People v. Middleton (52 Cal. App. 4th 19, 1997)

Opinion

LAMBDEN, J.

Defendant appeals his conviction of first degree murder (Pen. Code, § 187, subd. (a); further unspecified code sections refer to the Penal Code) with the special circumstance of financial gain (§ 190.2, subd. (a)(1)). He alleges the court erred by not giving a sua sponte instruction on the relationship between provocation and first and second degree murder. He also claims ineffective assistance of counsel for failure to request the instruction.

Defendant also contends the court erred by failing to (1) give an instruction on the use of justifiable force to protect property; (2) grant a continuance of the sentencing hearing, because defense counsel had not received the probation report five days prior to the sentencing hearing; and (3) make findings on all the elements of perjury to justify imposing an enhancement on that basis.

We affirm the judgment.

Background

On February 3, 1994, the San Mateo County District Attorney filed a nine-count information against defendant as follows: one count (count 1) of first degree murder (§187, subd. (a)); five counts (counts 2-6) of issuing a false check (§ 470); one count (count 7) of unlawful possession of marijuana for purposes of sale (Health & Saf. Code, § 11359); one count (count 8) of unlawful cultivation of marijuana (Health & Saf. Code, § 11358); and one count (count 9) of unlawfully receiving stolen property (§ 496, subd. (a)).

As to the murder count, the district attorney alleged the special circumstance of murder for financial gain. (§ 190.2, subd. (a)(1).) For this count, the district attorney also alleged enhancements for personal use of a firearm (within the meaning of §§ 12022.5, subd. (a), & 1203.06, subd. (a)(1)), and infliction of great bodily injury (§ 1203.075).

Defendant pleaded not guilty and denied the enhancements on February 23, 1994. At trial, defendant admitted the forgery and drug offenses. We discuss the facts of forgery relevant to defendant’s conviction of murder for financial gain, but omit the facts related to the drug offense, since they are not germane to the issues raised in this appeal.

Defendant and the victim, Henry Olson, had known each other since 1983. Defendant was a general contractor and had a construction business, and according to him, he had referred business to Olson. Olson owned a carpet cleaning business.

In 1993, defendant was experiencing severe financial problems. He had filed chapter 13 bankruptcy petitions in 1988, 1991, and March 1993. His chapter 13 plan required him to pay $500 a month to the bankruptcy trustee from May 1993 to May 1994. He owed money on a tort judgment against him and to the Internal Revenue Service for two deeds of trusts. Additionally, he had an unsecured debt of about $35,000, and a mortgage payment of $3,700 per month.

During June and July of 1993, Olson hired defendant to repair his roof. Neighbors observed Olson and defendant arguing about the roof and, according to defendant, Olson refused to pay him for any of the work. Olson had told a neighbor the job was taking too long and costing too much money.

In late July, Olson’s friends and neighbors noticed they had neither seen nor heard from him since the middle of July. After Olson disappeared, defendant continued to work on Olson’s roof. He told one neighbor he was handling Olson’s affairs because Olson was depressed and had taken a trip after recently being diagnosed with Alzheimer’s disease. Defendant told another neighbor that Olson was sick and had left on a plane to visit his parents “back East.” Defendant claimed he was fixing the house to rent it to a tenant.

Another neighbor testified he became suspicious when he had not seen Olson for about two weeks, because Olson usually told his neighbors when he was leaving. Furthermore, uncharacteristically of Olson, he had left his parked van in a filthy condition and facing the wrong way on the street. The neighbor also noticed defendant removing furniture and other objects from Olson’s home. When questioned about his actions, defendant claimed Olson had left because of a family emergency.

On July 31, defendant gave his former wife two bicycles from Olson’s garage. On August 5, 1993, he took his son to dinner and used Olson’s Discover card to pay the bill for $114.10. He used Olson’s white Nissan Maxima to attend a dinner, and he told his former wife he bought tickets to Hawaii to take his son on a backpacking trip.

During this period, defendant’s checking account showed significant activity. His checking account had been closed on July 14 for insufficient funds and was reopened on July 21 when defendant deposited a $6,000 check drawn on Olson’s account. Defendant also deposited into his accounts two forged checks for $1,000 and checks for $5,000 and $10,000 drawn from Olson’s account. In addition, he deposited into his account $2,000 from Olson’s Discover account. On August 18,1993, defendant withdrew $10,000 from his checking account and received a cashier’s check for that amount.

On August 8, 1993, Olson’s neighbors contacted the police department to report Olson as missing. The next day, a friend of Olson contacted defendant to inquire about Olson’s whereabouts. Defendant said Olson had gone on an extended vacation and asked defendant to find a tenant to lease the house.

On August 9, an officer went to Olson’s residence and observed defendant removing furniture. Defendant told the officer Olson had called him and told him to remove his belongings and find a renter for the house. Indeed, defendant had placed an advertisement in the local newspaper offering Olson’s home for rent and found a potential tenant who paid him $4,600. The sum ostensibly represented a deposit and first month’s rent.

On August 17, 1993, Detective Wendy Bear questioned defendant at the station, and defendant claimed the last time he saw Olson was July 20, when he drove him to the airport. Olson, according to defendant, was depressed because his girlfriend “dumped” him. He said Olson called him on July 30 and stated he did not plan to return for about six months to a year, and defendant should take his furniture and find someone to rent his home. Olson, according to defendant, agreed to send him $10,000 to compensate him for this work.

On August 18, Detective Bear and Inspector Mike Dirickson spoke to defendant. After defendant consented to a search of his home, the police found in his fireplace remnants of an envelope and a paper appearing to be a mortgage with Olson’s name on them.

The following day, August 19, defendant went to stay a few days at his sister’s home in Livermore and asked her to help him find a place to store his truck. The next day he told her he was hiding from the police because he killed a person who owed him money and refused to pay. Later, he told his sister they had a scuffle and the victim fell off the porch and broke his neck. Another rendition communicated to his sister had defendant shooting the victim while in a car and driving the victim and the car off a cliff.

The sister’s husband, Rodney Fleig, said defendant told him the two men had argued and defendant diverted Olson’s attention by telling him to look at the trim between the walls and roof. While distracted, defendant shot Olson in the head. Defendant later provided Fleig with another account. Defendant claimed the men argued and he killed Olson because it was either “him or me.

While visiting his sister, defendant elicited the help of his relatives. Fleig, at defendant’s request, destroyed defendant’s identification. Defendant and his sister went to a lake and rented a boat. While riding the boat on the lake, defendant threw the gun used to kill Olson in the water. Later, Fleig and another friend drove defendant to Siskiyou County. According to Fleig, defendant planned to stay in the wilderness through winter and then hike to Canada. Defendant claimed he went to Siskiyou for a “hiking trip” to clear his head.

On August 23, the police found Olson’s body wrapped in a carpet buried below an earthen dam on defendant’s property. The dam had been built on August 17. An autopsy revealed Olson had been shot once in the back of the head. On August 24, an officer recovered checks and deposit slips with Olson’s name on them from defendant’s home.

The police arrested defendant on his hiking trip on September 1, 1993. During a taped interview on September 1, defendant said he killed Olson on July 14. Olson and he, defendant claimed, met at the cottage behind his house to resolve their differences. Olson was stressed and “wanted out.” Defendant had been shooting earlier and left his gun in the cottage. He seized the gun and shot Olson. Defendant asserted: “And all I know is that he wanted out. So I helped him. ... [^Q ... I shot him in the head. He wanted me to. He couldn’t do it himself, so I helped him.”

In the latter part of the confession, defendant claimed Olson had come to his house to clean the carpet when the men became engaged in a “push-shove” fight after Olson said he was not going to pay him for the work on the roof. Olson did not know defendant had a gun. Defendant stated: “I pushed him, then he fell up against the wall, and I grabbed the gun and I shot him.”

At trial, defendant offered a different account. Rather than killing Olson on the 14th, he now claimed he killed him on July 24. On July 24, Olson came to his house to clean the carpets, but he was angry because defendant had stolen checks from him and placed a mechanic’s lien on his property. Defendant was in the cottage behind the house when Olson entered to report he finished cleaning the carpet. Defendant said Olson told him “in a roundabout way” he wanted to commit suicide.

Defendant claimed Olson went back to the main house and returned to the cottage a short time later. The men were arguing about the stolen checks, payment for the work on the roof, and the quality of the work when Olson pulled a gun. Defendant claimed Olson told him: “This is it. [f| . . . I’m ending it between us.” Defendant tried to reason with him, but Olson cocked the hammer on the gun. Defendant hit him with his cat’s-paw and hammer. As Olson fell, the gun discharged, but defendant did not know where the bullet went.

Defendant ran to the doorway of the cottage and planned to flee, but, according to his trial testimony, he noticed Olson’s van was blocking his truck. Defendant remembered he had a gun in the sink; he returned and grabbed the gun, placed the magazine in it, and chambered a round. The wounded Olson, meanwhile, was on the floor looking for his gun. Defendant charged as Olson retrieved his gun. He grabbed Olson by the belt, threw him against the wall, and pinned the hand without the gun against the wall. Olson’s hand with the gun remained free. At the same time, defendant pointed his gun to Olson’s head and commanded him to drop the gun. Olson said, “just do it,” and hit defendant in the ribs, causing defendant’s gun to discharge the single shot which killed Olson. Defendant claimed the killing was an accident, and he did not call the police because he was “shocked,” “dumbfounded,” and “in denial.”

Defendant admitted he lied to the neighbors about Olson. He also said he did not kill Olson for financial gain because he wrote the checks prior to Olson’s death. Building the dam over Olson’s body in mid-August was, according to defendant, just a coincidence, and only related to his desire to place pipes in the ground.

The jury began deliberating on March 28, 1995. On April 4, 1995, after two requests for an explanation of the premeditation instructions, the jury convicted defendant on all counts. The jury also found the special circumstance and firearm-use allegations to be true.

The court sentenced defendant on May 23, 1995. The court imposed a term of life without possibility of parole for count 1. The court added a four-year consecutive term for the firearm-use enhancement. As to the other counts, the court imposed the upper term of three years on count 2, and consecutive terms of eight months each on counts 3, 4, 5, 6, and 9. The court imposed a consecutive term for count 9, receiving stolen property, because it found defendant had lied to the court. The court also added concurrent terms of two years on counts 7 and 8.

I. No Sua Sponte Duty to Instruct on Provocation’s Relationship to Deliberation

Defendant contends the court had a sua sponte duty to provide CALJIC No. 8.73, which advises the jury about the role of provocation in deciding between first or second degree murder. CALJIC No. 8.73 provides: “When the evidence shows the existence of provocation that played a part in inducing the unlawful killing of a human being, but also shows that such provocation was not such as to reduce the homicide to manslaughter, and you find that the killing was murder, you may consider the evidence of provocation for such bearing as it may have on the question of whether the murder was of the first or second degree.”

Although the defendant did not request CALJIC No. 8.73, he did request CALJIC Nos. 8.40 and 8.42, which explained manslaughter and provocation’s role in reducing murder to manslaughter. The court gave CALJIC No. 8.40 and stated: “Every person who unlawfully kills another human being without malice aforethought but with an intent to kill, is guilty of voluntary manslaughter in violation of Section 192 (a) of the Penal Code. HD There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion or in the honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury. HQ In order to prove such crime, each of the following elements must be proved: [*][] 1. A human being was killed, [<]]] 2. [t]he killing was unlawful, and [