People v. McShane

• Decision Date: 14 June 2019
• Docket Number: E069547
• Citation: 36 Cal.App.5th 245,248 Cal.Rptr.3d 322
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Douglas Brian MCSHANE, Defendant and Appellant.

36 Cal.App.5th 245

248 Cal.Rptr.3d 322

The PEOPLE, Plaintiff and Respondent,

v.Douglas Brian MCSHANE, Defendant and Appellant.

E069547

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

Filed June 14, 2019

Certified for Partial Publication.^*

Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Charles Ragland, Craig H. Russell and Tami F. Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

The teenage daughter of defendant Douglas Brian McShane ran away from home. At the daughter's urging, three of her friends tried to steal defendant's truck. Defendant stumbled across the theft in progress, chased the thieves, and after finding them in a nearby field, shot and killed one of them — a 15-year-old boy.

As a result of these tragic events, defendant was convicted of second degree murder ( Pen. Code, § 187, subd. (a) ), with an enhancement for personally and intentionally discharging a firearm, causing death ( Pen. Code, § 12022.53, subd. (d) ); he was sentenced to a total of 40 years to life in prison.

Defendant appeals, contending:

1. The trial court erred by failing to instruct on voluntary manslaughter on a heat of passion theory.

2. The trial court erred by refusing to instruct the jury that it could consider voluntary intoxication in determining whether defendant had the intent to kill.

3. Under Penal Code section 1001.36, which became effective while this appeal was pending, defendant is entitled to a remand so the trial court can consider granting him pretrial mental health diversion.

4. Under Senate Bill No. 620 (2017-2018 Reg. Sess.), which also became effective while this appeal was pending, defendant is entitled to a remand so the trial court can consider striking the firearm enhancement.

We agree that defendant is entitled to a remand for consideration of whether to strike the firearm enhancement. Otherwise, however, his contentions lack merit.

IFACTUAL BACKGROUND

A. February 6: The Altercation at the Mobile Home.

Defendant lived with his son Brian, age 17, and his daughter Kristi, age 15. His children were home-schooled; they had a "tight-knit" group of friends who were also home-schooled. These included Kristi's best friend, Heather Ryan. They also included Jerel Cobbs, Damien Saunders, and Devin Humphrey. Devin's mobile home, near defendant's house, was a "gathering place" for the group.

Around January 27, 2003, defendant's daughter ran away from home; she went to live with a 21-year-old man whom she had met just three days earlier.

On February 6, 2003, defendant showed up at Devin's mobile home. Six or seven teenagers were there, including Heather, Damien, and Jerel. Defendant asked if they knew where his daughter was; they said they did not.¹

Defendant got upset; he called Heather a "liar" and a "whore." Devin's mother asked defendant to leave, but he refused. Damien grabbed defendant and tried to push him outside; defendant tried to shake him off. After a "scuffle," defendant left.

B. February 10: The Shooting of Jerel.

On the night of February 10-11, 2003, Heather, Jerel, and Damien were once again hanging out at the mobile home. Kristi told Heather to take defendant's truck and bring it to her, so she could use it to go to Utah with her boyfriend.²

Around 11:30 p.m., Heather, Jerel, and Damien left the mobile home, went to an open field across the street from defendant's house, and waited. When they thought defendant was asleep, they tried to take his truck.

Previously, Heather had seen defendant's son Brian take defendant's truck without permission; Brian used a spoon to pop out the rear window and to start the truck. Accordingly, the trio popped out the rear window and started to roll the truck out of the driveway.

Defendant woke up and started yelling at them. They ran west. When they saw defendant's car, coming from his house, they hid in some bushes. They then saw defendant going back toward his house. They jumped a fence and ran to the next street south. When they got there, they saw defendant's car a third time. They hid by some buildings until it went past, then ran north again and into the field. They were heading for the mobile home.

Defendant, however, drove right into the field. Heather dropped to the ground. A few minutes later, she saw Jerel run east, directly across the beams of defendant's headlights.

Defendant fired one blast from the shotgun. Two pellets hit Jerel in the back. One went through his heart and lung. He died within minutes from internal bleeding.

Heather estimated the time from when she ran from defendant's house to when the shot was fired as 45 minutes to an hour.

According to Heather, defendant's son Brian was with him. Brian checked on Jerel, then walked back to defendant; Heather heard them say something about calling the police. Defendant and Brian then went back home, leaving the car in the field.

At 1:46 a.m., defendant called 911. A sheriff's deputy arrived at defendant's home while he was still on the phone with 911. Defendant was "shaky and upset." A shotgun was lying on a nearby dresser.

After the shooting, defendant's blood tested positive for marijuana. Marijuana is detectable in the blood for "a few days" after use.

C. Defendant's Account.

1. Defendant's testimony.

Defendant had been using marijuana off and on since he was 17. Recently, his regular supplier had disappeared; his new supplier sold "chronic," which was much stronger than regular marijuana. Two or three weeks before the shooting, defendant got into a minor car accident because the chronic "made [him] lost" and he "didn't know which way to turn."

On February 6, 2003, according to defendant, he spoke to Heather on the phone; Heather said she knew where Kristi was, but she was not "at liberty to tell" defendant. He went over to the mobile home because he was not "satisfied with that information."

About an hour after leaving the mobile home, defendant realized he had left his phone and his hat there. He phoned and said he was coming over to get them. A "guy" named Kenneth brought them out to him. Defendant said, "Tell those guys they don't have to worry about me." He said that because he "wanted everything to be peaceful."

On February 10, 2003, defendant went to bed at 10:00 or 10:30 p.m. Right before going to bed, he smoked some marijuana.

Between 1:15 and 1:30 a.m., defendant was awakened by the sound of his cat "meow growling." As he went to let the cat out, he saw two people pushing his truck. When they saw him, they ran away.

At first, he ran after them, even though he was not wearing any shoes. They "veer[ed]" briefly into the yard of a house where some Mexicans lived. This made him think the Mexicans might be the people he was chasing.

When they ran into some bushes, defendant stopped, because he was afraid they might have a weapon. He went back home and put on shoes; he also got his shotgun and loaded it with three shells. The shotgun was to protect himself and to scare the thieves. He used the shotgun for hunting and, every two or three weeks, for target shooting.

Defendant did not call 911, because when he had called the police about thefts in the past, they told him if he did not see the thieves, they could not do anything.

He got in his car and circled the block three times, looking for the thieves. He then cut across the field to look behind some buildings on the other side. He saw three people, with their backs to him.

He drove back home and told his son Brian, "They're out in the field, there's three of them, go call the police." He then drove back into the field.

Instead of calling police, however, Brian walked over and into the field. When defendant realized Brian was in the field, where the thieves could attack him, he became "hyper panick[ed]." He stopped his car and jumped out, holding his shotgun.

He saw a person running toward Brian. He "fired the shot in panic." His intention was to protect Brian. However, he did not intend to hurt or kill the other person. He thought he would "knock [the person] down, ... see who it was, and then ... let them get up and run away." He "forgot that the gun was dangerous."

Brian checked the body and said, "It's Gene." Gene was an adult who hung out with Kristi and her friends. This was when defendant first thought that the thieves might be some of Kristi's friends.

2. Defendant's previous statements.

a. Defendant's 911 call.

During the 911 call, defendant was crying; he kept telling the operator to hurry. He said he had just shot one of three teenagers who had tried to steal his truck. As he was going through the field, they "jumped up" and "were coming at" him, so he fired.

He added that, on the previous Thursday, the teenagers had "jumped" him. His daughter had run away; they knew where she was but would not tell him. He got mad at them, and they all got mad at him.

b. Defendant's statement to the deputy.

Defendant's statement to the deputy was largely consistent with his testimony at trial, except as follows.

He told the deputy that, when he first got in his car, Brian came with him; after driving around a while, however, he dropped Brian off and told him to call the police.

Defendant loaded his shotgun with only one shell, and only after he drove into the field, although before he got out of his car. As he was walking, three people stood up. He fired because he feared for his safety. He said the reason for the confrontation was that he had gone to a mobile home to look for his runaway daughter, and the people there had threatened to "kick his ass." He insisted that he did not intend to shoot anybody.

By the end of the interview, defendant "was sobbing with his head between his knees[.]"

c. Defendant's testimony at the first trial.

Defendant's testimony at his first trial was largely consistent with his testimony at the present trial.

D. Expert Testimony.

Dr. Frank...