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People v. Asbury

California Court of Appeals, Second District, First Division

October 4, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
DIANE C. ASBURY, Defendant and Appellant. In re DIANE C. ASBURY on Habeas Corpus

         [CERTIFIED FOR PARTIAL PUBLICATION] [*]

Page 1223

         APPEAL 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.

         COUNSEL

         Law Offices of Dennis A. Fischer, Dennis A. Fischer and John M. Bishop for Defendant and Appellant.

         James H. Barnes for Petitioner.

Page 1224

         Kamala 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.

         Opinion by Rothschild, P. J., with Chaney and Johnson, JJ., concurring.

          OPINION

          [209 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.

         FACTS AND PROCEEDINGS BELOW

         Asbury 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.

         According 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.

         Asbury's 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

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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.

         According 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.

         Asbury 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

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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.

         Simiele 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.

         Asbury 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."

         Police 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.

         After 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.

         An information charged Asbury with one count of murder, in violation of Penal Code section 187, subdivision (a),[1] 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).)

         A jury 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 prison.

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         DISCUSSION

         We address Asbury's direct appeal and her petition for writ of habeas ...


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