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Filed 3/30/15 P. v. Mullennix CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. KENNETH DOYLE MULLENNIX, Defendant and Appellant. A135983
(Sonoma County Super. Ct. No. SCR576368)

After a trial, a jury found defendant Kenneth Doyle Mullennix guilty of voluntary manslaughter of his wife Buapha (“Bua”) Mullennix (Pen. Code, § 192, subd. (a) 1 ), together with a related true finding that he persona lly used a firearm during the commission of the crime (§ 12022.5, subdivision (a) )

. The court sentenced defendant to an aggregate term of 10 years in state prison , consisting of a term of six years for the voluntary manslaughter conviction and a consecuti ve term of four years for the firearm

use enhancement

. 2 Defendant contends the trial court committed prejudicial
instructional errors affecting the jur y’s consideration of perfect, or lawful, defense of
others and evidence of uncharged domestic violence. We conclude defendant’s contentions do not require reversal, and accordingly, we affirm the judgment

.

1 All further unspecified statutory references are to the Penal Code.

2 Before trial, defendant pleaded no contest to possessing an assault weapon with a detachable magazine (§ 12280, subd. (b)), as alleged in count two of the information. He was sentenced to a concur rent term of two years.2 FACTUAL AND PROCEDURAL BACKGROUND Shortly after 10:00 p.m. o n January 9, 2010, Petaluma police officers came to defendant’s h ome in response to his 911 call in which he said his wife had tried to attack him, she was insane, and he shot and killed her. When the police arrived, defendant was standing in the doorway of the residence with a telephone in his hand. Following an officer’s instructions, defend ant put down the telephone and lift ed up his shirt so the officer could check for weapons. Defendant wa s ultimately handcuffed , arrested, and placed in a patrol car and taken to the police department

. 3 In response to the officers’ requests through a publ ic announcement system
, defendant’s then 10

- year

- old daughter
and then 18

- year

- old stepdaughter, came out of the house and were ultimately taken to a children’s center.
When the police entered the residence, they found the wife lying on the floor in
the master bedroom , which was located on the second floor ; there were two other
bedrooms on that floor

. There was a large wound on the right side of her face and a pool of blood around her head. The paramedics at the scene pronounced her death. An autopsy showed the wife had died from a gunshot wound to her head ; she had no other injuries such as cuts, bruises, or rib fractures

. A toxicology report of her blood came
bac k negative for alcohol and therapeutic prescrip tion drugs in an upper range

. The
condit ion of the body suggested the wife , w hen shot, had been standing up and the
muzzle of the gun was fired from a distance of at least 12 to 30 inches f rom her face; the path of the bullet was straight from front to back of the skull and the wife died within
seconds. The wife ’s hands tested positive for the pr esence of gun shot residue. However, it was not possible to tell whether she had fired a gun, was in close proximity to a gun

3 When he was initially arrested defendant did not show any sign that he was under the influence of alcohol. About two hours after he had arrived at the police department, defendant was tested to determine his blood

- alcohol level . Defendant’s initial test results showed a blood

- alcohol level of 0.235 percent. Unless defendant was an alcoholic, the result would be considered a high blood

- alcohol level. Several hours later, defendant’s blood

- alcohol level was found to be 0.14 per cent. Evidence was presented that when a person consumed too much alcohol, it was possible that signs of mental impairment of some degree could be present before outward signs of physical impairment.3

that was fired by someone else, or came into contact with a sour ce of gunsho t residue particles. Although defendant’s hands were also p rocessed for the presence of gun shot residue, there was no analysis done of his sample. The police searched the master bedroom , which included an area with a bed
, two nightstands, a wal k

- in closet, a large dresser, and a n alcove office area with a desk , a desk chair, and a book case next to the desk . The wife’s body was found between the bedroom area and the alcove office area, with her head pointed to the bedroom area and her feet pointed toward the alcove office area. The police found a Glock pistol on the desk chair
about six or seven feet from the wife and a spent shell casing underneath the bookshelf
about two feet from the chair

. The spent shell casing came from the Glock pistol , wh ich was loaded and ready to be fired by pulling the trigger ; no comparison could be made
between the bullet found in the wife and a test

- fired bullet

. It was not possible to
calculate from where the gun was fired based on the location of t he spent shell c asing.
N o usable latent fingerprints wer e found on th e gun , its magazine, or the spent shell casing, which was not unusual given the gun’s surface irregularities and the use of oil or polish. The prosecution’s trial theory that d efendant had committed m urder was based, in pertinent part, on varying statement s defendant gave to the police
, statements given by his stepdaughter and his sister

- in

- law, the physical evidence at the crime scene
, and the position and condition of the wife’s body when found by t he police

. The prosecutor also presented evidence showing that several months before the shooting sometime in the
summer of 2009, defendant learned his wife was having an affair with another man
, he was angry about the situation and wanted a divorce, and his wife had written a note indicating that on October 3, 2009, defendant had been drinking, grabbed her throat “too” tightly and pointed a gun at her. According to the prosecutor, on the day of the shooting
defendant had been drinking and was angry with his wife . During an argument with his wife in the master bedroom, he could have walked out of the bedroom but chose to get his Glock pistol that was hidden in a bookshelf and shot her from a distance of one to three feet away. The prosecutor argued the e vidence did not support defense theories that4

the shooting was an accident, that the wife shot herself, or that defendant had acted in perfect self

- defense or unreasonable self

- defense or defense of others. Even assuming,
the prosecutor theorized
, wife ha d armed herself with the pistol, the physical evidence
demonstrated that defendant had disarmed her, thereby ending his right to use deadly force against her to defend himself and the children who were elsewhere in the house

. In his defense, defenda nt p resented evidence concerning wife’s history of mental health treatment and her threatening, assaultive and violent conduct against defendant and her daughters, his placement of a GPS device on wife’s car to track her whereabouts, his previous confrontation s with wife regarding her affair with another man and his plans to
divorce her
, his drinking pattern and blood alcohol levels on the night of the shooting,
and wife’s knowledge of guns and the status of the Glock gun in the house on the night of the shooting

. D efendant also presented evidence r egarding the event s in the house on the night of the shooting. Defendant and his daughters were in the house when the wife arrived
home at about 9:00 p.m. H e had been drinking “quite a bit” and he went to the master
bedroom because he was upset and angry and wanted to avoid a fight with his wife who

was angry

. He tried to read but he was too drunk and dozed off. His daughter came in to the room and read to him

. W ife c ame into the room and stood at the foot of the bed, glaring angrily at him and their daughter. Because it looked like his wife wanted to argue, defendant told his daughter that it was time for bed. The daughter said she did not
want to leave and her mother got angry and started to yell at her. The daughter became upset and stormed out of the room and went to her own bedroom

. W ife closed the door
of the master bedroom . Defendant got off the bed and said he did not want to fight and just wanted to get some sleep. W ife began to call him names. He took off his clothes, paced back and forth, and said that wife should get out and leave the family alone. His
wife responded, but defendant could not recall exactly what she said

. T h e next thi ng he
heard was his wife angrily saying, “I’m gonna kill you all” or “I’m gonna kill you,

everyone

. ” Defendant did not remember his wife saying to him, “I want you to die.” He looked up and saw the Glock pistol in his wife’s hand ; she was holding it in her rig ht5

hand with her left hand holding her right wrist. 4 Defendant did not recall seeing his wife getting the gun, loading it, or readying it for firing. Defendant thought he reacted by saying something like he d id not want to die . He did not recall saying to his wife , “I want you to die.” Defendant was angry and scared for his wife, himself and the children. Unlike wife’s earlier threats, this time defendant believed that his wife’s threat “ was direct, it was like, I’m gonna kill you, everyone, like it wa s something she was going to do right now. ” The next thing defendant re membered was seeing his wife lying dead with blood pouring out of her head. His ears were ringing from guns hot, and it smelled
like gunpowder. He did not know what had happened; he w as just in shock and f elt
h orrible. He did not remember how his wife had secured the gun
, how he got the gun
, or how his wife was shot. At trial, he testified that it was possible the gun went off when he tried to take the gun away from his wife , “but [he was] taking responsibility.” Immediately before the shooting, defendant’s stepdaughter was in her bedroom editing a video on her computer and defendant’s daughter was in her separate bedroom listening to music

. The daughters heard both parents argu ing in the master bedroom

. Despite wearing a headphone , the stepdaughter heard her mother and defendant yelling about her mother’s boyfriend and divorce. The argument was loud and went on for a long time , and she heard defendant yell, “I want you to die. ” The daughters heard a loud
noise. The stepdaughter took off her headphone and went toward the door of her
bedroom. Before she opened the door and left her room she heard defendant say, “ [ Y ] ou my wife, why you kill yourself

. ” In the hallway, the stepda ughter saw defendant

4 Defendant had previously seen the Glock pistol seve ral months earlier when he had hidden it in the master bedroom bookcase. After looking at a photograph, defendant identified the area of the bookcase where he had hidden the gun. He had not told his wife the location of the gun and he did not know whethe r his wife found the pistol or knew where it was after he had hidden it. Although the bookcase contained mostly defendant’s books, it was also used by his wife for food packages and cards.6

standing in front of the doorway to the master bedroom. Def endant said, “Don’t go in
there. ” 5 Defendant further testified concerning the events after the shooting. He called 911 right away

. When he was in the police car after hi s arrest, defendant was mumbling to himself that he did not remember if his wife had a weapon. Later that evening, when interviewd by the police, defendant only recalled going into the master bedroom, dozing off, and the next thing he remembered was his w ife being dead. D efendant had a vague

mem ory of his wife saying, “I’m gonna kill you,” but he did not remember that his wife had a gun
, his daughter had earlier come into the master bedroom , or his argument with
his wife . Defendant recalled the forgotten incidents after seeing a picture drawn by his daughter

. He told the police several times that he did not specifically remember shooting his wife but he must have done so because he could not imagine w hat else happened. At the conclusion of evidence, the trial court instructed the jury on the charged
offense of first

- degree murder, and the lesser included offenses of second

- degree murder, voluntary manslaughter (provocation, sudden quarrel/heat of passion, imperfect se lf

defense, imperfect defense of others), involuntary manslaughter, and justifiable homicid e based on perfect, or lawful, self

- defense

. The jury was also instructed on related firearm
sentence enhancements. The jury found defendant not guilty of first

- o r second

- degree murder, guilty of voluntary manslaugh t er , and made a true finding that defendant personally used a firearm during the commission of the crime.

DISCUSSION
I. Trial Court’s Refusal to Give an Instruction on Perfect or Lawful Defense of Others was not Prejudicial Error In its final instructions, the trial court advise d the jurors that in evaluating the circumstances of the crime, they could consider that defendant was not guilty of either
murder or manslaughter if “he was justified in ki lling” the wife by acting in perfect or
lawful self

- defense . Specifically, the jury could acquit defendant if it found that

5 Testifying after his stepdaughter, defendant either denied or did not remember making the statements that she said he made during the argument and after the shooting.7

defendant “reasonably believed” he was in imminent danger of being killed or suffering great bodily injury
, the immediate use of de adly force was necessary to def end against that danger, and he had used no more force than was reasonably necessary to defend against that danger. In determining whether defendant’s beliefs were reasonable, the jury
was advised to consider “all the circum stances 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.” However, t he trial court denied defendant’s request to allow the jury to consider whether the shooting was a justifiable homicide because defendant acted in perfect or lawful defense of others based on a lack of sufficient evidence to support the instruction

. On appeal t he parties present extensive arguments addressing whether the trial

cou rt erred in refusing to instruct the jury on perfect or lawful defense of others

. However, we need not address those arguments. Assuming the trial court should have given the requested instruction, defendant has failed to demonstrate prejudice requiring reversal on this ground.
Defendant argues the trial court’s failure to instruct the jury on perfect or lawful
defense of others is per se reversible error . However, he relies on lower federal appellate

court decisions, which he concedes are not binding on this court. Alternatively, he argues we should apply the standard f or federal constitutional error , which requires reversal
unless the omission of the instruction is found harmless beyond a reasonable doubt in that there is no “ ‘reasonable possibility’ ” the error “ ‘ might have contributed to the
conviction

. ’ ” ( Chapman v. California (1967) 386 U.S. 18, 24 ( Chapman ). ) As best we can tell, t he Attorney General appears to argue that the omitted instruction was harmless regardless of whether we apply the standard for state tria l court error as articulated in People v. Watson (1956) 46 Cal.2d 818, 836 ( Watson ) (reversal required if “ it is
reasonabl y probable that a result more favorable to the appealing party would have been
reached in the absence of the error ), or the more stringent Chapman standard

. As we now discuss, we conclude that any instructional error was harmless under either standard.8

B y finding the defendant guilty of manslaughter, the jury apparently found that defendant either acted in imperfect or unreasonable sel f

- defense or defense of others
, or was provoked by a sudden quarrel or heat of passion . ( People v. Barton (1995) 12
Cal.4 th 186, 200

- 201.) More significantly, and as defendant concedes in his reply brief, the jury necessarily rejected that he a cted in perfect or lawful self

- defense

. ( People v.
Wa tie (2002) 100 Cal.App.4th 866, 881 .) Defendant complains that if the jurors had been properly instructed on perfect or lawful defense of others, one or more jurors could have
concluded that reasonable doubt existed about whether he killed his wife in defense of his
children. However, we see no merit to his speculati ve argument. Specifically, he fails to explain on what basis the jury, having rejected his theory of perfect or lawful self

defense, would have credited a perfect or lawful defense of others theory. The defense theories of perfect or lawful self

- defense and defense of others w ere based on the same
evidence

- defendant’s testimony that the wife had armed herself and threatened to shoot him and the children and the shooting may have occurred as he attempted to take the gun away from his wife. We cannot im agine the jury rejecting the defense theory of
reasonable self

- defense, but, then, relying on the same evidence, finding that he acted in
reasonable defense of his children

. In other words, it is neither “reasonably possible” that
the omitted instruction might have materially influenced the jury in arriving at its verdict ( Chapman, supra , 386 U.S. at p. 24), nor “reasonably probable” that defendant would have obtained a more favorable outcome had the omitted instruction been given ( Watson,

supra , 46 Cal.2d at p. 836 )

. Thus, we conclude any instructional error relating to the theory of perfe ct or lawful defense of others was harmless

. II. CALCRIM NO. 852 Instruction Concerning Jury’s Consideration of Evidence of Uncharged Domestic V iolence was not Error A. Relevant Facts Before trial, t he prosecutor filed a motion in limine seeking the admission of
evidence of uncharged domestic violence committed by defendant against the wife in the
form of a note purportedly written by the wife concerning certain eve nts that occurred on October 3, 2009. (Evid. Code, § § 1109 , 1250, 1370 .) Defendant opposed the request on9

grounds of state law hearsay foundational requirements and as a violation of his federal
and state constitutional rights of confrontation and due pr ocess

. Over defendant’s objection, the trial court granted the prosecutor’s motion in limine and admitted into
evidence the note during the testimony of the wife ’s friend. Wife’s friend testified that sometime in January or February 2010, she found a note written in a spiral notebook in a
vehicle formerly driven by the wife

. In the note, dated October 3, 2009 , the wife
d escribe d events that purportedly occurred after the wife had slept downstairs the previous night and awoken that morning

. W hen the wife went upstairs to find clothes to wear, she was confronted by a drunk and angry defendant. He grabbed her neck “too” tightly and she told him she could not breathe and he was hurting her

. He also pointed a gun in her face. She asked defendant to put the gun down, told him he was drunk already, and, if not, she would call 911. During his trial testimony defendant denied committing the events described in the note

. He also testified that , after reviewing the record of the GPS device that he had placed on his wife’s truck, the da te o f his wife’s
note, October 3, 2009, was the day that he, his wife, and their daughters had gone on an
all

- day picnic and hike to Sugarloaf Ridge State Park

. In its final instructions , the trial court told the jurors to consider th e evidence of uncharged domestic violence in the following manner : “The People presented evidence that the defendant may have committed domestic violence that was not charged in thi s case, specifically: grabbing Buapha around the neck and pointing a gun in her face. [ 6 ] [¶] Domestic violence means a buse committed against an adult who is a spouse. [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injur y, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself

6 The current patterned CALCRIM No. 852 instruction suggests the following preamble sentence: “The People presented evidence that the defendant comm itted domestic violence that was not charged in this case[, specifically: _____<insert other domestic violence alleged>.]” (CALCRIM No. 852 (Fall 2014 ed.) p. 651.) In response to defendant’s objection, the trial court modified the preamble language to r ead as it appears in the text of this opinion, advising the jury that “the People presented evidence that the defendant ‘ may have ’ committed domestic violence .

. . .”10

or to someone else. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact comm itted the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit Penal Code Section 187(a), Murder, as charged in Count I, or Penal Code, Section 192(a ), Manslaughter, a lesser included offense to Count I. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence.
It is not sufficient by itself to prove that the defendant is guilty of Penal Code Section 187(a), Murder, as charged in Count I, or Penal Code Section 192(a), Manslaughter, a lesser included offense to Count I. The People must still prove the charge and each allegation beyond a reasonable dou bt.”

B. Analysis
Defendant contends the CALCRIM No. 852 instruction , as given in this case, was argumentative and
, in effect , an improper pinpoint instruction favorable to the prosecution

. We disagree. CALCRIM No. 852 “does not merely pinpoint evidence the jury may consider. It tell s the jury it may consider the evidence b ut it is not sufficient by itself to prove guilt . [Citation.] Defendant obviously does not quarrel with the emphasized language. If the court tells the jury that certain ev idence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may a t least consider the evidence. ” ( People v. Kelly (1992) 1 Cal.4th 495, 531

- 532 ( Kelly ) [ Supreme Court upholding an instruction advi sing the jury as to how it was to consider specific ally enumerated evidence demonstrating consciousness of guilt]. ) We11

also reject defendant’s related argument that the purportedly argumentative nature of
CALCRIM No. 852 instruction either influenced the jury’s evaluation of the uncharged domestic violence evidence specifically and all the evidence generally or indicated a bias on the part of the court in favor of the prosecution

. Referencing the first sentence in the CALCRIM No. 852 instruction that wa s given in this case, defendant argues the instruction created an impermissible burden

shifting presumption in favor of guilt. We disagree. The first sentence of the CALCRIM
No. 852 instruction in this case set forth the e viden ce supporting the instruction . ( Kelly,

supra , 1 Cal.4th at p. 531.) Unlike the situation in People v. Owens (1994) 27 Cal.App.4th 1155, 1158

- 1159, cited by defendant, we see nothing in the language used in
this case that suggests the trial court believed in the merits of prosecution’s evidence of guilt, or otherwise “impermissibly slant [ ed ] ” the determination of guilt or innocence on the charged crimes toward the prosecution, or “raise [ d ] an obvious inference that the prosecution had proved its case against” defendant. Th e court’s CALCRIM No. 852 instruction in this case further advised the jury that “ the evidence of uncharged acts of domestic violence may only be considered at all if it has been established by a preponderance of the evidence and explain [ed] what is meant by that burden of proof. The instruction also explain [ed] that if that burden is not met, the evidence must be disregarded entirely. [¶] .

. . CALCRIM No. 852 explain [ed] that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in th e case.

. . . CALCRIM No. 852 clarifie [d] that even if t he jury conclude [d] the defendant committed the uncharged acts, that evidence is only one factor to consider, along with all the other evidence and specifie [d] that such evidence alone is insufficient to prove defendant ’s guilt on the charged offenses. CA LCRIM No. 852 then [went] on to state that the People must still prove each element of every charge beyond a reasonable doubt. ” ( People v. Reyes (2008) 160 Cal.App.4th 246, 25 2 .) “[N] othing in the instruction at issue
authorize d the jury to use preponder ance of the evidence as the burden of proof on any12

issue other than the preliminary determination whether the accused committed a previous [act of domestic violence].” ( Id . at p. 253.) Consequently, we reject defendant’s argument “ that a jury could reaso nably interpret the instruction to authorize a guilty
verdict

. . . on the basis of a lowered standard of proof. ” ( Ibid .)

DISPOSITIO N The judgment is affirmed.

_________________________ Jenkins, J.

We concur:

_________________________ McGuiness, P. J.

_________________________ Pollak, J.