People v. Curtis

• Court: California Court of Appeals
• Writing for the Court: RAMIREZ
• Citation: People v. Curtis, 37 Cal.Rptr.2d 304, 30 Cal.App.4th 1337 (Cal. App. 1994)
• Decision Date: 14 December 1994
• Docket Number: No. E012534,E012534
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. David Scott CURTIS, Defendant and Appellant.

Page 304

37 Cal.Rptr.2d 304

30 Cal.App.4th 1337

PEOPLE of the State of California, Plaintiff and Respondent, v. David Scott CURTIS, Defendant and Appellant.

No. E012534.

Court of Appeal, Fourth District, Division 2, California.

Dec. 14, 1994.

Certified for Partial Publication ^*

Review Denied March 23, 1995.

[30 Cal.App.4th 1342] Jeffrey J. Stuetz, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Keith I. Motley, Supervising Deputy Atty. Gen., and Douglas P. Danzig, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

RAMIREZ, Presiding Justice.

Defendant David Scott Curtis (defendant) had an affair with a married woman, Abigail Camacho Medina (Abby). ¹ This brought him into conflict--sometimes violent conflict--with Abby's husband, brother, and other members of her family.

Defendant's relationship with Abby herself was not free from conflict. They broke up and got back together many times. Abby gave birth to a child, Nicole. At one point, she told defendant he was Nicole's father; later, however, she denied this. Defendant filed suit for visitation rights.

One day, defendant stole Abby's car. According to him, he hoped that in exchange for the return of her car, she would help him to prove that it was her husband who had committed a previous theft of his truck. At defendant's request, Abby came to his apartment; her brother and her uncle came with her, but they waited outside. Abby also brought a tape recorder, concealed in her purse, in case defendant confessed to stealing her car.

They argued at length. Abby's brother became concerned because she was taking so long; he knocked on defendant's door. Moments later, defendant shot Abby and killed her. Both the argument and the shooting were tape-recorded.

Defendant claimed to have thought that Abby's brother, and perhaps others, were about to break down his door and attack him. He got out his rifle to defend himself, he claimed, but it went off and struck Abby by accident.

Defendant was convicted of second degree murder. On appeal, he contends:

1. The jury instruction on implied malice erroneously failed to require both a "base, antisocial motive" and a "high probability" of death.

2. The trial court's refusal to instruct on self-defense and defense of habitation was error because the fact that defendant was acting in either self-defense or defense of habitation tended to disprove implied malice.

3. The trial court's refusal to instruct on imperfect self-defense was error, because there was evidence to support this defense, or alternatively because the fact that defendant was acting out of a good-faith belief in the necessity for self-defense tended to disprove implied malice.

4. The trial court, having instructed that the homicide was excusable if committed by accident "during the performance of a lawful act by lawful means," but involuntary manslaughter if committed while defendant was unlawfully brandishing a firearm, and having further instructed that it was not unlawful to brandish a firearm in self-defense, erroneously refused to instruct on self-defense.

5. The instruction on "heat of passion" erroneously failed to define "passion."

6. The trial court erroneously failed to instruct sua sponte that a "heat of passion" may result from a series of events over time.

7. CALJIC No. 2.90, which the trial court used to instruct on reasonable doubt, is unconstitutional.

We find no error, and we affirm.

I. PROCEDURAL BACKGROUND

On September 25, 1991, defendant was charged by information with one count of murder (Pen.Code, § 187). It was specially alleged for sentence enhancement purposes that defendant personally used a firearm in the commission of the charged offense (Pen.Code, § 12022.5).

Jury trial began on February 1, 1993. On February 22, 1993, the jury found defendant guilty of second degree murder; it found the firearm use allegation true. On March 22, 1993, defendant was sentenced to prison for an indeterminate term of 15 years to life on the murder conviction, plus a determinate term of 4 years (the midterm) on the firearm use finding, to be served consecutively.

II. FACTUAL BACKGROUND

Defendant first met Abby at the K-Mart in Moreno Valley, where they both worked. Around January 1990, defendant began dating Abby, although she was married to Roberto "Angel" Medina (Roberto) at the time. Abby's mother, Gloria Camacho (Gloria), did not approve of her relationship with defendant. In February and again in March 1990, Gloria told defendant to leave Abby alone.

By March 1990, Abby was pregnant. In late March, her husband, Roberto, went to New Jersey. Abby moved in with her mother, Gloria, and her uncle, Hiram Negron Martinez (Hiram). In June 1990, Roberto returned. Abby, however, stayed at her mother's house for the duration of her pregnancy.

In June and July 1990, defendant drove past the family's house up to three times a day; ² he phoned as many as ten or twelve times a day, sometimes in the middle of the night. These calls continued until Abby's mother Gloria had the phone number changed.

Abby's brother Bernardo "Tito" Camacho (Bernardo) went to the K-Mart where defendant worked at least three times to tell defendant to leave the family alone. He indicated that the family had either "connections" or "muscle," and that "if [defendant] didn't cut it out, [Bernardo was] going to beat him up."

One day, Bernardo was at the K-Mart when he happened to see defendant talking on a pay phone. Bernardo called the family home, where his mother Gloria said she had just gotten off the phone with defendant. Bernardo then confronted defendant and threatened to "fuck him up" if he "kept messing around" with Gloria. Another time, because defendant had been "messing with the distributor cap" of Abby's car, Bernardo went to the K-Mart and told defendant to leave Abby's car alone and to leave the family alone.

In September 1990, Abby went with her husband Roberto and her mother Gloria to a movie theater near the K-Mart. When they came out, defendant was waiting for them. He challenged Abby's husband to a fight. Defendant said, "I fucked your wife and I could fuck her any time I want to." He added, "That's my baby. That's not your baby." Abby's mother hit defendant with her purse. Defendant started to fight with Abby's husband, but some bystanders separated them.

In October 1990, Abby went again with Roberto and Gloria to the same movie theater. They were looking for a place to park when they realized defendant was following them in his truck. They drove away through the parking lot, but defendant kept following them, a scant two feet behind their car. They stopped; defendant drove by and yelled "faggot" at Roberto and "bitch" at Gloria. Defendant rammed his truck into Abby's car, once ³ and then a second time, then sped away. When Abby's brother Bernardo heard about this, he and a friend went to the K-Mart and again told defendant to leave the family alone.

Abby's baby, a girl named Nicole, was born on November 17, 1990. Defendant filed suit to establish visitation rights. After Thanksgiving, Abby moved from her family's house to an apartment.

On April 25, 1991, defendant stole Abby's car. Abby suspected defendant was the thief. Later that day, defendant phoned and said he wanted Abby to come alone to his apartment at 8:30 p.m. to talk about her car.

Abby was afraid defendant would "g[e]t rough with her" or kidnap her. Abby and her family decided that Abby would drive to defendant's apartment in her friend Irma's car, while Irma, with Abby's brother Bernardo and her uncle Hiram, followed in a second car. Abby was going to try to get defendant to admit he had stolen her car. She carried a voice-activated tape recorder in her purse to record his confession. If she succeeded, she was to call her mother Gloria and use the code word, "Pampers."

At about 9 p.m., Abby arrived at defendant's apartment. Bernardo and the others parked across the street and waited. Defendant let Abby in. Their subsequent conversation was picked up, albeit imperfectly, by Abby's tape recorder.

When Abby entered, defendant said, "Who's your friend?" She feigned ignorance, asking, "What friend?" Shortly thereafter, she said, "I wish you would put that down, okay." Defendant later admitted that this referred to a rifle he was holding. Abby repeatedly accused defendant of stealing her car. Defendant, in turn, accused Abby's husband of stealing his truck, and added that Abby had stolen his baby. He asked her why she never let him see Nicole. Abby responded that she had lied when she told defendant Nicole was his baby. Several times, she said she loved her husband and did not love defendant. "If I wanted to destroy you," Abby said, "I could destroy you. I mean you could lose your job." "I'm destroyed already," defendant responded, "[b]ecause of you." He added that he was going to quit his job. Later, defendant asked, "Why did you hurt me[,] Abby?", and said, "I'm mad at you."

After a while, defendant said a friend of his knew where Abby's car was. Abby pressed defendant to call his "friend" and retrieve her car. Suddenly, defendant said, "Let go, let go." There was a loud "pop," and Abby screamed, "Owww." Defendant later testified that at this point he and Abby were struggling for possession of a baseball bat, and the bat hit Abby in the head. Defendant warned Abby to "be quiet, or I'll fuck you up ... don't move." Abby, however, continued to scream and cry. Most of the rest of their conversation is unintelligible.

Meanwhile, Abby's brother Bernardo, who had been waiting with the others for about 45 minutes, was getting impatient. He phoned Gloria, who told him Abby had called, given the "Pampers" signal, and said she would be home in 15 minutes. ⁴ However, she said, that had been 25 minutes ago. Bernardo phoned defendant,...