Filed 4/25/13 P. v. Musser CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B233567
                                                                            (Super. Ct. No. 1291346)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

GARREN VANCE MUSSER,

     Defendant and Appellant.



                   Garren Vance Musser appeals the judgment following his conviction for
first degree murder. (Pen. Code, §§ 187, subd. (a)/189.)1 The jury found to be true a
special circumstance allegation that the murder was committed while lying in wait
(§ 190.2, subd. (a)(15)) and an allegation that Musser personally used a deadly weapon
(§ 12022, subd. (b)(1)). Musser was sentenced to life without possibility of parole, plus a
consecutive one-year term for the weapon enhancement. He contends that the trial court
erred by limiting expert testimony, that the prosecutor committed misconduct, and that
there was insufficient evidence to support the lying in wait special circumstance. He also
claims that California's death penalty statute is unconstitutional and that his sentence
constituted cruel and unusual punishment. We affirm.




         1 All statutory references are to the Penal Code unless otherwise stated.
                          FACTS AND PROCEDURAL HISTORY
              On October 3, 2008, Musser met victim Lisa Zazueta in a bar. Musser and
Zazueta spent the night together at Zazueta's home and had sexual intercourse. During
the following two weeks, Zazueta sent several text messages to Musser seeking to
continue their relationship and expressing romantic feelings towards him. Having
learned that Zazueta was married, Musser responded to her text messages by stating that
he did not want to talk to her, did not want her texting him, and did not want to see her.
In one text message, Zazueta told Musser she might have gotten pregnant during the
night they spent together. Musser suggested an abortion if she in fact was pregnant.
Zazueta continued sending text messages attempting to get together with Musser.
              On October 18, Zazueta text messaged Musser stating that she wanted to
come to his house that night and have sex with him one more time. After more text
messages from her, Musser agreed to see Zazueta again, hoping that she would leave him
alone after that. They went to a motel where they had sex.
              On October 19, Zazueta texted Musser stating that she wanted to have sex
with him again. Musser responded that he never wanted to see her again. On October
20, Zazueta texted that she was not pregnant but missed him. On October 21, Zazueta
telephoned Musser, again trying to get together with him. Musser said no. Text
messages from Zazueta followed later the same day asking for sex and telling Musser that
he had broken her heart. Musser again responded by telling her to leave him alone. On
October 22, there were no Zazueta text messages except a message intended for another
person which was mistakenly sent to him. Musser responded to the misdirected message
and Zazueta responded by stating that she was, in fact, pregnant and would not get an
abortion. Musser was very upset.
              At 10:00 p.m. on the evening of October 22, Zazueta telephoned Musser
and they talked for 17 minutes. She told him she loved him and was coming over to his
house that night to have sex. He told her not to come over and that he never wanted to
see her again. Zazueta persisted in stating that she was coming to his house. After the
telephone call, Musser decided that, if she came to his house, he would kill her.

                                             2
               Zazueta came to Musser's house shortly after midnight on October 23. She
had texted him that she was on her way. Musser dressed and got a "Smith and Wesson
Home Security" knife from a drawer. He planned to use the knife to kill her. Zazueta
arrived at 12:19 a.m. and Musser went outside. Zazueta walked up to him. He told her to
leave, but she refused and they talked for a few minutes. Zazueta would not leave.
               Musser pulled out his knife, opened it and held it at his side for
approximately two minutes while he stroked Zazueta's face and she kissed his hand.
Then, Musser cut Zazueta horizontally across her throat with his knife killing her. The
single wound severed her carotid artery, both jugular veins, and her trachea. Her head
was held to her body only by some muscle tissue and the spinal cord.
               Musser retrieved Zazueta's cell phone which would tie her to him, went into
his house, washed, and changed clothes. He threw his bloody clothes in a trash can. He
then called 911 and reported that there was a dead body lying outside his house.
               When police arrived, Musser told them he did not know Zazueta and just
found her lying in front of his house. After finding Musser's bloody clothes, the knife
and other incriminating evidence at the scene, the police detained Musser and brought
him to the police station. At the police station, Musser quickly confessed to the police
and his family that he had killed Zazueta. His taped confession to the police was played
to the jury during trial.
                                          DISCUSSION
                            No Error in Limitation on Expert Testimony
               Musser contends the trial court erred by limiting testimony from an expert
witness on stalking and the reactions of stalking victims. Musser's principal defense was
that he killed in a heat of passion provoked by Zazueta's stalking of him and, therefore,
he was guilty only of voluntary manslaughter. He argues that limitations on testimony
from his expert deprived him of his constitutional right to present a defense. (See Davis
v. Alaska (1974) 415 U.S. 308, 315; Chambers v. Mississippi (1973) 410 U.S. 284, 302.)
We disagree.


                                               3
              "A person is qualified to testify as an expert if he has special knowledge,
skill, experience, training, or education sufficient to qualify him as an expert on the
subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) Expert opinion
testimony must be "[r]elated to a subject that is sufficiently beyond common experience
that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a);
People v. Watson (2008) 43 Cal.4th 652, 692.) Expert testimony is inadmissible when it
consists of inferences and conclusions which can be drawn as easily and intelligently by
the jury as by the witness. (People v. Valdez (1997) 58 Cal.App.4th 494, 506; see People
v. Lowe (2012) 211 Cal.App.4th 678, 684.) Accordingly, a trial court has broad
discretion to limit or exclude expert testimony. (People v. Bui (2001) 86 Cal.App.4th
1187, 1196.) We review a trial court's ruling under the abuse of discretion standard.
(People v. McDowell (2012) 54 Cal.4th 395, 425–426.) Application of ordinary rules of
evidence does not infringe upon a defendant's right to present a defense. (People v.
Boyette (2002) 29 Cal.4th 381, 427-428.)
              Musser offered expert testimony regarding stalking from psychologist
Mindy Mechanic. At an Evidence Code section 402 hearing, Dr. Mechanic informed the
court that she had adopted a very broad definition of stalking as a pattern of intrusive and
unwanted contacts that are likely to cause distress or fear in the victim. She stated that
under her definition, in contrast to the legal definition, stalking does not require violence
or threats or that the stalking victim fear for his or her safety.2 Dr. Mechanic stated that
causing distress or anger in the victim was sufficient to label behavior as stalking, and
that victims may react with paranoia, confusion or aggression and may suffer depression
and post traumatic stress symptoms. She explained that certain stalking behavior appears
"innocuous" or "benign" on the surface. In such cases, male victims often believe they
can handle the situation, and are less likely than women to report stalking to the police or


       2 Under section 646.9, subdivision (a), stalking is defined as: "Any person who
willfully, maliciously, and repeatedly follows or willfully and maliciously harasses
another person and who makes a credible threat with the intent to place that person in
reasonable fear for his or her safety, or the safety of his or her immediate family is guilty
of the crime of stalking, punishable by . . . imprisonment in the state prison."
                                              4
seek restraining orders. Dr. Mechanic never interviewed Musser but, based on her review
of court documents, stated that she was prepared to testify that Zazueta had been stalking
Musser during the three weeks before her death.
              The court ruled that much of Dr. Mechanic's anticipated testimony was
inadmissible at trial because it was not sufficiently beyond common experience to assist
the jury, and inferences and conclusions regarding stalking and the reaction of its victims
could be drawn as intelligently by the jurors without her testimony. (See People v.
Valdez, supra, 58 Cal.App.4th at p. 506; Evid. Code, § 801, subd. (a).) Specifically, the
trial court ruled that Dr. Mechanic could not opine that Zazueta was stalking Musser or
that stalking caused trauma in its victims. For the same reason the court excluded
testimony regarding the possible reactions of stalking victims such as paranoia,
confusion, aggression, depression, post traumatic stress, and thoughts of suicide.
              The trial court, however, allowed testimony regarding the reluctance of
stalking victims, especially men, to involve the police or the courts. At trial, Dr.
Mechanic testified regarding her broad definition of stalking as a "pattern of recurring
unwanted intrusion and communications that result in the victim feeling distress or fear."
She testified that stalking could involve seemingly benign behavior such as telephone
calls, stopping at a house, leaving notes, and sending gifts. She also testified that men
believe they can handle stalking especially when the stalker is not a stranger, and are less
likely to report stalking to the police than women.
              We conclude that the trial court did not abuse its discretion. As stated in an
analogous case, expert testimony on the adequacy of provocation is not a subject
sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact. (People v. Czahara (1988) 203 Cal.App.3d 1468, 1477-1478.) The
"reasonableness of a reaction is left to the jurors precisely so that they may bring their
common experience and their own values to bear on the question of whether the
provocation partially excused the violence." Experts "may have specialized empirical
knowledge regarding the range of reactions to a given provocation, or the reaction of the
statistically average individual in a given community. But this information would not

                                              5
materially assist the jury in its task; the jury must determine not only if the reaction is
ordinary but if it is reasonable, and that determination depends more on (perhaps
unarticulated) community norms than on empirically discoverable averages." (Id. at p.
1478.)
              Moreover, Musser had ample opportunity to present expert testimony in
support of his heat of passion defense. The exclusion of certain testimony did not prevent
Musser from making the point that stalking does not require the victim to fear for his or
her safety, and that stalking often includes seemingly benign behavior.
                           No Prejudicial Prosecutorial Misconduct
              Musser contends that the trial court erred in denying a motion for new trial
based on prosecutorial misconduct during argument. He argues that the prosecutor
misstated the law regarding the provocation necessary to reduce murder to voluntary
manslaughter by arguing that the standard is whether a defendant's response to the
provocation was reasonable, rather than whether the provocation was sufficient to cause
an ordinary person to act rashly. We conclude that there was no prejudicial error.
              A prosecutor has wide latitude to draw inferences from the evidence but it
is misconduct for the prosecutor to misstate the law. (People v. Hill (1998) 17 Cal.4th
800, 829-830, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th
1046, 1069, fn. 13.) Under California law, misconduct involves the use of deceptive or
reprehensible methods to persuade the court or jury, but requires reversal of a conviction
only if it is reasonably probable the result would have been more favorable to the
defendant without the misconduct. (People v. Cole (2004) 33 Cal.4th 1158; see also
People v. Cook (2006) 39 Cal.4th 566, 606, 608.) Under federal law, misconduct
requires reversal only when it "infects the trial with such unfairness as to make the
conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) We
evaluate the prosecutor's challenged statements in the context of the argument as a whole,
and will not "lightly infer" that the jury interpreted the statements in their most damaging
light. (People v. Brown (2003) 31 Cal.4th 518, 553–554; People v. Dennis (1998) 17
Cal.4th 468, 522.)

                                               6
              Here, the claimed misconduct involves the prosecutor's argument regarding
a killing committed in the heat of passion. Malice is negated and a defendant commits
voluntary manslaughter, not murder, when he or she unlawfully kills another person
"upon a sudden quarrel or heat of passion." (§ 192, subd. (a); see People v. Breverman
(1998) 19 Cal.4th 142, 153–154.) Heat of passion has both an objective and a subjective
component. The defendant must kill while actually in the heat of passion, but the
provocation must be sufficient to arouse passion in an "ordinarily reasonable person."
(People v. Steele (2002) 27 Cal.4th 1230, 1252–1253.) The killer's reason must be
obscured as the result of a strong passion aroused by provocation sufficient to cause "a
person of average disposition to act rashly and without due deliberation, that is, from
passion rather than from judgment." (CALCRIM No. 570.)
              Musser relies on People v. Najera (2006) 138 Cal.App.4th 212 in which the
prosecutor informed the jury on two occasions that a determination of heat of passion is
based on the defendant's conduct in response to the provocation rather than whether the
provocation itself would cause an ordinary person to act rashly. The prosecutor argued
that the offense would be voluntary manslaughter only if "a reasonable person [would] do
what the defendant did." (Id. at p. 223, italics omitted.) The Court of Appeal concluded
that the prosecutor's statements misstated the law. "How the killer responded to the
provocation and the reasonableness of the response is not relevant . . . ." (Id. at p. 223.)
The focus is on whether the provocation was sufficient to cause a reasonable person to
act rashly, not the reasonableness of the specific reaction. (Ibid.)
              In the instant case, the prosecutor told the jury that the test was "whether or
not a person of average disposition would do the same thing in the same or similar
circumstance as the defendant did. . . . So ask yourself would a reasonable person do
what the defendant did in his circumstance." The trial court sustained a defense objection
to this statement. Restating part of her previous statement, the prosecutor then stated to
the jury, "[w]ould a reasonable person do what the defendant did in the same or similar
circumstance." The trial court again sustained a defense objection. The prosecutor then
stated, "Did the defendant respond as a reasonable person did? And that is absurd that a

                                              7
reasonable person or a person of average disposition would respond the way the
defendant did in this case." This time, the court overruled a defense objection, but
admonished the jury "to the extent that they hear instructions on the law that are not
consistent with what the Court has instructed, it's the Court's instructions that count."
During rebuttal argument, the prosecutor stated that "no person . . . of average disposition
would have done what the defendant did in this case." The court sustained a defense
objection to this statement, again admonishing the jury that to the extent any argument by
counsel misstates the law, the jury must follow the court's instructions.
              We agree that the challenged comments by the prosecutor mixed correct
and incorrect statements of law which could have at least confused the jury. In
substance, the statements incorrectly told the jury that it should consider whether the
circumstances would have provoked a reasonable person to kill rather than whether the
circumstances would have provoked a reasonable person "to act rashly and without due
deliberation, that is, from passion rather than from judgment." (CALCRIM No. 570.)
              In any event, even if the prosecutor misstated the law regarding heat of
passion, the error was harmless under any standard. First, the trial court sustained all but
one of the defense objections, and twice admonished the jury to follow its instructions
rather than any inconsistent statements by the prosecutor. In addition, the jury instruction
given by the trial court correctly set forth the applicable legal principle.3 The rulings on


       3 The trial court instructed the jury with CALCRIM No. 570 in relevant part as
follows: "A killing that would otherwise be murder is reduced to voluntary manslaughter
if the defendant killed someone because of a sudden quarrel or in the heat of passion.
    The defendant killed someone because of a sudden quarrel or in the heat of passion if:
    1 The defendant was provoked;
    2 As a result of the provocation, the defendant acted rashly and under the influence of
intense emotion that obscured his reasoning or judgment;
    AND
    3 The provocation would have caused a person of average disposition to act rashly
and without due deliberation, that is, from passion rather than from judgment.
    Heat of passion does not require anger, rage, or any specific emotion. It can be any
violent or intense emotion that causes a person to act without due deliberation and
reflection.
    In order for heat of passion to reduce a murder to voluntary manslaughter, the
defendant must have acted under the direct and immediate influence of provocation as I
have defined it. While no specific type of provocation is required, slight or remote
                                              8
the objections combined with the admonitions were sufficient to cure any prejudice to
Musser from the erroneous statements by the prosecutor. We presume the jury
understood and considered all of the instructions. (People v. Castaneda (2011) 51
Cal.4th 1292, 1320-1321; People v. Najera, supra, 138 Cal.App.4th at p. 224.)
             Substantial Evidence Supports Lying in Wait Special Circumstance
              Musser contends there was insufficient evidence to support a finding that
the murder was committed while Musser was lying in wait. We disagree.
              In reviewing the sufficiency of the evidence, we review the entire record in
the light most favorable to the prosecution "to determine whether it contains evidence
that is reasonable, credible, and of solid value, from which a rational trier of fact could
find the defendant guilty beyond a reasonable doubt." (People v. Silva (2001) 25 Cal.4th
345, 368.) We do not resolve credibility issues or evidentiary conflicts, and presume in
support of the judgment the existence of every fact the jury could reasonably have
deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.) A reversal is
unwarranted unless there is no substantial evidence to support the finding under any
hypothesis whatever. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
              The lying in wait special circumstance requires an intentional murder,
committed under circumstances where there is a concealment of purpose, a substantial
period of watching and waiting for an opportune time to act, and a surprise attack on an
unsuspecting victim from a position of advantage. (People v. Combs (2004) 34 Cal.4th
821, 853.) "'The element of concealment is satisfied by a showing "'that a defendant's
true intent and purpose were concealed by his actions or conduct. . . .'"'" The defendant
need not be literally concealed from view. (Ibid.) The period of watching and waiting
need not continue for any particular amount of time, provided it is sufficient to show a

provocation is not sufficient. Sufficient provocation may occur over a short or long
period of time.
    It is not enough that the defendant simply was provoked. The defendant is not
allowed to set up his own standard of conduct. You must decide whether the defendant
was provoked and whether the provocation was sufficient. In deciding whether the
provocation was sufficient, consider whether a person of average disposition, in the same
situation and knowing the same facts, would have reacted from passion rather than from
judgment. . . ."
                                              9
state of mind equivalent to deliberation or premeditation. (Ibid.) There must be a form
of concealment of purpose, watchful waiting, and a killing during the same time period
without a material interruption or change in purpose. (See People v. Lewis (2008) 43
Cal.4th 415, 512.)
              Here, the evidence established that Musser concealed his intent and purpose
to kill Zazueta. He rebuffed her advances but never took any action by word or deed
which indicated any threat of physical harm. On the night of the murder, Musser did not
lure her to his home in the common sense of the word, but took no action to prevent
Zazueta from coming and knew she was coming with the hope they would talk and that
he would return her affection for him. When Zazueta arrived at his home, Musser
initially acted calmly and without antagonism. He did not demand that she leave or
threaten to call the police or harm her. Instead, he had the murder weapon on his person
and had decided to use it to kill her.
              Also, evidence showed that defendant engaged in a substantial period of
watching and waiting for an opportune time to act. "Watchful" does not require actual
watching; it can include being "alert and vigilant" in anticipation of the victim's arrival to
take him or her by surprise. (People v. Sims (1993) 5 Cal.4th 405, 433.) The record
shows that he was waiting for her for a substantial period of time and was on the lookout
for her arrival. Evidence also shows that, after the period of watching and waiting,
Musser launched an attack on the unsuspecting Zazueta from a position of advantage.
              Musser briefly notes that there was a period of several minutes after
Zazueta's arrival and the stabbing during which he caressed her and tried to convince her
to leave him alone. Such a period existed but does not undermine the evidentiary support
for the special circumstance. Before 2000, section 190.2, subdivision (a)(15) required a
killing "while" the defendant was lying in wait, and case law interpreted the word "while"
to require a "temporal relationship" between the killing and the lying in wait without any
cognizable interruption. (See People v. Lewis, supra, 43 Cal.4th at pp. 511-515.) In
2000, the language of special circumstance was amended to substitute "by means of"
lying in wait for "while" lying in wait. (People v. Superior Court (Bradway) (2003) 105

                                              10
Cal.App.4th 297, 307–308.) That change reduced the need for a temporal connection
between the concealment and the killing. (Ibid.) Lying in wait does not require the
killing to occur at the first available opportunity and permits the defendant to maximize
his advantage prior to striking. (People v. Hillhouse (2002) 27 Cal.4th 469, 501.)
                                Death Penalty Constitutional
              Musser contends that the California death penalty law violates the Eighth
Amendment of the United States Constitution. He argues that the proliferation of special
circumstances permit imposition of the death penalty in the overwhelming majority of
first degree murder cases so as to eliminate the required "objective basis for
distinguishing a case in which the death penalty has been imposed from the many cases
in which it has not." (People v. Crittenden (1994) 9 Cal.4th 83, 154.) We disagree.
              As respondent argues, because a death sentence was neither sought nor
imposed, Musser lacks standing to challenge the constitutionality of the death penalty.
(See In re Cregler (1961) 56 Cal.2d 308, 313.) Even if Musser had standing, however,
his argument lacks merit.
              Section 190.2, subdivision (a) provides that the penalty for first degree
murder is death or life imprisonment without the possibility of parole if one or more of
certain special circumstances have been found. Here, the jury found Musser guilty of
murdering Zazueta while lying in wait. (§ 190.2, subd. (a)(15).) The prosecution,
however, did not seek the death penalty and Musser was sentenced to life without the
possibility of parole.
                         Sentence Not Cruel or Unusual Punishment
              As a separate constitutional claim, Musser contends that his sentence of life
without the possibility of parole constitutes cruel and unusual punishment because it was
grossly disproportionate to his crime. We disagree.
              Musser has forfeited this claim because he failed to raise this contention in
the trial court. (People v. Russell (2010) 187 Cal.App.4th 981, 993.) We also reject the
claim on its merits.


                                             11
              A sentence violates the state prohibition against cruel and unusual
punishment (Cal. Const., art. I, § 17) if it is so disproportionate to the crime for which it
is inflicted that it "shocks the conscience." (People v. Dillon (1983) 34 Cal.3d 441, 478;
see also Ewing v. California (2003) 538 U.S. 11, 30; In re Lynch (1972) 8 Cal.3d 410,
424.) The federal standard is similar. (Gregg v. Georgia (1976) 428 U.S. 153, 173;
Harmelin v. Michigan (1991) 501 U.S. 957.) In evaluating proportionality, courts
consider the nature of the offense and the offender, punishments for more serious
offenses in the same jurisdiction, and punishment for the same crime in other
jurisdictions. (Solem v. Helm (1983) 463 U.S. 277, 288, 290–292; In re Lynch, at pp.
425–427.)
              The crux of Musser's argument is that he committed only voluntary
manslaughter and that his sentence was grossly disproportionate to that crime. He repeats
his arguments that there was insufficient evidence to support the lying in wait special
circumstance and ample evidence to support his heat of passion defense. The jury
rejected these claims as have we. In addition, Musser admitted that he planned the
extremely brutal murder. And, Musser makes no attempt to present an intrastate
comparison of sentences for other crimes or an interstate comparison of sentences for the
same crime. His argument fails on this basis alone.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                           PERREN, J.
We concur:



              GILBERT, P. J.



              YEGAN, J.

                                              12
                                  Jean Dandona, Judge

                        Superior Court County of Santa Barbara

                           ______________________________


             Derek K. Kowata, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney
General, for Plaintiff and Respondent.




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