Filed 7/31/13 P. v. Anunciation CA4/1 Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D054988
Plaintiff and Respondent,
v. (Super. Ct. No. INF056054)
MICHAEL ANUNCIATION,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, James S.
Hawkins, Judge. Affirmed.
Marcia R. Clark for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lynne McGinnis and Donald W.
Ostertag, Deputy Attorneys General, for Plaintiff and Respondent. Michael Anunciation's appeal of the judgment sentencing him to prison after a jury
found him guilty of second degree murder is again before us after transfer from the
California Supreme Court. Anunciation contends the trial court erred by (1) admitting
expert testimony conveying a nontestifying forensic pathologist's autopsy findings, in
violation of his Sixth Amendment right to confront adverse witnesses; (2) admitting
statements obtained in violation of his Fifth Amendment right not to be compelled to be a
witness against himself; and (3) refusing to instruct the jury on two theories of voluntary
manslaughter as a lesser included offense of murder. In our prior opinion, we rejected
the Fifth Amendment claim, but agreed with the Sixth Amendment claim and reversed
the judgment on that ground. We did not consider his instructional error claim.
The California Supreme Court granted the People's petition for review, and held
the case pending decisions in of People v. Lopez (2012) 55 Cal.4th 569, People v. Dungo
(2012) 55 Cal.4th 608 (Dungo), and People v. Rutterschmidt (2012) 55 Cal.4th 650.
Those decisions rejected claims that the Sixth Amendment right of a criminal defendant
to confront adverse witnesses was violated when a prosecution expert testified about
certain information contained in a report prepared by someone who did not testify at trial.
After issuing its decisions in Lopez, Dungo and Rutterschmidt, the Supreme Court
transferred Annunciation's appeal back to us with directions to vacate our prior opinion
and to reconsider the appeal in light of those decisions. Having complied with the
Supreme Court's directions, we now reject Anunciation's claims of error and affirm the
judgment.
2 I.
FACTUAL AND PROCEDURAL BACKGROUND
Anunciation was acquainted with 85-year-old Garvin Shallenberger, who had paid
Anunciation a number of times for oral sex. On the day he was killed, Shallenberger and
Michael Brinkmann, a helper Shallenberger employed to assist him around the house,
picked up Anunciation at a local store and brought him back to Shallenberger's home so
that Shallenberger could perform fellatio on him. Brinkmann, who was aware of the
purpose of the meeting, left Shallenberger and Anunciation at the home after
Shallenberger asked Brinkmann to wait elsewhere.
More than an hour later, Brinkmann and some neighbors looked through a sliding
glass door in Shallenberger's home, saw Shallenberger lying on the floor, and telephoned
911. Responding paramedics pried the door open and found Shallenberger dead.
Anunciation was arrested after he admitted strangling Shallenberger in interviews
with homicide investigator Jeff Buompensiero. Anunciation told Buompensiero that after
Brinkmann left the house, Shallenberger undressed, sat on the couch, and performed
fellatio on Anunciation as he stood before Shallenberger. Shallenberger started to make
choking sounds, which Anunciation said "grossed [him] out." According to Anunciation,
Shallenberger had bitten his penis, after which Anunciation pushed Shallenberger away,
grabbed him, and choked him until he turned blue and "dropped down." Anunciation
then "freaked out"; grabbed Shallenberger's wallet, laptop computer, telephones, and
answering machine; and "took off."
3 The People charged Anunciation with first degree murder (Pen. Code, § 187,
subd. (a); subsequent undesignated section references are to this code), grand theft
(§ 487, subd. (a)), and robbery (§ 211). The People also alleged Anunciation had served
two prior prison terms. (§ 667.5, subd. (b).)
In the first trial, the jury found Anunciation not guilty of first degree murder, but
was unable to reach a verdict as to the lesser included offense of second degree murder or
voluntary manslaughter, and the court declared a mistrial as to those offenses. The jury
also found Anunciation guilty of two counts of petty theft in violation of section 488, a
lesser included offense of the theft and robbery charges.
Anunciation was retried on a second degree murder charge. In the second trial, as
in the first, the prosecution introduced autopsy findings regarding Shallenberger's injuries
and the circumstances, manner and cause of his death through the testimony of Joseph I.
Cohen, chief forensic pathologist for Riverside County. The autopsy was performed by a
contract pathologist for the county, Darryl Garber. Garber did not testify at either trial or
at any other point in the proceedings. Cohen did not supervise or participate in the
autopsy, but reviewed all of the written autopsy records, including the autopsy report, and
testified at length about Shallenberger's injuries as described in the autopsy report
prepared by Garber. Specifically, Cohen testified about discoloration, bruising and
abrasions on Shallenberger's head, neck and tongue; a large amount of hemorrhaging in
his eyes and the internal tissues of his neck; and multiple fractures of his larynx and
hyoid bone, which were not common in manual strangling. Cohen pointed out some of
4 the external injuries in a photograph of Shallenberger's head that was admitted into
evidence without objection.
Because the injuries to the body indicated Shallenberger was beaten multiple times
while conscious, and then manually strangled to death after he was unconscious, Cohen
testified that Shallenberger's killer used a significant amount of force for several minutes.
Based in part on Cohen's testimony, the prosecution argued Anunciation intended to kill
Shallenberger, or at least knew his actions were likely to kill Shallenberger, and was thus
guilty of second degree murder.
Cohen also testified Shallenberger's injuries were not consistent with a reflexive
reaction by one whose penis was bitten during fellatio. Cohen explained the penis is
richly innervated, and a bite to the penis would cause pain. The pain, in turn, would
cause a discharge of adrenaline and a reflexive response to avoid the biter by backing
away or pushing the biter away. The amount of adrenaline released would not be
significant, however, and the associated avoidance response would be "fairly quick."
When asked whether the reflexive response induced by a bite to the penis during fellatio
could explain the injuries Shallenberger suffered, Cohen responded, "Of course not."
In the second trial, the jury found Anunciation guilty of second degree murder.
Anunciation waived his right to a jury trial on the prior prison term allegations and
admitted he had served a two prison terms. The court sentenced Anunciation to prison
for 15 years to life, plus a concurrent sentence of 180 days for the convictions of
misdemeanor theft, and consecutive terms of one year for each prior prison term.
5 II.
DISCUSSION
As we stated earlier, Anunciation seeks reversal of the judgment on three grounds:
(1) violation of his Sixth Amendment right to confront adverse witnesses; (2) violation of
his Fifth Amendment right against compulsory self-incrimination; and (3) erroneous
refusal to instruct the jury regarding voluntary manslaughter. We shall address each
ground in turn.
A. The Admission of Cohen's Testimony About the Autopsy Findings Did Not Violate Anunciation's Sixth Amendment Right to Confront Adverse Witnesses
Anunciation contends that in permitting Cohen to testify about the findings from
Garber's autopsy report, the trial court violated the right of a criminal defendant "to be
confronted with the witnesses against him." (U.S. Const., 6th Amend.; see Pointer v.
Texas (1965) 380 U.S. 400, 403 ["the Sixth Amendment's right of an accused to confront
the witnesses against him is . . . a fundamental right and is made obligatory on the States
by the Fourteenth Amendment"].) Specifically, Anunciation argues he was
unconstitutionally precluded "from cross-examining the percipient witness whose
observations of the injuries formed the basis for . . . critical conclusions" on the "key
issue" in the case, namely, "whether the crime committed was murder or manslaughter."
Under compulsion of recent authority from our Supreme Court, we reject this argument.
6 1. Anunciation Did Not Forfeit the Claim of Error
As an initial matter, we address the People's contention that Anunciation forfeited
his Sixth Amendment claim because he failed to object to Cohen's testimony in the trial
court. Anunciation admits he failed to object, and generally a defendant who fails to
object to the admission of evidence on the basis of the confrontation clause forfeits the
right to raise the issue on appeal. (People v. Burgener (2003) 29 Cal.4th 833, 869;
People v. Alvarez (1996) 14 Cal.4th 155, 186.) Anunciation contends, however, that an
objection is not required where, as here, it would be futile under controlling law. (People
v. Morton (2008) 159 Cal.App.4th 239, 249.) We agree.
The controlling authority for admitting forensic testimony at the time of
Anunciation's second trial in September 2007 was the California Supreme Court's
decision in People v. Geier (2007) 41 Cal.4th 555 (Geier). Geier held testimony about a
DNA report, laboratory notes, and test results was admissible when conveyed through a
testifying supervisor, rather than the laboratory analyst who performed the tests, because
the report, notes, and results were not "testimonial" evidence subject to the demands of
the confrontation clause under Crawford v. Washington (2004) 541 U.S. 36, 59, and
subsequent United States Supreme Court precedent. (Geier, at pp. 602-604, citing Davis
v. Washington (2006) 547 U.S. 813, 817.) Reading Crawford and Davis as requiring
courts to focus their inquiry on how the evidence was created, the Geier court reasoned
the results were not testimonial because they were recorded as they were observed, even
if they were prepared for use at trial. (Geier, at pp. 606-607.)
7 Cohen's testimony was analogous to the laboratory supervisor's testimony that
Geier held admissible, in that Cohen was chief pathologist and conveyed what were
apparently contemporaneously-recorded observations made by Garber during his autopsy
of Shallenberger. At the time Anunciation was retried, the trial court was thus bound by
Geier to admit Cohen's testimony, and any objection by Anunciation would have been
futile. We thus conclude Anunciation has not forfeited his Sixth Amendment claim.
2. Anunciation's Claim of Error Fails Under Dungo
On the merits, Anunciation contends Cohen's testimony relaying findings from the
autopsy report prepared by Garber, who did not testify at trial or at any other point in the
proceedings, violated the Sixth Amendment right of an accused to confront his accusers.
Although we agreed with this contention when this appeal was first before us, our
Supreme Court's grant of the People's petition for review and transfer of the matter back
to us for reconsideration in light of its recent Sixth Amendment decisions requires that we
now reject it.
In Dungo, supra, 55 Cal.4th 608, the Supreme Court considered and rejected a
Sixth Amendment claim that is not materially indistinguishable from Annunciation's. At
Dungo's murder trial "a forensic pathologist testifying for the prosecution described to the
jury objective facts about the condition of the victim's body as recorded in the autopsy
report and accompanying photographs. Based on those facts, the expert gave his
independent opinion that the victim had died of strangulation. Neither the autopsy report,
which was prepared by another pathologist who did not testify, nor the photographs were
8 introduced into evidence." (Id. at p. 612.) A jury found Dungo guilty of second degree
murder, and the trial court sentenced him to prison for 15 years to life. (Id. at p. 615.)
The Court of Appeal reversed the judgment on the ground the admission of the expert's
trial testimony about the cause of the victim's death violated Dungo's Sixth Amendment
right to confront and cross-examine the pathologist who prepared the autopsy report. (Id.
at pp. 615-616.) Our Supreme Court disagreed, and reversed the judgment of the Court
of Appeal. (Id. at p. 621.)
The California Supreme Court analyzed several decisions from the United States
Supreme Court and concluded the Sixth Amendment right to confront and cross-examine
adverse witnesses applies only to witnesses whose statements are "testimonial," i.e.,
"made with some degree of formality or solemnity" and for a "primary purpose
pertain[ing] in some fashion to a criminal prosecution." (Dungo, supra, 55 Cal.4th at
p. 619.) As to the formality of autopsy reports, the Dungo court reasoned that
"statements describing the pathologist's anatomical and physiological observations about
the condition of the body . . . , which merely record objective facts, are less formal than
statements setting forth" the pathologist's conclusions as to the cause of the victim's
death. (Ibid.) As to the primary purpose of autopsy reports, the Dungo court reasoned
that the "usefulness of autopsy reports, including the one at issue here, is not limited to
criminal investigation and prosecution; such reports serve many other equally important
purposes," such as deciding whether to file a wrongful death action, determining
insurance coverage, satisfying the public's interest in knowing the cause of death, and
9 providing answers to grieving family members. (Id. at p. 621.) Based on this reasoning,
the Dungo court held the expert's "description to the jury of objective facts about the
condition of [the] victim['s] body, facts [the expert] derived from [a nontestifying
pathologist's] autopsy report and its accompanying photographs, did not give defendant a
right to confront and cross-examine [the nontestifying pathologist]. The facts that [the
expert] related to the jury were not so formal and solemn as to be considered testimonial
for purposes of the Sixth Amendment's confrontation right, and criminal investigation
was not the primary purpose for recording the facts in question." (Ibid.)
As a Court of Appeal, we are bound by our Supreme Court's decision in Dungo.
(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["The decisions
of this court are binding upon and must be followed by all the state courts of
California."].) We therefore reject the claim that Cohen's testimony about
Shallenberger's injuries, which related contents of the autopsy report prepared by Garber,
violated Anunciation's Sixth Amendment right to confront and cross-examine Garber.
B. The Admission of Anunciation's Statements to Buompensiero Did Not Violate the Fifth Amendment Right Against Compulsory Self-incrimination
Anunciation contends the trial court erroneously denied his motion to suppress
incriminating statements that he asserts the police obtained in violation of his right not to
"be compelled in any criminal case to be a witness against himself." (U.S. Const., 5th
Amend.; see Malloy v. Hogan (1964) 378 U.S. 1, 6 ["the Fifth Amendment's exception
from compulsory self-incrimination is also protected by the Fourteenth Amendment
10 against abridgment by the States"].) After setting forth additional pertinent background,
we shall explain why this contention has no merit.
1. Additional Pertinent Background
Buompensiero identified Anunciation as a suspect from telephone records and
store surveillance videotapes showing Anunciation using Shallenberger's credit cards
after the killing. Buompensiero told Anunciation's former girlfriend, Mia Fletcher, that
Anunciation was a suspect and that he should call Buompensiero. Anunciation called
Buompensiero the next day, 11 days after Shallenberger's death, and agreed to come to
the station to answer questions. He asked for a ride, and Buompensiero sent detectives to
pick him up.
Two detectives in plain clothes with holstered guns met Anunciation at Fletcher's
house, and Anunciation voluntarily agreed to accompany them to the sheriff's station.
Anunciation sat in the front seat of their sedan and was not handcuffed.
The interview, which was videotaped, was held in a small, carpeted room with two
chairs at the sheriff's station. The only other person in the room was Buompensiero, who
interviewed Anunciation. Buompensiero began the interview by giving Anunciation the
warnings required by Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda).
Anunciation said he wanted a lawyer. Buompensiero left the room for 15 minutes.
When he returned, and before questioning Anunciation, Buompensiero reminded
Anunciation he had come voluntarily, was free to leave at any time, and was not under
11 arrest. Anunciation acknowledged he understood and knew how to exit the room and the
building.
Buompensiero then asked Anunciation about his use of Shallenberger's credit
cards. Anunciation admitted he had met Shallenberger on the day he was killed, was
"whacked out" on "speed," and just wanted some money. Anunciation said Shallenberger
had paid him on multiple occasions for oral sex, but claimed he did not want to have oral
sex with Shallenberger on the day of the killing. Annunciation said that when
Shallenberger became irate, he took Shallenberger's wallet, credit cards, laptop computer,
and telephones, and then departed.
After about 45 minutes of questioning, Anunciation asked Buompensiero if he was
"busted" for taking Shallenberger's credit cards and property. Buompensiero said they
would wait to see what the district attorney wanted to do, and then asked Anunciation
where he would be staying. Anunciation said he was "going nowhere" and could be
reached at his mother's house. Anunciation left the station alone, after waiting
approximately 20 minutes in the lobby for a detective to give him a ride.
A short time later, the detective who was to give Anunciation a ride located
Anunciation at a bus stop. The detective asked Anunciation if he wanted a ride, and he
accepted. As the detective drove Anunciation toward his mother's house, Buompensiero
telephoned the detective and asked him to see if Anunciation would return to the station
to answer more questions. Anunciation agreed to return.
12 Anunciation's second interview, which was also recorded, lasted 34 minutes.
Buompensiero began the interview by stating that Anunciation was not under arrest and
was free to leave at any time, as before. Anunciation said he understood and knew where
the door was. A few minutes into the interview, after asking about what had occurred on
the day Shallenberger was killed, Buompensiero told Anunciation he had some more
questions for which he would give Anunciation his Miranda warnings. After
Buompensiero read the warnings, Anunciation acknowledged he understood each of
them. Buompensiero then asked Anunciation about his telephone calls to Shallenberger,
told Anunciation Shallenberger was dead, and asked him to explain what had happened
since Annunciation was the last person with him.
In response, Anunciation admitted he choked Shallenberger until he turned blue
after Shallenberger bit him during fellatio. After making these admissions, Anunciation
said to Buompensiero that he "better get a lawyer now" and asked if he could go home
for the night. Buompensiero told Anunciation he would discuss "a few things here with
my boss" and left the room. When he returned, he arrested Anunciation.
Before his first trial, Anunciation moved to exclude his statements to
Buompensiero on the ground they had been obtained in violation of his Fifth Amendment
right against compulsory self-incrimination. The trial court denied the motion after an
evidentiary hearing, ruling that Anunciation had not been in custody. The court found
Anunciation voluntarily went to the police station to be interviewed and had reinitiated
questioning after being told he was free to go. The court also found Anunciation
13 voluntarily returned for the second interview, and made his admissions about killing
Shallenberger after being read his Miranda rights and implicitly waiving them; the
interviews were not coercive, but low-key and conversational, without heavy-handed
tactics; and Anunciation was calm, not nervous.
2. Legal Analysis
Anunciation contends that because he was in continuous custody during both
interviews and asked for a lawyer at the outset of the first interview, his statements in
response to Buompensiero's questions were obtained in violation of his Fifth Amendment
right against compulsory self-incrimination and were therefore inadmissible at trial.
Anunciation also contends admission of his statements was improper because he never
validly waived his Miranda rights. For reasons we shall explain, we disagree.
a. General Legal Principles
The scope of our review of a claim that a statement or confession is inadmissible
because it was obtained in violation of a defendant's Fifth Amendment rights is well
established. " 'We must accept the trial court's resolution of disputed facts and inferences,
and its evaluations of credibility, if they are substantially supported. [Citations.]
However, we must independently determine from the undisputed facts, and those
properly found by the trial court, whether the challenged statement was illegally
obtained.' [Citations.] We apply federal standards in reviewing defendant's claim that
the challenged statements were elicited from him in violation of Miranda." (People v.
Bradford (1997) 14 Cal.4th 1005, 1033.)
14 In Miranda, the United States Supreme Court held the right against compulsory
self-incrimination is "fully applicable during a period of custodial interrogation." (384
U.S. at p. 460.) Thus, the prosecution may not use a defendant's statements obtained
during custodial interrogation by law enforcement unless, before questioning begins, the
defendant is advised of his rights to silence, to consult with a lawyer, to have the lawyer
with him during interrogation and to appointed counsel. (Id. at p. 471.) These warnings
are needed to safeguard an accused against the "inherently compelling pressures" of in-
custody interrogation, "which work to undermine the individual's will to resist and to
compel him to speak where he would not otherwise do so freely." (Id. at p. 467.)
Furthermore, if an individual subject to custodial interrogation requests a lawyer, the
interrogation must stop until the individual's counsel is present, unless the individual
initiates further communication with police. (Minnick v. Mississippi (1990) 498 U.S.
146, 153 (Minnick); Edwards v. Arizona (1981) 451 U.S. 477, 484-485 (Edwards).)
The right to counsel under Miranda and Edwards "applies only in the context of
custodial interrogation. If the defendant is not in custody then those decisions do not
apply . . . ." (Montejo v. Louisiana (2009) 556 U.S. 778, 795; see also People v. Nguyen
(2005) 132 Cal.App.4th 350, 355 [defendant who called attorney during arrest but before
interrogation did not effectively assert right to counsel]; People v. Avila (1999) 75
Cal.App.4th 416, 422 & fn. 8 [because Miranda rights cannot be invoked except during
custodial interrogation, accused being arraigned on one charge cannot prospectively
invoke his or her Miranda rights to counsel as to some other unrelated charge by a
15 written "invocation of rights" form].) As both parties recognize, the threshold issue in
this case is therefore whether Anunciation was in custody when he was questioned by
Buompensiero.
A suspect is in custody for purposes of the Fifth Amendment when he is "deprived
of his freedom of action in any significant way." (Miranda, supra, 384 U.S. at p. 444;
accord, People v. Mickey (1991) 54 Cal.3d 612, 648.) To determine whether a person
who has not been formally arrested is in custody, we examine, based on a totality of the
circumstances, "how a reasonable man in the suspect's position would have understood
his situation." (Berkemer v. McCarty (1984) 468 U.S. 420, 442; see also People v. Ochoa
(1998) 19 Cal.4th 353, 401 (Ochoa).) "[T]he ultimate inquiry is simply whether there is
a '. . . restraint on freedom of movement' of the degree associated with a formal arrest."
(California v. Beheler (1983) 463 U.S. 1121, 1125 (Beheler); accord, Ochoa, at p. 401.)
The test is objective; the subjective views of the interrogating officer or the person being
questioned are generally irrelevant to the determination. (Stansbury v. California (1994)
511 U.S. 318, 323 (Stansbury).)
In determining whether a defendant is "in custody," courts consider a number of
objective criteria, such as whether contact was initiated by law enforcement; whether the
suspect voluntarily agreed to an interview; the ratio of officers to suspects during the
interview; the officers' demeanor; whether the officers informed the suspect he was under
arrest or free to terminate the interview and leave; whether the officers dominated and
controlled the course of the interrogation; whether the officers manifested a belief the
16 person was culpable and they had evidence to prove it; whether techniques to pressure the
suspect were employed; and whether the suspect was arrested at the close of the
interview. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162; People v. Forster
(1994) 29 Cal.App.4th 1746, 1753.) "[C]ourts [also] consider highly significant whether
the questioning was brief, polite, and courteous or lengthy, aggressive, confrontational,
threatening, intimidating, and accusatory." (Aguilera, at p. 1164.)
b. Application to This Case
Applying the foregoing principles to this case, we conclude substantial evidence
supports the trial court's findings that Anunciation voluntarily participated in the
interviews, and reinitiated questioning after requesting a lawyer.1 Anunciation called
Buompensiero of his own accord, agreed to meet with him, and asked for a ride to the
station. After Anunciation said he wanted a lawyer, Buompensiero told Anunciation he
was free to leave, and Anunciation acknowledged he was free to leave and knew how to
leave. At that point, Anunciation reinitiated the conversation, saying "What do you want
to ask me?" Anunciation left the sheriff's station after the first interview on his own. He
also willingly accepted another ride from a detective to go to his mother's house, and
agreed to return to the station for more questions. Additionally, having reviewed the
1 Our conclusion Anunciation was not in custody makes it unnecessary for us to decide whether his reinitiation of communication with Buompensiero would be sufficient to satisfy the exception, under Edwards and Minnick, that permits questioning by police after a defendant has requested counsel but then reinitiates " 'communication, exchanges or conversations with the police.' " (Minnick, supra, 498 U.S. at p. 152; Edwards, supra, 451 U.S. at pp. 484-485.)
17 videotapes and transcripts of the interviews, we agree with the trial court's
characterization of the questioning as "low-key, slow questions, no heavy-handed tactics
. . . not intense, persistent, or accusatory." The questioning remained so throughout both
interviews.
We further conclude Anunciation was not in custody during the police interviews.
Anunciation called Buompensiero of his own accord and indicated he was willing to
answer questions, both before and during the interview. Anunciation was not restrained
during the interviews, which took place over a period of approximately two hours. He
repeatedly acknowledged he understood he was free to go, and he actually left the station.
He willingly accepted a ride home from officers and agreed to return to the station to
answer additional questions. The detective's questioning remained low-key and
conversational. A reasonable person in Anunciation's circumstances would have felt free
to terminate the questioning and leave. (Cf. U.S. v. Norris (9th Cir. 2005) 428 F.3d 907,
911 [defendant was not in custody when he voluntarily accompanied officers to police
station; was told his cooperation was voluntary, he was free to terminate the interview at
any time and he was not under arrest; was never restrained in any way; and, upon
completion of interview, was taken home by officers]; U.S. v. Kim (9th Cir. 2002) 292
F.3d 969, 974-975 ["If the police ask—not order—someone to speak to them and that
person comes to the police station, voluntarily, precisely to do so, the individual is likely
to expect that he can end the encounter"]; Green v. Superior Court (1985) 40 Cal.3d 126,
131-135 [concluding a reasonable person would not have felt in custody when defendant
18 voluntarily accompanied officers to station for interview, and officers questioned
defendant intermittently in detailed way over total period of two hours within locked
room and advised him he could leave if he wished]; People v. Spears (1991) 228
Cal.App.3d 1, 22, 25 [concluding defendant was not in custody during hour-long
interview at police station in which officers were "courteous and polite" and told
defendant at various times he was free to leave].)
Anunciation contends certain facts compel a finding he was in custody, including
that he was already the focus of Buompensiero's investigation when he was questioned
and the interview took place in the homicide unit's interrogation room at the sheriff's
station. We disagree. Even a direct statement to a person under interrogation that he is a
prime suspect is not dispositive unless it also "would have affected how a reasonable
person in that position would perceive his or her freedom to leave." (Stansbury, supra,
511 U.S. at p. 325; accord, In re Joseph R. (1998) 65 Cal.App.4th 954, 960.) Here,
although Anunciation knew from Fletcher that Buompensiero considered him a suspect,
Buompensiero did not mention it during Anunciation's interviews. Given the atmosphere
of the interviews, Anunciation's voluntary cooperation, and the fact that he came and
went, a reasonable person would have felt free to leave, despite being at the sheriff's
station and under suspicion. (Cf. Beheler, supra, 463 U.S. at pp. 1122, 1125 [suspect not
in custody despite being target of police investigation, where he accompanied police
willingly to station house for questioning].)
19 Anunciation also argues that because he was "released" from custody only briefly
between the first and second interviews and then "recapture[d]," it was evident that the
police statements that he was free to go were never true, and there was a "taint" that
remained from his request for an attorney that lasted through the second interview. We
disagree, given our conclusion that he was not in custody. Moreover, the cases that
Anunciation relies upon as showing custody are inapposite. (See, e.g., People v. Esqueda
(1993) 17 Cal.App.4th 1450, 1482 [police took defendant immediately from crime scene,
prevented him from going to hospital with his injured wife, and never told him he was
free to leave]; People v. Storm (2002) 28 Cal.4th 1007 [Supreme Court did not rule on
whether defendant accused of lying after flunking a polygraph examination was in
custody].)
In sum, the totality of the circumstances shows Anunciation was not "in custody"
when he admitted strangling Shallenberger to death.2 Miranda therefore did not require
suppression of the admission as having been obtained in violation of Anunciation's Fifth
Amendment right against compulsory self-incrimination.
2 Because we have concluded Anunciation was not in custody when he was given the Miranda warnings in the second interview, we need not address his contention he did not validly waive his Miranda rights by acknowledging the warnings and continuing to answer questions thereafter. (See Ochoa, supra, 19 Cal.4th at p. 401 [where suspect not in custody, " 'Miranda simply [did] not come into play,' " and no waiver was needed].)
20 C. The Trial Court Did Not Prejudicially Err by Refusing to Instruct the Jury on Voluntary Manslaughter
Anunciation complains the trial court prejudicially erred by refusing his request
that the jury be instructed on voluntary manslaughter as a lesser included offense of
murder. He contends such instructions should have been given because there was
substantial evidence from which the jury could have found he killed Shallenberger in the
heat of passion or in unreasonable self-defense. Anunciation further contends it is
reasonably probable the jury would have found him guilty of voluntary manslaughter
rather than second degree murder had the requested instructions been given. We shall set
forth additional pertinent background and then explain why any trial court error in
refusing to give voluntary manslaughter instructions was harmless.
After the close of evidence, Anunciation asked the trial court to instruct the jury
on voluntary manslaughter as a lesser included offense of murder. Anunciation argued
that based on his statements to police, which the People introduced as evidence, and
Cohen's testimony about the physiological response to a bite on the penis, a reasonable
jury could conclude that Anunciation killed Shallenberger in response to the provocation
of being bitten or the perceived threat of imminent bodily harm. Anunciation therefore
sought instructions on voluntary manslaughter based on heat of passion and imperfect
self-defense. (See CALCRIM Nos. 570, 571.)
21 The People opposed Anunciation's request. They argued voluntary manslaughter
instructions should not be given because there was no substantial evidence that
Shallenberger's biting of Anunciation's penis during fellatio induced such an intense
emotional response in Anunciation that he lost all reason and judgment, or caused or
threatened to cause such serious bodily injury that Anunciation believed he needed to
respond with deadly force.
The trial court refused to give the voluntary manslaughter instructions requested
by Anunciation.
We need not, and do not, decide whether the trial court erred by not instructing the
jury on voluntary manslaughter because any such error was harmless. A defendant who
seeks reversal of a conviction based on trial court error generally must show the error was
"prejudicial," i.e., it "resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13;
People v. Archerd (1970) 3 Cal.3d 615, 643.) In particular, "in a noncapital case, error in
failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and
theories thereof which are supported by the evidence must be reviewed for prejudice
exclusively under [People v.] Watson [(1956) 46 Cal.2d 818, 836]. A conviction of the
charged offense may be reversed in consequence of this form of error only if, 'after an
examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it
appears 'reasonably probable' the defendant would have obtained a more favorable
outcome had the error not occurred (Watson, [at p.] 836)." (People v. Breverman (1998)
22 19 Cal.4th 142, 178 (Breverman).) In conducting review under Watson, we "focus[] not
on what a reasonable jury could do, but what such a jury is likely to have done in the
absence of the error under consideration. In making that evaluation, an appellate court
may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result." (Id. at p. 177; accord, People v. Beltran (2013)
56 Cal.4th 935, 956 (Beltran).) Under this standard, Anunciation has not shown the
prejudice required for reversal.
The evidence supporting Anunciation's conviction of second degree murder was
"relatively strong." (Breverman, supra, 19 Cal.4th at p. 177, italics omitted.) To
establish second degree murder, the People had to prove Anunciation unlawfully killed
Shallenberger "with malice aforethought," but without willfulness, premeditation,
deliberation or other additional elements that would make the killing first degree murder.
(§§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) "Malice is
implied when a person willfully does an act, the natural and probable consequences of
which are dangerous to human life, and the person knowingly acts with conscious
disregard for the danger to life that the act poses." (People v. Gonzalez (2012) 54 Cal.4th
643, 653.) Here, Anunciation's admission that he choked Shallenberger until he turned
blue and dropped to the floor, Cohen's testimony that Shallenberger died of manual
strangulation after being severely beaten for several minutes, and the photograph of
23 Shallenberger's head showing some of his injuries convincingly indicated that
Anunciation killed Shallenberger with implied malice. (See People v. Pool (2008) 166
Cal.App.4th 904, 908 ["in strangling [the victim], defendant . . . acted with knowledge of
the danger to and conscious disregard for life"]; People v. Matta (1976) 57 Cal.App.3d
472, 480 ["the jury could have easily inferred malice from the repeated violent beatings
appellant inflicted upon the victim which ultimately resulted in his death"].) Further,
Anunciation's initial false statement to police that he and Shallenberger did not have oral
sex on the day of the killing,3 and his later statement that he fled the scene after choking
Shallenberger until he turned blue and collapsed, "reflected consciousness of guilt."
(Beltran, supra, 56 Cal.4th at p. 957 [flight from crime scene]; see also People v. Kimble
(1988) 44 Cal.3d 480, 496 [" 'False statements deliberately made by defendants to
arresting officers concerning matters within [defendants'] own knowledge, and relating to
the issue of guilt or innocence, "cogently evidence consciousness of guilt and suggest that
there is no honest explanation for incriminating circumstances." ' "].) Thus, strong and
uncontradicted evidence established Anunciation's guilt of second degree murder.
By contrast, the evidence Anunciation committed voluntary manslaughter rather
than murder was "comparatively weak." (Breverman, supra, 19 Cal.4th at p. 177, italics
omitted.) A defendant lacks the malice required for murder and is guilty of voluntary
manslaughter, a lesser included offense of murder (Id. at p. 154), when he kills in a
3 Sperm cells containing DNA matching Anunciation's profile were found in Shallenberger's mouth on the day of the killing. 24 "sudden quarrel or heat of passion" (§ 192, subd. (a)), or in "imperfect self-defense"
(People v. Rogers (2006) 39 Cal.4th 826, 883 (Rogers)). Manslaughter based on a
sudden quarrel or heat of passion requires provocation by the victim that would cause an
ordinary person of average disposition to lose reason and judgment and to act rashly.
(People v. Manriquez (2005) 37 Cal.4th 547, 583-586 (Manriquez).) Manslaughter based
on imperfect self-defense requires the defendant to have acted in the actual but
unreasonable belief that he needed to kill the victim to defend himself against imminent
danger of death or great bodily injury. (People v. Valencia (2008) 43 Cal.4th 268, 286
(Valencia).) Here, Anunciation contends "there was considerable evidence from which
[the] jury might have deduced that [he] acted out in either rage or fear," and if the jury
had been instructed on these theories of manslaughter, there was a " 'reasonable chance' "
the jury would have found him guilty of manslaughter rather than murder. (Italics
omitted.) Specifically, Anunciation asserts the combination of his own statements to
police that Shallenberger bit his penis during fellatio and Cohen's testimony that such a
bite could have caused pain that generated a rush of adrenaline "supported the defense
theory that [he] reacted without reflection to a perceived threat in the moment with an
explosive rage that was commensurate with either heat of passion or imperfect
self[-]defense." As we shall explain, however, this evidence does not make it reasonably
probable the jury would have found Anunciation guilty of voluntary manslaughter had it
been instructed on that offense.
25 Anunciation's statements to police do not support his manslaughter theory. He
never told police he was enraged or felt threatened by Shallenberger. In fact, when
Buompensiero asked Anunciation whether he had gotten into "a scuffle" or "a fight" with,
or was "mad at," Shallenberger, Anunciation responded, "No." Anunciation also never
told police he experienced any degree of pain when Shallenberger bit his penis. During
the police interview, Anunciation told Buompensiero the bite did not cause bleeding; and
when he was later arrested and booked, Anunciation did not tell police his penis hurt or
required medical attention. In fact, the only emotion Anunciation ever told police he
experienced in connection with the bite to his penis was disgust: Anunciation was
"grossed . . . out" when Shallenberger, while performing fellatio, started "choking" and
"bit on" his penis. This "statement said little suggesting [Anunciation] believed he had to
[strangle Shallenberger] to death to defend against imminent death or great bodily
injury." (Valencia, supra, 43 Cal.4th at p. 286.) Nor does Anunciation's statement
suggest "anger, fury, or rage" (Manriquez, supra, 37 Cal.4th at p. 585), or some other
" '[v]iolent, intense, high-wrought, or enthusiastic emotion' " (People v. Borchers (1958)
50 Cal.2d 321, 329), that would "cause an ordinary person of average disposition . . . to
lose reason and judgment" (People v. Thomas (2012) 53 Cal.4th 771, 813 (Thomas)).
The disgust briefly felt by Anunciation does not qualify as the type of "extreme intensity
of the heat of passion required to reduce a murder to manslaughter." (Beltran, supra, 56
Cal.4th at p. 950.)
26 Cohen's testimony, on which Anunciation also relies in support of his voluntary
manslaughter theory, actually undermines that theory. As we noted in part I., ante,
Cohen testified a bite to the penis would cause pain, which in turn would cause a
discharge of adrenaline and a reflexive response to avoid the biter. But Cohen made clear
the amount of adrenaline released in response to such a bite would not be significant, and
the associated avoidance response would be short-lived. When asked specifically
whether the reflexive response induced by a bite to the penis during fellatio could explain
the injuries inflicted on Shallenberger, Cohen responded, "Of course not." Cohen thus
expressly and emphatically disagreed with Anunciation's theory that he reacted to being
bitten on the penis "with an explosive rage that was commensurate with either heat of
passion or imperfect self[-]defense."
Other evidence introduced at trial is also inconsistent with Anunciation's theory of
voluntary manslaughter. There was evidence Anunciation did not suffer any serious
injury to his penis from Shallenberger's bite. Anunciation told Buompensiero the bite did
not cause bleeding; and when Anunciation was arrested and booked, police performed a
physical examination in which they specifically looked for but observed no injury to his
penis. There was also evidence Shallenberger presented no threat of harm to
Anunciation. Shallenberger was a frail octogenarian who wore an ankle brace and
walked with a cane. Shallenberger had paid to perform fellatio on Anunciation on
multiple occasions over the course of "a couple years." The evidence thus showed that
any bite to Anunciation's penis was minor and occurred during a consensual sex act with
27 an enfeebled, elderly man who had paid Anunciation for sex in the past. Given these
additional facts, it is not reasonably probable the jury would have concluded Anunciation
killed Shallenberger because the bite caused him to become "so inflamed as to lose
reason and judgment" (Thomas, supra, 53 Cal.4th at p. 813) or to believe he "need[ed] to
defend against imminent danger 'to life or great bodily injury' " (Valencia, supra, 43
Cal.4th at p. 286).
Anunciation also argues the length of the jury deliberations in the first trial
indicates this was a close case between murder and manslaughter, and therefore the
refusal to instruct the jury in the second trial on manslaughter was prejudicial. He
asserts: "Merely to state the contrast between the length of deliberations in the first and
second juries is to demonstrate the prejudice of the error here." More specifically, he
points out that the first jury, which received voluntary manslaughter instructions, "was
unable to reach a verdict after more than five days of deliberations"; but the second jury,
"with no manslaughter instructions and thus no choice but murder, . . . returned a verdict
in less than one day." From this disparity, Anunciation contends "the evidence presented
a close question as to whether the crime was murder or manslaughter, and when an error
goes to a central issue in a case where the facts are close, that error cannot be deemed
harmless." We are not persuaded.
Appellate courts "have sometimes inferred from unduly lengthy deliberations that
the question of guilt was close." (People v. Cooper (1991) 53 Cal.3d 771, 837.)
Anunciation cites several cases in which reviewing courts concluded a case was close in
28 part because the jury deliberations that produced the verdict being challenged on appeal
were lengthy. In none of the cited cases, however, did the court conclude (or even
consider) that a retrial that produced a verdict after a few hours of deliberations was a
close case because in a prior trial a different jury deliberated for days but was unable to
reach a verdict. "It is axiomatic, of course, that a decision does not stand for a
proposition not considered by the court." (People v. Harris (1989) 47 Cal.3d 1047,
1071.) In any event, "the fact that a jury may have deliberated for a long period of time
permits more than a single interpretation" (In re Pratt (1999) 69 Cal.App.4th 1294,
1322); and an interpretation that is plausible as to an initial trial may not be plausible as
to a retrial, because the jurors in the two trials will be different, different evidence may be
presented, and the witnesses' credibility may change. In fact, the trial court here refused
to instruct the second jury on voluntary manslaughter in part because "this time, different
than last time, we have Cohen not agreeing with" Anunciation that the killing was a
"[r]eflexive reaction." Given this and other differences between the two trials, "to
conclude that [the second trial] was a 'close case' in light of the jury's action [in the first
trial] 'in the absence of more concrete evidence would amount to sheer speculation on our
part.' " (People v. Houston (2005) 130 Cal.App.4th 279, 301.) To demonstrate the
prejudice required for reversal, however, Anunciation may not rely on "speculation as to
the jury's deliberative process." (People v. Sassounian (1986) 182 Cal.App.3d 361, 404,
fn. 46; see also People v. Gray (2005) 37 Cal.4th 168, 230 ["pure speculation . . . will not
support a reversal of the judgment"].)
29 In sum, Anunciation's retrial did not present a close case between murder and
manslaughter. "Given the strong evidence supporting [Anunciation's] murder conviction
and the comparatively weak evidence of any legally adequate provocation [or any threat
of imminent death or great bodily injury], a different result was not reasonably probable."
(Beltran, supra, 56 Cal.4th at p. 957.) Any error in the trial court's refusal to instruct the
jury on voluntary manslaughter based on heat of passion of imperfect self-defense was
therefore harmless. (Rogers, supra, 39 Cal.4th at pp. 867-868; Breverman, supra, 19
Cal.4th at pp. 177-178.)
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.