Not to be Published in the Official Reports
Defendant Robert Lee Lewis appeals from a judgment of conviction entered after a jury found him guilty on two counts of first degree murder (Pen. Code, § 187, subd. (a)) and found true the allegations defendant committed more than one murder (id., § 190.2, subd. (a)(3)); the murders were intentional and committed by lying in wait (id., § 190.2, subd. (a)(15)); defendant personally used a knife in the commission of the murders (id., § 12022, subd. (b)(1)); and defendant personally used and intentionally discharged a handgun in the commission of the murders, causing the death of the victims (id., § 12022.53, subds. (b), (c), (d)). The trial court sentenced defendant to consecutive sentences of life without the possibility of parole for the murders and an additional 50 years to life for the firearm use under subdivision (d) of Penal Code section 12022.53. It stayed the enhancements for use of a knife.
On appeal, defendant claims numerous errors, including evidentiary and instructional error, violated his rights to due process and a fair trial, requiring reversal of his convictions. While we agree with some of defendant's claims of error, they do not require reversal of his convictions but rather, reversal of one of the special circumstances and modification of the judgment.
In October 2006, defendant lived with his mother, Pamela Dumais (Dumais), and her longtime companion, Rodney Courtright (Courtright), in a home in Glendora. Defendant had a history of drug and alcohol abuse, which was a source of tension in the family. He had been in rehabilitation twice. He was scheduled to enter an alcohol and drug rehabilitation facility again on October 24. Dumais and Courtright planned to have Courtright's mother come to live with them after defendant entered rehabilitation.
On the weekend before defendant was to enter rehabilitation, defendant went on a drug and alcohol binge, consuming vodka, marijuana and methamphetamine. On the morning of October 24, defendant awoke at about 8:00 a.m. and began drinking. He drank two or three pints of vodka and also smoked marijuana and methamphetamine.
Dumais went to work that day, but Courtright remained at home. Defendant helped Courtright work on a trailer. Dumais arrived home about 4:45 p.m. She ordered a pizza, which she, Courtright and defendant began eating at the table. Defendant, who had not eaten all day, had only a couple of bites of pizza. He began arguing with Dumais and Courtright over money they were keeping from him. Courtright told him he was worthless and needed to "become a real man."
About a week earlier, defendant had taken a .22 caliber handgun from Courtright's desk and placed it in a cabinet on the patio.
Defendant began yelling at himself and rummaging through the house, looking for money and marijuana. He drove Dumais's car to a liquor store and bought a bottle of vodka. At about 11:00 p.m., he called a man named McKnight, from whom he bought $20 worth of methamphetamine.
At some point that night, defendant dragged Courtright's and Dumais's bodies into the master bedroom. He then cleaned the blood off the floor.
When Dumais failed to come to work on the morning of October 25, a coworker, Sherrie Sifontes (Sifontes) became concerned. Dumais was conscientious and punctual and would call if she were going to be late. Sifontes called Dumais's house and spoke to defendant, who told her that Dumais and Courtright had gone out of town the night before and would be gone for several days. Sifontes did not believe him, in that Dumais had told her she could not go with Courtright to Utah to pick up his mother because she had taken too much time off work, and it would be unlike Dumais to go out of town without notifying work. Sifontes tried calling Dumais's cell phone, but Dumais did not answer.
Sifontes notified her supervisor, Kathlene Smith (Smith). She said that defendant sounded funny—nervous and out of breath. Smith called Dumais's cell phone and got no answer. She called the house, and defendant answered the phone. He repeated the explanation he gave Sifontes. When she challenged him, he added that Dumais and Courtright had left a note; they had taken a cab and left their cars at home. Smith asked for Courtright's cell phone number. She called it, but her call went directly to voicemail. Smith contacted her supervisor, and they contacted the Glendora Police Department.
Officers Michael Randazzo and James Campbell went to Dumais's house; Officer Gregory Oberon arrived after them. Defendant answered the door, and Officer Randazzo said he was there to check on Dumais. Defendant said Dumais and Courtright were on vacation. He was calm and cooperative and did not appear to be under the influence of drugs or alcohol. At the officers' request, defendant allowed the officers to enter and look around the house. Officer Randazzo walked down the hallway and looked into the first bedroom, defendant's. He saw a woman's purse and an empty holster on the bed. He looked inside the purse and saw a pill bottle with Dumais's name on the label.
Officer Randazzo made his way down the hallway, checking a bathroom and the heater closet. At the end of the hallway were two locked doors. Near one of the doors, Officer Randazzo saw a small piece of paper with a smudge on it that appeared to be blood. He asked defendant about the locked doors. Defendant said his parents kept the doors locked to keep him from going through their things.
Officer Campbell attempted unsuccessfully to open the locked doors. Officer Randazzo showed the piece of paper to Officer Campbell, who agreed the smudge looked like blood. They decided to force the doors open. They patted down defendant and handcuffed him. Then Officer Randazzo kicked down one of the doors. The room was a master bedroom, and there were streaks of blood on the floor, leading to an interior door. Officer Randazzo opened the interior door. Inside a bathroom, he saw the bodies of Dumais and Courtright, upside down against the wall near the toilet.
Courtright died from two gunshot wounds to the chest, both of which pierced his left lung. He also had a knife wound to the front of his shoulder and one to his neck which cut his trachea. Dumais died from two gunshot wounds, one to her chest which pierced her lung and heart and one to her hand. She also had knife wounds to her chest and neck.
Detectives David Carver and Jonas Shipe interviewed defendant at the police station. Defendant waived his constitutional rights and agreed to talk to them. He told them about the events of October 24, including shooting and stabbing Dumais and Courtright.
Detective Carver obtained a search warrant for a sample of defendant's blood. A blood test showed defendant had a concentration of 95 nanograms per milliliter of methamphetamine and a metabolite of marijuana.
A subsequent search of defendant's house revealed bloodstains on the floor and bloody cleaning supplies. Police found shell casings and bullet fragments. They found the .22 caliber gun in defendant's bedroom. They also found an empty vodka bottle and methamphetamine paraphernalia.
Detectives Carver and Shipe interviewed defendant after the search. He again waived his constitutional rights. He was shown photographs of the house and added some details to his statement.
Constance Williams (Williams), a neighbor of defendant's, had known defendant since he was a child. In the summer of 2006, defendant told her that he had a drug and alcohol problem. Williams knew of arguments between Dumais and defendant over his drug use. Defendant complained to Williams about Dumais and Courtright "constantly bugging him about it." Courtright complained about defendant's drug use and told Williams that he would be bringing his mother to live with him. At about 7:00 p.m. on October 24, Williams saw Courtright and defendant working on a trailer.
Melissa Hartnett (Hartnett) was a friend of Dumais and Courtright and knew defendant. She was by their house at about 7:00 p.m. on October 24. She saw defendant outside on the sidewalk and asked how he was doing. He said he was okay, but his speech was slurred, and Hartnett smelled alcohol on his breath.
Hartnett had seen defendant at Dumais's and Courtright's house three to five times previously. Each time, he was intoxicated and had slurred speech. Hartnett also knew that defendant used methamphetamine, which he purchased from McKnight, who was known in the area as a supplier.
Dr. Gordon Plotkin, a forensic psychiatrist, opined that defendant was an alcoholic and a regular methamphetamine user. He noted that a person with a high tolerance for alcohol could have impaired reasoning due to alcohol even though he did not appear outwardly to be intoxicated. This is so because alcohol is a central nervous system depressant which impairs functioning in the brain's frontal lobe, which governs reasoning, executive function, judgment and inhibition.
By contrast, methamphetamine is a central nervous system stimulant. In high doses, it can cause irritability, jitteriness and nervousness. In higher doses, it can cause psychosis, irrational behavior and even induce violence. In combination, methamphetamine and alcohol can result in poor impulse control, with irritability and a quick temper.
Dr. Plotkin testified that a methamphetamine level of 95 nanograms per milliliter of blood would result in intoxication, with such physical symptoms as dilated pupils and dry mouth. He opined that this blood level at the time of testing suggested that defendant had consumed more than $20 worth of methamphetamine.
According to Dr. Plotkin, an alcoholic blackout is a form of conscious sedation which can occur when the amount of alcohol consumed reduces sensory input to the brain to the point where a person may not remember what occurs in that state. Even a highly tolerant, functioning alcoholic may experience an alcoholic blackout. Even though a stimulant such as methamphetamine reduces the likelihood of an alcoholic blackout, a sufficient amount of alcohol can overcome the stimulant and result in an alcoholic blackout. A person suffering an alcoholic blackout could remember shooting a gun but not why he did so.
Based on the evidence, it was Dr. Plotkin's opinion that defendant could have been intoxicated at the time of the killings. Given a hypothetical based on the amount of vodka defendant consumed and the argument with Dumais and Courtright, Dr. Plotkin opined that defendant's reasoning was likely impaired.
Detective Carver had training regarding individuals under the influence of drugs and alcohol, and he was a licensed paramedic. During his first interview of defendant, defendant did not appear to be under the influence of drugs or alcohol. Defendant's eyes were not bloodshot or watery; his speech was not slurred. Detective Carver did not smell alcohol on defendant's breath.
Defendant also did not appear to be under the influence of methamphetamine. He did not have rapid speech, dry mouth, tremors, dilated pupils, or a rapid pulse, and he was not sweating. The following day, defendant did not exhibit any symptoms of withdrawal from alcohol or methamphetamine.
CALCRIM Nos. 521, 522 and 570
Defendant contends CALCRIM Nos. 521, 522 and 570 are unconstitutional because they permit the jury to convict him of first degree murder even if he acted in the heat of passion. We disagree.
CALCRIM No. 521 instructs the jury as to the degrees of murder.
The trial court also instructed the jury pursuant to CALCRIM No. 522: "Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter."
CALCRIM No. 570 instructed the jury that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than judgment.
"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.
"In order for heat of passion to reduce murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. [¶] If enough time passed between the provocation and the killing for a person of average disposition to `cool off' and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
As set forth in CALCRIM No. 570, the provocation necessary to reduce murder to manslaughter is measured by an objective standard, that is, "if the killer's reason was actually obscured as the result of a strong passion aroused by a `provocation' sufficient to cause an `"ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."'" (People v. Breverman (1998) 19 Cal.4th 142, 163).
Defendant argues that, by contrast, the provocation necessary to reduce murder from first degree to second degree is judged by a subjective standard. Since there was no instruction on this subjective standard, he contends, the jury would have looked to CALCRIM No. 570 and applied the wrong standard in determining whether there was provocation sufficient to reduce first degree murder to second degree murder.
The difference between the two standards was explained in People v. Cole (2004) 33 Cal.4th 1158. In that case, the jury was instructed pursuant to CALJIC No. 8.73 "that it could consider `evidence of provocation for such bearing as it may have on the question of whether the murder was of the first or second degree.'" (Cole, supra, at p. 1211.) The defendant claimed that "the trial court should have instructed on provocation for purposes of voluntary manslaughter. But provocation for such purposes has nothing to do with intent and everything to do with circumstances, specifically, whether the circumstances would have caused a reasonable person to act as defendant did. [Citation.] Thus, to instruct on provocation for purposes of voluntary manslaughter would have not assisted the jury in determining whether provocation prevented defendant from forming the intent necessary to commit murder by torture. The two concepts are distinct." (Ibid., italics omitted.)
The court went on to explain that the trial court "did instruct the jury on provocation as relevant to [murder]. Specifically, the court instructed that, if `the killing was preceded and accompanied by a clear, deliberate intent . . ., which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation,' it was first degree murder. [Citation.]" (People v. Cole, supra, 33 Cal.4th at p. 1211.)
While the language of CALCRIM differs from that of CALJIC, the effect is the same. The trial court instructed the jury pursuant to CALCRIM No. 521 that the People had the burden of proving beyond a reasonable doubt that defendant "acted willfully, deliberately, and with premeditation," and "[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated."
The court then instructed the jury pursuant to CALCRIM No. 522 that it could consider the effect of any provocation in determining whether a crime was first or second degree murder, or whether it was murder or manslaughter. Under Cole, these two instructions were sufficient to apprise the jury of the effect of provocation on the determination whether murder is of the first or second degree. (People v. Cole, supra, 33 Cal.4th at p. 1211.)
As to the effect of CALCRIM No. 570, the instruction specifies that it applies to the reduction of a crime from murder to manslaughter when committed because of a sudden quarrel or heat of passion. We presume the jury followed the instructions given it. (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.)
Trial Court's Response to Jury Request for Further Instruction
Defendant contends that the trial court's response to the jury's request for a definition of provocation was inadequate. Again, we disagree.
During deliberations, the jury requested the definitions of premeditation and provocation. Counsel for both sides agreed that the trial court refer the jury to CALCRIM No. 521 for the definition of premeditation. As to the definition of provocation, after some discussion counsel for both sides agreed that the trial court refer the jury to CALCRIM Nos. 522 and 570.
As the People point out, defense counsel's agreement with the trial court's response to the jury's questions waives any claim of error. (People v. Price (1991) 1 Cal.4th 324, 414.) Moreover, as discussed above, the instructions given were an adequate statement of the law. If the original instructions are adequate and further instruction may mean the risk of error, the trial court may simply reiterate the instructions given. (People v. Beardslee (1991) 53 Cal.3d 68, 97; People v. Gonzalez (1990) 51 Cal.3d 1179, 1213.)
It may be, as the trial court indicated in its discussion of the provocation instructions, that CALJIC No. 8.73 "gives a little more of a signal" as to the definition of provocation. If defendant wanted the jury instructed with CALJIC No. 8.73 or any portion of that instruction, it was his obligation to request such instruction. Again, his failure to do so waived any claim of error. (People v. Lang (1989) 49 Cal.3d 991, 1024.)
Failure to Instruct on Involuntary Manslaughter Due to Unconsciousness
Defendant asserts that the trial court had a duty to instruct the jury sua sponte on the lesser included offense of involuntary manslaughter due to unconsciousness caused by voluntary intoxication. His assertion is without merit.
It is well established that the trial court has a duty to "instruct on lesser offenses necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citation.] On the other hand, if there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged, such instructions shall not be given. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1063-1064.)
In arguing that substantial evidence supported an instruction on involuntary manslaughter due to unconsciousness caused by voluntary intoxication, defendant cites no evidence whatsoever that he was unconscious at the time of the killings.
Failure to Instruct on Involuntary Manslaughter Due to Voluntary Intoxication
Defendant further claims that even if there was no evidence his voluntary intoxication led to unconsciousness, the trial court had a sua sponte duty to instruct the jury on involuntary manslaughter due to voluntary intoxication as a lesser included offense. We disagree.
Defendant's claim was rejected in People v. Turk (2008) 164 Cal.App.4th 1361, review denied October 28, 2008. As in Turk, "[i]n claiming that the trial court erred in failing to instruct the jury on involuntary manslaughter, [defendant] relies primarily on People v. Ray (1975) 14 Cal.3d 20 . . . (Ray) abrogated on another ground by People v. Lasko (2000) 23 Cal.4th 101 . . ., in which the Supreme Court held that `an instruction on involuntary manslaughter is required if there is evidence that the accused is unable to entertain an intent to kill even though he has not lapsed into unconsciousness.' (Ray, supra, 14 Cal.3d at pp. 28-29.)" (Turk, supra, at p. 1373.) The Ray court explained that "`if an accused is unable to harbor malice and an intent to kill because of voluntary intoxication which does not render him unconscious he cannot be guilty of an unlawful homicide greater than involuntary manslaughter and the jury must be so instructed.'" (Ibid., quoting from Ray, supra, at p. 30.)
In 1994, the Supreme Court held in People v. Whitfield (1994) 7 Cal.4th 437, 451 "that evidence of voluntary intoxication is admissible to negate implied as well as express malice." (People v. Turk, supra, 164 Cal.App.4th at p. 1374.) In response, Turk explained, the Legislature amended Penal Code section 22, subdivision (b),
While the Turk court was unaware of any case addressing the continued validity of Ray in light of the amendment to Penal Code section 22, it noted that in People v. Boyer (2006) 38 Cal.4th 412, 469, footnote 40, the Supreme Court "stated in dicta that, in light of the 1995 amendment to section 22, subdivision (b), it `now appears that defendant's voluntary intoxication, even to the point of actual unconsciousness, would not prevent his conviction of second degree murder on an implied malice theory . . . ." (People v. Turk, supra, 164 Cal.App.4th at pp. 1375-1376.)
Thus, the Turk court concluded, "a defendant who unlawfully kills without express malice due to voluntary intoxication can still act with implied malice, which voluntary intoxication cannot negate, in the wake of the 1995 amendment to section 22, subdivision (b). To the extent that a defendant who is voluntarily intoxicated unlawfully kills with implied malice, the defendant would be guilty of second degree murder." (People v. Turk, supra, 164 Cal.App.4th at pp. 1376-1377, fn. omitted.) Turk therefore rejected the defendant's claim that an instruction on involuntary manslaughter due to voluntary intoxication was required. (Id. at p. 1378.)
We agree with Turk that, since voluntary intoxication does not negate implied malice, a defendant who unlawfully kills but does not harbor express malice and an intent to kill because of voluntary intoxication which does not render him unconscious may still be held liable for second degree murder based on implied malice. Since defendant here points to no evidence supporting an instruction on involuntary manslaughter on any basis other than voluntary intoxication, the trial court had no duty to instruct the jury sua sponte on involuntary manslaughter as a lesser included offense. (People v. Turk, supra, 164 Cal.App.4th at p. 1378.)
Constitutionality of Penal Code Section 22
Defendant further claims that, to the extent Penal Code section 22, subdivision (b), precludes the introduction of evidence of voluntary intoxication for the purpose of negating implied malice, it violates his due process right to present a defense. We agree with the analysis of the First District in People v. Timms, supra, 151 Cal.App.4th at pages 1298-1301 in concluding that Penal Code section 22, subdivision (b), does not violate a defendant's due process right to present a defense. (See also People v. Atkins (2001) 25 Cal.4th 76, 93 [rejecting a claim that Penal Code section 22 deprived a defendant charged with arson the right to present a defense by excluding evidence of voluntary intoxication to show he did not possess the requisite mental state]; People v. Martin, supra, 78 Cal.App.4th at p. 1117.)
Impermissible Burden Shifting
Defendant asserts that CALCRIM Nos. 522 and 570 impermissibly shift the prosecution's burden of proof by creating a presumption that a homicide is murder unless it can be "reduced" to voluntary manslaughter. As previously set forth, CALCRIM No. 522 provides that "[p]rovocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter." (Italics added.) CALCRIM No. 570 provides that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." (Italics added.)
In defendant's view, these instructions told the jury "that they should effectively find [his] conduct to be murder unless they were persuaded to reduce it to voluntary manslaughter," which "impermissibly slanted the determination of this pivotal issue toward the prosecution." We disagree.
When reviewing the effect of challenged instructions, we look at the instructions given as a whole. (People v. Cain (1995) 10 Cal.4th 1, 36; People v. Garrison (1989) 47 Cal.3d 746, 780.) We determine whether a reasonable jury would have interpreted the instruction in the manner proposed by defendant. (Cain, supra, at p. 36; People v. Warren (1988) 45 Cal.3d 471, 487.)
Here, the jury was instructed that defendant was presumed to be innocent, and the prosecution must prove its case beyond a reasonable doubt. (CALCRIM No. 220.) The trial court instructed the jury that defendant was charged with murder, the elements of murder and the degrees of murder. (CALCRIM Nos. 520, 521.) The trial court then instructed the jury pursuant to CALCRIM No. 522 as to the effect of provocation and pursuant to CALCRIM No. 570 as to voluntary manslaughter based on heat of passion as a lesser included offense. This instruction concluded by instructing the jury that "[t]he People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder." (Italics added.) Finally, the trial court instructed the jury that it could "consider these different kinds of homicide in whatever order you wish," but it could "accept a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of the greater crimes." (CALCRIM No. 640.)
Thus, the jury was instructed that defendant was charged with murder and the People had the burden of proving beyond a reasonable doubt that defendant was guilty of murder. The challenged instructions had the effect of telling the jury that even if the People proved defendant committed murder, they could nonetheless reduce his conviction to manslaughter if they found sufficient provocation or a killing resulting from a sudden quarrel or in the heat of passion. As to the latter, the People had the burden of proving beyond a reasonable doubt that the killing did not result from a sudden quarrel or the heat of passion. The instructions therefore did not impermissibly shift the burden to defendant to prove that he acted in response to provocation or in the heat of passion in order for the jury to find him guilty of voluntary manslaughter. (Mullaney v. Wilbur (1975) 421 U.S. 684, 703-704 [95 S.Ct. 1881, 44 L.Ed.2d 508].) We find no fault with the instructions.
People v. Kurtzman (1988) 46 Cal.3d 322, on which defendant relies, is inapposite. Kurtzman holds that the trial court may instruct the jury that it cannot return a verdict on a lesser included offense until it has agreed that the defendant is not guilty of the greater crime charged. (Id. at p. 329.) Such an instruction protects "both the defendant's interest in not improperly restricting the jury's deliberations and the People's interest in requiring the jury to grapple with the prospect of defendant's guilt of the greatest offense charged." (Id. at p. 334.) The instructions in the instant case were consistent with Kurtzman.
CALCRIM No. 371
CALCRIM No. 371 instructs the jury: "If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself." Defendant contends that CALCRIM No.371 "embodies an irrational permissive inference in violation of due process." We disagree.
Due process requires a rational relationship between a permissive inference and the fact on which it is based. (People v. Mendoza (2000) 24 Cal.4th 130, 180.) "`A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Citation.]' [Citations.]" (Ibid.)
Instructions which permit the jury to infer "consciousness of guilt" from proven facts, such as making false statements regarding the crime charged (CALJIC No. 2.03), attempts to dissuade a witness (CALJIC No. 2.04), suppression of evidence (CALJIC No. 2.06) and flight (CALJIC No. 2.52), have been upheld against various challenges. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102; People v. Mendoza, supra, 24 Cal.4th at p. 180; People v. Jackson (1996) 13 Cal.4th 1164, 1222-1226; People v. Turner (1994) 8 Cal.4th 137, 202.)
Defendant distinguishes CALCRIM No. 371 based on its use of the term "aware of his guilt." He argues that such an awareness "could not exist unless the defendant were in fact guilty. In effect, the instruction permitted the jury to infer one fact, guilt, from other facts, i.e., suppression of evidence." Defendant claims that such an inference is irrational and thus violates due process. (See People v. Coffman and Marlow, supra, 34 Cal.4th at p. 102; People v. Mendoza, supra, 24 Cal.4th at pp. 179-180.)
Defendant's claim has been rejected in People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, which addressed the issue in connection with CALCRIM No. 372, which permits the jury to draw an inference of awareness of guilt from a defendant's flight after the commission of the crime. There, the court observed the "dictionary definition of the word `aware': `Having knowledge or cognizance.' (American Heritage Dict. (4th ed. 2000) p. 125.)" (Hernández Ríos, supra, at p. 1158.) "Since the dictionary defines `consciousness' as `[s]pecial awareness or sensitivity . . . .' ([American Heritage Dict., supra], at p. 391 . . .), ipso facto the special awareness that [the jury is allowed] to infer from a flight instruction is `guilt consciousness' . . . ." (Hernández Ríos, supra, at p. 1159.)
Similarly, Webster's New World Dictionary (3d college ed. 1991) at page 95 defines "aware" as "knowing or realizing; conscious; informed." It defines "conscious" as "knowing," "aware." (Id. at p. 296.) In other words, the terms are synonymous.
CALCRIM No. 372, like CALJIC No. 2.06, allows a jury to draw an inference rationally related to the facts from which it is drawn. It therefore does not violate due process. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 102; People v. Mendoza, supra, 24 Cal.4th at pp. 179-180.)
CALCRIM No. 220
Defendant contends CALCRIM No. 220, the reasonable doubt instruction, violates due process because it precluded the jury from considering a lack of evidence when determining whether reasonable doubt existed. We disagree.
CALCRIM No. 220 instructs the jury: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
"A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
"In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
Following CALCRIM No. 220, the trial court instructed the jury pursuant to CALCRIM No. 222 that: "You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. `Evidence' is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence."
Defendant argues that taken together, these instructions "limited the jury's determination of reasonable doubt to the evidence
Defendant relies on the principle that reasonable doubt is doubt "`"based on reason which arises from the evidence or lack of evidence."' [Citations.]" (Johnson v. Louisiana (1972) 406 U.S. 356, 360 [92 S.Ct. 1620, 32 L.Ed.2d 152].) For this reason, in People v. Simpson (1954) 43 Cal.2d 553, the court found improper an instruction defining "reasonable doubt" as "`doubt which has some good reason for its existence arising out of evidence in the case; such doubt as you are able to find a reason for in the evidence. As applied to the evidence in criminal cases, it means an actual and substantial doubt growing out of the unsatisfactory nature of the evidence in the case. . . .'" (Id. at pp. 565-566.) The court found this instruction "could have been confusing to the jury," in that reasonable doubt "may well grow out of the lack of evidence in the case as well as the evidence adduced." (Id. at p. 566; People v. McCullough (1979) 100 Cal.App.3d 169, 182.)
The language used in CALCRIM No. 220 is not the same as that found to be improper in Simpson. In People v. Campos (2007) 156 Cal.App.4th 1228, review denied February 27, 2008, the court noted that "unlike Simpson or McCullough, [CALCRIM No. 220] did not tell the jury that the reasonable doubt had to arise out of the evidence in the case. It merely said that the jury was to consider all of the evidence presented." (Campos, supra, at p. 1238.) The court acknowledged that "[r]easonable doubt may arise from the lack of evidence at trial as well as from the evidence presented. [Citation.] The plain language of CALCRIM No. 220 does not instruct otherwise. The only reasonable understanding of the language, `[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty,' is that a lack of evidence could lead to reasonable doubt. . . . The jury was likely `to understand by this instruction the almost self-evident principle that the determination of defendant's culpability beyond a reasonable doubt . . . must be based on a review of the evidence presented.' [Citations.]" (Ibid.)
We agree with Campos. The insufficiency of the evidence to prove defendant guilty beyond a reasonable doubt is the same as a lack of evidence proving guilt. CALCRIM No. 220 does not preclude the jury from considering a lack of evidence when determining whether the People have proved defendant's guilt beyond a reasonable doubt.
Defendant also asserts that the use of the phrase "impartially compare and consider all the evidence" "directs the jurors to compare the evidence presented in a manner evoking the civil standard of preponderance of the evidence," lessening the prosecution's burden of proof. Again we disagree.
As the court stated in People v. Stone (2008) 160 Cal.App.4th 323, review denied May 21, 2008, "we cannot see how a jury would place enough significance on a single word—`compare'—such that it would interpret the instruction as a whole to mean that the evidence must only preponderate in favor of the prosecution in order to warrant a guilty verdict. The instruction simply tells the jury to `compare and consider all the evidence that was received throughout the entire trial.' It does not instruct the jury to engage in any balancing of the evidence in the sense of comparing the evidence presented by one side against the evidence presented by the other side. Indeed, such an interpretation is completely inconsistent with the instructions as a whole." (Id. at p. 332, italics omitted.)
CALCRIM No. 220 repeatedly instructs the jury that proof of any fact must be beyond a reasonable doubt. No reasonable jury would have interpreted the instruction in the manner proposed by defendant. (People v. Cain, supra, 10 Cal.4th at p. 36; People v. Warren, supra, 45 Cal.3d at p. 487.)
CALCRIM No. 226
CALCRIM No. 226 instructs the jury as to evaluation of the witnesses' testimony. It instructs the jury in pertinent part: "In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe."
In defendant's view, instructing the jurors to "use your common sense and experience" encouraged the jurors to consider matters not in evidence, which constitutes misconduct. We disagree.
As explained in People v. Campos, supra, 156 Cal.App.4th at page 1240, "[t]o tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror's background, experience and reasoning must necessarily provide the backdrop for the juror's decisionmaking, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which the witnesses' credibility should be evaluated is common sense and experience. Unlike People v. Bickerstaff (1920) 46 Cal.App. 764, 773 and People v. Paulsell (1896) 115 Cal. 6, 7 , cited by [defendant], CALCRIM No. 226 does not instruct the jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard, but only in assessing a witness['s] credibility."
It is well established that "[j]urors' views of the evidence . . . are necessarily informed by their life experiences . . . ." (In re Malone (1996) 12 Cal.4th 935, 963.) CALCRIM No. 226 does no more than explain this to the jurors. It is not improper.
Defendant moved to suppress evidence found in the master bedroom on the grounds the search exceeded the scope of his consent, and there were no exigent circumstances justifying the search. The trial court found the search justified by exigent circumstances and thus denied the motion.
In ruling on a suppression motion under Penal Code section 1538.5, the trial court "`"(1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated."'" (People v. Ayala (2000) 23 Cal.4th 225, 255.) On appeal, this court reviews the trial court's factual findings under the deferential substantial evidence standard. (Ibid.) We review de novo the trial court's selection of the applicable law and application of the law to the facts. (Ibid.)
One exception to the warrant requirement is the existence of exigent circumstances or emergency. (People v. Wharton (1991) 53 Cal.3d 522, 577). Exigent circumstances include "`"emergency situation[s] requiring swift action to prevent imminent danger or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers."'" (Ibid.) If the facts known to the officers would warrant a person of reasonable caution to believe exigent circumstances existed and an immediate search or seizure was appropriate, the search or seizure will be deemed reasonable. (People v. McDowell (1988) 46 Cal.3d 551, 563; People v. Duncan (1986) 42 Cal.3d 91, 97-98.)
In finding that exigent circumstances existed in the instant case, the trial court noted several factors. First, "defendant's answers to the officer to the inquiry as to where his mother is raised questions in the officer's mind." Defendant gave "an explanation that doesn't appear to be credible," that his mother and Courtright "suddenly went off on a vacation the night before. . . . Yet [the officer] finds a female purse on [defendant's] bed belonging to [his mother]. Alongside there is an empty holster. Now, that, in and of itself, doesn't say foul play occurred, but it raises a question of concern in terms of what exactly do we have here?" "Then, as the officer continues his search . . . he reaches the end of the hallway where he has two facing doors each locked with keys and unable to gain entry. When he looks down at the bottom, he sees what appears to be a one-inch piece of paper soaked in blood."
Expanding on this, the court observed that "you have a situation where a person who is allegedly a very responsible person who suddenly left with her husband on an unexpected vacation the night before. But they turn their cell phones off, and they couldn't be contacted, nor [were] their whereabouts [known]." Defendant claimed Dumais and Courtright kept their doors locked to keep him from going through their things, "which means he didn't have permission to have the purse."
So the officers were presented with a situation where there was a missing person, locked doors, blood by one of those doors, and defendant claimed to have no access to the rooms behind those doors. The court concluded that "in light of all those circumstances, in the officer's own testimony the totality of the circumstances, he felt that—that there may be an injured person or someone who needs medical assistance behind that door. . . . So kicking in of the door would appear to be reasonable under the circumstances."
We agree with the trial court's assessment of the situation. In light of what the officers were told about Dumais, defendant's explanation of where she was lacked credibility. A person of reasonable caution would not believe that a responsible and conscientious woman would leave suddenly at night, without her purse, without contacting anyone from work and without either having her cell phone with her or leaving it on so that she could be contacted. Add to that the facts that Dumais's boyfriend also was missing and his cell phone was turned off as well, there was an empty holster by Dumais's purse in defendant's room and blood on a piece of paper by one of the locked doors, a person of reasonable caution would believe that Dumais and Courtright might have been shot and might be behind one of the locked doors, dead or possibly wounded. As long as there was a possibility that they were in the house and wounded, exigent circumstances existed justifying kicking in the doors and searching the rooms behind them. The search therefore was reasonable and the trial court properly denied the suppression motion. (People v. McDowell, supra, 46 Cal.3d at p. 563; People v. Duncan, supra, 42 Cal.3d at pp. 97-98.)
Admission of Crime Scene and Autopsy Photographs
Defendant objected to admission of autopsy photographs and photographs of the victims as they were found in the master bathroom on the ground the photographs were graphic and gruesome, and testimony as to the victims' wounds and how they were placed in the bathroom was sufficient to convey that information to the jury. The trial court first questioned the prosecutor to see if the least graphic or gruesome ones could be used. After being told that all of the photographs were equally graphic, the court overruled the objections, noting the autopsy photographs would assist the jury in assessing the victims' wounds, and the crime scene photographs would assist the jury in "assessing the crime scene and also knowledge and planning by the defendant after the event."
Evidence Code section 352 gives the trial court the discretion to exclude evidence if the probative value of the evidence is substantially outweighed by the probability its admission will create a substantial danger of undue prejudice, confusing the issues or misleading the jury. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) In this context, evidence is unduly prejudicial if it "uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues." (People v. Yu (1983) 143 Cal.App.3d 358, 377; accord, People v. Carter (2005) 36 Cal.4th 1114, 1168.)
Photographs depicting a victim's wounds that support the prosecution's theory of the case, even if graphic, are admissible. (People v. Lewis (2001) 25 Cal.4th 610, 641-642; accord, People v. Perry (2006) 38 Cal.4th 302, 318.) The Supreme Court has observed that "`"victim photographs and other graphic items of evidence in murder cases are always disturbing. [Citation.]" [Citations.]' [Citation.]" (People v. Carter, supra, 36 Cal.4th at p. 1168.) However, that the photographs may be "`graphic and unpleasant to consider does not render the introduction of those images unduly prejudicial.'" (Ibid.) Additionally, where the testimony regarding the crime scene or the victims' wounds is detailed and graphic, photographs may lose some of their otherwise prejudicial impact. (See ibid.)
Even if the photographic evidence is cumulative of testimony, exclusion is not necessarily required. The Supreme Court has "often rejected the argument that photographs of a murder victim should be excluded as cumulative if the facts for which the photographs are offered have been established by testimony. [Citations.] Because the photographic evidence could assist the jury in understanding and evaluating the testimony," the trial court may exercise its discretion to admit the photographs. (People v. Perry, supra, 38 Cal.4th at p. 318; People v. Michaels (2002) 28 Cal.4th 486, 532.)
"`A trial court has broad discretion in determining the admissibility of murder victim photographs against a claim that the photographs will arouse in the jurors an excessively emotional response.'" (People v. Perry, supra, 38 Cal.4th at p. 318.) Here, the trial court did not abuse its discretion.
The photographs unquestionably were relevant to help the jury understand the nature of the victims' wounds and defendant's efforts to hide what he had done. To some extent, the prejudicial nature of the photographs would be lessened by testimony on the same subject. The trial court attempted to limit the introduction of graphic or gruesome photographs if possible, but it was unable to do so. The decision to admit them was certainly not made in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice. (People v. Williams (2008) 43 Cal.4th 584, 634-635.) The trial court therefore did not abuse its discretion in admitting them. (People v. Perry, supra, 38 Cal.4th at p. 318.)
Multiple Murder Special Circumstance
Defendant contends the multiple murder special circumstance (Pen. Code, § 190.2, subd. (a)(3)) is overly broad, thereby violating the Due Process Clause. The Supreme Court has rejected this contention (People v. Boyer, supra, 38 Cal.4th at p. 483; People v. Boyette (2002) 29 Cal.4th 381, 440), and we are bound by its decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
Defendant also contends the second multiple murder special circumstance was superfluous and must be stricken. The People agree that where a defendant is convicted of multiple murders, only one multiple murder special circumstance attaches. (People v. Halvorsen, supra, 42 Cal.4th at p. 422; People v. Danks (2004) 32 Cal.4th 269, 315.) The second multiple murder special circumstance therefore must be stricken. (Halvorsen, supra, at p. 422.)
Lying-in-Wait Special Circumstance
Defendant also contends that the lying-in-wait special circumstance is unconstitutionally vague. Specifically, he contends that the lying-in-wait special circumstance "as interpreted by the California Supreme Court, is unconstitutionally vague because it fails to distinguish between lying in wait that results in first degree murder and the lying in wait that qualifies a defendant for death or life without the possibility of parole."
Under Penal Code section 189, a "murder which is perpetrated by means of . . . lying in wait" is first degree murder. Under Penal Code section 190.2, subdivision (a)(15), the death penalty or a sentence of life imprisonment without the possibility of parole may be imposed if "[t]he defendant intentionally killed the victim by means of lying in wait."
The California Supreme Court has repeatedly upheld the lying-in-wait special circumstance against a vagueness challenge. (People v. Jurado (2006) 38 Cal.4th 72, 127.) It explained that "`[m]urder by means of lying in wait requires only a wanton and reckless intent to inflict injury likely to cause death. [Citations.]' [Citation.]" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149, fn. omitted.) This is "because lying in wait as a theory of murder is `the functional equivalent of proof of premeditation, deliberation and intent to kill' [citations]; hence, `a showing of lying in wait obviates the necessity of separately proving premeditation and deliberation . . . .' [Citation.]" (Id. at p. 1149, fn. 10.)
By contrast, however, "the lying-in-wait special circumstance requires `an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage . . . .' [Citations.] Furthermore, the lying-in-wait special circumstance requires `that the killing take place during the period of concealment and watchful waiting, an aspect of the special circumstance distinguishable from a murder perpetrated by means of lying in wait, or following premeditation and deliberation. [Citation.]' [Citation.]" (People v. Gutierrez, supra, 28 Cal.4th at p. 1149.)
Due to the "narrowing distinction . . . between the lying-in-wait special circumstance and lying-in-wait murder . . ., any overlap between the elements of lying in wait in both contexts does not undermine the narrowing function of the special circumstance." (People v. Stevens (2007) 41 Cal.4th 182, 203-204.) The special circumstance therefore is not unconstitutionally vague. (Id. at p. 203.)
Sufficiency of the Evidence as to Lying-in-Wait Special Circumstance
Defendant contends the evidence is insufficient to support the lying-in-wait special circumstance. Rather, he claims, the evidence shows that "[t]he shooting in this case was a spontaneous act that occurred during the course of a heated argument over money and prolonged substance abuse.
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] `Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence `is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
As previously stated, "the lying-in-wait special circumstance requires `an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage . . . .' [Citations.] Furthermore, the lying-in-wait special circumstance requires `that the killing take place during the period of concealment and watchful waiting, an aspect of the special circumstance distinguishable from a murder perpetrated by means of lying in wait, or following premeditation and deliberation. [Citation.]' [Citation.]" (People v. Gutierrez, supra, 28 Cal.4th at p. 1149.)
Defendant acknowledges that there might be sufficient evidence of concealment of purpose—hiding the gun on the patio. However, "mere concealment of purpose" is insufficient to establish lying in wait. (People v. Morales (1989) 48 Cal.3d 527, 557.)
More troubling is the question whether there was a substantial period of watching and waiting for an opportune time to act, then a surprise attack on the unsuspecting victims. According to defendant—the only witness to the events—he was trying to get drunk before he went to the rehabilitation facility. He helped Courtright with the trailer he was working on. Dumais came home, he talked to her, and she ordered pizza. Defendant brought up the subject of his money. Dumais and Courtright started criticizing him. According to defendant, Courtright always argued with him and yelled at him. Courtright told defendant he was worthless and had to become a real man and get a job—something he frequently told defendant. According to defendant, "it was just going in through my head, like stop harping on me." Defendant said nothing but "[w]ent and got the gun."
Defendant said he had been worried for a couple of weeks that he was going to snap, but he had not planned on shooting Dumais and Courtright. He "just lost control. [He] was so drunk and lost control." Defendant also claimed that he stole Courtright's gun because he was "[t]ired of life" and "wanted to die."
Nothing in defendant's statement suggests that he was waiting for an opportune time to act and then launched a surprise attack on Dumais and Courtright. He was alone with Courtright all day but did nothing. Dumais came home from work but he did not attack. It was only when an argument took place during dinner that defendant "snapped" and killed Dumais and Courtright.
Defense witnesses corroborated portions of defendant's testimony. Williams knew about defendant's drug and alcohol use, and arguments between defendant and Courtright about it. She saw defendant and Courtright working on the trailer.
Hartnett knew about defendant's drug and alcohol use. She saw defendant that evening and noticed that his speech was slurred, and he had the smell of alcohol on his breath.
Aside from defendant's statement, there is no evidence supporting the lying-in-wait special circumstance, and the People point to none. On this record, we cannot say that substantial evidence supports the lying-in-wait special circumstance. Accordingly, it must be reversed.
The lying-in-wait special circumstances are reversed. The judgment is modified by striking the second multiple murder special circumstance. As so modified, the judgment is affirmed.
WOODS, Acting P. J.
"The defendant has been prosecuted for first degree murder under two theories: (1) the murder was willful, deliberate, and premeditated and (2) the murder was committed by lying in wait. [¶] Each theory of first degree murder has different requirements, and I will instruct you on both.
"You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder. But all of you do not need to agree on the same theory.
"The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death.
"The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.
"The defendant is guilty of first degree murder if the People have proved that the defendant murdered while lying in wait or immediately thereafter. The defendant murdered by lying in wait if: [¶] 1. He concealed his purpose from the person killed; [¶] 2. He waited and watched for an opportunity to act; [¶] AND [¶] 3. Then, from a position of advantage, he intended to and did make a surprise attack on the person killed.
"The lying in wait does not need to continue for any particular period of time, but its duration must be substantial enough to show a state of mind equivalent to deliberation or premeditation.
"A person can conceal his or her purpose even if the person killed is aware of the person's physical presence. [¶] The concealment can be accomplished by ambush or some other secret plan.
"All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder."
We additionally note that the Ninth Circuit has recently rejected a vagueness challenge to the lying-in-wait special circumstance. (Bradway v. Cate (9th Cir. 2009) 588 F.3d 990.)