Filed 12/5/19 P. v. Edwards CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DAMON EDWARDS,

Defendant and Appellant.

D075214

(Super. Ct. No. SCD273510)

APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed in part and remanded with directions.

Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn Kirschbaum and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

 

A jury convicted Damon Edwards of murdering his girlfriend M.S. and inflicting mental suffering on her two young children, rejecting his claims of perfect and imperfect self-defense. The court sentenced him to a total term of 15 years to life plus one year in state prison.

Edwards raises two arguments on appeal. First, he contends that the trial court erred because it did not instruct the jury sua sponte on the lesser included offense of voluntary manslaughter based on a theory of a sudden quarrel (hereinafter referred to as heat of passion). We find scant evidence to suggest the court had a sua sponte instructional duty. Even if it did, the lack of further instruction was harmless error on the facts of this case.

Second, Edwards requests that, in accordance with People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), his case be remanded for a hearing concerning his ability to pay the fine and fees assessed during sentencing. We conclude that Edwards should have been given the opportunity to demonstrate his inability to pay and remand for such a hearing. In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On a morning in August 2017, Edwards killed his girlfriend M.S. in their bedroom while her children watched television downstairs. He used a knife, a bat, and a sledgehammer. M.S. sustained over 20 cuts and five stab wounds, as well as broken bones and a skull fracture. Edwards’s injuries consisted of one deep cut on his hand which required stitches and a cut on his small finger.

M.S.’s children saw Edwards leave the house in a rush. They went upstairs where they found their mother’s body covered in blood. They called their aunt, who told them to call 911. Paramedics arrived and pronounced M.S. dead at the scene.

The San Diego County District Attorney charged Edwards with murder (Pen. Code, § 187, subd. (a), count 1) and two counts of child cruelty (§ 273a, subd. (b), counts 2 & 3). As to count 1, it was further alleged that he personally used a knife in the commission of the murder (§ 12022, subd. (b)(1)).

At trial, the jury heard evidence about Edwards’s relationship with M.S. He lived with M.S. and her two children at her home on Mayberry Street for almost four years. But he remained married to a woman named Heather with whom he had two children of his own. Heather ended their intimate relationship years ago upon learning of his affair with M.S., but the two remained married to coparent their children. Heather and M.S. were generally amicable toward each other, but M.S. would sometimes express her frustration that Edwards was still married.

Edwards and M.S. started using methamphetamine regularly, and their home fell into disarray. Possessions were piled everywhere and there was a roach problem. This was unusual for M.S. Her family noticed changes but were unaware of the couple’s methamphetamine use. By 2017, Edwards and M.S. were trying to quit.

The murder happened the morning of Edwards’s daughter’s birthday. M.S. made plans the night before to borrow her sister’s car so they could all go to the birthday party at Heather’s house. The next morning M.S.’s children ate breakfast downstairs while watching television. M.S. took food up to the bedroom for Edwards and herself.

Only Edwards and M.S. knew exactly what happened upstairs. The jury heard Edwards’s testimony that M.S. became upset when she saw him getting ready to leave and visit his daughter by himself. He recounted that she first took a few hits of methamphetamine. Then she allegedly attacked him with a knife saying, “you’re not going to play me anymore” and threatening to kill him.

Edwards testified that he acted in self-defense throughout the fight. He said their struggle over the knife caused each of her cuts and stab wounds and that he used the bat and the sledgehammer only to stop her successive attacks. He maintained that he never meant to hurt M.S. and did not realize she was dead when he fled the house.

Edwards admitted he did not call 911. He did not take the children with him or call another adult to take care of them. He did not check on M.S. to see how badly she was hurt. He did not call anyone in her family to check on her or the children. He ran out of the house, picked up clothes at his grandmother’s, wrapped his hand in a rag, tried to find his father, talked briefly with his stepsister, and was eventually arrested outside of Heather’s house. In total, Edwards spent about nine hours on foot, going from place to place before the police found him. During that time he told no one about the incident with M.S. When police took him to the hospital to have the deep cut on his hand treated, he falsely told medical staff he cut his hand on glass at his grandmother’s house.

Edwards’s sole theory was that he killed M.S. in self-defense. The jury was instructed on justifiable homicide based on a theory of self-defense and on the lesser included charge of voluntary manslaughter based on a theory of imperfect self-defense. Edwards did not request a jury instruction on voluntary manslaughter based on heat of passion, and the trial court did not give such an instruction.

The jury found Edwards guilty of second degree murder (§ 187, subd. (a)) and determined the corresponding knife-use allegation was true (§ 12022, subd. (b)(1)). It further convicted him on both counts of child cruelty (§ 273a, subd. (b)) for inflicting mental suffering on M.S.’s children.

The trial court sentenced Edwards to an indeterminate term of 15 years to life for the single count of second degree murder plus one year for the weapons enhancement. It added 180 days local time to run consecutively for each of the two misdemeanor child cruelty counts. The court also ordered restitution to M.S.’s family (§ 1202.4, subd. (f)).

DISCUSSION

Edwards argues his murder conviction should be reversed for instructional error. He also seeks remand for a sentencing hearing regarding his ability to pay the fine and fees assessed. We reject the first claim and accept the second.

A. Instructions on Heat of Passion

Edwards argues that the trial court prejudicially erred by not instructing the jury sua sponte on heat of passion. The trial court did not err; there was no substantial evidence in the record to support the subjective element of heat of passion. Even assuming the court erred, it was harmless.

1. Applicable Legal Principles

Trial courts have a duty to instruct the jury on a lesser included offense when there is substantial evidence to support such a conviction, even if the instruction runs contrary to the defense strategy. (People v. Hood (1969) 1 Cal.3d 444, 449; People v. Bradford (1997) 15 Cal.4th 1229, 1345; People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) This obligation on the trial court supports the truth-finding function of the jury by “ensur[ing] the jury will consider the full range of possible verdicts—not limited by the strategy, ignorance, or mistakes of the parties.” (People v. Wickersham (1982) 32 Cal.3d 307, 324.) But “substantial” evidence does not mean any evidence at all. To be substantial, warranting an instruction, the evidence should “merit consideration” and have the power to persuade a reasonable jury. (People v. Flannel (1979) 25 Cal.3d 668, 685–686; accord, People v. Barton (1995) 12 Cal.4th 186, 201.)

Second degree murder requires malice aforethought, either express or implied. (People v. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).) Voluntary manslaughter is a lesser included offense to murder, found when a killing occurs without malice due to either imperfect self-defense or heat of passion. (People v. Thomas (2012) 53 Cal.4th 771, 813; Beltran, at p. 942.) Heat of passion is one of the two “grounds for reducing murder to voluntary manslaughter [that] focus[es] on the state of mind of the accused.” (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1015.)

Heat of passion requires both objective and subjective elements. (People v. Enraca (2012) 53 Cal.4th 735, 759 (Enraca); CALCRIM No. 570.) It occurs when there is a provocation that subjectively puts the defendant under the ” ‘influence of intense emotion’ ” and impacts their ability to reason. (Beltran, supra, 56 Cal.4th at p. 944.) In addition, the provocation must be objectively sufficient to make a reasonable person respond out of passion. (Id. at p. 945.)

2. There Was No Substantial Evidence That Edwards Had an Impassioned

State of Mind at the Time of the Killing

Edwards argues that the excessive degree of force he used in killing M.S. and her alleged provocation of attacking him with a knife amounts to substantial evidence of a heat of passion killing. However, courts look for evidence of both the subjective and objective elements of heat of passion. (See People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139 (Millbrook); see also Enraca, supra, 53 Cal.4th at p. 759.) An instruction is properly denied when a trial court does not find substantial evidence as to both components. (See Enraca, at p. 759 [upholding the superior court’s denial of a request to instruct the jury on heat of passion because there was no substantial evidence of the subjective element].) Edwards’s argument that there was adequate provocation is relevant to the objective component. But because there is insufficient evidence as to the subjective component, the court had no duty to instruct jurors sua sponte on heat of passion.

Edwards’s descriptions of his own thoughts during the fight indicate a rational state of mind. He testified that he acted in self-defense. He said he was scared when M.S. pulled a knife on him, and that he was “only focusing [on] the knife and why the knife is here.” Although he considered jumping from the two-story window to get away, he decided against it because he might die from the fall. He was adamant that, throughout the fight, he never intended to harm M.S. His testimony does not indicate an impassioned state of mind that obscured his ability to reason in the moment.

Aside from Edwards’s testimony, there is little in the record to suggest he was under the sway of a strong passion at the time of the killing. No other witnesses can speak to his state of mind on the morning of M.S.’s death. The children said that Edwards left the house in a rush. Nothing else in their descriptions of him is out of the ordinary.

We find People v. Moye (2009) 47 Cal.4th 537 (Moye) instructive. Moye also involved a grisly killing where the defendant was the only living witness. (Id. at pp. 545546.) He testified that he acted in self-defense. (Ibid.) The jury was instructed on justifiable self-defense and voluntary manslaughter under a theory of imperfect self-defense. (Id. at p. 540.) Moye was convicted of second degree murder and appealed the superior court’s decision not to instruct the jury on voluntary manslaughter under a heat of passion theory. (Ibid.) The Supreme Court found there was insubstantial evidence in the record to support the instruction (id. at p. 554) and upheld the trial court’s decision (id. at p 558).

Moye killed the victim with a baseball bat. They were alone during their last encounter. He testified that the victim attacked him with the bat, which he was then able to wrestle away and use defensively while the victim continued to attack him. (Moye, supra, 47 Cal.4th at pp. 545546.) Witnesses found the victim with his front teeth knocked out and his ” ‘brains hanging out of his head.’ ” (Id. at p. 544.)

Factually, Moye is remarkably similar to this case. Both defendants testified that the victim was the aggressor and attacked the defendant with a weapon. Both said they succeeded in getting the weapon from the victim and used the weapon only in self-defense. And even after losing the weapon, the victim allegedly continued to attack the defendant. (Moye, supra, 47 Cal.4th at p. 561.)

In addition, Moye and this case share several procedural similarities: the defense strategy hinged almost entirely on the defendant’s testimony that he acted in self-defense, the defendant was alone with the victim when the killing occurred, the defendant did not suffer serious injuries, the victim suffered a skull fracture from blows to the head, the jury was instructed on both justifiable and imperfect self-defense, the jury convicted the defendant of second degree murder, and on appeal the defendant argued his conviction should be overturned because he was entitled to instructions on heat of passion.

The court in Moye determined there was insufficient evidence to support a heat of passion theory. The trial court was not obligated to “disregard . . . the evidence” to give such an instruction. (Moye, supra, 47 Cal.4th at p. 541.) The Supreme Court reasoned that Moye’s ability to recall the sequence of the fight, coupled with the lack of other testimonial evidence that he was under the influence of strong emotion, meant there was little to support the heat of passion theory. (Id. at p. 541.)

Arguably, there was more evidence in Moye to support a heat of passion killing than in this case. Moye and the victim were involved in a group fight the night before the homicide. Moye also testified he was not “in the right state of mind.” (Moye, supra, 47 Cal.4th at p. 546.)

Edwards argues his case should be distinguished from Moye because he could not give a blow-by-blow account of the fight like Moye did. This argument implies that his relative inability to recall each detail of the fight amounts to evidence of an impassioned state of mind. But we disagree with both the characterization of Edwards’s testimony in contrast to Moye’s, and the suggestion that a lack of precision in Edwards’s memory of the fight constitutes substantial evidence to support a heat of passion instruction.

Edwards gave testimony that presented a clear sequence of events in the fight: the victim attacked him with a knife, they struggled over the weapon, he picked up the bat and used it defensively, M.S. knocked the bat out of his hands, she regained control of the knife, she grabbed his shorts—and then he picked up the sledgehammer and hit her with it, which finally stopped her attack. Furthermore, Edwards explained his inability to recall each detail of the fight in two ways. He said everything happened very quickly and that he is an average man. Edwards never indicated his memory of the fight was affected by an unusual mental or emotional state. If Moye’s claim that he was not in the right state of mind because he was worried about getting hit with a bat is not substantial evidence of an impassioned state of mind, neither is Edwards’s assertion that he cannot recall each detail because he is an average man.

Edwards contends his case should be likened to Breverman, supra, 19 Cal.4th at page 142. Moye made the same suggestion. (See Moye, supra, 47 Cal.4th at pp. 553554.) But in declining to apply Breverman, the Supreme Court distinguished it as a case where “there was affirmative evidence that the defendant panicked in the face of an attack” and ” ‘acted in one continuous, chaotic response.’ ” (Moye, at p. 555.). Edwards urges us to consider his actions to be one chaotic response—but his own testimony undermines that narrative. He explained his actions as responses to M.S.’s attacks. For example, he said he used the sledgehammer to hit M.S. because she regained control of the knife and grabbed at his shorts. By his own testimony, Edwards’s conduct was reasoned. It was a logical, defensive response to a renewed and imminent threat to his life. Edwards described the same sequence of events when he was questioned by police. Neither on the day of the homicide nor at trial did Edwards indicate he was in the throes of a continuous, chaotic response to an initial provocation.

Lastly, Edwards argues that the voluminous injuries to M.S. are more consistent with a heat of passion theory than self-defense. This might be true standing alone. But there must be substantial evidence of a heat of passion killing to make the corresponding jury instruction obligatory. A reasonable jury will draw inferences from all the evidence presented, including the manner of death. But we cannot find here that manner of death alone, absent other evidence of an impassioned state of mind during the killing, was substantial enough to activate the trial court’s duty to instruct on heat of passion.

Moye also involved a brutal killing. The Supreme Court did not comment specifically in that case on the evidentiary significance of a violent death as to the defendant’s state of mind, and neither do we. But it is worth noting that both the trial and appellate court in Moye agreed there was nothing in the record to indicate Moye was subjectively affected by passion when he killed the victim. (Moye, supra, 47 Cal.4th at p. 552.) Their record included a body so mangled that the victim’s brains were spilling out of his skull. (Id. at p. 544.)

Because there was insufficient evidence to establish that Edwards acted with a subjectively impassioned state of mind, the trial court did not err in failing to give a heat of passion instruction.

3. Any Claimed Error Was Harmless

Even if we were to find an error in the failure to sua sponte instruct on heat of passion, we would deem it harmless. As in Moye, “[h]ere, the jury considered virtually all of the defense evidence bearing on defendant’s state of mind and the question whether he harbored malice when it entertained his claim of unreasonable or imperfect self-defense. Having rejected that claim, the jury likewise rejected the factual basis for a finding of provocation legally necessary to support a heat of passion/voluntary manslaughter defense.” (Moye, supra, 47 Cal.4th at p. 541.)

B. The Dueñas Decision and Edwards’s Ability to Pay Fines and Fees

Edwards argues that the recent Court of Appeal decision in Dueñas, supra, 30 Cal.App.5th 1157 entitles him to an ability to pay hearing prior to the assessment of any fine or fee imposed at sentencing. Without adopting all of the reasoning of Dueñas, we agree he should be given the opportunity to demonstrate his inability to pay, and remand to the trial court to conduct a hearing.

1. Additional Facts

At sentencing, the court imposed a maximum restitution fine of $10,000 (Pen. Code, § 1202.4, subd. (b)), a court operations fee of $120 (id., § 1465.8 [$40 for each of his three convictions]), a court facilities fee of $90 (Gov. Code, § 70373 [$30 for each of his three convictions]), and a criminal justice administration fee of $154 (id., § 29550). During sentencing, defense counsel asserted that Edwards lacked the ability to pay the restitution fine recommended in the probation report and, without specifically mentioning the Dueñas case by name, advised the judge that there was a new appellate decision giving the court the power to stay the fine if it found the defendant had no ability to pay. Counsel suggested it would be appropriate for the court to conduct an ability to pay hearing to make such a determination. Without conducting any inquiry into Edwards’s ability to pay, the trial court imposed the fine and administrative fees pursuant to Penal Code section 2085.5. It explained that while it would find Edwards had no present ability to pay, he would earn wages in prison.

2. Forfeiture

The People argue that Edwards forfeited his right to challenge the fine and fees imposed by the trial court. Based on our reading of the record, we disagree.

Edwards was sentenced six days after the Dueñas decision was filed. Defense counsel called the court’s attention to the decision and noted that it would be appropriate to hold an ability to pay hearing. She referenced the probation report and asked the court to stay Edwards’s $10,000 fine based on an inability to pay. She also said, “I can represent to the court that he has absolutely no ability to pay that.”

In light of the limited elucidation of Dueñas available at the time, we understand defense counsel’s objection to be inclusive of all fines and fees assessed to Edwards. The claim was preserved because defense counsel objected based on inability to pay. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94, fn. 23, review granted Nov. 13, 2019, S257844 (Kopp).)

3. On Remand, Edwards Is Entitled to an Ability to Pay Hearing

Having properly raised a challenge to his ability to pay the restitution fine and fees imposed at sentencing, Edwards is entitled to a formal hearing in the trial court at which he can present evidence and the court can consider his ability to pay. Our resolution of this issue is guided by this court’s recent decision in Kopp, supra, 38 Cal.App.5th 47, review granted. In Kopp, one of two defendants explicitly raised the ability to pay issue before the trial court and was denied a hearing. (Id. at p. 93.) We agreed that defendants were entitled to a hearing on remand. (Id. at pp. 95–96.) We follow a similar course here.

Beyond remanding for an ability-to-pay hearing, in Kopp we outlined certain principles that should guide the trial court on remand. First, we made clear “[i]t is the defendant who bears the burden of proving an inability to pay.” (Kopp, supra, 38 Cal.App.5th at p. 96, rev. granted; see also People v. Castellano (2019) 33 Cal.App.5th 485, 490 [“defendant must in the first instance . . . present evidence of his or her inability to pay the amounts contemplated by the trial court”].) Second, contrary to Dueñas, we agreed with the People’s suggestion that any challenge to the defendant’s ability to pay a punitive fine (such as the $10,000 restitution fine in this case) should be analyzed under the excessive fines clause of the Eighth Amendment rather than the due process clause of the Fourteenth Amendment. (Kopp, at pp. 96–97.) Finally, our Kopp decision clarified that in assessing the ability to pay of someone sentenced to state prison, “it is appropriate for the court to consider the wages that [defendant] may earn in prison.” (Id. at p. 96.)

Because the trial court refused Edwards’s request for a hearing at which he could attempt to demonstrate his inability to pay the fine and fees, we decline any comment on the question of whether their imposition was constitutionally permissible. We leave it to the trial court, in the first instance, to make that determination.

DISPOSITION

The fine and fees imposed are vacated and the matter is remanded to the trial court for a hearing to determine whether Edwards has the ability to pay, and resentencing consistent with this opinion. Following resentencing, the superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.