Modification: People v. Schuller

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON CARL SCHULLER,

Defendant and Appellant.

No. C087191

(Super. Ct. No. F16000111)

California Courts of Appeal

Third Appellate District

(Nevada)

Filed December 7, 2021

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

[NO CHANGE IN JUDGMENT]

APPEAL from a judgment of the Superior Court of Nevada County, Candace S. Heidelberger, Judge. Affirmed.

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein, Supervising Deputy Attorney General and Peter H. Smith, Deputy Attorney General, for Plaintiff and Respondent.

THE COURT:

It is ordered that the published opinion filed on November 10, 2021 be modified as follows:

1. On page 18, delete the language in section III of the Discussion, and replace with the following:

Defendant argues the error was prejudicial because there was a reasonable chance the jury would have convicted him of voluntary manslaughter had it been instructed on imperfect self-defense. We disagree.

Our high court has held that prejudice stemming from the failure to instruct on a lesser included homicide offense is analyzed under the harmless error test in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Gonzalez (2018) 5 Cal.5th 186, 195-196 (Gonzalez) [holding that the failure to provide instructions on lesser included offenses of second degree malice murder, voluntary manslaughter, and involuntary manslaughter was harmless error, applying Watson]; Breverman, supra, 19 Cal.4th at p. 149.) " '[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.' [Citation.]" (People v. Beltran (2013) 56 Cal.4th 935, 955.) "[T]he Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (Beltran, at p. 956.)

Defendant, however, asserts in a petition for rehearing that the harmless beyond a reasonable doubt standard from Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] (Chapman) applies where a trial court refuses a defendant's request for an imperfect self-defense instruction.¹ Under the Chapman standard, " 'an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.' " (People v. Geier (2007) 41 Cal.4th 555, 608; accord, People v. Aledamat (2019) 8 Cal.5th 1, 3.) "The harmless error inquiry asks: 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?' " (Geier, at p. 608.) Put differently, "we examine the entire record and must reverse if there is a ' " 'reasonable possibility' " ' that the error contributed to the verdict." (People v. Reese (2017) 2 Cal.5th 660, 671.)

Defendant cites the Fourth District's recent decision, People v. Dominguez (2021) 66 Cal.App.5th 163 (Dominguez), holding Chapman applies to the failure to instruct on heat of passion voluntary manslaughter. The court reasoned that "because malice is an element of murder and heat-of-passion negates malice, when heat of passion is put in issue the federal due process clause requires the prosecution to prove the absence of provocation beyond a reasonable doubt." (Id. at pp. 183-184.)

Dominguez, relied on People v. Thomas (2013) 218 Cal.App.4th 630, 641-642, which arrived at the same conclusion. But Thomas predated the California Supreme Court's decision in Gonzalez, supra, 5 Cal.5th 186. And Dominguez did not mention Gonzalez or our high court's clear pronouncement made in the context of trial court error in failing to instruct on second degree murder, voluntary manslaughter, and involuntary manslaughter: "The failure to instruct on lesser included offenses supported by substantial evidence [is] state law error." (Id. at p. 196.) The Gonzalez court went on to reject the defendant's contention that the trial court committed structural error when it omitted instructions "on murder with malice aforethought, its lesser included offenses, and its defenses," stating: "The trial court's failure to instruct on lesser included offenses and defenses of murder with malice aforethought is subject to harmless error review." (Id. at p. 199.) The Gonzalez court did note that the omission of an element of the offense from instructions is federal Constitution error because a jury must find the defendant guilty of every element of the crime of conviction beyond a reasonable doubt. (Id. at pp. 198-199.) But the court did not equate the failure to instruct on imperfect self-defense or sudden quarrel/heat of passion --- defenses to murder with malice aforethought --- to the failure to instruct on the element of malice. Instead, it rejected the defendant's structural error contention, which was based on a similar argument and held that the failure to instruct on lesser included offenses, including voluntary manslaughter, was state law error to which the Watson standard applies. (Id. at pp. 196, 199.)

In any event, what standard applies does not matter here. On the record before us, the error was harmless under either standard given the overwhelming evidence that defendant was not acting in any form of self-defense. Defendant's account of the killing radically changed leading up to trial. Shortly after he was apprehended, he implied to law enforcement that W.T. was gay and coming on to him --- defendant said nothing of killing in self-defense. But during trial, defendant told the jury he lied to the police because he thought "the gay thing" would have been "more justifiable for what happened."

Two forensic psychologists testified that defendant appeared to be malingering. One testified that psychological testing designed to determine whether a person is malingering or exaggerating psychiatric symptoms supported this conclusion. The other testified that hallucination of demons is unusual for people with mental health issues. She also noted that in a recorded jail conversation shortly after defendant's arrest, defendant talked about his case without mentioning hallucinations or demons or any of the problems he described during interviews with her. Similarly, a detective testified that defendant seemed lucid in his earlier recorded jail phone conversations, only to later exhibit delusions about government conspiracies, angels, and demons after it "became clear" he would pursue a mental health defense. The testimony of the psychologists and the detective undercut the credibility of the claim he acted in self-defense, as well as the credibility of his claim he was suffering from delusions or hallucinating.

Defendant's attempt to destroy the body (and perhaps the house) and his flight also undercut his claim of self-defense. Indeed, there was an inherent contradiction in defendant's testimony that he tried to call the police after the shooting, only to be stymied by the ringing phone --- yet, when police found him, rather than seek their help, he led them on a 38-mile pursuit, surrendering only after his car was rendered inoperable and an hour-long standoff had ensued.

Indeed, defendant testified he wanted to call 911 but had trouble unlocking W.T.'s phone to do so. But when someone called (the daughter said she called numerous times after hearing noises), instead of answering the phone and asking the caller to get help, defendant shot the phone to make it stop ringing. Shortly thereafter, he fled without summoning help from anyone nearby, leaving the house to burn down.

Other aspects of defendant's testimony undercut his credibility. Defendant testified he set the gun on the table, even though W.T. still had a knife in his hand. Under the circumstances as he described them, defendant's claim of unilateral disarmament by setting the gun down lacked credibility. He testified on direct examination that "as soon as" he set the gun down on the table, W.T. went for it and raised the knife. Yet, on cross-examination the following day, he testified that after he put the gun on the table, he started to walk away toward the front door because "he just wanted to leave." Aside from disproving his earlier testimony indicating W.T. immediately reached for the gun after he set it down, the claim that he started to leave without the gun was inconsistent with the purported plan for defendant to take the gun when he left. This testimony further undercut his claim that he shot W.T. in a self-defense scenario.

Finally, although there was substantial evidence for purposes of supporting an imperfect self-defense instruction, the physical evidence did not entirely align with his story. Again, the knife was found on the table --- not the floor. And unlike the surrounding area, the knife had no blood on it. Further, that W.T. was shot nine times on the left side of his face and head, with some wounds "quite closely grouped," is indicative of a personal motive, rather than panicked self-defense.

Given the overwhelming evidence, we conclude there was no reasonable possibility the error contributed to the verdict, and therefore the failure to instruct was harmless under either standard of prejudice.

This modification order does not change the judgment.

FOR THE COURT:

/s/

RAYE, P. J.

/s/

MURRAY, J.

/s/

RENNER, J.

¹ In his original briefing, defendant pointed out that our high court has held the failure to instruct on lesser included offenses is to be reviewed under Watson in non-capital cases, and argued he should not receive "fewer rights" just because he is not facing capital punishment. We must disagree with this contention. Our high court in Gonzalez noted: "Although we have long recognized the duty to instruct on lesser included offenses under California law, neither we nor the United States Supreme Court recognizes a similar duty to instruct on lesser included offenses under federal constitutional law--at least in noncapital cases." (Gonzalez, supra, 5 Cal.5th at p. 198.) We are bound by our high court's pronouncement. (Auto Equity Sales, Inc. v. Superior Court (1962) 52 Cal.2d 450, 455.)