Filed 1/31/22 P. v. Bailey CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C091267
Plaintiff and Respondent, (Super. Ct. No.
STKCRFE20170012028)
v.
CLARENCE KEITH BAILEY,
Defendant and Appellant.
Defendant Clarence Keith Bailey appeals his second degree murder conviction,
contending the trial court erred in denying his motion to instruct the jury on excusable
homicide based on accident in the heat of passion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant strangled his girlfriend, S. B., to death. He admitted to officers he had
strangled her previously, supposedly to subdue her in their frequent, violent altercations.
He also admitted he choked her teenaged daughter once. These prior acts, apparently,
resulted in nothing more than a police report. This time, he told officers, S. B. had been
drinking, “she was talkin’ shit,” “grabb[ing] me,” and “jumpin’ on top of me” in their
bed. He acknowledged being “pretty pissed” and “pretty heated.” “I was trying to just
grab her just so she could shut up. And, like, you know, cover her mouth.” He was “up
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on her,” “leaning over her,” “squeezing pretty hard,” as she tried to get him off. When
she stopped talking, he ceased. He then noticed she “was spittin’ up some white stuff out
on the side of her mouth.” He wiped her mouth, turned over, and went to sleep.
Defendant claimed he thought she was sleeping and did not realize she was dead until the
next morning. He was remorseful and had not intended to kill her.
At trial, a forensic pathologist testified for the prosecution that the white substance
around S. B’s mouth was a symptom of asphyxiation, a process that can take several
minutes as the lungs fill up with frothy edema fluid, which can overflow through the
airways. Additionally, S. B. had marijuana in her system and her blood-alcohol level was
0.33 percent -- high enough, according to two prosecution witnesses, that she would not
be able to defend herself effectively.
The court instructed the jury on first and second degree murder, as well as
voluntary and involuntary manslaughter. The jury found defendant guilty of second
degree murder, and the court sentenced him to 15 years to life.
DISCUSSION
Defendant argues the court erred in refusing his request to instruct the jury with
CALCRIM No. 511, which defines excusable homicide based on accident in the heat of
passion. He argues, “[g]iven this undisputed history of choking women in the midst of
heated arguments -- with no lingering effects from doing so -- a reasonable juror could
have believed that [defendant] did not expect or intend choking [S. B.] to kill her this
time.” We disagree.
We review de novo a trial court’s refusal to instruct the jury. (People v. Licas
(2007) 41 Cal.4th 362, 366.) “The trial court has no duty to instruct on a defense that is
not supported by substantial evidence.” (People v. Bohana (2000) 84 Cal.App.4th 360,
370.) Taking defendant’s proffered evidence as true and resolving doubts as to its
sufficiency in his favor, we must reverse if there is “ ‘ “evidence from which a jury
composed of reasonable [people] could have concluded” ’ that the specific facts
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supporting the instruction existed.” (People v. Petznick (2003) 114 Cal.App.4th 663,
677.)
As relevant here, homicide is excusable “[w]hen committed by accident and
misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a
sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and
when the killing is not done in a cruel or unusual manner.” (Pen. Code, § 195, case 2.)
The claim that a homicide was accidental “ ‘amounts to a claim that the defendant acted
without forming the mental state necessary to make his or her actions a crime.’ ”
(People v. Bohana, supra, 84 Cal.App.4th at p. 370.)
This defense, the elements of which are set forth in CALCRIM No. 511, does not
apply if the defendant acted with criminal intent, including criminal negligence. “A
person acts with criminal negligence when: [¶] 1. He or she acts in a way that creates a
high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would
have known that acting in that way would create such a risk. [¶] In other words, a person
acts with criminal negligence when the way he or she acts is so different from how an
ordinarily careful person would act in the same situation that his or her act amounts to
disregard for human life or indifference to the consequences of that act.” (CALCRIM
No. 511.) Criminal negligence is shown “despite a good faith belief that the conduct
posed no risk, if that belief was objectively unreasonable under the circumstances.”
(People v. Luo (2017) 16 Cal.App.5th 663, 671.)
Here, to make S. B. “shut up,” defendant covered her mouth and, leaning over her
as she tried despite her heavily inebriated state to get him off her, strangled her until she
stopped talking. When she spit up a white frothy substance, he wiped her mouth and
went to sleep, not bothering to see if she needed medical attention. Even assuming he
believed based on his “undisputed history of choking women” that compressing her
windpipe to restrict the flow of oxygen posed no risk, and that this belief persisted as she
spit up white fluid, it is still irrelevant to the question of whether he acted with criminal
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negligence. Thus, taking defendant’s proffered statements as true and resolving doubts as
to its sufficiency in his favor, his position that “a reasonable juror could have believed
that [defendant] did not expect or intend choking [S. B.] to kill her this time” is without
merit.
The inherently dangerous aggravated assault of strangling S. B. amounted to
disregard for human life; going to sleep after seeing her foam at the mouth amounted to
indifference to its consequences. These deliberate, objectively unreasonable actions --
even if defendant did not anticipate or desire their tragic consequences -- negate any
inference defendant acted like an ordinarily careful person. A jury composed of
reasonable people simply could not have concluded otherwise; indeed, defendant’s
second degree murder verdict means the jury necessarily found he acted with specific
intent to kill or conscious disregard for life (People v. Butler (2010)
187 Cal.App.4th 998, 1006), both of which are higher degrees of culpability than
criminal negligence (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1141-1142).
Because defendant acted with, at a minimum, criminal negligence, we conclude there was
no substantial evidence to support instructing with CALCRIM No. 511.
Therefore, the court properly denied defendant’s motion.
DISPOSITION
The judgment is affirmed.
/s/
Robie J.
We concur:
/s/
Raye, P. J.
/s/
Hull, J.
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