California Court of Appeals, First District, Fourth Division
Certified for Partial Publication.[*]
Alameda County Superior Court, Honorable Kevin Murphy, (Alameda County Super. Ct. No. H49349).
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Linda M. Leavitt, San Francisco, under appointment by the First District Appellate Project, Counsel for Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, Bruce Ortega, Deputy Attorney General, Counsel for Respondent
Jeremy L. Millbrook shot and gravely injured Sione Manoa, a fellow guest at a house party, during a heated exchange. In addition to injuring Manoa, the bullet struck the hand of Matthew Galvan, a friend of Manoa who was trying to prevent the argument from escalating into a physical fight. A jury convicted Millbrook of one count of attempted murder of Manoa, one count of assault with a firearm on Manoa, and one count of assault with a firearm on Galvan. It also found true various enhancements that are not directly at issue in this appeal. The jury was unable, however, to reach a verdict on an allegation that the attempted murder was willful, deliberate, and premeditated (§ 664, subd. (a)), and the trial court accordingly dismissed it.
The trial court sentenced Millbrook to a total term of 35 years and four months to life. This sentence included a term of seven years for the attempted murder, a consecutive term of 25 years to life because a firearm was used in the attempt, and a term of three years and four months for the assault on Galvan and related enhancements. The court stayed the sentences for the conviction of assault on Manoa and its related enhancements and for
[166 Cal.Rptr.3d 222]the infliction of great bodily injury enhancement related to the attempted murder conviction. Millbrook timely appealed.
On appeal, Millbrook argues that (1) the jury should
have been instructed on attempted voluntary manslaughter based on a sudden
quarrel or heat of
passion; (2) insufficient evidence supported his conviction
for attempted murder; (3) testimony about a prior uncharged act was improperly
admitted into evidence; (4) a juror should have been dismissed after he
submitted a note questioning defense counsel's tactics; and (5) the cumulative
effect of these errors amounted to a denial of due process.
In the published portion of this opinion, we conclude that Millbrook's conviction for attempted murder cannot be sustained because the jury was not instructed on attempted voluntary manslaughter based on a sudden quarrel or heat of passion, and we conclude that this error was prejudicial. The People may retry Millbrook for attempted murder, however, because we also conclude that there was sufficient evidence presented to support the charge. If the People elect not to retry Millbrook, we direct that the judgment be modified to reflect a conviction for attempted voluntary manslaughter. We reject Millbrook's remaining claims and otherwise affirm.
At trial, witnesses gave varying accounts of the shooting and the events leading up to it. We begin by discussing some of the uncontroverted facts.
A. The Party.
Fernanda Placencia invited guests to her San Leandro home for a party on December 19, 2009, to celebrate her birthday. About 40 people attended the party, the majority of whom were her coworkers at a Target store in Hayward.
Manoa, who was 20 years old, and Galvan were friends of Placencia who had security jobs at Target. At the time, Manoa was approximately five feet 10 inches tall, weighed approximately 235 pounds, and played football for his junior college. Because the men worked in security, Placencia had asked them to make sure that the party went smoothly and that everyone followed the rules. Galvan did not interpret this as a serious request for special assistance, however, and assumed he and Manoa were going to the party to have fun like everyone else.
Manoa and Galvan arrived at Placencia's house between 10 and 10:30 p.m. At first, the two men were in the garage, where most of the Target employees had gathered. Six to ten of Placencia's other friends, who were unknown to Manoa and Galvan, were on the house's back porch. The two groups were not interacting, but everyone was having fun, and the party was going well.
Manoa testified that he rarely drank alcohol, and he recalled having only two beers at the party. He could not remember preparing or drinking any mixed drinks. Galvan, however, testified that over the course of the night, he and Manoa each drank three to four beers and one mixed drink, which Manoa prepared. Manoa
[166 Cal.Rptr.3d 223] acknowledged he was intoxicated at the party, but he testified that the alcohol did not change his mood, and he was calm for most of the night. Galvan agreed that Manoa did not seem to be unduly intoxicated, although in his statement to the police after the shooting Galvan said that Manoa had been "drinking heavily."
Meanwhile, Millbrook had also arrived at Placencia's residence with his girlfriend, Jennifer Diaz, a close friend of Placencia. Millbrook was 18 years old and attended community college. At the time, he weighed 160 to 165 pounds and was "very" thin. He parked his car, a Porsche Cayenne, in the driveway, and he remained with Diaz in the car for a while. He testified that he was reluctant to go into the party, and he implied this was because a group of men with whom he had an ongoing conflict often hung out near Placencia's house. Susan Cesena, one of Diaz's friends, joined Millbrook and Diaz while they were in the parked car, and the three smoked marijuana. Cesena corroborated Millbrook's testimony that he was reluctant to attend the party. She gave a shot of alcohol to Millbrook, but he testified that he did not drink it. Eventually, the women convinced Millbrook to go to the party, and the three went into the garage to dance.
Millbrook brought a gun into Placencia's party and kept it in his waistband. He testified that he brought the gun because he did not know who would be at the party, and he was scared and wanted to protect himself should any threats arise. After dancing in the garage, Millbrook sat on the back porch and smoked more marijuana.
Placencia did not want the partygoers to go into the house other than to use the bathroom. Nevertheless, a group of five or six men—including Cesar
Leyva (Cesar), who was dating Placencia and worked at Target, and Cesar's brother, Adrian Leyva (Adrian)—congregated in the house around the dining-room table. Manoa and Galvan went inside to talk to Cesar and joined this group.
Placencia had too much to drink and became sick. For a while, she was in the bathroom. Some of her nonwork friends, including Diaz and Cesena, eventually helped her to her bedroom.
A man who had been on the back porch approached the group gathered around the dining-room table and told them that they should not be in the house. The man left after Cesar told him that everything was fine, and a woman told him that Placencia knew Cesar and that it was all right for the group to be inside. Manoa and Galvan then went into the kitchen.
B. Manoa Argues with Diaz.
Diaz went to the kitchen after leaving Placencia's bedroom, and she and Manoa began to argue. Four witnesses testified about the argument: Manoa, Galvan, Cesar, and Adrian. They generally agreed that Manoa and Diaz began swearing and yelling at each other and got increasingly angry and loud. According to Manoa, Diaz approached him and Galvan and told them, "Everybody needs to get the fuck out of the house." Manoa testified that he felt defensive and upset because he did not
[166 Cal.Rptr.3d 224] think she had a right to tell him to leave. He could not recall everything he said to Diaz, but he did remember saying, "Fuck you, bitch. Don't talk to me like that. I'm not going anywhere."
Manoa and Cesar testified that Manoa and Diaz were standing apart from each other during the argument. Galvan, however, testified that Manoa and Diaz "started off ... a couple of feet from each other but ultimately they were in each other's face[s.]" In Galvan's statement to the police, he characterized Manoa as being "belligerent" during this argument and throughout the night. Galvan believed that the argument was serious enough that he needed to intervene. He escorted Diaz outside to the back porch while another Target coworker tried to calm Manoa. Galvan returned to the kitchen and spoke to Manoa, who had an "intense" presence and was "breathing hard" but seemed to be calming down. Cesar estimated that the argument between Manoa and Diaz lasted about a minute.
C. Manoa Argues with Bianca Velez.
According to Manoa, about five to ten minutes after his argument with Diaz, another friend of Placencia, a woman later identified as Bianca Velez,
entered the kitchen and asked him why he had spoken to Diaz that way. She seemed upset that Manoa had cursed at Diaz and had called her names, and she told him he needed to leave. Manoa got into an argument with Velez, although Manoa testified that it was not as intense as his argument with Diaz. Galvan did not remember an argument between Manoa and Velez but testified that it could have happened.
Millbrook testified that he was inside the house waiting to use the bathroom while Manoa and Velez were arguing, and he described the argument as "very intense." He was concerned that the argument would escalate because Manoa was "very aggressive." Millbrook had "never seen anyone so angry ... in such a little space, [and] it seemed like [Manoa] was larger than life." Millbrook testified that Diaz was trying to stop the fight, and she eventually escorted Velez outside.
Millbrook claimed that he thought Manoa was dangerous because of his earlier observation of Manoa while Millbrook and Diaz were still on the porch. Millbrook testified that he saw Manoa, who was standing in the driveway, clutch his waistband and say loudly into his phone, "I got my thing. I got my thing," which Millbrook interpreted to mean that he had a gun. Manoa denied making any phone calls during the party or saying "I got my th[i]ng."
Cesena testified that while she was in the bedroom helping Placencia she heard Velez arguing with a man, presumably Manoa, whom Velez had asked to leave. According to Cesena, the man stated, in apparent references to Placencia and Velez, "[W]ake that ho up ... wake her up. She needs to kick this bitch out." Cesena testified that the man and his group of friends "weren't being peaceful" and that she had previously heard him arguing and seen him exhibiting "obnoxious behavior ... all over the house." She and her friends wanted the group of men to leave because no one was supposed to be in the house and Placencia was too intoxicated to control the party. According to Cesena, the men "didn't want to leave the house" and "essentially were the cause of everything." She never saw Millbrook fight with anyone.
Cesena testified that after overhearing the argument involving Velez, she went outside to try to end the party before somebody became violent. She remembered Velez being on the back porch and
[166 Cal.Rptr.3d 225] "telling the guys" that the other group did not want to leave the house.
At this point, accounts of what happened diverge significantly.
D. Manoa Argues with Millbrook.
Manoa testified that while he and Velez were arguing, Galvan suggested to Manoa that they leave the party, and Manoa agreed. They began walking
toward the door when Millbrook entered the kitchen from the back porch with a few male friends. Manoa remembered that Diaz also had returned to the kitchen and was standing near Millbrook. Millbrook then asked Manoa, whom he had not previously met, "Why the fuck you talk to my girl like that?" Millbrook was "being a boyfriend trying to figure out what was going on." Manoa testified that he explained that Diaz had yelled at him, and they had started arguing. Manoa and Millbrook started arguing and swearing at each other, ...