PEOPLE v. SCHATZ

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Appellant, v. Ronald William SCHATZ, Defendant and Respondent.

No. C009634.

Decided: July 17, 1992

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting, r. Asst. Atty. Gen., Edmund D. McMurray, Supervising Deputy Atty. Gen. and Doris A. Calandra, Deputy Atty. Gen., for plaintiff and appellant. William P. Daley, San Diego, by appointment under the Independent Case Program of the Cent. California Appellate Program, for defendant and respondent.

In a court trial, defendant was convicted of second degree murder (Pen.Code, § 187) 1 and was found to have used a firearm in the commission of that offense (§ 12022.5).   The trial court denied defendant's motion for new trial based on newly discovered evidence (§ 1181, subd. 8.) but reduced the second degree murder conviction to voluntary manslaughter (§ 1181, subd. 6.).   The court sentenced defendant to an aggregate prison term of eight years.

The People appeal, asserting the court erred in reducing defendant's conviction.   Defendant also appeals, contending (1) the court erred in admitting hearsay evidence, and (2) he did not receive the effective assistance of counsel.   We conclude the second degree murder conviction should not have been reduced and reject defendant's claims.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and the victim were good friends and spent much of the day after Christmas 1989 together.   Soon after 9 p.m., the victim's neighbor heard a vehicle drive up to his house.   When he went outside to investigate, he found the victim covered in blood and standing at the foot of the steps.   The neighbor asked what had happened and the victim replied, “Ron shot me.”   The victim asked the neighbor to call the police and an ambulance.   He was reluctant to come inside because he was worried about getting blood on the floor.   The victim seemed very subdued.   There was no odor of alcohol and he did not appear drunk.   The neighbor's wife, a nurse, persuaded the victim to come into the house, where she tended to his wounds.

The victim was in pain but was initially easy to understand.   As time went on, however, his injuries began to affect his speech.   The neighbor again asked who had shot him and the victim replied, “Ron Schatz.”   The neighbor thought he had said, “shot ․ shots,” and gave the victim a pencil and paper to write his reply.   The victim wrote “Schatz” and drew a map to defendant's house.   He also expressed fear that defendant would shoot his dogs.   When police officers arrived at the house, the victim again indicated defendant had shot him.

Paramedics arrived and took the victim to the hospital where he died.   He had been shot twice in the head.

Using the victim's map, police went to defendant's home.   They found blood stains in the driveway and house, a bloody T-shirt in defendant's bedroom, and a gun.   It appeared someone had tried to clean up some of the blood stains.   Defendant was arrested and was taken to a hospital for blood-alcohol tests and to check for possible injuries.   On the drive to the hospital, defendant repeatedly asked what had happened to the victim and wondered whether he had been in an accident.   Defendant's blood-alcohol level was .26.

In a subsequent interview with police officers, defendant indicated he did not know anything about a shooting.   He had last seen him when the victim left his house.   He said he remembered having a gun out during the evening but he had not shot it, although he later said perhaps he had heard a shot.   Defendant said he and the victim had not quarreled that night.   He did not know if the victim had carried a gun with him.

At trial, defendant offered a different version of events, asserting for the first time that he had acted in self-defense.   He described the victim, a large man, as extremely volatile and said the victim often carried a gun in his pocket.   On the date of the shooting, the victim had been drinking much of the day and had threatened a neighbor after a confrontation.   As the evening wore on, the victim became progressively more belligerent and went on a tirade about his family and his terrible Christmas.   Defendant decided to go to bed and asked the victim to leave.   Defendant picked up a gun he had previously shown the victim and started toward the bedroom.   The victim became angrier and, with his hand in his pocket, said, “[M]other fucker, you're dead.”   Believing the victim was about to shoot, defendant shot him.   As the victim started to walk toward him, defendant shot a second time.

The forensic evidence was inconsistent with defendant's version of events.2

The court convicted defendant of second degree murder.   Defendant moved for a new trial (§ 1181), citing newly discovered evidence and also asserting his conviction should be reduced to voluntary manslaughter based on an imperfect self-defense theory.

The court denied the motion for new trial based on new evidence and then said:  “I did not believe the defendant's testimony concerning the—I did not believe most of the defendant's testimony concerning the way in which this killing occurred.   And it remains clear in my mind based upon the evidence adduced at trial that beyond a reasonable doubt this was not self defense.   However just is [sic ] my ruling at the conclusion of the trial was the expression of my good conscious [sic ] evaluation of the evidence I also knowledge [sic ] at this point that there is a reasonable doubt in my mind as to whether this is murder or voluntary manslaughter.   And I realize that the ruling may come as a complete surprise to the People, but on the other hand I can assure the representatives of the People that I have searched my own conscious [sic ] a great deal in that regard․  [¶] Accordingly, under sub paragraph [sic ] 6 of 1181 the motion is granted and the conviction is reduced to the lesser included offense of voluntary manslaughter.” 3

These appeals followed.

DISCUSSION

I. People's AppealCourt Erred in Reducing Conviction

The People contend the court erred in reducing defendant's second degree murder conviction to one for voluntary manslaughter.   We agree.

Section 1181, subdivision 6, provides a new trial may be ordered “[w]hen the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial and this power shall extend to any court to which the cause may be appealed[.]”  This section is designed “to obviate the necessity of a new trial where the court believes there is sufficient evidence to establish the lesser offense but not the greater.”   (People v. McClellan (1980) 107 Cal.App.3d 297, 302, 165 Cal.Rptr. 603, citation omitted.) 4

“In determining whether to grant a new trial or modify the verdict under the power conferred by section 1181, subdivision 6, the trial court has broad discretion and is not bound to resolve conflicts in the evidence in favor of the verdict.   In the exercise of its supervisory power over the verdict, the court must weigh the probative force of the evidence and satisfy itself there is sufficient credible evidence to sustain the verdict.  ‘This does not mean, however, that the court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, ․’  The jury is the exclusive finder of fact and the trial court's only duty is to see that this function is intelligently and justly performed.   Although the trial court is required independently to weigh the evidence, its role is distinct from that of the jury as trier of fact in that the trial court exercises a reviewing function.   That function is strictly circumscribed by the authority granted by statute.”  (People v. Watson (1983) 150 Cal.App.3d 313, 317–318, 198 Cal.Rptr. 26, citations omitted.)

 The same standard applies when the court sits as trier of fact.   (People v. McClellan, supra, 107 Cal.App.3d at p. 303, 165 Cal.Rptr. 603.)   Thus, under the language of the statute, a trial court may modify the verdict only if the evidence establishes the defendant to be not guilty of the degree of crime of which he was convicted, but guilty of a lesser degree or lesser included offense.

Here, defendant asserted his second degree murder conviction should be modified because the evidence established imperfect self-defense, a defense which reduces murder to manslaughter.   The court apparently agreed.   We conclude this determination was erroneous.

True self-defense involves an honest and reasonable belief in the need to defend oneself and acts as a complete defense to a homicide charge.  (People v. Flannel (1979) 25 Cal.3d 668, 674, 160 Cal.Rptr. 84, 603 P.2d 1.)   Imperfect self-defense, on the other hand, is an honest but unreasonable belief in the need to defend oneself from imminent peril, and negates malice aforethought, the necessary mental state for murder.  (Id. at pp. 679–680, 160 Cal.Rptr. 84, 603 P.2d 1.)   As our Supreme Court recently explained:  “In [Flannel ], we reasoned that a defendant who killed under an honestly held but mistaken belief that his own life was in peril, could not harbor malice, the requisite mental state for murder.   The absence of malice did not provide a complete defense, but rather reduced the defendant's culpability from murder to the lesser offense of manslaughter.”  (People v. Bacigalupo (1991) 1 Cal.4th 103, 126, 2 Cal.Rptr.2d 335, 820 P.2d 559, citations omitted.)

Here, the trial court initially rejected defendant's testimony, found malice aforethought to exist and convicted defendant of second degree murder.   The court's decision not to give credence to defendant's testimony is justified in light of the evidence presented at trial.   Defendant's description of the shooting was at odds with forensic evidence.   At no time prior to trial did defendant claim self-defense or imperfect self-defense.   In fact, defendant initially told police he and the victim had not argued.   He denied any knowledge of a shooting and said the victim was fine when he left defendant's house.

 In ordering the verdict reduced to manslaughter, the trial court expressly stated it did not believe defendant's version of events.   This statement is inconsistent with a theory of imperfect self-defense.   If the court did not believe defendant's testimony, it could not find defendant “honestly” believed in the need for self-defense.   The trial court necessarily rejected this theory when, finding defendant had acted with malice aforethought, convicted defendant of second degree murder.   The trial court cannot supplant this determination when ruling on defendant's motion to reduce the verdict.   Rather, “in the exercise of its supervisory capacity [the court] insures only that the [fact finding] function has been performed justly and intelligently․”  (People v. Watson, supra, 150 Cal.App.3d at p. 319, 198 Cal.Rptr. 26.)   The evidence amply supports the initial verdict of second degree murder and, consequently, the trial court lacked the statutory authority to reduce defendant's conviction to voluntary manslaughter.5

II. Defendant's Appeal ***

DISPOSITION

The trial court's order reducing defendant's conviction to voluntary manslaughter is reversed and the original conviction for second degree murder is reinstated.   The matter is remanded to the trial court for resentencing.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   Bullet trajectories and blood stains contradicted defendant's testimony.

3.   When sentencing defendant to eight years in prison, the court reiterated its belief that defendant had not established self-defense.

4.   In McClellan, defendant was convicted in a court trial of selling drugs after the court rejected an entrapment defense.   The court subsequently granted defendant's motion to reduce the conviction to simple possession, stating defendant's actions were not sufficiently culpable to warrant a conviction for selling drugs.  (107 Cal.App.3d at pp. 300–301, 165 Cal.Rptr. 603.)   The Court of Appeal reversed, noting the evidence supported the trial court's express rejection of defendant's claim of entrapment.  “The trial court was apparently trying to do justice by being lenient to respondent because of his comparatively slight culpability.   But the judge was without power to do so in the manner he chose.   Once a defendant's guilt has been established by a fair trial, the trial judge's power is limited to the pronouncement of sentence.”  (Id. at p. 303, 165 Cal.Rptr. 603.)   The court concluded the trial court erred in modifying the verdict.  (Id. at p. 304, 165 Cal.Rptr. 603.)

5.   Defendant suggests a reduction in the verdict was also proper because the evidence demonstrated he acted in the heat of passion.   This theory was never proffered below.   Moreover, the evidence recounted by defendant in support of his argument relates to the victim's character and short temper.   The proper focus of a heat of passion defense is the perpetrator's, i.e., defendant's, state of mind.

FOOTNOTE.   See footnote *, ante.

SPARKS, Associate Justice.

PUGLIA, P.J., and NICHOLSON, J., concur.