California Court of Appeals, Fourth District, Second Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from the Superior Court of Riverside County No. RIF10001458 Elisabeth Sichel, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Benjamin James Boatman, shot his girlfriend, Rebecca Marth, in the face, killing her. Defendant said the shooting was an accident. At trial, he argued that although he was criminally negligent, he did not commit murder. A jury convicted him of first degree murder (Pen. Code, § 187 subd. (a)) and possession of marijuana for sale (Health and Saf. Code, § 11359). The jury also found true two enhancement allegations that defendant personally and intentionally discharged a firearm that caused great bodily injury or death (Pen. Code, § 12022.53, subd. (d)) and the offenses were committed while defendant was released from custody pending trial on another felony offense (Pen. Code, § 12022.1).
Defendant was sentenced to an indeterminate term of 25 years to life on the murder conviction plus an additional 25 years to life for the firearm enhancement. In addition, the court sentenced defendant to a determinate term of three years on the possession of marijuana conviction to be served concurrent to the indeterminate sentence. The court imposed, and did not stay, a two-year consecutive term for the on-bail enhancement.
In the published portion of our opinion, we address defendant’s contention that the evidence is insufficient to support the conviction for first degree murder. Because we conclude that there is substantial evidence that defendant committed murder, but insufficient evidence to support the first degree murder elements of premeditation and deliberation, we will reduce the murder conviction to second degree murder. We will address other contentions in the unpublished portion of the opinion.
II. SUMMARY OF FACTS
At approximately 3:30 a.m. on March 18, 2010, defendant was released from jail on bail. He walked home, where he lived with his father (Jim), a sister (Hanna), an older brother (Brandon), and a younger brother (Brenton). Brandon’s girlfriend, Victoria Williams, was also staying there at that time.
After talking with Brenton for awhile, defendant and Brenton drove to Marth’s house, picked her up, and returned home. Defendant had been dating Marth for about one year and, he testified, was in love with her. However, defendant also had an ex-fiancée and was conflicted about whom he wanted to be with.
Around 7:05 a.m., Officer Eric Hibbard responded to a report of a shooting at defendant’s house. When he arrived, he saw Brenton leaning up against the fender of a white Cadillac holding Marth in his arms. Marth had been shot in the face. Shortly after Officer Hibbard placed Marth on the ground, defendant came running out of the house with blood on his clothes and face. Defendant told Officer Gregory Hayden to “[c]all the ambulance for my girlfriend.”
With both defendant and Brenton detained, Officer Hibbard and two other officers conducted a safety sweep of the house. Inside, the officers found Brandon, Williams, and Hanna. Upon entering the bedroom where Marth had been shot, Officer Hibbard saw bloodstains on the bed and pillow. He also saw some marijuana and marijuana paraphernalia in the room. A trail of blood led Officer Hibbard from the bedroom to the kitchen. Officer Hibbard saw a black revolver on the kitchen floor. Both the floor and revolver appeared to be wet with water. The revolver contained five live.38-caliber rounds, as well as one fired round. During a subsequent search of the room where Marth was shot, a box containing a semiautomatic handgun, a box of.38-caliber bullets, and a duffel bag containing a sawed-off shotgun and a box of shotgun shells were found.
Brandon’s bedroom shares a wall with the room in which Marth was shot. On the day of the shooting, Williams (who was in Brandon’s room) told an investigating officer that she was awoken by a “[l]oud screaming argument between a guy and a girl for at least three minutes.” She said she did not know where the yelling was coming from and that she could not tell what the “[l]oud screaming” was about. At trial, Williams did not remember characterizing the sounds she heard as “loud screaming, ” and said she was awoken by “loud talking.” A couple of minutes after hearing the “loud talking, ” Williams
heard a gunshot. Immediately afterward, Williams heard a commotion and screaming; “it seemed like someone was panicking, like yelling or screaming like out of fear.”
Defendant was taken to the police station by a Riverside police officer. On the way to the police station, defendant asked the officer if he knew if Marth was okay. Defendant said: “I can’t lose her. I would do anything for her. How is someone supposed to go on with their life when they see something like that? We were just going to watch a movie.” Defendant was crying with his head down for most of the trip.
Defendant was interviewed by two homicide detectives. He gave different versions of what had happened that day and admitted at trial that he lied to the officers. In the first version, defendant claimed that Marth had accidentally shot herself. He said he was showing her a gun he had recently purchased; he did not tell her it was loaded; and as she was playing around with it, she accidentally shot herself.
In defendant’s second version, he said he shot Marth, but claimed the shooting was accidental and that he did not think the gun was loaded. He explained that they were sitting on the couch; Marth pointed the gun at him, he pushed the gun away, and she pointed it at him again; he then took the gun, pointed it at her, and accidentally shot her.
In the third version, defendant said he knew the gun was loaded. He described the events this way: “She pointed it at me. I slapped it away. She pointed it at me. I slapped it away. We both knew it was loaded. And then I went like that and I cocked back the hammer just jokingly and it slipped, pow.” He later added: “I pulled it back.... [¶]... [¶]... and it slipped. [¶]... [¶]... Like I didn’t get to pull it all the way back.” In this version, defendant claimed that his finger was not on the trigger. At trial, this version was placed in doubt by a criminalist with an expertise in firearms who testified that, because of the multiple safeties on the gun, the gun could not be fired by pulling the hammer back and releasing it before it is fully cocked.
Defendant testified at trial. He stated that after a few restless nights in jail, he was released on bail around 3:30 a.m. and walked home. Along the way, he sent a text message to Marth to tell her he was going to come get her. He arrived at his house around 5:00 a.m. He and Brenton picked up Marth around 5:30 that morning and returned to their house. Defendant and Marth were happy to see each other.
After the three returned to defendant’s house, they planned to smoke a “blunt”—a cigarillo in which the tobacco has been removed and replaced
with marijuana—and watch a movie. After showering, defendant took some Xanax and Norcos pills. Defendant said that these pills typically make him feel drunk and euphoric and that on the day in question the drugs made him disoriented.
Defendant and Marth were in a bedroom that had been converted from a back patio. Defendant went to his safe, which contained marijuana and money, and began weighing the marijuana and counting the money. Marth said, “[h]ey, baby.” Defendant turned around and saw Marth pointing a gun at him. Marth had apparently retrieved the gun from underneath defendant’s pillow. Defendant was not worried because he trusted Marth. He slapped the gun away and continued to weigh the marijuana.
At this point, a mosquito landed on Marth, causing her to “scream a little bit.” She “jumped up, started waving her hands, doing a whole bunch of girly stuff....” In order to tease her, defendant “grabbed the mosquito, and... brought it closer to her, and she got even more upset.” To make up for the ...