California Court of Appeals, Second District, First Division
FOR PARTIAL PUBLICATION] [*]
from an order of the Superior Court of Los Angeles County,
No. MA052970, Charles Chung, Judge. ORIGINAL PROCEEDING;
petition for writ of habeas corpus. Petition denied.
Offices of Dennis A. Fischer, Dennis A. Fischer and John M.
Bishop for Defendant and Appellant.
H. Barnes for Petitioner.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
by Rothschild, P. J., with Chaney and Johnson, JJ.,
Cal.Rptr.3d 682] ROTHSCHILD, P. J.
Appellant Diane C. Asbury challenges her conviction for the
murder of her former longtime boyfriend Anthony Simiele.
Simiele came to Asbury's house to reclaim some belongings
he had left in her garage. They argued, and when he followed
her upstairs to her bedroom, she pulled out a handgun she
kept near her bed and shot him. Asbury raises several
challenges to her conviction, both on direct appeal and in a
petition for a writ of habeas corpus. We reverse her
conviction on the ground that the trial court erred by
refusing to instruct the jury regarding voluntary
manslaughter under a heat of passion theory. We deny the
petition for a writ of habeas corpus.
AND PROCEEDINGS BELOW
and Simiele had been in a relationship for most of 26 years
and lived together for 20 of those years. They never married,
but Simiele was the father of Asbury's 23-year-old
daughter Victoria. Although they had previously had several
brief separations over the years, the couple broke up
permanently in October 2010, when Simiele moved out of the
house Asbury owned. Asbury had suffered from breast cancer
and depression, and she believed Simiele had not done enough
to take care of her when she was sick.
to Mary Huang, Simiele's girlfriend of three months, on
April 24, 2011, Asbury went to Simiele's house
unannounced, arriving as they were about to eat Easter
dinner. Simiele invited Asbury into the house and introduced
her to Huang. When Huang told her she had been dating Simiele
for a few months, [209 Cal.Rptr.3d 683] Asbury became visibly
angry. Simiele and Asbury argued about their bills and
mortgage, and about their daughter Victoria. Asbury admitted
that at one point, she called Huang a " f-ing C"
and told her to " wait until you have cancer."
According to Huang, Simiele accused Asbury of having held a
gun to Victoria's head when Victoria was sick, and then
to her own head. Asbury did not respond to the accusation.
Huang testified that Asbury did not appear to be afraid of
Simiele. According to Asbury, after this incident, her
depression worsened, and she could not stop crying.
friend Patricia Love testified that Asbury told her about the
Easter confrontation. In their daily conversations, Asbury
often told Love that she was upset that Simiele had a new
girlfriend, and sometimes told her that
she was upset that she was no longer with Simiele. Asbury
later told police that she was ambivalent about whether she
wanted to get back together with Simiele. Asbury told Love
that she drove past Simiele's house looking for
Simiele's and Huang's cars. Love cautioned Asbury to
stop and believed Asbury was obsessed about Simiele and
Huang's relationship. Love told Asbury it was not a good
idea for Asbury to keep a gun in her home, but Asbury told
her that she needed the gun in case Simiele ever attacked
her. Asbury did not tell Love that Simiele had ever attacked
her in the past, but she did tell Love that Simiele had once
threatened to " call [her] out" in front of their
peers and friends, and that he had once headbutted their
daughter. Asbury later told police that Simiele had screamed
at her, slammed tables, and threatened their daughter
Victoria. Although he had once hit her when she threatened to
have an abortion, Asbury admitted that he had not been
violent toward her recently.
to Asbury, she and Simiele, along with Victoria, attended a
wedding in San Francisco in early May 2011. Asbury became
upset because she thought Simiele was monopolizing Victoria.
gave the only account of what happened on the day of the
shooting. She told police that Simiele called her to arrange
to pick up possessions he had left in her garage. Because
Asbury worked at night and would be sleeping during the day
on Sunday, she requested that he come on Monday. He agreed.
Simiele came to Asbury's house on the afternoon of
Sunday, May 29, 2011, and banged on the door until Asbury let
him in. They argued. According to Asbury, Simiele picked up a
hammer from the floor, saying it belonged to him. Asbury told
Simiele she was going to bed, and he should not follow her.
In spite of this request, Simiele followed her upstairs,
saying he had a right to do so. When police later searched
Asbury's residence, the only hammer they discovered was a
sledgehammer on the lower level of the house. Asbury did not
remember seeing it when Simiele went upstairs. Asbury told
Simiele to leave, but he stayed in the room and kept yelling
at her. Simiele told Asbury that if she wanted to confront
him again, she should bring her " tough guy
friends." Asbury picked up the handgun she kept by her
bed and told Simiele to leave. Asbury told friends that she
kept a gun in her house for protection, including from
Simiele. She had owned the gun for approximately 20 years,
and had bought ammunition for it only about a month earlier.
Asbury had suffered from breast cancer, and had surgery for a
double mastectomy. This surgery had compromised her strength,
and at the time of the shooting, she struggled when trying to
lift 25 pounds. Simiele took one step toward Asbury, and she
felt afraid that he was going to attack her and strangle her.
She fired the gun. According to a firearms expert, Asbury
fired this shot at a distance of approximately four feet away
from Simiele. [209 Cal.Rptr.3d 684] The bullet traveled
upward from the gun, but it exited Simiele's body at a
lower point than where it entered. The expert concluded
from this that Simiele was either leaning forward toward
Asbury or covering his face with one leg off the ground,
shielding himself from the bullet. The bullet struck Simiele
on the left side of his torso, below his ribs.
jumped at Asbury and tried to wrestle the gun away from her.
In the process, he fell on top of Asbury. She fired the gun
again. A firearms examiner testified that the trajectory
analysis indicated that Asbury had fired this second shot
with the gun resting against her thigh, and that the bullet
had traveled through her pants at an upward angle. According
to the examiner, this was consistent with Asbury lying on her
back and struggling over the weapon with Simiele.
called 911 on her cell phone and started performing CPR. She
ran down the stairs, put the gun in a pile of laundry, and
ran out of the house. She told the 911 dispatcher that
Simiele had come to her house and started attacking her, and
so " I got my gun and I shot him."
officers and paramedics appeared on the scene, but they were
unable to save Simiele's life. Asbury's only injuries
were a bruise on her leg and a scratch on her wrist.
the shooting, police officers searched Asbury's cell
phone. They found a picture of Simiele's truck and
another of a firearms range target. In approximately 1,200
text messages between Asbury and her daughter Victoria, there
was no mention of any headbutting or other act of violence by
Simiele to Victoria, nor any warning from Asbury that Simiele
might be dangerous. Phone records showed that Asbury had
called Simiele on seven days in April and May, including the
day before the shooting, and that Simiele had called Asbury
twice the day before the shooting.
information charged Asbury with one count of murder, in
violation of Penal Code section 187, subdivision
(a), with an allegation that Asbury
personally and intentionally discharged a firearm causing
great bodily injury and death (§ 12022.53, subds.
(c)-(d)), and that she personally used a firearm. (
Id., subd. (b).)
found Asbury not guilty of first degree murder, but guilty of
second degree murder. The jury also found true the allegation
that Asbury discharged a firearm. The trial court sentenced
Asbury to 15 years to life imprisonment for second degree
murder, plus a mandatory consecutive term of 25 years to life
for the enhancement, for a total term of 40 years to life in
address Asbury's direct appeal and her petition for writ
of habeas ...