Filed 9/2/16 P. v. Vilkin CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067753
Plaintiff and Respondent,
v. (Super. Ct. No. SCN317326)
MICHAEL VILKIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert J.
Kearney, Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson, Lynne G. McGinnis and Kristen Hernandez, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Michael Vilkin was charged by information with murder (Pen. Code,1
§ 187, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2).
As to count 1, the information further alleged defendant personally discharged a firearm
(i.e., a revolver), proximately causing great bodily injury or death (§ 12022.53, subd. (d)).
As to count 2, the information also alleged defendant personally used a firearm in the
commission or attempted commission of this offense (§ 12022.5, subd. (a)).
A jury found defendant guilty as charged and found both firearm enhancement
allegations true. The court sentenced defendant to prison for a total term of 64 years to
life, calculated as an indeterminate term of 25 years to life on count 1 with a consecutive
25 years to life for the gun enhancement, and a consecutive determinate term of four
years on count 2 with a consecutive 10 years for the gun enhancement.
On appeal, defendant contends that there is insufficient evidence in the record to
support his murder conviction on count 1; that he was deprived effective assistance of
counsel when the defense did not move for a mistrial after the prosecution elicited
testimony from a defense expert that the "fight or flight syndrome" was a "fad"; that the
court improperly instructed the jury with CALCRIM No. 3472 regarding "contrived self-
defense" and his counsel was ineffective for failing to object to said instruction; and that
the cumulative effect of these alleged errors allegedly prejudiced him, requiring reversal
of his conviction and a new trial.
As we explain, we disagree with each of these contentions. Affirmed.
1 All further statutory references are to the Penal Code unless otherwise noted.
2
FACTUAL OVERVIEW2
A. Background
In 2008, defendant purchased a two-and-a-half-acre undeveloped lot on Lone Jack
Road in Encinitas (lot). Defendant planned to get a construction loan, build on the lot
and sell it in the future. Defendant spent about five or six days each week, usually
between about 3:00 to 8:00 p.m., working on, and clearing, the lot. Defendant allowed
his neighbors to use the lot to walk their dogs and park their cars.
Witness John Bonanno testified that, in 1996, he bought a home on Lone Jack
Road that was adjacent to the lot subsequently purchased by defendant. An easement ran
across a private road on defendant's lot, which allowed neighbors to access their homes.
B. The Prosecution
In April 2011, Bonanno rented his home to murder victim John Upton (count 1)
and his girlfriend, Evelyn Zeller (count 2). Although Bonanno did not know Upton or
Zeller when they initially rented from Bonanno, Bonanno and Upton became friends as
time went on.
Bonanno met defendant in 2010. Bonanno described their meeting as cordial, as
defendant was then in the process of clearing the lot and attempting to smooth it out after
2 We view the evidence in the light most favorable to the judgment of conviction, to
the extent there is a conflict in the evidence. (See People v. Osband (1996) 13 Cal.4th
622, 690.) Certain portions of the factual and procedural history related to defendant's
claims of alleged error are discussed post, in connection with those issues.
3
a landslide had occurred on a portion of the lot in 2005. Bonanno estimated he came in
contact with defendant in total about six times.
On one occasion in the fall of 2012, after Upton and Zeller had moved in, Upton
called Bonanno early on a Saturday morning and asked Bonanno to speak to defendant
because Upton thought defendant was on Bonanno's property, and, despite Upton's pleas,
defendant "just [would not] . . . stop cutting bushes and chopping things up into little
sticks." When Bonanno arrived, he and Upton spoke to defendant.
According to Bonanno, Upton pleaded with defendant to be finished clearing the
lot. Upton suggested defendant obtain a permit and build on the lot, or sell it, but
reiterated to defendant his constant cutting and chopping of shrubs on the lot was driving
Upton "nuts." Bonanno testified defendant responded he was "done," "finished," clearing
the lot.
Bonanno described Upton's demeanor as "elevated" during what Bonanno
estimated was about a 10-minute conversation. According to Bonanno, defendant was
"visibly angry" during this exchange and was repeatedly clinching his fist while holding a
shovel in his other hand. Defendant also moved closer to Upton and Bonanno during this
conversation. At one point, defendant was about six to eight feet away. Neither Bonanno
nor Upton approached defendant, however.
As Upton and Bonanno started walking back to Bonanno's house, defendant
attempted to discuss a road defendant wanted. Bonanno responded that defendant needed
to speak to the "city" about the road; that it was his understanding the city would never
4
allow such a road; and that defendant was going to need a permit and approval from the
city if defendant wanted a road.
San Diego County Deputy Sheriff Scott Hill testified that he spoke to defendant by
telephone on October 31, 2012 when defendant inquired "about the specifics of the law in
regards to carrying and use of a firearm." Defendant told Deputy Hill he wanted this
information because defendant "was having a property dispute with a neighbor."
Specifically, defendant told Deputy Hill he "was developing a property and he wanted to
put in a driveway and the neighbor was complaining that the proposed driveway would
necessitate the removal of some vegetation that he had planted—or that was planted."
On questioning, defendant told Deputy Hill he had not been threatened and his
neighbor had "not taken any aggressive action towards him." Given the nature of
defendant's inquiry about carrying a gun, Deputy Hill was concerned of the potential for
violence between defendant and his neighbor. Deputy Hill testified that, based on this
conversation, there was "no articulable reason" defendant could provide regarding why
he was "so greatly concerned" for his safety and why he "had gone to the steps of
purchasing a firearm and want[ing] to carry it."
As summarized post, defendant purchased two guns to "protect" himself from
Upton. Defendant in August 2012 purchased a .22 revolver. Defendant did so because,
in his view, Upton's behavior was "bad enough to cause [defendant] to call the Sheriff
Department" and because the sheriff's department "refused to help [defendant]."
Defendant in about October 2012 purchased a .44 Rugar after he did "some research on
5
the Internet" and determined that a .22 revolver was "simply not a serious weapon" and
would "not stop a big guy" like Upton.
During their telephone conversation, Deputy Hill also told defendant that he was
not allowed to give any legal advice. When defendant gave Deputy Hill several legal
reasons based on "research" defendant had done as to why he was justified in carrying
"his firearm" on the lot, Deputy Hill suggested defendant contact a lawyer. Unsatisfied
with Deputy Hill's response, defendant repeated that he had done research which showed
defendant was allowed to carry a firearm on his own property. Deputy Hill reiterated he
was not allowed to give legal advice and also warned defendant that it was a "very bad
idea to carry a firearm . . . when you're expecting an argument, especially when there are
no threats made," and that defendant could end up being "arrested" and "charged with a
crime" if he made a "bad choice."
About a week later, defendant approached Deputy Hill and his partner after the
deputies were finishing a call at an apartment complex in Encinitas near defendant's
home. Deputy Hill testified defendant started asking his partner the "same questions" he
had asked Deputy Hill over the phone, after relaying the "same information" defendant
had previously given Deputy Hill. Deputy Hill testified he told defendant during this
second contact that he was the deputy that defendant had spoken to a week earlier.
According to Deputy Hill, defendant "wanted to be told it was okay to carry a firearm."
In response, Deputy Hill told defendant "a second time" that deputies were not permitted
to give legal advice and recommended defendant contact a lawyer.
6
Witness Vince Sampo testified that, toward the end of 2012, defendant hired him
to survey the lot, locate any missing monuments, determine if there was a potential
encroachment on the lot and mark the boundaries of the lot in connection with
defendant's desire to construct a road. After visiting the lot in November 2012, Sampo
asked defendant to remove about three feet of vegetation in an area where Sampo had
been digging in an effort to locate specific monument markers.
Sampo testified that, while he was on the lot in November 2012, defendant
escorted him to defendant's open car trunk and said, " 'I have this gun,' " while showing
Sampo what Sampo described as a long silver pistol in a case. Defendant then told
Sampo that he had purchased the gun because "he was threatened by the neighbor" and
that he "would rather spend [his] life in prison than . . . get blown away or get shot," or
words to that effect. Sampo testified that he was frightened and uncomfortable when
defendant showed him the gun.
San Diego County Deputy Sheriff Marshall Abbott testified he was dispatched to
the lot on March 21, 2013. On contact, defendant told Deputy Abbott he called the
sheriff's department because his surveyor, who was on the lot working, needed some
brush cleared and defendant wanted to avoid a "confrontation" with his neighbor Upton.
Defendant told Deputy Abbott he felt "threatened" by Upton. When Deputy Abbott
asked defendant to provide examples of how Upton had threatened him, defendant stated
that Upton had "yelled at him" and that they had "some arguments about cutting down
brush." Deputy Abbott testified that he did not consider such conduct by Upton to be a
7
"criminal kind of threat" and that defendant then denied any physical contact had taken
place between him and Upton.
Deputy Abbott next contacted Upton and asked him to move a vehicle that was
parked on the easement, at the request of the surveyor. Upton complied. According to
Deputy Abbott, Upton was calm but frustrated. Upton told Deputy Abbott that defendant
kept cutting trees and shrubs in the area when defendant did not have the money for a
road.
Deputy Abbott testified he told Upton to call the sheriff's department if there was a
problem with defendant and to avoid a physical confrontation. Upton agreed. As Deputy
Abbott and Upton spoke, defendant slowly approached and made a statement or comment
that upset Upton. Upton in response stated, "Don't come any closer to me you fucking
asshole," or words to that effect. Deputy Abbott diffused the situation and reiterated both
to Upton and defendant they should avoid anything physical and instead call him and/or
the sheriff's department.
Zeller testified Upton was her life partner, and they had been together for about
two and a half years before the shooting. Zeller had a few contacts with defendant that
did not include Upton. On a couple of those occasions, Zeller expressed her opinion that
it made no sense for defendant to remove the vegetation on the lot and make it a "dirt
hill" because, previously, there had been a landslide on the lot which had damaged
several surrounding properties, including the property she and Upton shared. Defendant
in response told Zeller he could do what he wanted on his property.
8
Zeller recalled an interaction between Upton and defendant that took place in
November 2012. In the middle of the night while Zeller was sleeping, Upton heard some
noise outside and saw defendant pruning some trees near their front door using a car
headlamp as a light. Upton went outside and asked defendant not to prune the trees and
bushes that were healthy and that provided a privacy screen for Upton and Zeller.
According to Upton, who relayed the story to Zeller the following morning, defendant
and Upton shook hands after defendant agreed only to trim the "dead branches."
The next morning, Upton and Zeller awakened to find all the trees and bushes in
the area where defendant had been working the night before "cut down to the ground,"
leaving only stumps. That afternoon, while walking their dogs, Upton and Zeller
contacted defendant. Zeller described Upton as upset, and Upton yelled at defendant:
" 'What are you doing? We had an agreement, what are you doing?' " According to
Zeller, defendant also was upset and yelled back in response: " 'Fuck you, get the fuck
off of my property. You can't stop me. I can do whatever I want.' " Defendant did not
appear frightened or intimated by Upton, as Zeller noted defendant "stood his ground";
"yelled back"; "didn't retreat"; and continued to "do what he was doing." Zeller estimated
there were two or three similar interactions between Upton and defendant while they
lived adjacent to the lot.
Zeller testified that on March 21, 2013 (i.e., a week before the shooting), a
sheriff's deputy came to their home. That day, Zeller heard Upton and defendant arguing.
They were standing about 15 to 20 feet apart. Zeller recalled Upton yelling, " 'Sheriff,
9
can't you stop, [defendant]? What he does is not making any sense, he's cutting things
down. He will never be able to build a road.' " Zeller heard defendant say in response,
" 'I can do whatever I want, it's my property. You won't stop me. Fuck you.' " Zeller
noted Upton was also cussing. However, Zeller testified Upton did not threaten
defendant, such as saying, " 'I'm going to fucking kick your ass,' " or words to that effect.
In any event, while the sheriff's deputy was at the location on March 21, Zeller
heard Upton tell the deputy, " 'I will not touch [defendant], you do not need to worry, I
promise you, I'm not stupid, I won't touch [defendant]. You can go.' "3 After the
sheriff's deputy left, defendant along with two of his workers continued for "hours" to cut
down vegetation on the lot.
Zeller testified that, after they went back into the house following the March 21
incident, she reminded Upton that they were closing escrow in a few weeks on a new
house; that they did not own the residence adjacent to the lot; and, thus, that it was not
worth "getting worked up over" defendant's continued cutting of bushes and shrubs on
the lot. A day or two later, Upton asked Zeller to inform defendant they were moving in
two weeks. Although Zeller saw defendant working on his lot the next day, she did not
speak to him because defendant made her uncomfortable.
3 The record shows the court, outside the presence of the jury, confirmed with both
counsel they were each making a "tactical decision" to let in a great deal of hearsay
evidence in the trial. Although the court offered to give the jury a limiting instruction,
both counsel declined.
10
Zeller testified that several months before Upton was killed, Upton showed her a
gun. Until then, Zeller did not know Upton owned a gun. Zeller told Upton to get rid of
it because she was afraid of guns.
On March 28, the day of the shooting, Upton awakened Zeller about 6:00 a.m.
Because it was Zeller's birthday, Upton wished her a happy birthday and then told Zeller
his mother had passed away in her sleep about three hours earlier after a long illness.
Zeller testified Upton was relieved his mother had passed and his mood was happy, not
somber.
About 9:00 a.m., as Zeller was walking up some stairs to talk to Upton, she heard
two "loud and sharp bangs" that she estimated were about five to seven seconds apart.
Initially, Zeller did not know they were gunshots. However, when she called out for
Upton and got no response, she got a "doom feeling in [her] chest."
Zeller testified she went outside and saw defendant about 25 feet away talking on
his phone. When Zeller asked defendant what those sounds were, defendant
acknowledged her and then walked behind some bushes out of sight. Zeller next saw two
workers defendant had hired running down the street. Zeller in Spanish yelled, " 'What
happened?' " One of the workers yelled back in English, " 'I don't know, but it came from
over there,' " while pointing up a path. When she walked up the path, Zeller saw Upton's
body lying on the ground. A few seconds later, she heard defendant say, " 'Don't get any
fucking closer.' " When she looked up, Zeller saw defendant standing about eight feet
11
away, pointing a "big revolver" at her. Defendant was holding a gun case in the other
hand. Stunned, Zeller threw her hands into the air, waited, and then ran into the house.
Zeller testified that, as defendant pointed the gun at her, his demeanor was "very
sharp and clear"; that he did not appear afraid or scared; that he did not show signs of
being under "exorbitant stress"; and that, instead, he was "calm and composed." Zeller
felt her life was then in danger. After running in the house, Zeller called 911.
Witness Macario Mendoza Matias testified that he was one of the two workers
defendant had hired to work on the lot on March 28; that he had worked for defendant on
the lot a week earlier; that, when they arrived at the lot about 8:30 a.m. on the day of the
shooting, defendant told them he had a gun; and that defendant instructed him that if a
person or dog came out of the house near where they were trimming the trees, defendant
would go " 'talk to them.' " Matias noticed defendant was carrying a black case. After
defendant instructed them what to cut, defendant went a distance away, although Matias
could still see defendant. Matias testified that, as he cut the tree branches, he was
worried the branches would fall on the cars located nearby.
While working, a man later identified as Upton came out of the house and said
"Hello" to Matias. Matias said the man had a little dog with him. The man next asked
Matias if he intended to cut all the branches from the trees. After responding " 'Yes,' "
the man told Matias he was going to move the cars. According to Matias, the man was
about 20 to 30 feet away when they had this short conversation. Matias testified the man
12
was calm during their conversation; he was not yelling or cursing and did not seem angry.
In addition, Matias did not see the man with anything in his hands.
Matias testified that the man next started walking up the hill, toward defendant.
Matias heard the man say to defendant, " 'Can you do me a favor.' " Matias further
testified when the man made this statement to defendant, the man was neither yelling nor
appeared angry. Instead, the man walked slowly. As Matias was cutting a branch, he
heard a loud gunshot, which scared him. About seven seconds later, Matias heard
another gunshot. Matias testified he and the other worker started walking away, looking
behind them to make sure no one was coming, because they were afraid they also could
be shot.
Witness Fredy Alva Rodriquez testified that he was the other worker at the lot on
the day of the shooting; that he had never met Matias or defendant until that day; and that
he saw defendant carrying a small black case that day. Rodriquez's job was to take the
tree branches that had been cut up a dirt path, to a location beyond where defendant was
standing. At some point, a man later identified as Upton came out of the house.
Rodriquez testified the man did not appear angry, and he was neither yelling nor cursing.
While on the dirt path carrying branches up the incline, Rodriquez went past the
man about three times. Rodriquez estimated he was about three feet away from the man
each time he passed with the branches. Each time Rodriquez passed, he noted the man
was not yelling, nor did the man tell Rodriquez to stop what he was doing or ask him
13
what he was doing there. Instead, according to Rodriquez, the man just stood on the dirt
path.
Rodriquez saw the man talking to defendant while on the path. Rodriquez did not
understand what they were saying because he does not speak English. According to
Rodriquez, the man did not appear angry while talking to defendant, nor was the man
yelling or moving. Defendant, however, was moving his hands side to side, as if he was
"nervous." Rodriquez also heard defendant say, "Fucking shit" while he was talking with
the man. Defendant, and not the man, appeared angry. Rodriquez testified defendant
was speaking louder than the man, and the man was "just listening." Rodriquez did not
see the man make any motions that suggested the man was going to attack defendant.
Rodriquez said he was about 10 feet away when defendant shot the man.4
Rodriquez testified he saw the man fall backwards after the first shot. According to
Rodriquez, defendant fired a second shot at the man while the man was laying on the
ground. Rodriquez testified he also heard a third shot.
San Diego County Deputy Sheriff Jeremy Collis testified he responded to a call of
shots fired at 9:06 a.m. on March 28. The call to dispatch was made by defendant, who
told dispatch he had "just shot his neighbor." Deputy Collis and other sheriff's deputies
4 The record shows on cross-examination Rodriquez estimated he was about "75
feet" from where defendant and the man were arguing. Rodriquez also recalled telling
detectives he was about "100 to 150 feet" from their location. On redirect, Rodriquez
testified that, from his location, he saw the man fall to the ground after being shot by
defendant. Although defendant complains Rodriquez was not credible, that was for the
jury to decide, not this court. (See People v. Upsher (2007) 155 Cal.App.4th 1311, 1322
(Upsher).)
14
contacted a man later identified as defendant. About 50 yards away, Deputy Collis saw a
person lying on a path.
San Diego County Deputy Sheriff Christopher Murray testified that he too
responded to the call of shots fired. When he arrived at the shooting scene, Deputy
Murray saw a man later identified as defendant talking on his cell phone. There was a
black case on the ground next to the man. Deputy Murray approached the victim, later
identified as Upton, who was lying in a pool of blood face down on the ground. Deputy
Murray noticed a quarter-sized hole in the back of the victim's head. Deputy Murray did
not observe any weapons near Upton's body.
San Diego County Deputy Sheriff Timothy Petrachek testified that he saw a man
later identified as defendant standing in an "open field" waving as Deputy Petrachek
arrived at the scene along with other deputies. Deputy Petrachek contacted the man.
According to Deputy Petrachek, the man was calm and unanimated on contact and
remained that way over the next 45 minutes to an hour while he was detained. The man
also did not show any signs of injury. Deputy Petrachek subsequently arrested the man.
San Diego County Sheriff Homicide Detective Troy Dugal testified he observed
two gunshot wounds on Upton, one to the head and another to the abdomen. Upton was
lying on what appeared to be a "heavily-traveled" dirt path on the lot. Inside defendant's
"box," Detective Dugal found a .44-caliber revolver, ammunition, a small video camera
and condoms. On examining the revolver, Detective Dugal found four bullets and two
empty casings, suggesting two shots had been fired from that weapon. Detective Dugal
15
found the bullet that entered Upton's abdomen on the ground after they rolled him on his
side; also found underneath the victim was a cellphone.
During the investigation, Detective Dugal found a "Glock 27 .40 caliber pistol"
and a box of ammunition in the nightstand drawer inside the master bedroom of Upton's
residence. No dirt, grass or vegetation or blood was observed on this pistol. Detective
Dugal found six bullets in the magazine, but no bullets in the chamber. Detective Dugal
determined the lack of a bullet in the chamber suggested the pistol had not been fired,
because otherwise a bullet would have been loaded in the chamber as a result of the
weapon being "semi-automatic." In addition, the box of ammunition contained 44
bullets, which, when added to the six bullets in the pistol, further suggested to Detective
Dugal that the pistol had not been fired because typically a box of ammunition contained
50 bullets.
Computer forensic laboratory specialist Marion Lowe testified he analyzed
defendant's computer, which was seized during a search of defendant's home in April
2013. Lowe obtained "positive hit[s]" for " 'best pistol for skeet shooting' " from
November 11, 2012; and "low-noise pistols" from October 8, 2011.
Firearm's Examiner Roland Chang testified the .44-caliber Rugar defendant used
to shoot Upton was a "single-action" revolver, which meant the operator must manually
cock the firearm and then pull the trigger for the weapon to fire. According to Chang, the
weapon would not fire if its operator continually pulled the trigger without manually
16
pulling the hammer back. Chang determined the expended casings found at the shooting
scene were fired from defendant's revolver.
C. The Defense
Defendant testified in his own defense. After purchasing the lot in 2008,
defendant initially tried to talk to Bonanno about extending the paved road to defendant's
lot and, later, about the fact Bonanno had built a wall that encroached on defendant's lot.
Defendant met Upton and Zeller in 2011. Initially, their relationship was cordial.
However, over time, their relationship soured. Defendant testified that he and Upton
disagreed about politics. Upton also disagreed with defendant's decision to cut the trees
and bushes growing on the lot. Upton also told defendant that Bonanno would never
allow defendant to extend the paved portion of the road to defendant's lot.
Defendant testified he learned to shoot a weapon while in the Russian military.
He described a "conflict" he had with Upton about a year before in what defendant
described was the fatal "accident." In this instance, Upton became angry after defendant
had cut some trees near their residence, along a fence line. Defendant testified he felt
"verbally assaulted" because Upton was a "big man" with a "big voice" and because
Upton's body language was "threatening."
When asked what made his body language "threatening," defendant stated Upton
came out of the house and told defendant from about 12 to 15 feet away not to cut the
trees because Upton wanted them for privacy. Defendant also stated that he was not
concerned Upton would come closer during this conflict; and that, in response, he
17
stopped cutting the trees on the fence line and moved to the main part of the lot to resume
his cutting.
According to defendant, Upton also opposed defendant's cutting of the trees on the
main part of the lot. Defendant testified that Upton allegedly confronted him about the
tree cutting about once a week; that when Upton would do so, he was "hostile"; that
Upton showed his hostility through his "body language" and from the "tone" of his voice;
and that, although Upton never actually threatened defendant, such as saying he would
"kill" defendant, defendant nonetheless felt threatened. As Upton's hostility toward
defendant increased, defendant became concerned Upton would "snap." Upton also
began cursing at defendant, calling him a " 'fucking Russian' " when asking defendant if
he would ever stop cutting down the trees.
Because of Upton's hostility, defendant testified he called the sheriff's department
and complained his neighbor was not allowing him to cut trees and bushes on the lot or to
walk on portions of the lot that were near his neighbor's residence. Because Upton's
hostility toward defendant was escalating during these weekly confrontations, as noted
defendant purchased two guns to protect himself from Upton.5
Defendant recalled the telephone conversation with Deputy Hill. Defendant
testified that, during their October 2012 telephone call, he told Deputy Hill that Upton
5 Defendant told detectives during a stationhouse interview that he purchased the
.44 revolver because he had researched handguns and determined the .22 semiautomatic
pistol was too "small" and because he was concerned he might not be able to shoot Upton
in the head with such a small weapon.
18
was " 'yelling' " at, and " 'angry' " with, him. Because Upton had not made a " 'specific
threat,' " which defendant described as a " 'promise' " to kill or break defendant's " 'neck' "
or " 'legs,' " Deputy Hill told defendant it was a "property dispute" and there was nothing
the sheriff's department could do. Defendant also recalled telling Deputy Hill he had
purchased a handgun to "protect [himself] from the neighbor" and asking the deputy if
there were any "local," as opposed to "state," laws that prevented defendant from carrying
the weapon on his own property.
Defendant testified that, about a week after this conversation, he approached two
deputies who were outside of his apartment; and that he wanted to speak with the
deputies because his telephone conversation with the sheriff's department a week earlier
had provided no answer to his request for help with his neighbor and to his question
about whether he was permitted under "local" law to carry a weapon while on his
property. It was then Deputy Hill identified himself as the sheriff's deputy defendant had
spoken with. According to defendant, Deputy Hill merely repeated what he had told
defendant a week earlier.
In a confrontation that took place in October 2012 while defendant was shoveling
some dirt to smooth the road, Upton approached, told defendant to stop work and said he
needed a permit to fix the road. Although it was dark, defendant claimed he saw Upton
holding a "short black pistol" in his left hand. At the time, Upton was about 30 feet away
from defendant. Defendant testified when he saw Upton with the pistol he felt
"something serious" was happening. However, defendant did not call law enforcement
19
because he believed Upton had a right to carry a gun on Upton's "rented property" and
because Upton had not made a specific threat against, including pointing the gun at,
defendant.
Defendant in his testimony confirmed he had conducted between 22 and 50
searches on the internet regarding firearms, including low-noise pistols. Defendant
testified he was interested in buying such a weapon because coyotes were "running on his
property," and, if he needed to shoot one, he did not want to alarm the neighbors.
Defendant found no such pistols were available.
Defendant testified he carried the .44-caliber revolver with him "all the time"
when he was on the lot. Defendant stated he kept the revolver in a gun case, fully loaded
with ammunition to hunt " 'deer and bear.' " Defendant also had a video camera in the
gun case to record Upton if he did "something" to defendant.
Defendant testified he showed Sampo the revolver because if Upton did
"something dangerous" during the survey, defendant needed to be prepared to "interfere,
with a weapon." Defendant told Sampo he needed the revolver for "self-protection."
Defendant testified that, despite Upton's protests, he continued to remove the trees
and bushes from the lot because they posed a fire hazard and because he wanted to plant
some fruit trees. Between January and March 1, 2013, Upton continued to confront
defendant about once a week while defendant was working on the lot. According to
defendant, Upton's behavior during this period was getting worse because Upton knew
20
defendant had hired a surveyor and because defendant told Upton he was going to tear
down the wall Bonanno had built years earlier that encroached on his lot.
On March 21, 2013, defendant called the sheriff's department after the surveyor
told defendant some brush located near Upton's residence needed to be removed to
complete the survey. Defendant testified that he was present during a portion of the
contact between Deputy Abbott and Upton; that Upton asked the deputy if it was legal for
defendant to cut the bushes; and that Deputy Abbott told Upton it was legal because the
bushes were on defendant's property. In response, Upton told the deputy, " 'I'm pissed
he's cutting everything. He's destroying the neighborhood.' " Also angry, defendant tried
to defend himself from these accusations. Defendant estimated Deputy Abbott stayed
about 20 minutes, and, when the deputy left, things were calm between defendant and
Upton.
The day before the shooting, defendant nailed a sign to a large tree near Upton's
residence that read, " 'No parking' on the 30 feet road.' " Defendant put the sign up
because the following day he intended to cut the bushes and trees in the same area where
Upton and Zeller typically parked their cars. The following day when defendant arrived
with two workers to remove the bushes and trees, he saw the sign was gone and there
were cars parked in the same area in which he intended to work.
Before starting work on the day of the shooting, defendant testified he told both
workers he had a "bad neighbor" who was "hostile" and that, if something happens, for
the workers not to get involved but to come to him and he would "deal with it." The
21
workers started cutting around 8:30 a.m. Defendant stood near a fence line in the
"middle" of the lot because he was afraid of Upton. Defendant testified that he was
"guarding" the workers who were cutting the trees near Upton's residence; that he was
"hiding" from Upton because he was concerned Upton would get upset because of where
they were cutting; and that Upton might do something "very dangerous."
A few minutes later, defendant observed Upton "peeking" out the front door.
Concerned, defendant in response opened the gun case that he was holding and put the
revolver in his waistband. Defendant next covered the gun with the long-sleeve shirt he
was wearing. Defendant testified he then decided to carry the revolver on his person
because the workers were cutting trees that were close to Upton's front porch.
About five or 10 minutes later, defendant saw Upton step outside and heard him
speak to the workers. Defendant testified that he saw Upton with "something" in his right
hand; and that he heard Upton ask, " 'Are you going to cut these trees?' " and inquire
whether the workers wanted him to move the cars parked nearby. After the workers
responded, defendant heard Upton say, " 'Give me a few minutes.' " At that point, Upton
started slowly walking in the direction of defendant.
Defendant testified as Upton slowly approached, he cocked the revolver while it
was still in his waistband because Upton was looking at some tools lying on the ground,
including an axe. As Upton came nearer, he started yelling at defendant " 'Get the fuck
out of here' " and " 'This is not your land.' " Defendant responded, " 'Are you kidding,
this is my land, I will not leave.' " When Upton was about 10 feet away, defendant
22
testified he saw Upton had a pistol in his right hand that was pointed downward.
Defendant in response pulled out his revolver and shot Upton.
Defendant testified he shot Upton because he was in fear for his life. Before firing
the second shot at Upton's head, defendant yelled " 'Stop.' " Defendant fired the second
shot at Upton's head because Upton continued to walk towards him; he was not sure if
Upton had been hit by the first shot, although he doubted he had missed (ostensibly in
light of his military training); and that it then went through his mind Upton might be
wearing a "bullet[-proof] vest."6
In shock, defendant next saw Zeller. Initially, she spoke with the workers, then
approached defendant and asked, " 'What have you done?' " Defendant testified he
responded, " 'Do not approach me' " as he pointed the revolver at her in a downward
direction, "not to [her] head or chest." Defendant further testified when he pointed the
revolver at Zeller, it was not to instill "fear" in her but rather to impart "knowledge" of its
existence to ensure she would not approach him.7
6 During a stationhouse interview, defendant stated that, when he fired the second
shot at Upton's head, Upton was either in the process of falling from the first shot or was
trying to "avoid" the second shot. Again, any discrepancy in a witness's testimony was a
matter for the jury. (See Upsher, supra, 155 Cal.App.4th at p. 1322.)
7 When asked on cross-examination why defendant did not show Upton the gun as
he had done with Zeller, defendant stated it was against the law to brandish a weapon and
he would have been arrested. When asked why defendant did not shoot a warning shot in
the air as Upton approached, defendant stated that too was against the law. Defendant
admitted that, when he spoke to the 911 operator after shooting Upton, he never
mentioned that he saw Upton with a gun. When asked why he also did not inform sheriff
deputies responding to the shooting that Upton had a gun, defendant testified he assumed
they would "find [it] themselves."
23
Defendant next walked to the main part of the lot and called 911. The recording
of the 911 call was played for the jury. During this call, defendant told the 911 operator
that his neighbor had "assaulted" him, and, thus, he shot his neighbor. As defendant
waited for law enforcement, he put the revolver back into the gun case.
Witness Jesse Owens testified that he conducted the survey of the lot on March 21,
2013; that, at some point in the morning, Deputy Abbott arrived and escorted them to a
particular area where some of the work was to be performed; that he was present when
Deputy Abbott contacted Upton; that Upton was "very angry with the whole situation";
but that defendant was calm. Owens noted Upton was cursing and screaming and told
defendant, " 'Get the fuck away from me.' "
Owens estimated Upton was screaming for about 15 minutes. However, Owens
overheard Upton tell Deputy Abbott that he was not going to hurt defendant, saying he
was not "go[ing] down that path." According to Owens, Deputy Abbott explained to
defendant what was considered a "legal threat." Based on that definition, Owens testified
Upton did not threaten defendant during this confrontation.
Witness Duane Byram testified that he was formerly married to Zeller; that he first
met Upton in January 2011; and that he had various "encounters" with Upton in 2011 and
2012, which turned out to be "negative experiences." In one such encounter in May
2011, Byram drove to Upton's residence to pick up his children. As he approached the
house, Upton came outside and started yelling at Byram for about 30 or 40 seconds to
"get away from his house" and to get the "fuck back to [Byram's] car." Byram went back
24
to his car and waited there until the children came outside. Byram testified he had no
idea why Upton came at him like that, as there had been no animosity between them up to
that point.
In another incident that took place in June 2012, Byram described how he was
leaving Upton's residence when he saw a car coming in the opposite direction. Because
the road was narrow and a single lane, Byram pulled off to the side to let the other car
pass. As the other car approached, Byram realized Upton was driving. According to
Byram, Upton pulled in front of him, blocking him from leaving, and started mouthing
some words while pointing at Byram in a "menacing way." Byram testified he was
fearful of, and upset with, Upton, particularly because Byram's children were in the car.
In another encounter that took place in about July 2012, Upton and Byram saw
each other at a restaurant. According to Byram, when they shook hands Upton repeatedly
said, "It doesn't have to be like this" while at the same time refusing to let go of Byram's
hand. Byram estimated Upton aggressively shook his hand for about 30 seconds.
Byram also described other incidents, including one in October 2012 when Byram
was talking to his former mother-in-law in front of Upton's residence. In that incident,
Upton pulled his car behind Byram, who was dropping the children off for the weekend.
As Upton approached Byram's car, he pushed Zeller's mother out of the way, came right
up to Byram's car window, and started yelling and cursing at Byram for about a minute
and a half.
25
D. Rebuttal
Witness Carmen Warner-Robbins testified that she met Upton in 1995; that he
worked with her on creating a video about women who were once incarcerated and had
returned to living productive lives; and that, while he was "passionate" and "strong in his
beliefs," he was neither violent nor a bully. Detective Hillen testified he interviewed
defendant for more than two hours after the shooting. During the interview, defendant
never told the detectives that he told Upton to stop as Upton approached, immediately
before defendant shot Upton. Defendant also did not mention to detectives that he told
Upton to stop a second time before he fired the second shot. Defendant also admitted to
detectives during the interview that he pointed the gun at Zeller, as opposed to the
ground, as he testified at trial. Finally, Detective Hillen confirmed that, although
defendant was "very forthright with information" during the interview, he then never
mentioned ever seeing Upton with a gun before the March 28 shooting.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support his first degree
murder conviction. In making this contention, defendant states the shooting of Upton
was a "tragic case . . . precipitated by a series of events over one man's right to clear his
property that resulted in that man believing he had to act to save his life." Defendant thus
26
contends the evidence overwhelmingly gave rise to manslaughter, and not murder, as the
jury found. We disagree.
A. Lawful Self-Defense
1. Guiding Principles
"[W]here the evidence is uncontroverted and establishes all of the elements for a
finding of self-defense it may be held as a matter of law that the killing was justified."
(People v. Clark (1982) 130 Cal.App.3d 371, 379 (Clark), abrogated on another ground
as stated in People v. Blakeley (2000) 23 Cal.4th 82, 92.) However, where the evidence
tends to show a situation in which a killing may not be justified, such as in the instant
case, "then the issue is a question of fact for the jury to determine. [Citation.] Where the
evidence is uncontroverted, but reasonable persons could differ on whether the resort to
force was justified or whether the force resorted to was excessive, then the issue is a
question of fact for the trier of fact. [Citations.]" (Clark, at p. 379.)
Under that standard, we review the "record in the light most favorable to the
judgment to determine whether it contains substantial evidence from which a reasonable
trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citation.]
If the circumstances reasonably justify the jury's finding, the reviewing court may not
reverse the judgment merely because it believes that the circumstances might also
support a contrary finding. [Citation.] For evidence to be 'substantial' it must be of
ponderable legal significance, reasonable in nature, credible and of solid value.
[Citation.]" (People v. Aispuro (2007) 157 Cal.App.4th 1509, 1511, italics added.)
27
" ' " 'An appellate court must accept logical inferences that the jury might have drawn
from the evidence even if the court would have concluded otherwise.' " ' " (People v.
Salazar (2016) 63 Cal.4th 214, 242 (Salazar).)
"In making our determination, we focus on the whole record, not isolated bits of
evidence. [Citation.] We do not reweigh the evidence; the credibility of witnesses and
the weight to be accorded to the evidence are matters exclusively within the province of
the trier of fact. [Citation.] We will not reverse unless it clearly appears that on no
hypothesis whatever is there sufficient substantial evidence to support the jury's verdict.
[Citations.]" (Upsher, supra, 155 Cal.App.4th at p. 1322.)
" 'To justify an act of self-defense . . . , the defendant must have an honest and
reasonable belief that bodily injury is about to be inflicted on him [or her]. [Citation.]'
[Citation.] The threat of bodily injury must be imminent [citation], and '. . . any right of
self-defense is limited to the use of such force as is reasonable under the circumstances.' "
(People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.)
When the evidence raises the possibility that the defendant acted in self-defense or
with another justification, the burden is on the prosecution to prove, beyond a reasonable
doubt, that the defendant did not act in self-defense or with another legal justification.
(People v. Rios (2000) 23 Cal.4th 450, 462; Mullaney v. Wilbur (1975) 421 U.S. 684,
703–704.)
28
2. Analysis
Here, we conclude there was more than sufficient evidence in the record tending to
show "a situation in which a killing may not be justified" (see Clark, supra, 130
Cal.App.3d at p. 379) for that issue to be submitted to the jury. (See ibid.) We further
conclude substantial evidence supports the jury's finding that defendant did not act in
lawful self-defense.
Indeed, Deputy Hill testified that, when he spoke to defendant over the telephone
on October 31, 2012—after defendant already had purchased at least one if not both
guns—defendant then could provide "no articulable reason" why he was "so greatly
concerned" for his safety or why he "had gone to the steps of purchasing a firearm and
want[ing] to carry it"; that Deputy Hill then warned defendant it was a "very bad idea" to
carry a firearm in an argument and that he could be arrested if he made a "bad choice";
that defendant on at least two occasions sought permission from sheriff deputies to carry
and, if necessary, to use his gun while on the lot, even though defendant admitted to
deputies Upton had not been physical "towards him"; that, at or near the same time
defendant was unable to provide an "articulable reason" why he was so concerned for his
safety, defendant was telling others, including Sampo, that he purchased the .44-caliber
revolver because he was being "threatened by his neighbor"; that, when Deputy Abbott
was dispatched to the lot a week before the shooting and was given examples by
defendant how Upton allegedly had threatened defendant, including that Upton "yelled"
at him, Deputy Abbott then determined that Upton had not made any criminal threats
29
against defendant; that, during this contact, defendant admitted to Deputy Abbott there
had not been any physical contact between him and Upton; that, also during this contact
and in defendant's presence, Upton told Deputy Abbott he would not engage in a physical
confrontation with defendant; that, on the day of the shooting, after defendant saw Upton
"peek" his head out the front door, defendant then put the fully loaded revolver into his
waistband and covered the gun with his long shirt; that, before doing so, defendant told
the two workers he had a "bad neighbor" and that, if anything happened, defendant would
"deal with it"; that Matias testified Upton was calm and showed no signs of being angry,
when, just minutes before the shooting, Upton approached the two workers, said "Hello"
and stated he would move the cars so they could continue to trim the trees; that, during
this short conversation, Matias did not see Upton carrying anything in his hands, such as
a gun; that Upton next started walking slowly, in a nonaggressive manner, up the dirt
path, towards defendant; that, as Upton walked up the path, Matias heard Upton say,
" 'Can you do me a favor' "; that Rodriquez actually walked past Upton about three times
as Rodriquez was carrying tree branches up the dirt path, and, in each instance,
Rodriquez noted Upton was neither yelling nor otherwise appeared angry; that Upton was
stopped and standing on the dirt path while talking to defendant; that, contrary to Upton,
Rodriquez described defendant's demeanor as angry and heard defendant say, "Fucking
shit" to Upton; that defendant was speaking louder than Upton; that defendant kept
moving his hands side to side in a nervous fashion while talking to Upton; that Rodriquez
never saw Upton make any motions or movements which suggested Upton was about to
30
attack defendant physically; that Rodriguez saw Upton fall to the ground after the first
shot; that defendant fired the second shot while Upton was lying on the ground; that
defendant believed he needed to fire a second shot because Upton might be wearing a
"bullet[-proof] vest"; that, after the shooting, Zeller described defendant as "calm and
composed" after he pointed the revolver directly at her; that Deputy Petrachek testified
defendant also appeared calm and unanimated during the 45 minutes he spent with
defendant following the shooting; that Upton's Glock pistol was found by Detective
Dugal in the nightstand drawer inside the master bedroom of Upton's residence; that no
dirt, grass or vegetation or blood was found on the Glock pistol; that defendant, when he
reported the shooting, merely said he was "assaulted" by Upton and did not then mention
he saw a gun in Upton's hand; that defendant neglected to tell detectives during his
stationhouse interviews that he shot Upton because he saw Upton carrying a gun; that
defendant bought the .44-caliber revolver and loaded it with ammunition for "deer and
bear" because he did not believe the .22-caliber semiautomatic weapon he already had
purchased could take down Upton; that defendant felt threatened by Upton and decided
he needed to buy two guns for "self-protection" based merely on Upton's "body
language" and "tone" when Upton would confront defendant about his continual cutting
of trees and bushes on the lot; and that, although Upton had never been physical with
defendant, defendant nonetheless was concerned Upton would "snap" during one of their
confrontations, which defendant estimated occurred about once a week for about a year
(or 52 such encounters) without Upton once "snap[ping]."
31
Based on this substantial evidence, a reasonable trier of fact could find beyond a
reasonable doubt that defendant did not reasonably believe that (i) Upton was about to
inflict great bodily injury upon him when he shot Upton first in the abdomen and next in
the head; (ii) the immediate use of deadly force was necessary to defend himself; and (iii)
he used no more force than reasonably necessary.
B. Imperfect Self-Defense
The doctrine of unreasonable self-defense, also known as imperfect self-defense,
is limited: " 'It requires without exception that the defendant must have had an actual
belief in the need for self-defense. . . . Fear of future harm—no matter how great the fear
and no matter how great the likelihood of the harm—will not suffice. The defendant's
fear must be of imminent danger to life or great bodily injury. " '[T]he peril must appear
to the defendant as immediate and present and not prospective or even in the near future.
An imminent peril is one that, from appearances, must be instantly dealt with.' " ' "
(People v. Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez).)
Here, we conclude there is substantial evidence in the record from which a
reasonable trier of fact could find beyond a reasonable doubt that defendant did not
actually believe he was in imminent danger of being killed or suffering great bodily injury
when he shot and killed Upton. (See Manriquez, supra, 37 Cal.4th at p. 581.) Indeed, as
we noted ante, the record shows Upton had never threatened defendant with any physical
harm during their myriad verbal confrontations, which defendant estimated occurred
about once a week for over a year. (See People v. Aris (1989) 215 Cal.App.3d 1178,
32
1189 [noting the "criminal law will not even partially excuse a potential victim's slaying
of his attacker unless more than merely threats and a history of past assaults is
involved"].)
In addition, there is evidence in the record showing Upton was stopped, and not
yelling, when he confronted defendant on the dirt path; that it was defendant who had
armed himself, appeared nervous and was yelling during the deadly confrontation; and
that defendant fired the second shot at Upton's head, as Upton was lying on the ground,
as Rodriquez testified, or as Upton was falling to ground after being hit by the first shot
to the abdomen, as defendant stated to detectives during a stationhouse interview.
That defendant testified he saw Upton with a gun and/or eying an axe lying on the
ground (which defendant had brought for the workers to use) as Upton approached—and,
as such, he actually believed he was imminent danger of being killed or suffering great
bodily injury by Upton—does not change our conclusion.
First, we note there was overwhelming evidence in the record that Upton was
unarmed when defendant shot him. Second, it was up to the jury to decide whether
Upton was armed and/or whether defendant actually, albeit unreasonably, believed he
was in imminent danger of being killed or suffering great bodily injury during the
confrontation with Upton. Although the defense argued during closing that defendant
held such a belief when he shot and killed Upton, clearly the jury found otherwise, which
as trier of fact it was entitled to do. (See People v. Albillar (2010) 51 Cal.4th 47, 60
33
[noting a " 'reviewing court neither reweighs evidence nor reevaluates a witness's
credibility' "].)
C. Premeditation and Deliberation
Defendant further contends there was insufficient evidence to establish the
shooting was deliberate and premeditated or was done while lying in wait. We disagree.
" 'In the context of first degree murder, premeditation means " 'considered beforehand' "
(People v. Mayfield (1997) 14 Cal.4th 668, 767 [(Mayfield)]) and deliberation means a
" 'careful weighing of considerations in forming a course of action . . .' " (People v.
Solomon [(2010)] 49 Cal.4th 792, 812). "The process of premeditation and deliberation
does not require any extended period of time." (Mayfield, at p. 767 [the true test of
premeditation is the extent of the reflection, not the length of time].) " 'Thoughts may
follow each other with great rapidity and cold, calculated judgment may be arrived at
quickly . . . .' " (Ibid.; see id. at pp. 767–768 [where defendant wrested the gun from and
fatally shot an officer during a brief altercation, the jury could reasonably conclude that
"before shooting [the officer] defendant had made a cold and calculated decision to take
[the officer's] life after weighing considerations for and against"]; People v. Rand (1995)
37 Cal.App.4th 999, 1001–1002 [aiming weapon at victims whom shooter believed to be
rival gang members constituted sufficient evidence of premeditation and deliberation].)'
(People v. Shamblin (2015) 236 Cal.App.4th 1, 10.)" (Salazar, supra, 63 Cal.4th at
p. 245.)
34
Here, the record shows on the day of the killing, defendant brought his .44-caliber
revolver, fully loaded with "deer and bear" ammunition, to the lot, as he had been doing
since he legally obtained the gun months earlier, demonstrating preparation. (See People
v. Lee (2011) 51 Cal.4th 620, 636 [noting the fact the defendant brought a loaded
handgun with him on the night the victim was killed indicated the defendant "considered
the possibility of a violent encounter"].)
The record also shows that when Upton merely "peeked" out the front door of his
house, Upton removed the revolver from the gun case, placed it in his waistband and then
used his long shirt to conceal the weapon, which is strong evidence of planning. (See
Salazar, supra, 63 Cal.4th at p. 222 [noting there was evidence of planning when the
defendant told an accomplice and a member of the same criminal street gang as defendant
to get a gun when they saw the victim, who they determined was a rival gang member, in
a parking lot].)
Moreover, defendant testified that he armed himself because the two workers were
cutting trees near Upton's residence. Such evidence suggests defendant sought to
provoke a deadly confrontation with Upton, supporting motive. Indeed, the record shows
that, just a week before the deadly confrontation, defendant had called the sheriff's
department because he was concerned Upton would get upset when defendant's surveyor
told defendant he needed just three feet of vegetation removed near Upton's residence in
order to complete the survey. Deputy Abbott responded to that call and, at one point, had
to calm both Upton and defendant as they were yelling at each other.
35
What's more, on the day of the killing defendant did not leave the lot after he
dropped off the workers and instructed them what he wanted cut, despite the fact he knew
Upton likely would get upset. Nor did defendant stand near the two workers as they cut
and removed the tree branches near Upton's house. Instead, defendant retreated to the
"middle" of his lot and stood behind or near a fence line in an effort to "hide" from
Upton. Defendant stood watch, "guarding" the workers from that vantage point. When
Upton merely "peeked" out the front door, defendant armed himself outside the presence
of Upton and the workers. Such evidence further supports the finding defendant sought
to provoke the deadly confrontation with Upton. (See Salazar, supra, 63 Cal.4th at
p. 245 [noting the fact the defendant's accomplice armed himself because the victim
looked like a gang member supplied "evidence of motive for provoking a lethal
confrontation"].)
Finally, the fact defendant first shot Upton in the abdomen, where it was easier to
hit a victim, and subsequently in the head about five to seven seconds letter, and his
concession that the .22-caliber gun would have been too small to take down Upton, also
support the finding that Upton's killing was deliberate. (See Salazar, supra, 63 Cal.4th at
p. 245; see also People v. Koontz (2002) 27 Cal.4th 1041, 1082 [noting that the
defendant's "firing a shot at a vital area of the body at close range" was indicative of a
deliberate intent to kill].)
36
D. Lying in Wait
"Section 189 provides, in pertinent part, that 'murder which is perpetrated by . . .
lying in wait . . . is murder of the first degree.' Lying-in-wait murder consists of three
elements: ' " '(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[.]' " ' " (People v. Russell (2010) 50
Cal.4th 1228, 1244, fn. omitted; see People v. Cole (2004) 33 Cal.4th 1158, 1206.)
" ' " 'The element of concealment is satisfied by a showing " 'that a defendant's true
intent and purpose were concealed by his [or her] actions or conduct. It is not required
that he [or she] be literally concealed from view before he [or she] attacks the victim.' " '
[Citation.] (People v. Moon [(2005)] 37 Cal.4th [1,] 22.) As for the watching and
waiting element, the purpose of this requirement 'is to distinguish those cases in which a
defendant acts insidiously from those in which he acts out of rash impulse. [Citation.]
This period need not continue for any particular length " 'of time provided that its
duration is such as to show a state of mind equivalent to premeditation or deliberation.' "
[Citation.]' (People v. Stevens (2007) 41 Cal.4th 182, 202, fn. omitted.) 'The factors of
concealing murderous intent, and striking from a position of advantage and surprise, "are
the hallmark of a murder by lying in wait." ' " (People v. Mendoza (2011) 52 Cal.4th
1056, 1073.)
37
Again, we conclude there is substantial evidence in the record from which a
reasonable trier of fact could find beyond a reasonable doubt that defendant killed Upton
while lying in wait, thus also supporting his first degree murder conviction.
As noted ante, just a week before the killing defendant called the sheriff's
department because he was concerned there would be a confrontation between him and
Upton as a result of his need to trim only three feet of vegetation near Upton's residence.
As a result, Deputy Abbott came to the property and, after calming the situation down,
both defendant and Upton agreed in each other's presence that there would be nothing
physical between them. In addition, as also noted ante, defendant claimed he and Upton
yelled at each other about once a week, for a period of about a year. As such, according
to defendant, there would have been about 52 such confrontations prior to the shooting.
Finally, defendant admitted that, during these confrontations, Upton was never physical.
In light of such evidence, and the other evidence also summarized ante, including
the fact defendant hid the .44-caliber revolver under his shirt even before Upton came
outside, we conclude substantial evidence supports defendant's true intent and purpose
were concealed for purposes of this element.
We further conclude there is sufficient evidence in the record to support the
"watching and waiting" element. Indeed, the record includes overwhelming evidence
showing defendant acted insidiously, as opposed to out of rash impulse, as demonstrated
by the evidence that, before the shooting, he purchased the .44-caliber revolver because
he believed the .22-caliber semiautomatic pistol was not sufficient to protect him from
38
Upton; that, on the day of the shooting, he brought the fully loaded gun to the lot
knowing that his cutting of the trees in the area near Upton's residence likely would anger
Upton; that he put the gun in his waistband merely because Upton "peeked" out the front
door; that, as Upton slowly approached defendant, who stood about 100 feet away from
where the workers were trimming the trees, defendant did not tell him to stop or
otherwise indicate he was armed with a weapon or fire a warning shot into the air; and
that defendant instead shot Upton, who, the overwhelming evidence shows, was
unarmed, from about 10 feet away, first hitting Upton in the abdomen and next in the
head, as defendant had been trained to do while in the military.
We further conclude this same evidence supports the "surprise attack" element of
lying in wait. The evidence shows Upton was an unsuspecting victim. Although Upton
had a gun in his nightstand drawer, the evidence strongly supports the finding he was
unarmed when he slowly approached defendant. There also is no evidence, other than
defendant's own self-serving testimony, which the jury rejected, that Upton was about to
attack defendant on the day of the shooting.
II
Ineffective Assistance of Counsel
A. "Fight or Flight" Syndrome
Defendant contends he was denied effective assistance when defense counsel
failed to seek a mistrial after the prosecutor and the defense expert referred to the "fight
or flight" syndrome as a "fad." We disagree.
39
1. Additional Background
Pretrial, the prosecution moved to exclude the testimony of Dr. Raymond Murphy,
arguing Dr. Murphy did not possess the requisite expertise to testify on a "fight or flight"
theory; the basis of his opinion was exclusively derived from the hearsay statements of
defendant, as Dr. Murphy did not interview defendant; and the issue of "fight or flight"
was not outside the common knowledge of the jury. The record shows the court set an
Evidence Code section 402 hearing. Following that hearing, the court denied the
prosecution's motion.
At trial, Dr. Murphy generally testified about "fight or flight," noting that it
"allows [an] individual to prepare for a dangerous situation, and to either fight to preserve
themselves, or flee"; that chemicals in the body are released, including adrenaline and
norepinephrine in such situations; that no thinking is required, but rather it is an
"automatic response by the nervous system"; and the "fight or flight" response is based
on an individual's life experiences. Dr. Murphy noted there was no test he could have
performed on defendant to determine whether defendant was undergoing "fight or flight"
response on the day Upton was shot. However, Dr. Murphy noted that, if a person was
operating under a "fight or flight" response, it was possible for that person "to perceive or
see something—a threat, a danger—that may not actually be there" for "survival."
During cross-examination, Dr. Murphy confirmed he was not testifying that
defendant was undergoing a "fight or flight response at any given time," including when
he shot Upton, because "there's no test for it." Dr. Murphy further confirmed he had not
40
spoken to defendant, he had not read any police reports and he had not read any of
defendant's statements. According to Dr. Murphy, an individual under a "fight or flight"
response may show symptoms of sweating, palpitations, stuttering, crying and screaming,
among other reactions. Conversely, the lack of such symptoms—including perhaps an
individual's calmness, as Zeller and Deputy Petrachek observed of defendant immediately
after the shooting—suggested an individual might not be experiencing "fight or flight."
In any event, as particularly relevant to the instant issue, the following exchange
occurred during Dr. Murphy's cross-examination:
"Q. [By the prosecutor]: You mentioned phases of acceptability when you were
describing whether—or how this defense is being used currently. Is that what you
meant—you were saying 'Phases of Acceptability?'
"A. [By Dr. Murphy]: Yeah, I think so.
"Q.: And I believe you previously even termed it as a 'FAD?'
"A.: 'FAD' in the sense of a defense strategy.
"Q.: One of the other things you talked about as far as contextual, is that if one has
a knowledge or familiarity with a dangerous location --
"The Court: Let me see counsel at side-bar."
The record shows, after the unreported side bar, the court admonished the jury as
follows:
"All right, ladies and gentlemen, there was a question asked as to whether or not
this was considered a FAD.
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"A FAD can have different contexts, it can have different meanings. What I am
telling you is that the context within which it was used in this case was inappropriate.
That was an inappropriate question for the People to ask, and it gave an inappropriate—
left an inappropriate impression with the jury. Therefore, you are to disregard that
question, you are to disregard the answer, and you're not to consider it in any way in your
considerations of this case." (Italics added.)
Outside the presence of the jury, the following discussion occurred:
"The Court: All right, we did have a discussion off the record where I indicated to
counsel I believe that that was a motion in limine the court had previously ruled on, that
we were not going to be using that terminology. That counsel could, if he wished,
inquire as to recency, or the times under which the defense is presenting itself, but not to
refer to it as a 'FAD.' [¶] [Defense counsel], do you wish to address anything further on
your redirect, or do you wish to leave it as it is?
"[Defense counsel]: Your honor, at this point I'll leave it as it is. Your honor has, I
believe, adequately told the jury to disregard it. [¶] I may ask a follow-up on redirect
about: [¶] fight or flight has always existed scientifically, it just—the frequency from
which it's used, can vary from year to year, decade to decade—or some such thing.
"The Court: All right. And I think that would be appropriate for you to do."
Next, the prosecutor stated he did not purposely disregard the court's ruling on the
use of the "fad" terminology. In response, the court told the prosecutor that the question
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was inappropriate and that the prosecution was not to "denigrate" any of the defense's
defenses. The following exchange then took place:
"[The Prosecutor]: My use of that terminology was not meant as an insult to either
counsel or the court.
"The Court: I understand that. It was the witness [at] the [Evidence Code section]
402 hearing who used that term to begin with, but the point remains relevant: you're not
to be doing that in that fashion. All right. [¶] So [defense counsel], you believe that it
has, or will be, effectively dealt with?
"[Defense counsel]: Yes, your honor." (Italics added.)
2. Guiding Principles and Analysis
"Defendant has the burden of proving ineffective assistance of counsel. [Citation.]
To prevail on a claim of ineffective assistance of counsel, a defendant ' "must establish
not only deficient performance, i.e., representation below an objective standard of
reasonableness, but also resultant prejudice." ' [Citation.] A court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel's
decisionmaking must be evaluated in the context of the available facts. [Citation.] To
the extent the record on appeal fails to disclose why counsel acted or failed to act in the
manner challenged, we will affirm the judgment unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation. [Citation.] Moreover, prejudice must be affirmatively proved; the record
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must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.' [Citation.]" (People v.
Maury (2003) 30 Cal.4th 342, 389 (Maury).)
" 'Reviewing courts defer to counsel's reasonable tactical decisions . . . , and there
is a "strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance." ' [Citation.] '[W]e accord great deference to counsel's tactical
decisions' [citation], and we have explained that 'courts should not second-guess
reasonable, if difficult, tactical decisions in the harsh light of hindsight.' " (People v.
Weaver (2001) 26 Cal.4th 876, 925–926 (Weaver).)
" 'A mistrial should be granted if the court is apprised of prejudice that it judges
incurable by admonition or instruction. [Citation.] Whether a particular incident is
incurably prejudicial is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions. [Citation.] Accordingly, it would
be a rare case in which the merits of a mistrial motion were so clear that counsel's failure
to make the motion would amount to ineffective assistance.' " (People v. Jennings (1991)
53 Cal.3d 334, 380 (Jennings).)
Here, defendant can neither establish that defense counsel was deficient for failing
to bring a mistrial motion based on the use of the word "fad" nor that he suffered
prejudice as a result of the alleged deficiency.
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First, we note from the record that it was defendant's own expert, Dr. Murphy,
who introduced the word "fad" in connection with his testimony at the Evidence Code
section 402 hearing regarding the "fight or flight" response.
Second, although the trial court found the use of the word "FAD" inappropriate,
we conclude the meaning of this word, when viewed in context, was at best ambiguous.
Indeed, the Merriam-Webster online dictionary defines "fad" to mean: "something (such
as an interest or fashion) that is very popular for a short time" ( [as of August 30, 2016]). However, Dr. Murphy testified
the recognition of the "fight or flight" syndrome or response was made in the early
1900's, suggesting this syndrome or response was anything but a "fad."
Third, in any event, the word "fad" was used only twice within a few seconds of
each other, and, immediately after it was used, the court halted the proceedings, went to a
side bar and then promptly admonished the jury that the word can have different
meanings depending on the context—a point we agree with, as noted—and that it was to
disregard the question and the answer in which the word was used. We conclude the trial
court properly exercised its broad discretion in handling this issue and when it offered the
defense an opportunity to address the issue on redirect. (See Jennings, supra, 53 Cal.3d
at p. 380 [noting the general rule that it is a " 'rare case in which the merits of a mistrial
motion were so clear that counsel's failure to make the motion would amount to
ineffective assistance' "].)
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Fourth, we conclude defense counsel made a reasonable tactical decision then to
"leave [the 'fad' issue] as it is" because counsel believed the court had adequately
addressed it with the jury when the court instructed the jury to disregard the question and
answer using the word. (See Weaver, supra, 26 Cal.4th at pp. 925–926 [noting that, as a
court of review, we " 'accord great deference to counsel's tactical decisions' [citation], and
we have explained that 'courts should not second-guess reasonable, if difficult, tactical
decisions in the harsh light of hindsight' "].)
On this record, we conclude that, even if defense counsel had made such a motion,
it would have been denied. (See People v. Memro (1995) 11 Cal.4th 786, 834 [noting the
general rule that counsel is not obligated to make futile or frivolous motions].)
B. Failure to Object to Right-to-Self Defense, Not Contrived Instruction
Defendant next contends his counsel was ineffective when the defense failed to
object to CALCRIM No. 3472. This instruction, as given, provides, "A person does not
have the right to self-defense if he or she provokes a fight or quarrel with the intent to
create an excuse to use force." Defendant contends this instruction was improper because
there allegedly was "no evidence that at the time Upton was shot, [defendant] initiated a
fight or quarrel with the intent to prompt Upton to react." We disagree.
The court must give a requested instruction "if it is supported by substantial
evidence, that is, evidence sufficient to deserve jury consideration." (People v. Marshall
(1997) 15 Cal.4th 1, 39.) We independently review whether substantial evidence
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supported the giving of an instruction. (People v. Waidla (2000) 22 Cal.4th 690, 733
(Waidla).)
Here, we conclude there was substantial evidence in the record to support giving
CALCRIM No. 3472. Indeed, as we have now noted several times, on the morning of the
shooting defendant knew his decision to trim the trees near Upton's residence would
likely anger Upton. In fact, defendant warned the two workers of his "bad neighbor,"
told them he would handle any problems if, or—as the evidence shows in this case—
when, they arose, and then left the immediate vicinity where they were working and stood
about 100 feet away, in the middle of his property, by a fence line.
Defendant also decided to go forward cutting the trees, despite the fact Upton's
and Zeller's cars were parked nearby and could be damaged by falling tree branches.
Indeed, the day before, defendant had posted a "no parking" sign that ostensibly Upton
had taken down and that he clearly had ignored. As we also have noted several times in
this opinion, there also was evidence the confrontations between defendant and Upton
(allegedly) were increasing in frequency and growing in intensity, as defendant testified.
Although defendant believed he had the right to cut down the trees, and even if he did
have such a right, a reasonable jury could find his decision to do so was intended to
provoke a fight with Upton, one that turned deadly.
What's more, the fact defendant armed himself with the fully loaded revolver and
hid that revolver from Upton merely because Upton "peeked" his head out of the front
door suggests defendant expected a confrontation with Upton that morning and intended
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to use deadly force to end it. These findings are further supported by evidence that
defendant shot Upton without warning while he was unarmed, as he merely stood on the
dirt path.
On these facts, we independently conclude the court properly instructed the jury
with CALCRIM No. 3472. (See Waidla, supra, 22 Cal.4th at p. 733.) As such, we
further conclude defense counsel was not ineffective for failing to object to this
instruction. (See Maury, 30 Cal.4th at p. 389.)8
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
IRION, J.
PRAGER, J.*
8 In light of our decision on the various errors raised by defendant, we conclude the
cumulative error doctrine is inapplicable in this case. (See People v. Bradford (1997) 15
Cal.4th 1229, 1344.)
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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