People v. Frye

• Decision Date: 30 June 1992
• Docket Number: No. C007592,C007592
• Citation: 10 Cal.Rptr.2d 217,7 Cal.App.4th 1148
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Brian David FRYE, Defendant and Appellant.

Page 217

10 Cal.Rptr.2d 217

7 Cal.App.4th 1148

The PEOPLE, Plaintiff and Respondent, v. Brian David FRYE, Defendant and Appellant.

No. C007592.

Court of Appeal, Third District, California.

June 30, 1992.

Certified for Partial Publication ^*

Rehearing Denied July 27, 1992.

Review Denied Sept. 16, 1992.

[7 Cal.App.4th 1151] Thomas Lundy, Santa Rosa, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Sr. Asst. Atty. Gen., Michael Weinberger, Supervising Deputy Atty. Gen., and Joel Carey, Deputy Atty. Gen., for plaintiff and respondent.

SPARKS, Acting Presiding Justice.

In this case of murder and attempted murder, the trial court instructed the jury that a killing or attempted killing was unlawful unless it was either excusable or justifiable. It went on to instruct the jury that "[i]t is undisputed in this case that each of the acts in question was an unlawful act." Defendant contends that by this instruction the trial court improperly directed the jury's verdict on disputed factual issues. We reject this contention in the published portion of this opinion. As we shall explain, the word "unlawful" in the various homicide instructions simply means that there was no excuse or justification for the killing. In this sense it is a negative rather than an affirmative element of the homicide offenses. Because there was no issue of excuse or justification tendered or raised in this case, the trial court did not direct a verdict on either an affirmative element of the charged crimes or on a defense to those crimes.

Defendant Brian David Frye appeals from a judgment sentencing him to state prison after a jury found him to be guilty of the first degree murder of William Edward Massey, Jr., with the personal use of a firearm, and of the attempted murder of Jennifer Lynn Bothun, with the personal use of a firearm and in which he intentionally inflicted great bodily injury. (Pen.Code §§ 187, 664/187, 12022.5, 12022.7.) In addition to the directed verdict issue, defendant further contends: (1) the felony-murder instructions did not require the jury to find that an intent to commit robbery preceded the killing; (2) the court erred in failing to instruct on unconsciousness; (3) the jury instruction on express malice was erroneous; (4) the court failed to require jury unanimity with respect to an act of robbery for application of the felony-murder rule; (5) the failure to grant testimonial immunity to a defense witness violated principles of due process; (6) the court failed to consider intoxication in mitigation at sentencing; and (7) only one sentence enhancement for the use of a firearm may be imposed. We consider these remaining contentions in the unpublished portion of this opinion and there agree with defendant's last contention and shall modify the judgment accordingly. In all other respects we shall affirm.

FACTS

The murder victim, William Massey, Jr., was a seller of methamphetamines. The victim of the attempted murder, Jennifer Bothun, was Massey's girlfriend. Defendant was one of Massey's customers. In the months before the murder Massey had sold drugs to defendant on credit and had become infuriated when defendant failed to pay his debt. In fact, Massey had refused to sell any more drugs to defendant until he paid his debt.

In the early morning hours of January 24, 1988, Bothun and Massey were together when Massey's electronic paging beeper sounded. It signalled a telephone number and defendant's customer code. Massey called defendant. Bothun heard Massey ask if defendant had the money he owed and then ask where to meet. Massey told Bothun that before he took her home they would meet defendant at a school parking lot to pick up some money.

When Massey and Bothun arrived at the school they could not locate defendant. After unsuccessfully looking for him they began to drive away but then saw him in the parking lot and returned. Bothun leaned over and unlocked the passenger door as defendant approached Massey's truck. Defendant began shooting into the truck. At first he shot through the closed window but then opened the door and fired again. Defendant fired numerous shots into the truck. The shots killed Massey and seriously wounded Bothun. Bothun blacked out.

When Bothun regained consciousness defendant was going through Massey's jacket pockets. Defendant pushed Massey's body to the floor of the truck and began driving away. For a time Bothun acted as though she was dead but eventually she sat up and pleaded with defendant not to kill her. Defendant pointed his gun at Bothun. She grabbed the barrel and pushed it away. Defendant began struggling with Bothun for the gun and as he did so it discharged into his fingers. Bothun grabbed the steering wheel and caused defendant to stop the truck. As they struggled for the gun Bothun grabbed the truck keys and threw them out. Defendant retrieved the keys and attempted to put them in the ignition but Bothun hit his hands and caused him to drop them. Throughout this ordeal defendant intermittently attempted to strangle Bothun.

Bothun's screams attracted the attention of a number of people, including Woodrow Lloyd, a nearby resident. Lloyd told his son and his roommate to call the police, then he armed himself and went out to the truck. He pulled defendant out of the truck and placed himself between defendant and the truck. Defendant told Lloyd that he and his girlfriend had been drinking and were having a problem and that it was none of his business. Defendant tried to get around Lloyd and back to the truck but Lloyd would not let him do so. Lloyd pulled out his gun and told defendant that he had called the police and that defendant was not going to get back to the truck until they arrived. Defendant fled on foot.

As defendant ran home he hid certain items of evidence, including a holster, bullets, and items of clothing, in residential yards. When he arrived home he concealed his injury from his mother and hid his gun in the crawl space above the kitchen. He called his father for help and said that his fingers had been shot off. Before defendant's father could take him to the doctor, police officers arrived to arrest him. Defendant asked the arresting officers to take him to the hospital and said that he had a firecracker go off in his hand. This was also the explanation defendant gave to the doctor who treated his wounds at the hospital.

The defense questioned defendant's mental state at the time of the crimes. Defendant testified to drug and alcohol abuse in the few days preceding the incident. He said that he had not slept for a long period before the crimes. He claimed to remember little about the actual incident. A defense expert testified to the effects that substance abuse can have on a person's mental state. Based upon defendant's version of the events, he opined that defendant had an impaired mental state at the time of the crimes.

DISCUSSION

I

Defendant contends that the trial court essentially directed a verdict against him by giving special instruction number six. This challenged instruction reads: "In these instructions, in the definitions of the crimes in question, the word 'unlawful' is used. A killing, or an attempted killing, or the use of force or violence, or the attempted use of force or violence is considered in the law to be unlawful unless it is excusable, for example, because it was committed by accident, or justifiable, for example, because it was committed in self defense. It is undisputed in this case that each of the acts in question was an unlawful act." Defendant contends that by giving this instruction the court failed to require the jury to find each element of the charged offenses. (See People v. Hedgecock (1990) 51 Cal.3d 395, 407, 272 Cal.Rptr. 803, 795 P.2d 1260; People v. Figueroa (1986) 41 Cal.3d 714, 726, 224 Cal.Rptr. 719, 715 P.2d 680.)

Murder is defined as the "unlawful killing of a human being, or a fetus, with malice aforethought." (Pen.Code, § 187, subd. (a).) The corpus delicti of the crime of murder "consists of two elements, the death of the alleged victim[ ] and the existence of some criminal agency as the cause, either or both of which may be proved circumstantially or inferentially." (People v. Cullen (1951) 37 Cal.2d 614, 624, 234 P.2d 1; see also Matthews v. Superior Court (1988) 201 Cal.App.3d 385, 392, 247 Cal.Rptr. 226.) ¹ Indeed, when a killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder. (People v. Craig (1957) 49 Cal.2d 313, 319, 316 P.2d 947.) In those circumstances, defendant bears the burden of raising the affirmative defense of excuse or justification. "Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable." (Pen.Code, § 189.5, subd. (a) [formerly § 1105].) While this provision would appear to place the burden of proof upon the defendant with respect to mitigation, excuse or justification (People v. Cardoza (1943) 57 Cal.App.2d 489, 494, 134 P.2d 877), it has long been established that the defendant need only raise a reasonable doubt with respect to those matters. (People v. Deloney (1953) 41 Cal.2d 832, 841, 264 P.2d 532; People v. Albertson (1944) 23 Cal.2d 550, 587, 145 P.2d 7; People v. Wells (1938) 10 Cal.2d 610, 622, 76 P.2d 493.) Thus, under California law the defendant must raise the issue but does not bear any burden of proof or persuasion. (People v. Hyde (1985) 166 Cal.App.3d 463, 474-475, 212 Cal.Rptr. 440.) "Properly interpreted, section [189.5] merely reflects the commonsense observation that...