NOT TO BE PUBLISHED
A jury declined to find defendant Eusebio Rafael Luna guilty of first degree murder as charged, but instead found him guilty of murder in the second degree. On appeal, he challenges the trial court's refusal to instruct the jury on involuntary manslaughter based on his professed unconsciousness from voluntary intoxication. We agree the failure to instruct was error, but hold the error harmless.
Defendant also challenges the trial court's refusal to allow impeachment of a prosecution expert coroner with her apparent mistake in a 2006 postmortem examination. We find no error in this decision by the trial court, and affirm the judgment.
In the early morning of May 4, 2015, defendant beat and killed the victim. At trial, defendant conceded the killing, but consistently maintained he was intoxicated and did not remember any violence or even any disagreement having occurred.
Testimony Regarding the Killing
Defendant testified he knew the victim, his older cousin who he called "Uncle Jimmy," his entire life. They were close, and defendant denied ever arguing or physically fighting with him. Defendant spent the day before the murder with the victim. Around 11 a.m., the two bought and split a three-pack of 12-ounce beers and smoked marijuana. Around 5:30 p.m., they bought another three-pack and split it. Around 7 p.m., they bought food and a 12-pack of beer.
They arrived at defendant's trailer close to 8:30 p.m. There, defendant smoked marijuana, and recalled, "[w]e were both pretty stoned. . . ." The two drank the 12-pack of beer. Defendant told law enforcement he drank four or five beers from the 12-pack and the victim drank the remainder. Defendant then brought out two wine bottles. He told the jury that he drank "a little bit of wine" that night, but also that he drank "a bottle of wine." He agreed with his attorney that he was trying to keep up with the victim and that the two split "everything down the middle." (On cross-examination, he acknowledged telling an investigating officer on the morning of the killing that he had not drunk wine. When asked at trial if that statement was true, he replied: "If that's what the report says, then, yes, sir.")
He testified that as it grew dark, he continued to drink and smoke marijuana. "[I] remember getting . . . pretty intoxicated." "My feet were getting heavy, . . . I was tripping over stuff, fumbling my drink . . . that sort of thing." "[A]round 10:30 11:00, . . . I was seeing doubles (sic). . . ." His last recollection was unfolding his foldout bed, turning down the music, and going outside to tell the victim he was going to sleep. He smoked another joint, finished his wine, and, "to my best recollection, I remember going and laying down." The victim was still on the porch.
When defendant awoke, he had to use the bathroom. As he looked out the window, he saw, in a grassy area near the trailer, the victim lying in a puddle of blood. He was face down on a pier block. Defendant testified that he "panicked" and "ran out" to the victim, who was "cold to the touch." He testified he thought the victim had fallen or had a "terrible accident." He called 911; a recording and transcript were provided to the jury, wherein defendant asked for dispatch to "[p]lease come out" and "[s]end somebody please" because "I thought he was asleep last night and he passed away in his sleep."
A responding officer found defendant "crying uncontrollably and visibly very upset." Although defendant smelled of alcohol, his blood alcohol content was never tested. He told the responding officer he had "blacked out and he believed he went to bed." Another officer testified to overhearing defendant say on the phone that same morning that the victim had fallen off the porch and hit his head on a concrete block. Defendant said he blamed himself for the death because the porch needed to be fixed. Defendant was becoming so upset on the phone that the officer told him to end the call.
Defendant admitted he had moved the body after he found it. He told officers and the jury that he had dragged the body to the trailer and covered it with a blanket so people would not see the body from the road. He also moved the pier block, shoveled the bloody dirt into a bucket, and testified that he changed his clothes and washed the victim's blood off him, although he initially told officers he was wearing the same clothes he wore the night before. He told the police that he moved the block and shoveled the blood because he did not want to see them.
Although there were no witnesses to the killing, a neighbor was awake around the relevant time and heard defendant's raised voice from inside the trailer, as well as a voice he thought was the victim's and several sounds, similar to a door swinging and "something rolling across the porch." The neighbor testified that he heard defendant say "Get the fuck out of my house" three times, followed by "Get the F out of my face" once. The neighbor did nothing, as he "didn't think about anything being wrong . . . except maybe he got to drinking or something."
Defendant denied any memory of getting up in the night, much less killing his cousin. He testified he had, on many previous occasions, drank alcohol to the point that the next day he had no memory of the prior night. The victim displayed acute ethanol intoxication, with a blood-alcohol concentration of 0.283 percent. A defense expert testified it would take 17 and one-half beers for a man the victim's size to reach a 0.283 blood-alcohol concentration, and the victim likely consumed more, depending on how long he had been drinking, due to absorption rates.
A forensic pathologist testified the victim's injuries were not consistent with falling onto the pier block, nor were they consistent with a single impact. The injuries, however, could have come from the pier block being dropped twice on the victim's face. A bloodshed interpretation and analysis expert also concluded the victim's facial injuries were not from falling onto the block. Blood trails showed the victim was face up when the blood loss occurred. Blood on the pier block indicated at least two bloodshed events with the pier block — in other words, the block had been dropped at least twice on the victim's face.
The expert also concluded that the blood spatter on the outside of the trailer came from the same place the body was laying when police arrived: "[T]he majority, if not all of the blood stains came from the area of where . . . the decedent's head was when I found it on scene." The victim, "appeared to have been pulled or dragged into the location he was at, based on the shirt being pushed up underneath his arms." "There was blood spatter on his arms, on his torso, and the west wall of the trailer." The victim weighed between 320 and 350 pounds.
Defendant Requests an Involuntary Manslaughter Instruction
Prior to jury deliberation, the defense requested an instruction on involuntary manslaughter due to unconsciousness from voluntary intoxication. (CALCRIM No. 626.)
The court, however, instructed the jury on Voluntary Intoxication: Effects on Homicide Crimes. (CALCRIM No. 625.)
Verdict and Sentencing
The jury found defendant guilty of the lesser included offense of second degree murder (Pen. Code, §§ 187, subd. (a), 189), acquitting him of murder in the first degree. The trial court imposed a 15-year-to-life indeterminate term.
Refusal to Instruct on Involuntary Manslaughter Based on Voluntarily Intoxication
Defendant first challenges the trial court's refusal to instruct on involuntary manslaughter based on voluntary intoxication. We agree the trial court should have given the instruction; however, as we explain, the failure to do so was harmless.
A. The Duty to Instruct
A trial court must instruct sua sponte on involuntary manslaughter based on unconsciousness from voluntary intoxication if evidence deserving of consideration supports the finding. (People v. Halvorsen (2007) 42 Cal.4th 379, 418; People v. Turk (2008) 164 Cal.App.4th 1361, 1371; CALCRIM No. 626.) Here, the trial court was asked to so instruct but declined to do so, observing that although defendant "drank a lot," he did not "pass out" but rather went to sleep. But this is not the correct analysis.
As relevant to the disputed instruction, unconsciousness requires only that a defendant "physically acts in fact but is not, at the time, conscious of acting." (People v. Newton (1970) 8 Cal.App.3d 359, 376; People v. Ochoa (1998) 19 Cal.4th 353, 424.) A person need not be incapable of movement to be unconscious. (People v. Hughes (2002) 27 Cal.4th 287, 344.) Whether defendant remembered falling asleep or passing out or nothing at all, if evidence deserving of consideration supported a finding that at the time of the killing defendant was not conscious of acting, the instruction should have been given. Here, as we describe, there was some such evidence.
Although a defendant's professed inability to recall the event is, alone, insufficient to warrant the instruction (People v. Rogers (2006) 39 Cal.4th 826, 888), the analysis of whether the instruction is warranted does not hinge on credibility. "The fact, if it appears, that such evidence does not inspire belief does not authorize the failure to instruct: `However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.'" (People v. Newton, supra, 8 Cal.App.3d at p. 377.) Here there was evidence beyond defendant's professed lack of memory which, if believed by the jury, would suggest he may not have been conscious of his actions during the killing. (See People v. Wilson (1967) 66 Cal.2d 749, 762-763 [instruction required where the defendant testified he did not remember the shooting and his testimony was consistent with the story he told police when arrested].)
Defendant drank and smoked marijuana for much of the day leading to the killing. The trial court even observed that defendant drank a lot. Defendant testified he was "pretty intoxicated," his feet felt heavy, he was "tripping over stuff," and seeing double. The victim — with whom defendant testified he was "keeping up" — had a blood-alcohol concentration of 0.283 percent, signaling acute alcohol intoxication. Defendant also reported previously drinking to the point of complete memory loss. He was upset when reporting the death and "crying uncontrollably" when talking to responding officers. Further, although defendant was not tested for alcohol consumption, one of the officers reported that defendant still smelled of alcohol the morning after the crime.
Relying on People v. Ochoa, the Attorney General argues that defendant exhibited "more than `mere physical movement' "thus "unconsciousness likely did not exist." But the comparison is inapt; although defendant's crime included a brief drunken rant overheard by a neighbor as well as deadly force, it is not comparable to Ochoa, where the defendant's approach to the crime indicated that he "was either guilty of the charged crime or not guilty at all." (Ochoa, supra, 19 Cal.4th at p. 424.) In Ochoa, defendant "approached [the victim] and had the presence of mind to tell her to be quiet, to display a knife, and to take her to [a secluded place]. He asked her to remove her pants. Later she asked if she could put her pants back on, and he gave permission. All of these facts show a methodical, calculated approach to the crimes. There was no evidence that [the defendant] then consumed more cocaine before stabbing her. Rather, he reflected on the possible consequences of letting her live, decided that the risk was too great, and killed her." (Ibid.) Here, there was no such evidence of a calculated approach to the killing itself or defendant's reflection prior to it, and the jury actually acquitted defendant of the charged crime, rejecting the all or nothing assessment of the evidence described by our Supreme Court in Ochoa.
Nor is People v. Carlson (2011) 200 Cal.App.4th 695, on which the Attorney General also relies, on point. There, defendant drove a complicated route and then, after a deadly accident, was able to climb out of the car through the sunroof and interact with numerous witnesses, answering questions and "repeatedly insist[ing] she was not driving the car when the accident occurred." (Id. at p. 704.) Although the Attorney General points to defendant's questionable conduct in moving the body the next day, defendant's actions came hours after the period during which he professed to be unconscious. Although, as we will explain, defendant's conduct later that morning is relevant to our analysis of harmlessness that follows, it is not relevant to the question of whether defendant's actions while claiming unconsciousness operated to deny him the instruction.
Here, the evidence sufficed to obligate an instruction on involuntary manslaughter. Although there was much evidence contradicting defendant's account, that evidence was for the jury to weigh, as we discuss immediately post when deciding that it was not reasonably likely the jury would have found defendant unconscious even if properly instructed.
B. The Failure to Instruct was Harmless
In a noncapital case, error in failing to instruct sua sponte on a lesser included offense supported by the evidence is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, at page 821. (People v. Breverman (1998) 19 Cal.4th 142, 178.) We will reverse only if after examining the record it appears "`reasonably probable'" defendant would have obtained a more favorable outcome absent the error. (Ibid.) "[E]vidence sufficient to warrant an instruction on a lesser included offense does not necessarily amount to evidence sufficient to create a reasonable probability of a different outcome had the instruction been given." (People v. Banks (2014) 59 Cal.4th 1113, 1161, disapproved on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
Here, a more favorable outcome was not reasonably probable. While defendant offered evidence of unconsciousness, overwhelming contraindicating evidence made it all but inconceivable the jury would have accepted his version of the early morning events, even had defendant been permitted at trial to advance and vigorously argue that version, bolstered by the requested instruction, as he now claims he was entitled to do.
First and foremost, while defendant maintained he awoke, discovered the victim lying face down on a block as if having fallen off the porch, and then moved the body so that passers-by would not see it, the uncontested scientific evidence refuted that account. Defendant never moved the body after the killing. Rather, defendant severely beat the victim, then dragged him to the trailer (out of sight of the road), where he finished him off. During the beating, the victim was struck in the face six to 11 times with at least two different weapons and was hit in the torso about a dozen times. After dragging the victim to the trailer, defendant twice dropped the concrete block on the victim's face, sending blood spatter to the victim's abdomen and the trailer exterior. The bloodshed expert concluded the source of the spatter was the victim's head, in the same location police found the victim.
Defendant also maintained he found the victim lying face down on the pier block. But expert testimony confirmed that the blood trails and the nature of the victim's injuries both indicated the victim was face up when defendant twice dropped the block on his face. Other statements of defendant were also contradicted, and a properly instructed jury would doubtless find this evidence relevant to the issue of unconsciousness. For example, defendant initially told officers the clothes he was wearing were the same he had worn the day before; he later admitted changing his clothes. While he told the emergency dispatcher that the victim died in his sleep, an officer later heard him tell a friend that the victim fell off the porch and hit his head. When coupled with defendant's admitted alteration and cleanup of the crime scene before the police arrived, these inconsistencies were powerful evidence of defendant's conscious involvement in the victim's killing.
Finally, the nature of the killing — including the loud profanity-laced commands from defendant to the victim, followed by defendant's dragging the 320 to 350 pound victim from the porch to the grass to the side of the trailer, then twice lifting and twice dropping a 59.6 pound concrete block on the victim's face — made a theory defendant acted without consciousness nearly impossible to accept. Against this overwhelming evidence to the contrary, it is not reasonably probable that a properly instructed jury would have disregarded this additional evidence and concluded defendant was unconscious throughout the complicated and protracted murder of his cousin.
The Trial Court Properly Limited Impeachment of the Prosecution's Expert
Defendant next challenges the trial court's refusal to allow impeachment of a prosecution expert using a 2006 postmortem examination. He argues the decision was both a violation of his right to due process and an abuse of discretion under Evidence Code section 352.
Prior to trial, the prosecution moved to preclude the defense from questioning the forensic pathologist expert about a postmortem examination she had performed in 2006. In that case, two people died within a short period of each other: one in bed and one in a car crash. The expert conducted a postmortem examination of the decedent who died in bed, thinking it was the decedent from the car crash. Based on her examination, she told an investigating officer the decedent suffered injuries to his left side. The officer replied he had expected injuries to be on the right side. The expert explained the decedent might have moved in the car during the car crash. The expert later discovered her error and notified the proper authorities.
Defense counsel argued the 2006 exam went to the "accuracy of the postmortem examinations she conducts. . . ." He explained, "rather than going back and trying to figure out if she made a mistake [when the officer said he expected a different result] she starts coming up with theories as to why it should jive. . . ."
The trial court excluded the inquiry under section 352. It noted, "one real big problem is [section 352] and getting into a trial about that particular case." "I just don't see a whole lot of value with what we have here. . . ." It added, she "is giving an explanation of what may have occurred. . . . It doesn't mean that she's wrong. . . ."
B. The Trial Court Properly Limited Impeachment of the Expert
We will not disturb the trial court's exercise of discretion under section 352 unless the court "`exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457.) While section 352 gives way to a defendant's due process right to a fair trial and opportunity to present relevant evidence of significant probative value, this does not entail an unlimited inquiry into collateral matters. (Tidwell, at p. 1457.) The proffered evidence must have more than "`"slight-relevancy"'" and be of "`some competent, substantial and significant value.'" (Ibid.)
Here, the extremely limited probative value of the impeachment evidence undermines defendant's due process challenge. The defense did not seek to impeach the expert for examining the wrong body. It sought only to show the expert presented a hypothesis to explain unexpected results. As the trial court explained, it was not even clear that the expert acted inappropriately. The evidence thus fails to surmount the "slight-relevancy" threshold.
Even assuming some limited relevance, the trial court appropriately applied section 352, noting that the high likelihood of confusing the jury and wasting its time figuring out what happened in 2006; that is, "getting into a trial about that particular case." The trial court thus acted within its discretion in excluding the evidence.
The judgment is affirmed.
Hull, Acting P. J., and Mauro, J., concurs.