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Filed 1/31/22 P. v. Bailey CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CLARENCE KEITH BAILEY,

Defendant and Appellant. C091267

(Super. Ct. No. STKCRFE20170012028)

Defendant Clarence Keith Bailey appeals his second degree murder conviction,

contending the trial court erred in denying his motion to instruct the jury on excusable

homi cide based on accident in the heat of passion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant strangled his girlfriend, S. B. , to death. He admitted to officers he had

strangled her previously, supposedly to subdue her in their frequent, violent altercations.

He also admitted he choked her teenaged daughter once. These prior acts, apparently,

resulted in nothing more than a police report. This time, he told officers, S. B. had been

drinking, “she was talkin’ shit,” “grabb [ ing ] me,” and “jumpin’ on top of me” in their

bed. He acknowledged being “pretty pissed” and “pretty heated .” “I was trying to just

grab her just so she could shut up. And, like, you know, cover her mouth.” He was “up2

on her,” “leaning over her

, ” “squeezing pretty hard

, ” as she tried to get him off. When

she stopped talking , he ceased

. He then noticed she “was spittin’ up some white stuff out

on the side of her mouth.” He wiped her mouth, turned over

, and went to sleep

.

Defendant claimed he thought she was sleeping and did not realize she was dead until the

next morning. He was remorseful and had not intended to kill her

. At trial, a forensic pathologist testified for the prosecution that the white substance

around S. B’s mouth was a symptom of asphyxiation, a process that can take several

minutes as the lungs fill up with frothy edema fluid , which can over flow through the

airways. Additionally, S. B. had marijuana in her system and her blood

- alcohol level was

0 .33 percent

-- high enough , according to two prosecution witnesses, that she would not

be able to defend herself effectively.

The court instructed the jury on first and second degree murder

, as well as

voluntary and involuntary manslaughter

. The jury found defendant guilt y of second

degree murder, and the court sentenced him to 1 5 years to life.

DISCUSSION

Defendant argues the court erred in refusing his request to instruct the jury with

CALCRIM No. 511, which defines excusable homicide based on accident in the heat of

passion

. He argues, “[g]iven t his undisputed history of choking women in the midst of

heated arguments

-- with no lingering effects from doing so

-- a reasonable juror could

have believed that [defendant] did not expect or intend choking [ S. B. ] to kill her this

time.” We disagree.

We review de novo a trial court’s r efusal to instruct the jury

. ( People v. Licas

(2007) 41 Cal.4th 362, 366.) “ The trial court has no duty to instruct on a defense that is

not supported by sub stantial evidence. ” ( People v. Bohana (2000) 84 Cal. App.4th 360,

370

. ) Taking defendant’s proffered evidence as true and resolving doubts as to its

sufficiency in his favor, we must reverse if there is “ ‘ “evidence from which a jury

composed of reasonable [people] could have concluded” ’ that the specific facts3

supporting the instruction existed.” ( People v. Petznick (2003) 114 Cal. App.4th 663,

677

. )

As relevant here, h omicide is excusable “[w]hen committed by accident and

misfortune

, in the hea t of passion, upon any sudden and sufficient provocation, or upon a

sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and

when the killing is not done in a cruel or unusual manner. ” (Pen

. Code, § 195

, case 2

. )

The claim that a homicide was accidental “ ‘amounts to a claim that the defendant acted

without forming the mental state necessary to make his or her actions a crime.’ ”

( People v. Bohana

, supra , 84 Cal. App.4th at p. 370.)

This defense, the elements of which are set forth in CALCRIM No. 511 , does not

apply if the defendant acted with criminal intent , including criminal negligence. “A

person acts with criminal negligence when: [¶] 1. He or she acts in a way that creates a

high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would

have known that acting in that way would create such a risk. [¶] In other words, a person

acts with criminal negligence when the way he or she acts is so different fr om how an

ordinarily careful person would act in the same situation that his or her act amounts to

disregard for human life or indifference to the consequences of that act. ” (C ALCRIM

No. 511.) C riminal negligence is shown “ despite a good faith belief tha t the conduct

posed no risk, if that belief was objectively unreasonable under the circumstances.”

( People v. Luo (2017) 16 Cal. App.5th 663, 671 .)

Here, t o make S. B. “shut up,” defendant covered her mouth and, lean ing over her

as she tried despite her heavily inebriated state to get him off her

, strangled her until she

stopped talking. When she spit up a white frothy substance, he wiped her mouth and

went to sleep , not bothering to see if she needed medical attention

. Even a s suming he

believed based on his “undisputed history of choking women” that compressing her

windpipe to restrict the flow of oxygen posed no risk , and that this belief persisted as she

spit up white fluid

, it is still irrelevant to the question of whether h e acted with criminal4

negligence. Thus, taking d efendant’s proffered statements as true and resolving doubts as

to its sufficiency in his favor, his position that “ a reasonable juror could have believed

that [defendant] did not expect or intend choking [S

. B.] to kill her this time” is without

merit

. The inherently dangerous aggravated assault of strangling S. B. amounted to

disregard for human life; going to sleep after seeing her foam at the mouth amounted to

indifference to its consequences. These deli berate, objectively unreasonable actions

-- even if defendant did not anticipate or desire their tragic consequences

-- negate any

inference defendant acted like an ordinarily careful person. A jury composed of

reasonable people simply could not have conc luded otherwise; indeed, d efendant’s

second degree murder verdict means the jury necessarily found he acted with specific

intent to kill or conscious disregard for life ( People v. Butler (2010)

187 Cal.App.4th 998, 1006), both of which are higher degree s of culpability than

criminal negligence ( People v. Mehserle (2012) 206 Cal.App.4th 1125, 1141

- 1142).

Because defendant acted with, at a minimum, criminal negligence, we conclude there was

no substantial evidence to support instruct ing with CALCRIM No. 511.

The refore, the court properly denied defendant’s motion

.

DISPOSITION

The judgment is affirmed.

/s/
Robie J.
We concur:

/s/ Raye, P. J.

/s/ Hull, J.