3471 that "If you decide that the defendant, Jason Shepherd, started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to stop fighting." (Italics added.) Jason argues the court erred in using the words "'could not withdraw from the fight'" instead of "could [not] retreat in safety." We reject Jason's contention because the California Supreme Court has used these terms interchangeably.
Specifically, in People v. Hecker (1895) 109 Cal. 451, the court stated the defendant was entitled to an instruction justifying the murder if the defendant "was put in such sudden jeopardy by the acts of deceased that he could not withdraw . . . ." (Id. at p. 461, italics added.) Later in the opinion, the court explained the same concept as follows: "the counter assault [by the deceased] be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense." (Id. at p. 464, italics added.)
Based on our Supreme Court's usage of the two terms interchangeably, we reject Jason's contention the instruction on self-defense was wrong.
The Court's Instruction On Corpus Delicti
(CALCRIM No. 359) Was Correct
Jason contends the court undercut the People's burden of proof when it instructed that the jury could determine the degree of homicide solely from his statements to police. Specifically, the court instructed that "[a] defendant may not be convicted of any crime based on his out of court statements alone" but that "[i]dentity of the person who committed the crime and the degree of the crime may be proved by the defendant's statement alone." (CALCRIM No. 359.) Jason is wrong because of California Supreme Court precedent to the contrary.
Specifically, in People v. Cooper (1960) 53 Cal.2d 755, our Supreme Court rejected the defendant's contention that the People must establish that the murders were of the first degree by evidence other than his extra-judicial statements. (Id. at p. 765.) The court explained as follows: "'[The] corpus delicti in a case involving first degree murder consists of two elements, namely, the death of the victim and the existence of some criminal agency as the cause. [Citations.] Once prima facie proof of the corpus delicti is made, the extra-judicial statements, admissions, and confessions of a defendant may be considered in determining whether all the elements of the crime have been established.' [Citation.] 'The corpus delicti of the crime of murder having been established by independent evidence, . . . extra-judicial statements of the accused . . . may be used to establish the degree of the crime.'" (Ibid.)
Based on our Supreme Court's approval of a defendant's extra-judicial statements to establish the degree of murder, we reject Jason's contention the instruction on corpus delicti was wrong.
The Court Did Not Err In Refusing To Sua Sponte Instruct On Voluntary Intoxication, And Jason's Counsel Was Not Ineffective
Jason contends the trial court's failure to provide instructions on intoxication relating to imperfect self-defense and heat of passion and his counsel's failure to request those instructions violated his constitutional rights to a fair trial and effective assistance of counsel. We disagree.
The court must instruct sua sponte on the effect voluntary intoxication can have upon a defendant's ability to form the requisite criminal intent "'when the evidence warrants and the defense is not inconsistent with the defendant's theory of the case.'" (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661.) If the evidence of intoxication is "at most minimal" the court is not required to give the instructions. (People v. Williams (1988) 45 Cal.3d 1268, 1311.) "However, an intoxication instruction is not required [even] when the evidence shows that a defendant ingested drugs or was drinking, unless the evidence also shows he became intoxicated to the point he failed to form the requisite intent or attain the requisite mental state." (Ivans, at p. 1661.)
Here, the evidence of intoxication was minimal and did not show that Jason was intoxicated to the point he could not form the requisite specific intent. Sprague testified she and Jason used methamphetamine 8 or 10 hours before the fight with Bishop. She did not know whether the methamphetamine had any effect on Jason. When Jason was under the influence of methamphetamine, Sprague recalled he would be moody, irritable, and unable to sleep. Jason testified he had not used methamphetamine that day. He slept from about 1:00 a.m. to about 7:30 a.m. and was not in a "crazed state" when he fought with Bishop. From this evidence, the most that can be said is that even if Jason had consumed methamphetamine, it was 8 to 10 hours before the fight and there was no evidence on this occasion it affected him by the time he fought Bishop. The court therefore had no sua sponte duty to instruct on voluntary intoxication.
Similarly, defense counsel was not ineffective for deciding not to ask for instructions on voluntary intoxication because his decision was a rational trial tactic. (See People v. Bradford (1997) 14 Cal.4th 1005, 1052 [appellate courts reverse convictions on the ground of inadequate counsel only if the record affirmatively discloses that counsel had no rational tactical purpose for his act or omission].) In closing, defense counsel decided to argue that Sprague was lying about Jason's drug use on the night before the fight. Sprague's testimony that Jason had ingested methamphetamine was part and parcel of her testimony that she found her underwear missing when she and Jason were getting high and told Jason about it at that time. If the jury credited Sprague's testimony, it might have decided that Jason had more time to premeditate and deliberate about killing Bishop, with little chance the jury would find Jason was in fact still under the influence of methamphetamine during the killing that occurred many hours later, thereby leading to a first degree murder conviction.
The Court Properly Did Not Instruct
On Unlawful Act Involuntary Manslaughter
Jason contends the trial court erred in failing to instruct on unlawful act involuntary manslaughter. His theory is that the jury could have found he assaulted Bishop with a deadly weapon (the baseball bat) but without malice or intent to kill.
Involuntary manslaughter of the unlawful act variety requires a killing during "'an unlawful act, not amounting to a felony,'" i.e., a misdemeanor, that is dangerous to human life under the circumstances of its commission. (People v. Cox (2000) 23 Cal.4th 665, 667, 675-676.) "If a defendant commits an act endangering human life, without realizing the risk involved, the defendant has acted with criminal negligence. By contrast where the defendant realizes and then acts in total disregard of the danger, the defendant is guilty of murder based on implied malice. [Citation.] Thus the pivotal question here [for an instruction on involuntary manslaughter] was whether there was sufficient evidence for a reasonable juror to find [the defendant] acted without consciously realizing the risk to [the victim's] life." (People v. Evers (1992) 10 Cal.App.4th 588, 596.)
In Evers, there was not. The defendant argued that his two-year-old stepson's death "was the result of his inexperience as a parent in handling children and not the product of his conscious disregard of the risk to [the child's] life." (People v. Evers, supra, 10 Cal.App.4th at pp. 593, 596-597.) The Evers court disagreed: "The severity of [the victim's] injuries on this occasion makes clear that whoever abused [him] had to know such abuse would likely cause serious injury or death. The undisputed evidence showed [the victim] was physically abused with 'major force' causing injuries equivalent to those resulting from a 10- to 30-foot fall." (Id. at p. 597.)
The same is true with respect to the force and injuries here. While Jason testified he did not know at the time that hitting Bishop with a baseball bat two to three times "up side the head" could kill him, the severity of the injuries leaves no doubt that Jason had to have been aware of the risk. An upset and angry Jason swung a baseball bat and hit Bishop two or three times on the side of the head, causing Bishop's skull to fracture. Bishop died from the blunt force head injuries. Blunt force trauma causing the victim's skull to fracture was certainly severe enough that the court could have concluded Jason had to know such an attack would likely cause serious injury or death, thereby obviating the need to instruct on unlawful act involuntary manslaughter.
The Court Accurately Instructed On ...