PEOPLE v. NEASMAN

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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of The State of California, Plaintiff and Respondent, v. Eddie NEASMAN, Defendant and Appellant.

No. E010315.

Decided: March 09, 1993

Ronda G. Norris and Martin B. Buchanan, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Robert M. Foster, Supervising Deputy Atty. Gen., and Warren P. Robinson, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

Defendant appeals from the judgment and conviction of first degree murder (Pen.Code,1 § 187) for the murder of Tammy Neasman, contending the trial court erred in failing to instruct sua sponte the jury it could consider provocation in determining the degree of murder (CALJIC No. 8.73) and erred in failing to instruct on the limited use of evidence of other crimes (CALJIC No. 2.50).   Finding no error, we affirm.

I

FACTS

Defendant and Tammy were married in May of 1985.   Defendant filed for divorce in March of 1991 because Tammy was involved with defendant's nephew, Herman Carson.

On May 3, 1991, defendant called the Rialto Police Department reporting a burglary of his trailer.   He told the police that he had left the trailer around 8:30 a.m. and returned around 11:30 a.m. to find a window partially open and some property missing.   Defendant also told the police that he believed Tammy had taken the property and that he had a restraining order against her.   When the police advised him that they would not be filing burglary charges but only a violation of restraining order, defendant became upset and told the officer he would take care of the problem himself.

Marion Weesies, Tammy's mother, admitted that she and her daughter had been by defendant's trailer on May 3, 1991, for Tammy to get some money and pick up some mail.   Ms. Weesies also testified that when she went back to defendant's trailer later in the day, defendant threatened to kill Tammy and also threatened to kill Herman Carson.

Frank Washington, defendant's brother-in-law, was at defendant's trailer three times on May 3, 1991.   He testified that defendant was upset about Tammy breaking in but never threatened to kill her.   Jessie Washington, defendant's sister and the mother of Herman Carson, also testified that defendant was angry at Tammy but did not hear him threaten to kill her.   On the night of the murder, both Jessie and Frank Washington had told a police officer about defendant's threats but stated that when they saw defendant around 5 p.m. he was no longer upset.

Around 8:30 p.m. on May 3rd, Nehemiah Carson, defendant's nephew, was returning from driving school to his home on Juniper in Fontana when he saw defendant sitting in his car in the parking lot.   Defendant told him that he was looking for his wife Tammy and for Herman Carson, Nehemiah's brother.   Defendant told him that if he found Tammy and Herman, he was going to kill them because they broke into his home and stole some things.   Defendant appeared calm but a little intoxicated.

Nehemiah asked defendant if he would take a look at a car Nehemiah had purchased and after that asked defendant to take him to the store.   Nehemiah went upstairs to get some money and while there, his brother Herman came in.   As Nehemiah and defendant were leaving for the store, they saw Tammy sitting in a parked car across the street.   Defendant got out of his car, ran over to Tammy's car and kicked in the driver's window.   Defendant then pulled Tammy's head out of the car by her hair and started beating her.   Defendant then stood back and tried to shoot Tammy but the gun would not shoot.   Defendant did something to the gun and then shot Tammy.

Travis Wheatley was traveling on Juniper in Fontana around 8 p.m. when he came up behind a rust-colored Camaro stopped in the middle of the street.   The driver of that car got out, ran across the street and broke another car's window with his foot.   The man then pulled the head of a woman out of the window and started beating her.   Mr. Wheatley proceeded past the cars and heard multiple gun shots as he drove away.

Defendant testified that he and his girlfriend had left for Las Vegas between 7:30 p.m. and 8 p.m. on May 3, 1991.   Frank and Jessie Washington also testified that there had been talk of going to Las Vegas during the day of May 3rd.

Tammy Neasman died from gun shot wounds to her left shoulder and left chest area.

II

CALJIC NO. 8.73

Although defendant objected to any instructions on lesser included offenses, the trial court felt compelled to instruct the jury on second degree murder.   On appeal, defendant now contends the court erred in failing to instruct the jury that it could consider evidence of provocation in determining whether the murder was first or second degree.   Specifically, defendant contends the court had a sua sponte obligation to give CALJIC No. 8.73 (5th ed. 1988).2

Defendant contends “[t]he jury could have found the shooting was not deliberated and premeditated because Tammy Neasman's extramarital affair with her husband's nephew, combined with her burglary of Mr. Neasman's home on the same day of her death, was adequate provocation to reduce the homicide to second degree murder.   Further, three eyewitnesses testified that immediately before the shooting there was a verbal argument that lasted approximately twenty minutes.”   Here we conclude the trial court had no sua sponte obligation to give CALJIC No. 8.73.

Defendant relies on People v. Wickersham (1982) 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311 for his contention the trial court had a sua sponte obligation to instruct on provocation.   In Wickersham, the court concluded the trial court was not obligated to instruct sua sponte on voluntary manslaughter based on unreasonable self-defense because “appellant was not relying on unreasonable self-defense and ․ this theory was inconsistent with her proffered defense [of accidental shooting].”  (Id., at p. 329, 185 Cal.Rptr. 436, 650 P.2d 311.)

The court found error, however, in failing to instruct on second degree murder.  “Thus, where the evidence of provocation would justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately, the trial court is required to give instructions on second degree murder under this theory.   The fact that heated words were exchanged or a physical struggle took place between the victim and the accused before the fatality may be sufficient to raise a reasonable doubt in the minds of the jurors regarding whether the accused planned the killing in advance.”  (People v. Wickersham, supra, 32 Cal.3d 307, 329, 185 Cal.Rptr. 436, 650 P.2d 311.)

Moreover, the court noted that even if there had been no evidence of provocation, the trial court would have been obligated to instruct on second degree murder.  “Although the evidence was sufficient to justify a finding of deliberation and premeditation, such a finding was not compelled.   The jury could have found that appellant did not premeditate but rather acted upon a ‘sudden and unconsidered impulse[ ].’  [Citation.]   Hence, even if the jury rejected her testimony, that rejection did not require a conviction for first degree murder.”  (People v. Wickersham, supra, 32 Cal.3d 307, 330, 185 Cal.Rptr. 436, 650 P.2d 311.)

In this case we agree that while the evidence was sufficient to support a finding of premeditation and deliberation, such a finding was not compelled.   Accordingly, the trial court acted properly in instructing on second degree murder even over defense counsel's objection.3  The question here is whether the trial court was also obligated to instruct pursuant to CALJIC No. 8.73.   On that issue Wickersham is of little assistance.   While the court referred to CALJIC No. 8.73 in explaining why the court erred in failing to instruct on second degree murder, the opinion does not directly hold that the sua sponte obligation necessarily extends to the giving of this particular instruction.

 The rule regarding sua sponte obligation to instruct on defenses is different than the rule regarding lesser offenses.   As noted in People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913,4 the trial court is required to instruct on lesser offenses even if it is inconsistent with the defense elected by the defendant if there is evidence from which the jury could conclude that the lesser offense had been committed.  (Id., at p. 717, fn. 7, 112 Cal.Rptr. 1, 518 P.2d 913.)   However, the trial court is not required to instruct sua sponte on defenses which are inconsistent with the defense theory of the case.

“[T]he duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.   Indeed, this limitation on the duty of the trial court is necessary not only because it would be unduly burdensome to require more of trial judges, but also because of the potential prejudice to defendants if instructions were given on defenses inconsistent with the theory relied upon.   ‘Appellate insistence upon sua sponte instructions which are inconsistent with defense trial theory or not clearly demanded by the evidence would hamper defense attorneys and put trial judges under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions.’ ”  (People v. Sedeno, supra, 10 Cal.3d 703, 716–717, 112 Cal.Rptr. 1, 518 P.2d 913.)

 While provocation as it relates to the issue of premeditation and deliberation is not a true defense, it is defensive evidence offered to raise a reasonable doubt as to the existence of that element.   By analogy to the rules regarding defenses, the trial court should not be required to instruct pursuant to CALJIC No. 8.73 when it does not appear defendant is relying on the evidence of provocation or when it is inconsistent with the defense theory of the case.

 Here the defense was alibi.   Defendant not only did not contend that the crime was less than first degree murder because of provocation but, to the contrary, objected to the giving of any instructions on lesser offenses.   The court was not required to instruct sua sponte on CALJIC No. 8.73 in this situation.

Our conclusion is buttressed by the recent Supreme Court opinion in People v. Saille (1991) 54 Cal.3d 1103, 2 Cal.Rptr.2d 364, 820 P.2d 588 wherein the court concluded that instruction on evidence proffered to raise a reasonable doubt as to the existence of an element of the offense is only required when requested by defendant.   While the issue in that case was instruction on voluntary intoxication, the court's explanation for not requiring the trial court to instruct sua sponte is helpful in determining the proper rule in this case.

“In our view, under the law relating to mental capacity as it exists today, it makes more sense to place on the defendant the duty to request an instruction which relates the evidence of his intoxication to an element of a crime, such as premeditation and deliberation.   This is so because the defendant's evidence of intoxication can no longer be proffered as a defense to a crime but rather is proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt.   In such a case the defendant is attempting to relate his evidence of intoxication to an element of the crime.   Accordingly, he may seek a ‘pinpoint’ instruction that must be requested by him [citation], but such a pinpoint instruction does not involve a ‘general principle of law’ as that term is used in the cases that have imposed a sua sponte duty of instruction on the trial court.”  (People v. Saille, supra, 54 Cal.3d 1103, 1120, 2 Cal.Rptr.2d 364, 820 P.2d 588.)

 Similarly, here, provocation which may be inadequate to reduce a homicide to voluntary manslaughter is not proffered as a defense but rather in an attempt to raise a reasonable doubt as to the existence of an element of the offense—premeditation and deliberation.  (People v. Valentine (1946) 28 Cal.2d 121, 132, 169 P.2d 1.)   Accordingly, an instruction along the lines of CALJIC No. 8.73 is in the nature of a pinpoint instruction as it relates certain evidence to an element of the offense.   It is not a “general principle of law” instruction on which must be given sua sponte by the trial court but rather must be requested by defendant.5  Here defendant has not established that he requested CALJIC No. 8.73.6

 Finally, while we have concluded the trial court had no sua sponte obligation, we note that the evidence of provocation was not sufficient to trigger any sua sponte obligation in any event.   First, contrary to defendant's claims, there is no evidence that defendant was provoked by his soon-to-be ex-wife's extramarital affair which had been ongoing for nearly six months prior to the killing.   Defendant had a girlfriend and had filed for divorce a few months prior to the shooting.   He also testified that he would never do anything to harm his wife.

Second, defendant mischaracterizes the evidence of the incident in his claim that the shooting was preceded by a 20–minute argument.   While it is true, one eyewitness testified that the incident lasted 20 minutes, the use of the word “argument” was first made by defense counsel and the witness himself never used the word “argument” in his description of the incident during the direct examination.   The other eyewitness testified the entire incident lasted 30 to 45 seconds.

Neither eyewitness who testified during the prosecution's case testified to any verbal argument prior to defendant running across the street, smashing the driver's window and beating and then shooting Tammy.   Neither witness testified to any provocation by Tammy which occurred immediately prior to the shooting.

The third eyewitness, who testified for the defense, similarly did not testify to any argument between defendant and Tammy.   This witness did not see any woman in a car and the arguing he heard was between two men standing by a car in the middle of the street and two other men standing by the side of the street.   There is therefore no evidence of any provocation by Tammy immediately before the beating and shooting.

Thus we are left with the evidence of Tammy's entering defendant's trailer in violation of the restraining order.   While there is ample evidence that defendant was angry, there was no evidence of “provocation” in the legal sense.

As we noted in another context, “[t]he issue is whether the provocation precluded the defendant from deliberating.”  (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295, 3 Cal.Rptr.2d 808, emphasis added.)   As noted in Wickersham, the evidence of provocation must “justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately․”  (People v. Wickersham, supra, 32 Cal.3d 307, 329, 185 Cal.Rptr. 436, 650 P.2d 311, emphasis added.)  “It is not enough that provocation alone be demonstrated.   There must also be evidence from which it can be inferred that the defendant's reason was in fact obscured by passion at the time of the act.”  (People v. Sedeno, supra, 10 Cal.3d 703, 719, 112 Cal.Rptr. 1, 518 P.2d 913.) 7

Here there is no evidence that the provocation of the “burglary” in the morning precluded defendant from premeditating and deliberating a murder which occurred later that night.   There is also no evidence that defendant's reason at the time of the shooting was obscured by the passion engendered by the morning incident.   Accordingly, we conclude that the evidence was insufficient to trigger a sua sponte obligation to instruct on CALJIC No. 8.73, particularly in light of defendant's alibi defense.

III **

IV

DISPOSITION

Judgment affirmed.

FOOTNOTES

FN1. Unless otherwise indicated, all further statutory references are to the Penal Code..  FN1. Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   This instruction states:  “When the evidence shows the existence of provocation that played a part in inducing the unlawful killing of a human being, but also shows that such provocation was not such as to reduce the homicide to manslaughter, and you find that the killing was murder, you may consider the evidence of provocation for such bearing as it may have on the question of whether the murder was of the first or second degree.”

3.   Of course, had the court acquiesced in defense counsel's objection as it did with respect to the instructions on voluntary and involuntary manslaughter, defendant would be precluded from asserting error on the grounds of invited error.  (People v. Phillips (1966) 64 Cal.2d 574, 580–581, fn. 4, 51 Cal.Rptr. 225, 414 P.2d 353.)

4.   Overruled on different grounds in People v. Flannel (1979) 25 Cal.3d 668, 684–685, footnote 12, 160 Cal.Rptr. 84, 603 P.2d 1.

5.   At oral argument, defendant cited People v. Perez (1992) 2 Cal.4th 1117, 9 Cal.Rptr.2d 577, 831 P.2d 1159 in support of his contention the trial court had a sua sponte duty to instruct pursuant to CALJIC No. 8.73.   In Perez, the court found insufficient evidence of provocation to warrant the giving of CALJIC No. 8.73.  (Id., at pp. 1129–1130, 9 Cal.Rptr.2d 577, 831 P.2d 1159.)   Accordingly, the court's general observations regarding the trial court's duty to instruct on general principles of law, to the extent they suggest the sua sponte duty includes CALJIC No. 8.73, is dicta.  (See People v. Saille, supra, 54 Cal.3d 1103, 1118–1120, 2 Cal.Rptr.2d 364, 820 P.2d 588 wherein the court found prior authority suggesting a sua sponte duty to instruct on voluntary intoxication consisted entirely of dicta.)

6.   Although the record includes CALJIC No. 8.73 as one of the instructions not given, the record does not indicate whether the instruction was requested by the prosecutor or defense counsel.   As we discuss in greater detail in the unpublished portion of this opinion (Part III), appellant has the burden of proving error and we do not presume error from a silent record.

7.   While Sedeno 's comments were in reference to provocation for purposes of voluntary manslaughter, they are no less true with respect to provocation which precludes premeditation and deliberation.

FOOTNOTE.   See footnote *, ante.

HOLLENHORST, Acting Presiding Justice.

McKINSTER and McDANIEL ***, JJ., concur.