People v. Bolden

• Decision Date: 26 April 1999
• Docket Number: No. B118740,B118740
• Citation: 71 Cal.App.4th 730,84 Cal.Rptr.2d 111
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 71 Cal.App.4th 730 71 Cal.App.4th 730, 99 Cal. Daily Op. Serv. 3002, 1999 Daily Journal D.A.R. 3861 The PEOPLE, Plaintiff and Respondent, v. Valerie BOLDEN, Defendant and Appellant.

Page 111

84 Cal.Rptr.2d 111

Previously published at 71 Cal.App.4th 730

71 Cal.App.4th 730, 99 Cal. Daily Op. Serv. 3002,

1999 Daily Journal D.A.R. 3861

The PEOPLE, Plaintiff and Respondent, v. Valerie BOLDEN, Defendant and Appellant.

No. B118740.

Court of Appeal, Second District, Division 1, California.

April 26, 1999.

Review Granted Aug. 11, 1999.

Robert Derham, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Jaime L. Fuster

and Martin L. Pitha, Deputy Attorneys General, for Plaintiff and Respondent.

MASTERSON, J.

INTRODUCTION

Defendant Valerie Bolden appeals from a judgment entered after a jury found her guilty of second degree murder (Pen.Code, §§ 187, subd. (a), 189), in the commission of which she used a deadly weapon, a knife (id., § 12022, subd. (b)). The court found true the allegations defendant previously had been convicted of two serious or violent felony convictions (id., §§ 667, subds. (a)-(i), 1170.12), after which the court sentenced defendant to state prison for a term of 56 years to life imprisonment. We affirm the judgment.

STATEMENT OF FACTS

On the evening of July 3, 1996, defendant's husband, Bernard Mason (Mason), was standing next to a parked car, conversing with the woman inside. Defendant and her friend, Glenda Polidore (Polidore), drove past in Polidore's car. Defendant saw Mason speaking to the woman in the parked car when he supposedly was visiting male friends. She demanded that Polidore stop, stepped out of the car and approached Mason. An argument followed.

As time passed, tempers apparently cooled. Mason bought defendant and Polidore each a beer from a nearby store. Mason, his friend Robert Burns (Burns), defendant and Polidore decided to go to a night club. Defendant and Polidore drove to Polidore's home to change clothing. Mason and Burns arrived approximately 20 minutes later.

Polidore and defendant ultimately decided not to go to the club and then went outside to tell the men. Defendant warned Mason that if he went out that evening, he should "watch and see what happens." Defendant then struck at Mason's chest with a rusty, dull butcher knife, which did not penetrate Mason's skin.

Such behavior was "nothing new" to Polidore. Defendant and Mason fought constantly, hitting and punching each other seriously with their fists; defendant instigated many of these fights.

Mason left and went to a club with his friends. He returned to Polidore's home an hour or so later and, although intoxicated, he was in a good mood. He called defendant by a pet name and attempted to apologize to her.

Defendant, who was using a knife to peel potatoes over a large pot of water, was irked with Mason. She told him to leave her alone. Mason continued his attempt to appease her, but they soon became embroiled in an argument. This rapidly escalated into a pushing and shoving match, which defendant initiated. Mason, who was 5 feet 9 inches tall, weighed 241 pounds and was very muscular, became enraged. ¹ He charged defendant. She retreated, running into the bedroom of Polidore's 13-year-old daughter, Myeshia, with Mason in pursuit. Defendant closed the door, but Mason yanked it open.

Defendant, still pursued by Mason, ran out of the bedroom back into the kitchen. Using both hands, she threw the pot of water at him in an effort to impede his progress. Mason chased defendant through the house. Defendant, in an effort to defend herself, threw numerous objects at him. After one article almost struck Polidore's three-year-old, she took the child into her room and shut the door. Before she did so, she saw defendant, who had acquired the knife with which she had been peeling potatoes, make a stabbing motion toward Mason. Mason again charged defendant, who immediately ran into another room with Mason in close pursuit.

Shortly thereafter, 13-year-old Myeshia heard someone fall. She ran into the kitchen, where she found Mason lying face down on the floor. Defendant ran past her and out the back door with the knife in her hand.

Polidore heard Mason ask her to call 911; he said defendant had stabbed him. Polidore did so, then discovered Mason had been stabbed in the chest. There was a great deal of blood on his chest and on the floor. He Immediately after the paramedics and police arrived, defendant returned. When Polidore told her that Mason was dead, defendant ran to the ambulance. She looked inside, then said, "Oh, baby, baby. I'm sorry. I'm sorry. I didn't mean to do it." Highly distraught, defendant told a police officer, "We were just fighting."

did not appear to be breathing, and she was unable to feel his pulse.

Defendant had no apparent injuries following this incident. Polidore told detectives that, in her opinion, defendant meant to "draw blood" but did not mean to kill Mason.

Mason died of a stab wound that penetrated his chest, a rib and his heart. The entrance wound was one and one-quarter inches wide, meaning the knife entered Mason's body up to the knife's widest part, just below the handle. The wound was three and three-quarters to four and one-half inches long; the tip stopped just short of penetrating the rear of the pericardial sac.

Polidore told defense Investigator Joel Rogers that she did not think defendant was trying to kill Mason. She also said she did not think defendant was afraid of Mason.

CONTENTIONS

Defendant contends the trial court (1) erred prejudicially in failing to instruct the jury on the lesser included offense of involuntary manslaughter; (2) violated her constitutional rights to due process of law and to mount a defense when it excluded evidence that she suffered bruises while living with Mason; (3) erred prejudicially in failing to instruct the jury with her proposed special jury instruction; and (4) improperly sentenced her to a triple term of 45 years to life imprisonment rather than to a term of 25 years to life imprisonment. The People ask (5) that the abstract be corrected to impose restitution fines.

DISCUSSION

1. Failure to Instruct on Involuntary Manslaughter

Defendant contends the trial court erred prejudicially in failing to instruct the jury on the lesser included offense of involuntary manslaughter. We disagree.

The trial court must instruct on lesser included offenses even in the absence of a request where the evidence raises a question as to whether all elements of the charged offense are present. (People v. Barton (1995) 12 Cal.4th 186, 195, 47 Cal.Rptr.2d 569, 906 P.2d 531; People v. Duncan (1991) 53 Cal.3d 955, 970, 281 Cal.Rptr. 273, 810 P.2d 131.) Nonetheless, there must be evidence the defendant is guilty of the lesser offense that is substantial enough for consideration by the jury. (Barton, supra, at p. 195, fn. 4, 47 Cal.Rptr.2d 569, 906 P.2d 531.) " 'Substantial evidence' in this specific context is defined as evidence which is 'sufficient to "deserve consideration by the jury, i.e., 'evidence from which a jury composed of reasonable men could have concluded' " that the particular facts underlying the instruction did exist.' [Citations.]" (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139-1140, 222 Cal.Rptr. 630.)

The court's instructional obligation exists even when defense counsel objects to the instruction in question for tactical reasons. (People v. Barton, supra, 12 Cal.4th at pp. 190, 196, 47 Cal.Rptr.2d 569, 906 P.2d 531.) But when defense counsel deliberately refuses the opportunity to receive certain instructions, any error in failing to give the jury those instructions is invited error. (Id. at p. 198, 47 Cal.Rptr.2d 569, 906 P.2d 531; People v. Lara (1994) 30 Cal.App.4th 658, 673-674, 35 Cal.Rptr.2d 886.) In these circumstances, the defendant is estopped from claiming prejudicial error on appeal. (People v. Delgado (1973) 32 Cal.App.3d 242, 254, 108 Cal.Rptr. 399, disapproved on another ground in People v. Rist (1976) 16 Cal.3d 211, 221-222 and fn. 10, 127 Cal.Rptr. 457, 545 P.2d 833; see also People v. Pride (1992) 3 Cal.4th 195, 228, 10 Cal.Rptr.2d 636, 833 P.2d 643.)

The trial court expressly asked defense counsel whether she wanted any instructions in addition to self-defense instructions. Counsel replied that she did not. In other words, counsel believed it was in her client's best interests not to receive lesser The prosecutor then asked the court to give a voluntary manslaughter instruction, arguing the evidence warranted this. Agreeing, the court acquiesced in the request. If defense counsel believed the court's decision changed the tactical considerations so that instruction on involuntary manslaughter now was in her client's best interests, she should have said so. Her failure to state that her tactics had changed invited the court's error, if any, in failing to instruct on involuntary manslaughter.

                included offense instructions, believed the court would give them if she did not object and was aware that her objection likely would cause the court not to give them.  She made a deliberate tactical choice not to have the jury receive such instructions.  (People v. Cooper (1991) 53 Cal.3d 771, 831, 281 Cal.Rptr. 90, 809 P.2d 865.)   Counsel's choice clearly invited error
                

In short, defendant is estopped from claiming prejudicial error on appeal from the court's failure to instruct on involuntary manslaughter. (People v. Delgado, supra, 32 Cal.App.3d at p. 254, 108 Cal.Rptr. 399; see also People v. Pride, supra, 3 Cal.4th at p. 228, 10 Cal.Rptr.2d 636, 833 P.2d 643.) Inasmuch as any error was invited, we need not consider whether the evidence warranted instruction on involuntary manslaughter.

2. Exclusion of Evidence of Bruises

Defendant asserts the trial court violated her constitutional rights to due process of law and to mount a defense when it excluded evidence that she suffered bruises while living with Mason....