Filed 3/22/13 P. v. Pulley CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D060502
Plaintiff and Respondent,
v. (Super. Ct. No. SCD231564)
ROBERT G. PULLEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Louis R.
Hanoian, Judge. Affirmed.
I.
INTRODUCTION
Defendant Robert G. Pulley appeals from a judgment of conviction entered after a
jury convicted him of second degree murder, battery, and making a criminal threat. The
murder victim was Pulley's neighbor. The victim of the battery and criminal threat was
Pulley's son. On appeal, Pulley contends that there is insufficient evidence to support the
murder conviction. He first argues that his conviction for second degree murder based on
the shooting of his neighbor must be reversed because "the only reasonable conclusion
from the evidence was that [he] acted with the legal justification of defending against
harm to a person within one's home or . . . his property." He argues in the alternative that
even if this court does not agree that the evidence demonstrated that his act of shooting
his neighbor was justified, his conviction for second degree murder should be reduced to
voluntary manslaughter because the evidence supports a finding that he acted under the
heat of passion, and does not support a finding that he acted with implied or express
malice.
Pulley also contends that the trial court should have granted his motion to sever for
trial a fourth count charging him with making a criminal threat against his wife—a count
on which he was acquitted—from the other three counts in the case.
We reject all of Pulley's contentions on appeal, and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The November 11, 2010 threat (count 4)
On November 11, 2010, Pulley and his wife Angela had been drinking alcohol. At
9:37 p.m., Angela called 911 because Pulley wanted to go to a bar, and she felt that he
had already had too much to drink. A recording of the 911 call was played for the jury.
On the recording, Pulley can be heard shouting that he had a gun and that he was going to
2 kill himself and kill his wife. He also shouted that Angela had threatened him, pulled a
gun on him, and tried to kill him.
Angela told the dispatcher that Pulley had a .45-caliber gun, but said that she was
not worried about her safety. The dispatcher told Angela that she had to take seriously
what Pulley was saying. Angela told the dispatcher that there were other guns in the
house, but that those guns were locked in a safe.
Another dispatcher located Pulley's address through the automatic firearm system
and determined that there were four or five firearms registered at that address. The
dispatchers sent 15 police units to the Pulley residence on Brown Street in Oceanside.
When officers reached the Pulley residence, they heard a loud argument between
and man and woman. The front door to the house was open, but a security screen door
was closed. An officer could see Pulley, with his arms crossed, facing the door. Angela
had her back to the door and was saying to Pulley, " 'Put it away, just put it away.' "
Pulley was heard saying, " 'Fuck that. If they want me, I'm right here.' "
Angela came out of the house and was met by Oceanside Police Sergeant Carl
Regalado. Angela told Regalado that Pulley had a .45-caliber handgun. Officers set up a
perimeter around the house. Pulley refused to come out of the house. After
approximately two hours, officer started to leave, concluding that there was not probable
cause to arrest Pulley for making criminal threats because Angela had told the police that
she was not in fear for her safety.
Angela testified at trial that she never felt fearful of Pulley during this incident.
3 2. The December 25, 2010 battery and threat (counts 2 and 3)
At approximately 12:30 a.m. on December 25, 2010, Sergeant Regalado
responded to a noise complaint call from the 3900-block of Brown Street in Oceanside.
The only house that appeared to have anything going on was that of the Misaalefua
family, who lived across the street from Pulley's house. The garage door at the
Misaalefua residence was up, and there were fewer than a dozen people in the garage.
Regalado spoke with Jimmy Misaalefua, the host of the party, told him about the noise
complaint, and talked with him about ways that the group could be quieter. Misaalefua
was cooperative and apologetic. After talking with Misaalefua, Regalado left.
At 1:53 a.m., Regalado returned to Brown Street in response to a call for police
assistance called in by paramedics who had arrived in response to what had originally
been a call for medical assistance. An earlier call from Pulley's son, Matthew, stating
that a woman had fallen and needed medical assistance had resulted in a paramedic and
fire response. When Regalado arrived, he saw four firefighters restraining Pulley, who
was on the ground in front of his residence. The firefighters explained that when they
arrived in response to the medical call, Pulley told them that he had a shotgun in the
house. The firefighters asked Pulley not to go inside until they administered medical aid,
but Pulley ignored them and started to go into the house. At that point, the firefighters
felt that it was necessary to restrain Pulley.
Regalado and other officers completed a safety sweep of the residence. They
found Angela upstairs, in bed, covered with blankets. Officers called out to her but got
no response. They then tapped on her shoulder and were able to awaken her. Angela
4 acted as if she had been unaware that the police were there, and told the officers that she
was fine and did not need any help.
Matthew explained that he and Pulley had gotten into a fistfight earlier that
evening. Matthew did not want to authorize an arrest of Pulley, but he did not want to go
back into his house. Officers gave Matthew a ride to a nearby restaurant, and Pulley was
released at his residence.
At trial, Matthew testified that his mother had fallen while trying to break up a
physical altercation between Matthew and his father. Matthew called the fire department
to check on his mother and make sure she was not hurt. According to Matthew, the fight
between him and his father had started when Matthew and his father were talking about
the Marines and the Army, and Pulley "felt disrespected." During the altercation, Pulley
poured a drink on Matthew, and Matthew went outside to cool off. When Pulley went
outside to apologize, Matthew threw Pulley into the pool. Matthew then went inside and
began teasing Pulley. Pulley hit Matthew in the face, knocking him down. Matthew then
went outside and challenged Pulley to fight. When Pulley walked outside to meet
Matthew, Matthew grabbed a golf club and started antagonizing Pulley. At this point,
Pulley started to walk back into the house, and said that he needed to get away before he
shot, stabbed, or killed Matthew. Matthew told the police that Pulley had made direct
threats, saying, "I'm gonna kill him, I'm gonna shoot him and stab him." Matthew said
that he knew that Pulley was capable of carrying out the threats.
5 3. The December 25, 2010 murder (count 1)
a. Other witness evidence
Dexter Ena, Misaalefua's nephew, was at Misaalefua's house on Christmas Eve for
a family gathering. Ena saw Pulley walking toward Misaalefua's house and asked
Misaalefua who Pulley was. Misaalefua responded that Pulley was a neighbor. Ena
walked to the back of the garage to get a beer from a refrigerator. When he returned, he
saw Pulley and Misaalefua walking toward the street. Misaalefua had his arm around
Pulley and it appeared that they were talking in a friendly manner.
Ena walked toward the street. When he got to the end of the driveway, he saw
Pulley fall to the ground. Misaalefua was standing over Pulley, and Ena assumed that
they were fighting. Ena ran to where Misaalefua was standing and asked what was going
on. Misaalefua told Ena to " 'leave it alone.' " Another of Ena's uncle's, Matt Young, ran
over to try to separate Misaalefua and Pulley.
Pulley got up from the street and said to Misaalefua, " 'I thought we were
friends.' " Pulley then assumed a fighting stance. Young tried to push Misaalefua back,
and Ena grabbed Pulley and told him to calm down. Once Misaalefua and Pulley were
separated, Ena let go of Pulley. Pulley started walking back to his house. As he was
walking toward the house, he looked back at Misaalefua and said, " 'I got something for
you. I got something for you, mother fucker.' " Misaalefua yelled back something like,
" 'All right, mother fucker. Let's go. Bring it on.' "
As Pulley walked toward his house, Misaalefua followed him. Ena attempted to
stop Misaalefua, telling him to leave it alone and to let Pulley go. Misaalefua told Ena to
6 "shut up" and continued following Pulley, who had gone into his garage and then into his
house. When Misaalefua walked into Pulley's garage, Ena, who had been following,
stopped just outside the garage. Misaalefua took off his shirt and Ena assumed that he
was preparing to fight. Misaalefua waited approximately five to 15 feet outside the inner
garage door.
Ena and Young tried to convince Misaalefua to return to his house with them. Ena
then heard Misaalefua say, " 'What are you going to do with that? Shoot me[?]' "
Immediately after Misaalefua said that, Ena heard a gunshot. After the gunshot,
Misaalefua said, " 'Is that all you got? Is that all you got?' " Pulley and Misaalefua then
started wrestling, and Ena heard more shots.1
Ena moved through the garage and tried to shield himself behind a car. Young ran
up to the left side of a car that was parked in the garage. Misaalefua was fighting with
Pulley over the gun. Young reached the two men before Ena could. When Young got to
the men, they all fell down. Young yelled at Pulley to let go of the gun.
Pulley was on top of Misaalefua when Ena got to them, and Young was on top of
Pulley, trying to get the gun. Misaalefua said, " 'Get this mother fucker off of me.' " Ena
told Pulley to let go of the gun, and tried to pull the gun away from Pulley. As Ena tried
to get the gun away, Pulley bit Ena, and Ena hit Pulley. At that point, Young and Pulley
both partially fell off of Misaalefua. Ena told Misaalefua, " 'Let's move, let's go.' "
Misaalefua just kept repeating, " 'Get this guy off of me, get this mother fucker off of
1 Although Ena's testimony was that there were "more gunshots," it seems clear from the evidence that Pulley fired a total of two times. 7 me.' " As Misaalefua spoke, his voice started to fade. Ena kept trying to hit Pulley to
make him to let go of the gun. This continued until the police arrived.
Sao Young, Misaalefua's sister-in-law, called 911 at 2:43 a.m., which was only 13
minutes after Sergeant Regalado had cleared the earlier call involving Pulley and his son.
Sao Young reported that someone had been shot, and that her husband, Matt Young, was
wrestling with someone who was holding a gun.
Sergeant Regalado returned to Brown Street in response to a call about shots being
fired. When Regalado arrived, he saw several people engaged in a struggle inside
Pulley's garage. Misaalefua was on the ground with his eyes closed. A pool of blood
was forming around him. Two women were standing over Misaalefua, crying and
grabbing at him. Two men were struggling to restrain Pulley.
Regalado grabbed Pulley's right arm and Pulley released a small semi-automatic
handgun. As Regalado tried to hold onto Pulley's arm, Pulley stiffened in a manner that
made Regalado think that Pulley was trying to grab the gun. Regalado held Pulley's arm
tighter, picked up the gun, and moved it beyond Pulley's reach. Regalado then
handcuffed Pulley with the assistance of other officers.
Misaalefua subsequently died at the hospital as a result of a gunshot wound to the
chest.
8 b. Pulley's December 25 interview
Detective William Wallace interviewed Pulley on December 25, 2010. A video of
the interview was played for the jury at trial. During the interview, Pulley told Wallace
that when officers arrived at his home the first time on December 25, he was thrown to
the ground, put in handcuffs, and placed in a patrol car for approximately 30 minutes.
Pulley said that at the time he did not know why this was happening. When the police
finally left, he walked over to Misaalefua's house to apologize for the disturbance.
According to Pulley, as he started to apologize to Misaalefua, Misaalefua hit him and
knocked him to the ground. Pulley got up, asked Misaalefua what was wrong with him,
and then ran back to his house because Misaalefua was "just going crazy." Pulley ran to
the front door, went inside the house and grabbed his gun. He ran around to the garage to
close the garage door, but someone was standing near the door and it would not close.
Pulley ran outside and said, "Get the hell off my property," or something to that effect.
He explained to Wallace that after that point, he did not remember what happened, other
than that he had been tackled.
Pulley told Wallace that he kept his .25-caliber pistol in a china cabinet by the
front door in case of a home invasion. He owned a number of guns and kept another gun
by his bed. Pulley explained that he grabbed the gun from the china cabinet on his way
to close the garage door. Pulley said that he did not remember the gun going off, and also
did not remember taking the safety off of the gun to prepare to use it. Pulley admitted
that he had had "lots of weapons training" from his military experience, and said that he
did not normally take the safety off of a gun when he grabbed one.
9 Pulley told Wallace that he had been drinking vodka that night.
c. Other evidence
The parties stipulated that Pulley's blood alcohol level at the time of the shooting
was approximately .19 percent. Misaalefua's blood alcohol level at the time of his death
was .18 percent.
A criminalist with the San Diego County Sheriff's Department Crime Laboratory
analyzed the Browning .25-caliber pistol and two expended cartridge cases. The pistol
was working properly. It required six pounds of pressure to pull the trigger. The pistol
had a magazine safety mechanism, which meant that it would not fire if there was no
magazine in the weapon. The gun also had a manual safety.
The criminalist determined that the muzzle of the gun had been less than six
inches from Misaalefua at the time it was fired.
A firearm expert testified that the pistol used in the shooting required a six-pound
trigger pull, and that this was on the heavy side for a .25-caliber automatic pistol. In
order to activate the safety of the .25 Browning pistol, a person must execute a very
deliberate action, which makes it a relatively safe weapon.
4. Prior domestic violence evidence
Pulley and Angela had been married for 21 years. Their relationship had been
volatile. In 1993, Angela filed for a restraining order, alleging that Pulley hit her on the
side of the head when he was drunk. The blow had caused her ear to ring for hours
afterward. The court granted the restraining order, but Angela filed for a dismissal of the
order a month later.
10 In 1994, Pulley came home drunk and began wrestling with and tickling his then
eight-year-old son to the point that the child started crying. Angela said, "[T]hat's
enough. Enough." She tried to separate the two. Pulley swung at Angela and hit her in
the face, breaking her nose in three places. Angela did not call the police, but she took
her children and drove herself to the hospital. After this incident, Angela applied for a
restraining order, which the court granted. She subsequently moved to dismiss that
restraining order, as well.
B. Procedural background
On May 3, 2011, the San Diego County District Attorney filed an information
charging Pulley with one count of murder (Pen. Code, § 187, subd. (a); count 1)2; one
count of misdemeanor battery (§ 242; count 3); and two counts of criminal threats (§ 422;
counts 2 and 4). With respect to the murder, the information alleged that Pulley
intentionally and personally discharged a firearm resulting in death (§ 12022.53, subd.
(d)) and personally used a firearm (§ 12022.5, subd. (a)).
A jury found Pulley guilty of second degree murder (count 1), battery (count 3),
and one count of making a criminal threat directed at his son (count 2). The jury also
found true the firearm allegations charged in connection with count 1. The jury found
Pulley not guilty of one count of making a criminal threat directed at his wife (count 4).
The court sentenced Pulley to 40 years to life in state prison. Pulley filed a timely
notice of appeal.
2 All statutory references are to the Penal Code unless otherwise specified. 11 III.
DISCUSSION
A. There is sufficient evidence that Pulley committed murder
Pulley first contends that the evidence is insufficient to support his conviction for
second degree murder because, he asserts, the only reasonable conclusion that a fact
finder could reach from the evidence presented at trial is that he acted with legal
justification in defending himself within his home. Pulley's argument is, in essence, that
the evidence established justified self-defense as a matter of law. We disagree with
Pulley's contention that the only reasonable inference from the evidence is that he had
legal justification to kill Misaalefua.
When the sufficiency of the evidence is challenged, the court is not required to
" ' "ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt." [Citation.] Instead the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]"
(People v. Johnson (1980) 26 Cal.3d 557, 576; see also Jackson v. Virginia (1979) 443
U.S. 307, 319.)
"In determining whether a reasonable trier of fact could have found defendant
guilty beyond a reasonable doubt, the appellate court 'must . . . presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.'
[Citations.] The court does not, however, limit its review to the evidence favorable to the
respondent. . . . '[O]ur task . . . is twofold. First, we must resolve the issue in the light of
12 the whole record—i.e., the entire picture of the defendant put before the jury—and may
not limit our appraisal to isolated bits of evidence selected by the respondent. Second,
we must judge whether the evidence of each of the essential elements . . . is substantial; it
is not enough for the respondent simply to point to "some" evidence supporting the
finding, for "[n]ot every surface conflict of evidence remains substantial in the light of
other facts." ' [Citation.]" (People v. Johnson, supra, 26 Cal.3d at pp. 576-577, quoting
People v. Bassett (1968) 69 Cal.2d 122, 138.)
Pulley relies on the presumption created by section 198.5 as support for his
argument that his conduct in killing Misaalefua was legally justified. Section 198.5
provides:
"Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
"As used in this section, great bodily injury means a significant or substantial physical injury."
Section 198.5 was created "to permit residential occupants to defend themselves
from intruders without fear of legal repercussions, to give 'the benefit of the doubt in such
cases to the resident . . . .' [Citation.]" (People v. Owen (1991) 226 Cal.App.3d 996,
1005.)
Pulley argues that it was incumbent on the prosecution to prove beyond a
reasonable doubt that Pulley's conduct in shooting Misaalefua was without legal
13 justification, and that there is insufficient evidence for the jury to have determined that he
acted without that legal justification. A review of the record establishes that there is
sufficient evidence that Pulley's conduct was not legally justified under section 198.5.
Pulley acknowledges that the jury was properly instructed concerning self-defense,
voluntary manslaughter, and defense of home or property. With respect to defense of
home and property, the jury was instructed with CALCRIM No. 506, as follows:
"The defendant is not guilty of murder or manslaughter if he killed to defend himself or any other person in the defendant's home. Such a killing is justified, and therefore not unlawful, if:
"1. The defendant reasonably believed that he was defending a home against Jimmy [Misaalefua], who violently or riotously or tumultuously tried to enter that home intending to commit an act of violence against someone inside;
"2. The defendant reasonably believed that the danger was imminent;
"3. The defendant reasonably believed that the use of deadly force was necessary to defend against the danger; AND
"4. The defendant used no more force than was reasonably necessary to defend against the danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to himself or someone else. Defendant's belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, then the killing was not justified.
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the
14 defendant's beliefs were reasonable, the danger does not need to have actually existed.
"A defendant is not required to retreat. He is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue an assailant until the danger of death/bodily injury has passed. This is so even if safety could have been achieved by retreating.
"The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder or manslaughter."
We presume that the jury understood and followed this jury instruction (see
People v. McKinnon (2011) 52 Cal.4th 610, 670), and thus we further presume that the
jury properly considered whether the People met their burden of proving that Pulley was
not justified in killing Misaalefua. There is sufficient evidence to support a conclusion
that the killing of Misaalefua was not justified. In particular, there is sufficient evidence
to support a conclusion that Pulley used more force than was reasonable in shooting
Misaalefua.
Pulley and Misaalefua got into a physical altercation after Pulley walked over to
Misaalefua's house on the night in question. The evidence demonstrates that Pulley fell
to the ground, either because he stumbled or because he was knocked down by
Misaalefua, as the two were walking together toward Pulley's house. At that point,
Pulley started to threaten Misaalefua, saying, "I got something for you. I got something
for you, mother fucker." This clearly took place before either man arrived at Pulley's
house. After these events, both men continued toward Pulley's home. Pulley entered the
house through an interior garage door, while Misaalefua stood in the garage, between five
15 and 15 feet away from that interior door, waiting for Pulley to return. The jury could
have reasonably inferred that Misaalefua was not attempting to enter Pulley's home, and
that Pulley could have avoided the entire incident if he had simply remained inside his
house.
Instead, Pulley grabbed a firearm from inside his house and went back out to the
garage where Misaalefua was standing. When Misaalefua saw the gun he said, " 'What
are you going to do with that[?] Shoot me[?]' " Without any further physical threat from
Misaalefua, Pulley fired a shot at Misaalefua. Only then did the two men begin to
physically wrestle, and Pulley fired another shot.
It is clear from these facts that Pulley increased the violence in this altercation by,
as the prosecutor argued, bringing a gun to what was, essentially, a fistfight. Further,
because Misaalefua did not attempt to follow Pulley into Pulley's house, the jury could
have reasonably concluded that the fight had essentially ended when Pulley walked inside
the house and closed the door. Instead of locking the door or calling the police, Pulley
grabbed a gun and walked back out to the garage and did what he had earlier essentially
threatened to do, i.e., he gave "something" to Misaalefua. The jury could have concluded
that in retrieving a gun and shooting an unarmed man, Pulley used more force than was
reasonably necessary to protect himself or his house, and thus, that the presumption of
justification embodied in section 198.5 had been overcome by contrary evidence.
Given the state of the evidence, we must uphold the jury's conclusion that Pulley
was not justified in killing Misaalefua. Although, as Pulley has argued on appeal, a jury
might have concluded that his conduct was justified, as long as the circumstances
16 reasonably justify the jury's findings, we will not reverse the jury's verdict simply
because the evidence might support a contrary conclusion. (People v. Sassounian (1986)
182 Cal.App.3d 361, 408.) The circumstances more than reasonably support the jury's
rejection of the justification defense in this case.
B. There is sufficient evidence that Pulley acted with malice, such that his conviction for second degree murder need not be reduced to voluntary manslaughter
Pulley argues that even if this court disagrees that the only reasonable conclusion
from the evidence is that he acted with legal justification, this court should nevertheless
reduce his conviction to voluntary manslaughter on the ground that the evidence
demonstrates, at most, that he acted pursuant to the heat of passion, and that there is thus
insufficient evidence that he acted with the requisite malice required for second degree
murder. We reject this argument, as well.
We apply the same standards for reviewing a claim of insufficiency of the
evidence that we set out in part III.A., ante, in considering Pulley's related sufficiency
claim.
Murder is the unlawful killing of a human being "with malice aforethought."
(§ 187, subd. (a).) Pulley was convicted of second degree murder, which is "the unlawful
killing of a human being with malice aforethought but without the additional elements,
such as willfulness, premeditation, and deliberation, that would support a conviction of
first degree murder." (People v. Knoller (2007) 41 Cal.4th 139, 151 (Knoller).) Malice
may be either express (as when a defendant manifests a deliberate intention to take away
another person's life) or implied. (People v. Blakeley (2000) 23 Cal.4th 82, 87.) "Malice
17 is implied when the killing is proximately caused by ' "an act, the natural consequences of
which are dangerous to life, which act was deliberately performed by a person who
knows that his conduct endangers the life of another and who acts with conscious
disregard for life." ' [Citation.] In short, implied malice requires a defendant's awareness
of engaging in conduct that endangers the life of another . . . ." (Knoller, supra, at p.
143.)
Malice may be, and often must be, proved by circumstantial evidence. (See
People v. Lashley (1991) 1 Cal.App.4th 938, 945-946; People v. James (1998) 62
Cal.App.4th 244, 277.) "One who intentionally attempts to kill another does not often
declare his state of mind either before, at, or after the moment he shoots. Absent such
direct evidence, the intent obviously must be derived from all the circumstances of the
attempt, including the putative killer's actions and words. Whether a defendant possessed
the requisite intent to kill is, of course, a question for the trier of fact." (People v.
Lashley, supra, at pp. 945-946.)
Pulley contends that the evidence showed that he acted not with express or implied
malice, but instead, pursuant to the heat of passion, such that the element of malice was
negated. He argues that the prosecution failed to prove malice aforethought because it
failed to prove the absence of provocation and heat of passion beyond a reasonable doubt.
Pulley maintains that we should find that provocation and heat of passion existed as a
matter of law, and reduce the offense to voluntary manslaughter. We reject Pulley's
contentions.
18 "Where an intentional and unlawful killing occurs 'upon a sudden quarrel or heat
of passion' (§ 192, subd. (a)), the malice aforethought required for murder is negated, and
the offense is reduced to voluntary manslaughter—a lesser included offense of murder."
(People v. Carasi (2008) 44 Cal.4th 1263, 1306.) Heat of passion has both objective and
subjective components. (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) To satisfy
the objective component, the claimed provocation must be sufficient to cause an ordinary
person of average disposition to act rashly or without due deliberation and reflection,
from passion rather than from judgment. (Id. at p. 550.) "The provocation . . . must be
caused by the victim [citation], or be conduct reasonably believed by the defendant to
have been engaged in by the victim." (Id. at pp. 549-550.) A defendant may not " ' "set
up his own standard of conduct and justify or excuse himself because in fact his passions
were aroused. . . ." ' " (People v. Cole (2004) 33 Cal.4th 1158, 1215-1216, quoting
People v. Steele (2002) 27 Cal.4th 1230, 1252.) "To satisfy the subjective element of this
form of voluntary manslaughter, the accused must be shown to have killed while under
'the actual influence of a strong passion' induced by such provocation." (Moye, supra, at
p. 550.)
Pulley correctly points out that when murder and voluntary manslaughter are
under consideration, the burden is on the prosecution to prove, beyond a reasonable
doubt, the absence of a sudden quarrel or heat of passion, in order to establish the malice
element of murder. (People v. Rios (2000) 23 Cal.4th 450, 454.) However, "[e]ven if
defendant's testimony provided some evidence of provocation for the jury to consider, it
remains the jury's exclusive province to decide whether the particular facts and
19 circumstances are sufficient to create a reasonable doubt as to whether the defendant
acted under a heat of passion. [Citations.]" (People v. Bloyd (1987) 43 Cal.3d 333, 350.)
" 'The jury [is] not required to accept defendant's version of the killing. [Citations.]'
[Citation.]" (People v. Harris (1971) 20 Cal.App.3d 534, 537.) Here, the trial court
properly instructed the jury as to both murder and voluntary manslaughter and we
" 'credit jurors with intelligence and common sense' [citation] and presume they generally
understand and follow instructions [citation]." (People v. McKinnon, supra, 52 Cal.4th at
p. 670.)
The question before this court is whether, examining the entire record in the light
most favorable to the judgment, a reasonable jury could have found that Pulley harbored
the malice necessary to support a second degree murder conviction. We conclude that
there was ample circumstantial evidence of an intent to kill (express malice), as well as
evidence of an awareness of the risk to life and action in conscious disregard for life
(implied malice).
The evidence showed that after having engaged in an altercation with Misaalefua,
Pulley walked back to his house, saying, "I got something for you." He went into his
house and retrieved a loaded gun. Pulley took off the safety of the gun, which required a
very deliberate action, and walked back out to where Misaalefua was waiting. Pulley
then shot at Misaalefua at close range, twice.3 He had to apply six pounds of pressure to
pull the trigger each time. Shooting at a person from very close range is a strong
3 One of the gunshots entered Misaalefua's chest from a distance of less than six inches. 20 indicator of an intent to kill. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690; see
also People v. Lashley, supra, 1 Cal.App.4th at p. 945 ["The very act of firing a .22-
caliber rifle toward the victim at a range and in a manner that could have inflicted a
mortal wound had the bullet been on target is sufficient to support an inference of intent
to kill." Shooting at point blank range "undoubtedly creates a strong inference that the
killing was intentional"].) Beyond this, there was evidence that Pulley was clearly aware
of the dangerousness of bringing a loaded gun outside during an altercation, and taking
the safety off, such that the jury could have inferred that Pulley acted with conscious
disregard for life.
Even if Pulley was upset due to the altercation with Misaalefua, the evidence
demonstrated that Pulley had separated himself from Misaalefua and that he had time to
cool off and rationally consider his actions. Instead of remaining inside his house, or
even reengaging in an unarmed physical confrontation with Misaalefua, Pulley
purposefully retrieved a gun, walked back out to his garage, and shot his neighbor at
close range. Although the initial altercation had come to an end, Pulley clearly decided
not only to continue it, but to escalate it. From this evidence, the jury could have
reasonably concluded that Pulley intended to kill Misaalefua, and that he was not
sufficiently provoked or acting under the heat of passion when he shot at Misaalefua, so
as to reduce the crime from murder to manslaughter. Pulley in effect is asking this court
to reweigh the evidence and to reach a result different from the result that the jury
reached. However, that is not our role in examining the sufficiency of the evidence to
support a conviction.
21 C. The trial court did not abuse its discretion in denying Pulley's motion to sever the charge in count 4 from the other counts
Pulley contends that the trial court denied him a fair trial by denying his motion to
sever count 4, the charge arising from the threats to his wife on November 11, 2010, from
the remaining counts.
The statutory authorization for joinder of criminal charges is set forth in section
954. That section provides in relevant part:
"An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated."
In this case, it is clear that all of the offenses charged were of the same class, in
that they were all violent crimes against another individual (battery, criminal threats,
murder). The offenses thus met the requirements of joinder under section 954, which
Pulley concedes.
Even where criminal charges are properly joined pursuant to section 954,
however, a trial court may exercise its discretion to order separate trials in the interests of
justice. "[A] determination as to whether separation [of the trial of offenses] is required
in the interests of justice is assessed for abuse of discretion." (People v. Alvarez (1996)
14 Cal.4th 155, 188.)
"In the context of severing charged offenses, we have explained that 'additional
factors favor joinder. Trial of the counts together ordinarily avoids the increased
expenditure of funds and judicial resources which may result if the charges were to be
22 tried in two or more separate trials.' [Citation.] Accordingly, when the evidence sought
to be severed relates to a charged offense, the 'burden is on the party seeking severance to
clearly establish that there is a substantial danger of prejudice requiring that the charges
be separately tried. [Citations.]' " (People v. Hernandez (2004) 33 Cal.4th 1040, 1050,
italics added.)
"Whether a trial court abused its discretion in denying a motion to sever
necessarily depends upon the particular circumstances of each case. [Citations.] The
pertinent factors are these: (1) would the evidence of the crimes be cross-admissible in
separate trials; (2) are some of the charges unusually likely to inflame the jury against the
defendant; (3) has a weak case been joined with a strong case or another weak case so
that the total evidence on the joined charges may alter the outcome of some or all of the
charged offenses; and (4) is any one of the charges a death penalty offense, or does
joinder of the charges convert the matter into a capital case. [Citation.] A determination
that the evidence was cross-admissible ordinarily dispels any inference of prejudice.
[Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 27-28.)
Generally, in determining whether the trial court abused its discretion in denying a
motion to sever, an appellate court must examine the record that was before the trial court
at the time of its ruling. (People v. Mendoza (2000) 24 Cal.4th 130, 161.) However,
"[e]ven if a trial court's severance or joinder ruling is correct at the time it was made, a
reviewing court must reverse the judgment if the 'defendant shows that joinder actually
resulted in "gross unfairness" amounting to a denial of due process.' [Citation.]" (Id. at
p. 162.)
23 Pulley contends that the evidence concerning the incidents in counts 1 through 3
and the incident in count 4 would not have been cross-admissible, and further contends
that the evidence was fairly strong as to the first three counts, but relatively weak as to
count 4.4 According to Pulley, the evidence about the threat against Pulley's wife
prejudiced the jury against Pulley and made the jury less likely to conclude that he acted
in self-defense or lacked the requisite mental state for second degree murder. The record
does not support Pulley's contentions.
Specifically, it is clear that the evidence pertaining to counts 2, 3, and 4 would
have been cross-admissible in separate trials of those counts because those counts all
involved domestic violence perpetrated by Pulley against members of his family.
Evidence Code section 1109 makes evidence of a defendant's commission of other
uncharged acts of domestic violence admissible in an action in which the defendant is
accused of an act of domestic violence. This dispels an inference of prejudice from the
joinder of these offenses. Further, even if we were to assume that evidence as to the
charge in count 4 would not have been cross-admissible with respect to the murder
charge in count 1, we would still not conclude that Pulley demonstrated the existence of
prejudice from the joinder of these charges. Pulley's suggestion that the joining of an
allegedly weak case (count 4) somehow bolstered the admittedly strong case against him
in counts 1 through 3 makes little sense. The fact that the jury acquitted Pulley of the
charge in count 4 indicates that the jury was not convinced that he committed that crime.
4 Pulley notes that he was, in fact, acquitted on that count. 24 It seems unlikely that the jury would have used evidence of a crime for which they
acquitted him to conclude that Pulley was a bad character who was likely to have
committed murder. It is clear that the jury considered each count on its own merits, and
that it did not rely on some generalized notion of Pulley's bad character to find him guilty
of any particular charge. There is simply no indication of any prejudicial "spillover"
effect from the joining of the counts in this case.
Similarly, there is no reason to believe that the presentation of evidence pertaining
to count 4 was likely to inflame the jury against Pulley generally. The evidence
pertaining to the criminal threat charge involving Pulley's wife was not particularly
egregious. If anything, the concern would be that the joining of count 1, the murder
charge, might be likely to inflame the jury against the defendant and make it more likely
that the jury would want to punish Pulley for the other charged offenses, including count
4. However, the jury did not convict Pulley on count 4. It would thus not be reasonable
to conclude that the jury was inflamed by the murder charge in count 1, such that it was
more likely to convict him of count 4.
To the extent that Pulley is arguing that it is not only the evidence of the criminal
threat against his wife that was prejudicial, but also the prosecutor's presenting evidence
of his uncharged acts of domestic violence in 1993 and 1994, we reject this argument, as
well. First, the jury was specifically instructed that it could "not conclude from this
evidence that the defendant has a bad character or is disposed to commit crimes." We
presume that the jury followed this instruction. (See, e.g., People v. Avila (2006) 38
Cal.4th 491, 574.) Indeed, it seems that the jury did not use this evidence to conclude
25 that Pulley had a bad character or was disposed to commit crimes, since the jury acquitted
him on count 4—one of the domestic violence counts.
Further, it was clearly within the trial court's discretion to join the charges in
counts 1 through 3, since they were all of the same class and occurred on the same date
and close in time. In fact, Pulley does not argue that the joinder of counts 2 and 3 with
count 1 was erroneous or prejudicial. Because counts 2 and 3 related to domestic
violence toward Pulley's son, the evidence going to Pulley's earlier uncharged acts of
domestic violence would have been admissible as to these counts, even if count 4 had
been severed and prosecuted in a separate trial. Thus, any presumption of prejudice
arising from the admission of this other bad acts evidence as a result of the joinder of
count 4 with the other counts is dissipated.
We conclude that the trial court's ruling on Pulley's severance motion was not an
abuse of discretion at the time it was made, and further conclude that the joinder of these
charges in a single trial did not result in "gross unfairness" amounting to a denial of due
process. It is simply not reasonably probable that Pulley would have obtained a more
favorable verdict in separate trials of counts 1 through 3, and count 4. Pulley was
acquitted on count 4, and the jury convicted him of second degree murder on count 1, a
lesser offense than the charged first degree murder. Pulley was not deprived of his right
to a fair trial or due process.
26 IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.