Filed 9/15/15 P. v. Matchett CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067817
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF139767A)
                   v.

STEVEN MICHAEL MATCHETT,                                                                 OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
         Janet J. Gray, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
                                                 INTRODUCTION
         In December 2011, appellant Steven Michael Matchett attacked Vernon Mixon
with a gun. The attack occurred on a public street in Bakersfield after Matchett believed
Mixon had orchestrated a burglary of Matchett’s residence approximately five months
earlier. Matchett shot Mixon seven times, but he lived.
       A jury found Matchett guilty of premeditated attempted murder (Pen. Code,
§§ 664, 187, subd. (b), 189;1 count 1) and assault with a semiautomatic firearm (§ 245,
subd. (b); count 2). The jury also found true that Matchett inflicted great bodily injury
(§ 12022.7; count 1); personally discharged a firearm causing great bodily injury
(§ 12022.53, subd. (d); count 1); personally discharged a firearm during the commission
of the crime (§ 12022.53, subd. (c); count 1); and personally used a firearm (§ 12022.5,
subds. (a) & (b); counts 1 & 2).
       For count 1, Matchett was sentenced to life in prison (§§ 664, 187, subd. (a)), plus
25 years to life (§ 12022.53, subd. (d)). Sentence was imposed on the remaining special
allegations, but they were each stayed pursuant to section 654. For count 2, Matchett was
sentenced to three years (§ 245, subd. (b)), plus three years (§ 12022.5, subd. (b)), to be
served consecutive to count 1.
       On appeal, Matchett raises four issues. First, he claims the trial court erred when
it determined he was competent to stand trial. Second, Matchett argues the trial court
erred when it omitted instruction on attempted voluntary manslaughter based on
provocation and/or heat of passion. Third, Matchett contends his right to confrontation
was abridged when the trial court permitted the jury to hear hearsay evidence from an
undisclosed confidential informant who informed law enforcement that Matchett had shot
an individual and buried the firearm in a particular location. Finally, he maintains the
trial court erred when it admitted several letters purportedly written by Matchett while in
jail. He asserts the letters were not properly authenticated, did not qualify as a party
admission, and represented inadmissible propensity evidence.
       Matchett’s contentions are without merit. We affirm.

       1All   future statutory references are to the Penal Code unless otherwise noted.


                                              2.
                          FACTS AND PROCEDURAL HISTORY
The trial evidence
          As is his right, Matchett did not testify or provide any evidence. Below is a
summary of the prosecution’s case.
          The shooting
          On December 9, 2011, Vernon Mixon2 walked to a neighborhood shopping center
in Bakersfield. There he saw a man whom Mixon thought he recognized, but was not
sure because the man appeared “deranged” like he had “lost [his] mind.” On the way
home, Mixon saw Alex Roberson, an acquaintance, and they walked together. Without
warning, shots were fired and Mixon was struck three times in his side, ankle, and thigh.
Roberson heard Mixon scream, and Mixon hunched over. Roberson fled.
          After being shot, Mixon turned and saw Matchett walking toward him holding a
gun. Despite his wounds, Mixon fought back. During the scuffle, Matchett shot Mixon
four more times before fleeing. Mixon suffered additional gunshot wounds to his
shoulder, neck, and hand and a grazing wound across his head. Emergency personnel
responded, and Mixon was hospitalized in intensive care and required surgery. The
attack left Mixon with scars on his head and stomach.
          Mixon knew Matchett. Before the attack, Mixon had purchased marijuana from
Matchett and they had spent time together. Their relationship, however, had ended
approximately three or four months before. Matchett suspected Mixon was behind a
burglary that occurred at Matchett’s residence approximately five months before the
attack.
          During the attack, Mixon recognized both Matchett and his handgun, which he had
held before. Mixon later realized it was Matchett whom he had seen earlier at the


          2Mixon
               had convictions for attempted burglary in 2005, misdemeanor second
degree burglary in 2002, and “nearly 20 years ago,” first degree robbery.


                                               3.
shopping center. Mixon, however, initially told law enforcement he did not know his
attacker and described his attacker as Hispanic because he wanted to “take care of it”
himself. Later in the hospital, Mixon informed law enforcement that Matchett was his
attacker, and he identified Matchett in a photographic lineup.
       At trial, Mixon identified Matchett as his assailant, and he was certain of that
identification. He also denied either burglarizing or orchestrating a burglary of
Matchett’s residence.
       Matchett’s apology
       Before the shooting, Roberson was also acquainted with Matchett. At some point
after the shooting, Roberson had a conversation with Matchett while they were both
waiting in a jail holding cell. Matchett apologized to Roberson and said he was not out
for him, indicating the shooting. Instead, Matchett stated he was out for the person who
had robbed him, set him up, and caused him to lose everything. Matchett told Roberson,
“Sorry for startling you and having you go through this.” Matchett did not use the name
of his intended target but told Roberson he knew it was not Roberson.
       Matchett’s brother
       Matchett’s brother, Brandon Matchett, testified under a grant of immunity. He
lived with Matchett in July 2011 when their residence was burglarized and over a pound
of marijuana, more than $4,000 in cash, and some personal items were stolen. Both
Brandon and Matchett thought Mixon was responsible for the burglary. According to
Brandon, Matchett was not the same after the burglary. He appeared angrier, depressed,
indicated he was upset at Mixon, did not respond as much, and acted “out of it” like his
“mind wasn’t there.”
       Matchett informed Brandon that he was going to “take care of it,” which Brandon
assumed was a reference to Mixon. Brandon described Matchett as a “time bomb.”
       On the night of the shooting, Matchett returned home and Brandon thought he
looked relieved. Matchett had blood on his face, and he told Brandon they needed to go

                                             4.
to a bar to get an alibi. They went to a bar that night and Matchett admitted to Brandon
that he had gone from their home in Tehachapi to Bakersfield to find Mixon; Matchett
stated he shot Mixon. When they returned from the bar, Brandon asked Matchett if he
was going to take care of the gun, and Matchett said, “Yes” and “Don’t worry about it.”
      After Matchett was incarcerated, Brandon received a letter from him in which
Matchett instructed Brandon to retrieve his gun and hide it somewhere. Matchett also
instructed Brandon to grind down the gun’s serial numbers.
      Matchett’s friend, Maurice Sales
      Maurice Sales testified under a grant of immunity. Approximately the day after
the shooting, Sales accompanied Matchett to a store where he purchased lighter fluid.
Sales considered Matchett his best friend and had known him for approximately eight
years. At the store, Sales believed something was “weird” based on Matchett’s body
language and the emotions on his face. Matchett appeared irritated and sweaty.
      After purchasing the lighter fluid, Sales accompanied Matchett to a location where
he burned a bag that Sales believed contained clothing. Matchett told Sales that he was
involved in a “scuffle and blacked out” and he heard a “gun going off.” Sales drove
Matchett home and Matchett asked Sales to hold something, but Sales refused. Sales was
concerned Matchett was doing something illegal.
      Informant’s tip
      In March 2012, a little over three months after the shooting, Bakersfield Police
Detective William Hughes was contacted by a “confidential citizen informant” who
stated he knew Matchett had shot an individual. The informant knew the location of the
firearm used, which was buried in a remote location near the city of Tehachapi. Hughes
and other law enforcement personnel accompanied the informant to the location, where a
.45-caliber semiautomatic handgun was located buried in the ground. The gun was inside
a grocery bag, which also contained a box of .45-caliber ammunition. Matchett was the
registered owner of the handgun.

                                            5.
       Forensic evidence
       Law enforcement recovered eight, .45-caliber cartridge casings from the shooting
scene. A .45-caliber Colt magazine was also recovered at the scene.
       Ballistics tests were conducted on seven intact casings recovered from the crime
scene. All seven casings were fired from the same handgun registered to Matchett and
found buried outside Tehachapi.
                                      DISCUSSION
I.     Sufficient evidence supported the trial court’s determination of competence
       Matchett asserts his convictions should be reversed because the trial court erred
when it determined he was competent to stand trial. He asserts his due process rights
were violated because he was unable to conduct a rational defense. We disagree.
       A.     Background
       Prior to the commencement of trial, Matchett’s counsel requested a competency
evaluation pursuant to sections 1367 and 1368, which the trial court granted. The court
appointed Carol Hendrix, Ph.D., to examine Matchett.
       Approximately one month later, Hendrix submitted her report, which the trial
court considered. Hendrix, a licensed psychologist, opined that Matchett was not
mentally competent to stand trial. She determined he was unable to help his attorney in
his own defense “due to the rigidity of his current thinking.” She noted that, although he
understood the court procedures and roles of the court professionals, Matchett did not
seem to realize the possible consequences of having a jury trial and was not considering
options his attorney may suggest. Per Hendrix’s report, Matchett was adamant about
having a jury trial because he believed his faith would save him. Hendrix expressed
concern that Matchett’s faith was misdirected, was not “mature,” and was the result of
influence from a single inmate.




                                            6.
      Hendrix concluded Matchett suffered from the early onset of dysthymic disorder
and adjustment disorder with depressed mood, along with cannabis and alcohol abuse.
Her summary and recommendations were as follows:

      “This individual is viewed as Not Mentally Competent to stand trial. At the
      time of his interview there was no evidence of psychosis or major affective
      disorder. He is not viewed as being able to aid his attorney in his own
      defense. There were no symptoms of depression yet it is suspected as an
      underlying condition. He is at peace at this point because he believes that
      his faith is going to help determine the results of the trial. This would be
      fine if he understood that it is faith that sustains us no matter what we
      encounter, but not as a tool to avoid any possible consequences of alleged
      behavior. He is 23 years old and his choices right now will determine
      many years of his life. Extra time for deliberation and perhaps the input of
      a chaplain, family, or counseling would aid him in cooperating with his
      attorney.”
      The matter was submitted based on Hendrix’s report, and Matchett was
determined not presently competent to stand trial or able to cooperate with counsel. He
was referred to Kern Mental Health for recommendation and evaluation pursuant to
section 1370, and the matter was continued to December 18, 2012.
      On December 18, 2012, the trial court reviewed a report regarding Matchett’s
placement and medications. Per the reporter’s transcript, a “Dr. Keeton” had opined that
Matchett was competent, but defense counsel requested a commitment to Patton State
Hospital because Dr. Keeton’s report3 still mentioned the same “irrational thinking” that
Matchett expressed before. The trial court ordered Matchett committed to the
Department of Mental Health at Patton State Hospital. The trial court determined it was
not medically indicated to treat Matchett with involuntary psychotropic or antipsychotic
medications.
      On April 3, 2013, the parties reconvened after the Medical Director of Patton State
Hospital filed a certification of mental competency pursuant to section 1372, along with

      3This    report is not part of the appellate record.


                                                7.
an accompanying report. At the section 1372 hearing, both counsel submitted the matter
based on the report. Rajesh Patel, M.D., staff psychiatrist, and Kimberly Light-Allende,
Psy.D., staff psychologist/recorder, both recommended that Matchett be returned to court
as competent to stand trial. The report referenced Hendrix’s November 16, 2012, report
and it explained the treatments and evaluations undertaken with Matchett, including
assessments to determine his knowledge and understanding of the courtroom, functions
of the court participants, his understanding of the pending charges, and the possible
consequences. The report opined that Matchett’s scores on those assessments indicated
competency to stand trial. It further acknowledged Matchett was adamant that he would
go to trial because God’s will had “come through” for him, and God would not allow him
to be found guilty. The report noted Matchett “does have some religious beliefs that are
naïve, but they are not deemed delusional in nature by his treatment team.” It indicated
Matchett was “not expressing or demonstrating any psychiatric symptoms or cognitive
limitations that would render him incompetent to stand trial at this time.” It further
determined Matchett “does not appear to present with symptoms of mental illness that
would prevent him from working with his counsel. However, if counsel encounters
difficulties working with [Matchett] these are likely due to [his] intentional choices.”
       Based on the report submitted by Patton State Hospital, the trial court determined
Matchett was presently competent to stand trial and able to cooperate with his counsel.
The criminal proceedings were reinstated.
       Following the conclusion of the trial, the parties met on August 5, 2013, for
sentencing and the trial court asked if there was any legal cause why sentencing could not
go forward. Matchett’s counsel stated there was and reminded the court he had expressed
“numerous times” during the course of the trial his belief that Matchett was not
competent. The court asked him to elaborate on those concerns, and the following
exchange occurred:



                                             8.
        “[DEFENSE COUNSEL]: Well, Your Honor, in the course of the
trial, even though [Matchett] acknowledged all of the evidence against him,
he still had this very unreasonable, irrational belief that no matter what the
evidence showed, no matter what was said against him, that God was going
to save him and that he would not be found guilty by the jury; there was no
possibility that he would be found guilty by the jury. And that, in my
opinion, is not rational. That’s not rational thinking. It’s not reasonable.

       “This is a problem that has been ongoing. And, in fact, it was
expressed to the people at Patton State Hospital as well initially when he
was assessed. And that is a second prong of competency. It’s not whether
or not you know what the proceedings are or you know who the judge is,
the jury, where the jury sits, who the attorney is. It’s also whether or not
you are able to rationally assist in your defense, and that includes whether
or not you are able to make a reasonable assessment as to whether or not
someone should take a plea bargain instead of going to trial when the
person acknowledges that there really is no defense but that God will save
him.

       “And so it is on that basis that I believe that [Matchett] was not
competent during the trial, and I need more time, now that I have the Patton
records, to further develop that as a basis for a possible motion for a new
trial.

       “THE COURT: Thank you. [¶] Any comment, [prosecutor]?

      “[PROSECUTOR]: People would just be objecting. However, I
would submit to the Court.

       “THE COURT: Thank you. [¶] If I understand you correctly,
[defense counsel], your assertion at this time is that your client was not
behaving rationally because he believed that God would find him not
guilty—or, rather, through God, the jury would find him not guilty, and
based on that belief, your client refused to plea in this case and exercised
his right to a jury trial, which did occur. [¶] Is that correct?

       “[DEFENSE COUNSEL]: Yes, Your Honor.

       “THE COURT: The record should reflect that there were times in
chambers where [defense counsel] did express concern about his client’s
competency, and there [were] discussions involving the referral to Patton
State Hospital to the extent that a [section] 1368 was run previously and
[Matchett] subsequently was found competent to stand trial, which brought
the case to this courtroom for hearing.


                                      9.
       “During those exchanges, all while in chambers, the query was made
to Counsel as to whether there’s been a changed circumstance to justify or
warrant a review of [section] 1368 to determine whether the proceedings
should be suspended and [Matchett] … reevaluated. It was during these
discussions and conversations in chambers that there were no changed
circumstances voiced or echoed or observed that would justify such a
request.

        “Because of those exchanges, there was never a formal motion to
find [Matchett] incompetent, which would suspend proceedings and require
that a psychiatrist or psychologist evaluate [Matchett] before the Court
makes a ruling or determination as to [Matchett’s] competency. The Court
was never placed in a position to make an official ruling, and those
concerns were never voiced on the record.

        “For those reasons, it’s very difficult to discern retrospectively as to
whether [Matchett] was competent at a particular moment in time, although
there were comments about competency relating to evidence that was
obtained and discovered to the defense early on in the trial, if not prior to
evidence being presented, specifically witness statements, as well as
content from particular letters and jail calls that were highlighted by the
district attorney’s office to the defense and shared with the defense counsel,
who, in turn, showed material to his client with zero or no effect to the
demonstration nor the display. That, in and of itself, while it was
commented on in chambers, was never brought to the Court’s attention on
record, and the Court was never asked to make a ruling to determine
competency in this case.

        “For those reasons, the Court does find significant [Matchett’s] right
to a trial, and it does appear that [Matchett] was exercising his right to a
trial.

        “Additionally, while there may be discussions—or may have been
discussions that [Matchett] knew about the evidence, was relying on the
state of the evidence, and decided to accept the state of the evidence, there
was never a representation that [Matchett] could not assist his attorney in
forming reasonably and rationally a defense in this case, but, rather,
[Matchett] had an unwillingness to assist his attorney.

      “There is a stark difference in law as to whether a client placed in
[Matchett’s] position is unwilling to assist his attorney or whether [he] is
unable to assist his attorney.




                                      10.
               “In this particular case, the evidence is absent as to whether
       [Matchett] was unable to assist his attorney and is replete with examples
       through discussions by the defense attorney that [Matchett] was unwilling
       to assist the attorney.

              “For those reasons, [defense counsel], the Court did not find good
       cause to continue this matter based on the representation recognizing that
       [Matchett] has exercised his right to a trial and that trial has concluded.”
       B.     Standard of review
       State law and federal due process prohibit the trial or conviction of a mentally
incompetent criminal defendant. (People v. Dunkle (2005) 36 Cal.4th 861, 885,
disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;
§ 1367, subd. (a).) “A defendant is mentally incompetent” if a mental disorder prevents
the defendant from understanding “the nature of the criminal proceedings” or assisting
counsel “in the conduct of a defense in a rational manner.” (§ 1367, subd. (a).)
Section 1368 sets forth the procedure for implementing section 1367 protections.
       A trial court must suspend trial proceedings and conduct a competency hearing
whenever substantial evidence exists, that is, evidence which raises a reasonable or bona
fide doubt concerning a defendant’s competence to stand trial. (People v. Rogers (2006)
39 Cal.4th 826, 847.) A defendant who is found incompetent must be committed to a
state hospital to receive care and treatment to promote the defendant’s “speedy
restoration to mental competence .…” (§ 1370, subd. (a)(1)(B)(i).) However, once the
defendant is found “mentally competent,” the criminal process resumes. (§§ 1370,
subd. (a)(1)(A); 1372, subd. (a)(1).)
       When reviewing a trial court’s finding of competency, an appellate court
determines whether substantial evidence exists to support that decision. (People v.
Dunkle, supra, 36 Cal.4th at p. 885.) The evidence is viewed in the light most favorable
to the finding. (Ibid.) “Evidence is substantial if it is reasonable, credible and of solid
value.” (Ibid.)



                                             11.
       C.     Analysis
       Two of our Supreme Court cases are instructive regarding whether the trial court
abused its discretion.
       In People v. Rells (2000) 22 Cal.4th 860 (Rells), the defendant was found guilty of
three counts of murder. Prior to trial, proceedings were suspended after the defendant
was found mentally incompetent. (Id. at p. 863.) The defendant was committed to Patton
State Hospital for evaluation and treatment. Subsequently, pursuant to section 1372, the
hospital’s acting medical director filed a certificate of restoration after determining the
defendant had regained mental competence. At a hearing pursuant to section 1372, both
counsel submitted the matter based on the certificate of restoration and the accompanying
report. The trial court found the defendant to have recovered mental competence and the
criminal proceedings were reinstated. (Rells, supra, at pp. 863-864.)
       On appeal, the defendant claimed, in part, that the trial court erred in its findings
and presumably imposed on him the burden of proving his own mental incompetence.
The Rells court held it is proper to presume a defendant is again mentally competent to
stand trial once the appointed mental health official has submitted a certificate of
restoration. The court held it would take a preponderance of the evidence to overcome
this implied presumption at a hearing regarding the defendant’s recovery of mental
competency under section 1372. (Rells, supra, 22 Cal.4th at p. 867.) Rells noted that this
presumption conforms with the certificate of restoration, which “has legal force” and
establishes changed circumstances from when the defendant was found incompetent. (Id.
at p. 868.)
       Rells held the defendant’s claim was without merit. At the section 1372 hearing,
the defendant submitted the question of his recovery of his mental competence on the
certificate of restoration filed by the acting medical director of Patton State Hospital and
the accompanying report. By submitting on the medical report, Rells determined the
defendant either claimed to be mentally incompetent, in which case he had the burden of

                                             12.
proof, or he claimed he was mentally competent. In either case, the trial court did not err.
(Rells, supra, 22 Cal.4th at p. 871.)
       Likewise, in People v. Sakarias (2000) 22 Cal.4th 596 (Sakarias), the defendant
was convicted of first degree murder. Prior to trial, the defendant was found incompetent
to stand trial because he was unable to assist his attorney rationally in the conduct of his
defense. Criminal proceedings were suspended and he was placed in the state hospital
for treatment. Approximately nine months later, the trial court received a certificate of
restoration of competency from the department of mental health. According to a report
accompanying the certificate, the hospital’s treatment team had evaluated the defendant
and recommended he be returned to court on psychotropic medications. It was
determined the defendant “‘could choose to cooperate rationally with counsel or [he]
might choose to act out in court.’” (Id. at p. 617.) Both defense counsel and the
prosecutor submitted the matter on the medical documentation. As a result, the trial court
adopted the findings of the department of mental health and determined the defendant
had regained his present competency to stand trial. (Ibid.)
       On appeal, the Sakarias court noted the department’s report was “unequivocal” in
its finding the defendant was competent. It was also noted the defense neither presented
evidence nor argument to controvert those findings. On its record, Sakarias determined
the trial court’s decision was dependent on any presumption affecting the burden of
proof. (Sakarias, supra, 22 Cal.4th at pp. 617-618.) To the contrary, Sakarias noted the
trial court “could not do anything” but find competency based on the “substantial and
uncontested evidence” from the report. (Id. at p. 618.) As such, our Supreme Court
refused to address a constitutional challenge that the lower court incorrectly allocated the
burden of proof at the competency hearing. (Ibid.)
       Here, at the section 1372 hearing, Matchett submitted the question of his mental
competency recovery on the report submitted by Patton State Hospital. Based on the
filed certificate of restoration, a legal presumption existed that Matchett was mentally

                                             13.
competent to attend trial. (Rells, supra, 22 Cal.4th at pp. 867-868.) The filed certificate
of restoration had “legal force” and established changed circumstances from when
Matchett was found incompetent. (Id. at p. 868.) Similar to both Rells and Sakarias,
Matchett provided no evidence to overcome the presumption. Based on the uncontested
evidence from Patton State Hospital, the trial court had substantial evidence to support its
finding of competency. This evidence was reasonable, credible, and of solid value.
(People v. Dunkle, supra, 36 Cal.4th at p. 885.)
       Matchett, however, argues a review of the entire record discloses substantial
evidence of his incompetence. Without providing a reference to the record, he asserts he
made “delusional, and irrational statements” to defense counsel during the trial. He also
contends his “irrational belief system” and “refusal to consider input from counsel” had
not changed after he was originally found incompetent. He maintains that the report from
Patton State Hospital noted the same “irrational belief system” but merely reached a
different conclusion than Hendrix. As such, he insists the trial court’s finding of mental
competence was not supported by substantial evidence and his judgment should be
reversed.
       These contentions are without merit because a majority of his arguments are based
primarily on “evidence” that occurred prior to the last competency hearing, i.e., his
personal appearance before the shooting, how his brother described his emotional state
after the burglary of their residence, and Hendrix’s report. In light of the filed certificate
of restoration, the law presumed Matchett had regained his competence and the trial court
had substantial evidence to support its decision.
       Moreover, when a competency hearing has been held and a defendant is found to
be competent to stand trial, a trial court is not required to conduct a second competency
hearing unless a substantial change of circumstances or new evidence is presented which
raises a serious doubt regarding the validity of the competency finding. (People v.
Marshall (1997) 15 Cal.4th 1, 33.) A trial court’s obligation to order a competency

                                             14.
hearing is generally not triggered just because a defendant engages in bizarre actions or
makes bizarre statements. (People v. Welch (1999) 20 Cal.4th 701, 742.) Likewise,
although a defense counsel’s opinion is entitled to some weight, such an opinion standing
alone does not require a trial court to hold a competency hearing unless the court itself
has expressed a doubt regarding competency. (§ 1368; People v. Rodrigues (1994) 8
Cal.4th 1060, 1111-1112.)
       Here, the record is devoid of any substantial change in circumstances or new
evidence presented to the trial court calling into question the validity of the competency
finding. The trial court had substantial evidence to support its decision. Accordingly,
Matchett cannot establish error and his convictions will not be reversed.
II.    The trial court did not err in refusing to instruct on voluntary manslaughter
       Matchett argues the trial court had a sua sponte duty to instruct the jury on
attempted voluntary manslaughter (§§ 664, 192, subd. (a)) as a lesser-included offense to
the charge of attempted murder as alleged in count 1. He contends the court should have
instructed the jury with CALCRIM No. 603 due to “heat of passion” and that failure
requires reversal of his conviction in count 1.
       A.     Background
       When reviewing jury instructions with both counsel, the court asked if either side
had any lesser-included offenses they wanted presented. Defense counsel requested an
instruction under CALCRIM No. 603, noting it was justified because the evidence
showed Matchett acted in response over his belief Mixon burglarized his residence. The
trial court responded as follows:

              “THE COURT: Thank you. Counsel, the law states that the Court
       must instruct on lesser-included offenses even if not requested to do so
       when the evidence raises a question as to whether all of the elements of the
       charge[d] offense are present and there’s evidence that would justify a
       conviction of such a lesser offense. That is the law as stated by the
       Supreme Court of California.



                                             15.
              “In considering whether the evidence presented raises a question as
      to whether all of the elements of the charge[d] offense are present, the
      Court does not see it. It does appear to the Court that the evidence
      presented thus far does not raise a question as to whether all of the elements
      can be proven. It does appear, based on the evidence presented, that all of
      the necessary elements for the charged offenses are present in evidence and
      that the jury, upon considering that evidence, can find [Matchett] guilty of
      the offenses alleged.

              “There is not a question as to whether the evidence presented will
      not satisfy all of the elements of the charged offenses. Those are general
      comments as it relates to lesser-included offenses. As to specifically
      whether a lesser-included offense of attempted voluntary manslaughter
      should be given to Count 1 attempted murder, the Court does not find that
      heat of passion as described in CALCRIM [No.] 603 is present as it relates
      to the particular time period necessary for one to engage in a heat of
      passion.

             “The evidence certainly lacks foundation as it relates to the timing
      between the burglary and the incident in question as to whether [Matchett]
      was still under the influence of some emotion arising from that and did not
      have—and did not react without due deliberation and reflection.

            “For those reasons, the lesser-included offense requested of
      attempted voluntary manslaughter is denied.”
      B.     Standard of review
      Even upon request by the defense, a trial court may refuse to instruct on a lesser-
included offense when no evidence supports the instruction. (People v. Daniels (1991)
52 Cal.3d 815, 868.) Voluntary manslaughter is “the unlawful killing of a human being
without malice” based upon “a sudden quarrel or heat of passion.” (§ 192, subd. (a).)
      Manslaughter is a lesser-included offense of murder. (People v. Avila (2009) 46
Cal.4th 680, 705.) Provocation is the factor which distinguishes the “‘heat of passion’”
form of voluntary manslaughter from murder. (Ibid.) “‘The provocation which incites
the defendant to homicidal conduct in the heat of passion must be caused by the victim
[citation], or be conduct reasonably believed by the defendant to have been engaged in by
the victim.’ [Citation.]” (Ibid.) For heat of passion to reduce murder to voluntary



                                           16.
manslaughter, the passion must be a type that would naturally occur in the mind of an
ordinarily reasonable person under the facts and circumstances of the case. (Ibid.)
       C.     Analysis
       Matchett maintains the trial evidence “is susceptible of interpretation that
[Matchett] ran into Mixon at the shopping center, and in his deranged state acted out of a
heat of passion.” As a result, he asserts an instruction of attempted voluntary
manslaughter was warranted. This argument is quickly rejected.
       It is black-letter law that a killing is not manslaughter if sufficient time has elapsed
for an ordinarily reasonable person “‘to cool’” and have his or her “‘passions’” subside.
(People v. Daniels, supra, 52 Cal.3d at p. 868.) To warrant an instruction regarding
manslaughter arising from provocation and heat of passion, the killing must have resulted
from a “‘sudden quarrel or heat of passion .…’” (Ibid.) Such an instruction is properly
rejected if the killing was done belatedly as revenge or punishment. (Ibid.)
       Our Supreme Court has found a manslaughter instruction not warranted where the
events leading to the killing were not sufficient “‘to arouse feelings of homicidal rage or
passion in an ordinarily reasonable person.’” (People v. Avila, supra, 46 Cal.4th at p. 706
[fleeting gang reference or challenge was insufficient for reasonable person to become
homicidally enraged].) Further, our Supreme Court has found a manslaughter instruction
not warranted where a matter of days or months have passed from the time of the
provocation to the killing. (See People v. Pride (1992) 3 Cal.4th 195, 250 [voluntary
manslaughter instruction properly rejected where three days passed between killings and
criticisms defendant received about his work performance]; People v. Daniels, supra, 52
Cal.3d at p. 868 [voluntary manslaughter instruction properly rejected where over two
years three months passed between defendant’s provocation and killing].)
       Here, there was no substantial evidence of provocation. Reasonable people, as a
rule, may become angry over a belief someone either broke into their residence or
orchestrated the burglary, however, it seldom elevates to homicidal rage. More

                                             17.
importantly, the burglary of Matchett’s residence occurred in or around July 2011,
approximately five months before Matchett attacked Mixon. Reasonable people do not
remain homicidally enraged for five months based on the facts and circumstances of this
case. On this record, the trial court did not err in refusing to instruct on attempted
voluntary manslaughter. (People v. Avila, supra, 46 Cal.4th at p. 707; People v. Pride,
supra, 3 Cal.4th at p. 250; People v. Daniels, supra, 52 Cal.3d at p. 868.)

III.   Matchett cannot establish prejudice associated with the introduction of the
       informant’s statement
       Matchett contends his Sixth Amendment right to confrontation was abridged when
the trial court admitted evidence from an undisclosed confidential informant. He also
argues this evidence was erroneously admitted under state law as irrelevant nonhearsay.
He asserts his convictions should be reversed.
       A.     Background
       At trial, Bakersfield Police Detective William Hughes testified that an unidentified
confidential informant contacted him a little over three months after the shooting and the
informant was subsequently interviewed. Hughes stated the informant provided
information about the case. When asked to explain what the informant said, Matchett’s
trial counsel objected under hearsay, and the prosecutor argued the testimony was going
to show “subsequent actions.” The court sustained the hearsay objection but allowed
Hughes’s testimony “for the nonhearsay purpose of explaining this witness’s subsequent
conduct.” The court instructed the jury that Hughes’s subsequent testimony “is not to be
considered for the truth of the statement contained. It is only to be considered as it relates
to what this witness did after learning of that information. You could consider it only for
that limited purpose.”
       Hughes then told the jury that the informant stated Matchett had shot an individual
and the firearm used had been buried near a tree at the off-ramp of Broome Road, State
Route 58, near the city of Tehachapi. The confidential informant accompanied police to


                                             18.
the place where the gun was allegedly buried and, after a bit of digging, a .45-caliber
handgun registered to Matchett was found near the identified tree, buried six inches deep
and enclosed inside a plastic grocery bag.
       B.     Standard of review
       In the absence of fundamental unfairness, the harmless-error test of People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson), is used to analyze an evidentiary error that
involves state law. (People v. Partida (2005) 37 Cal.4th 428, 439.) Such an analysis
requires the reviewing court to ask “whether it is reasonably probable the verdict would
have been more favorable to the defendant absent the error.” (Ibid.)
       In contrast, a federal constitutional error is harmless under Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman), when the reviewing court determines beyond a
reasonable doubt that the error did not contribute to the verdict. (People v. Aranda
(2012) 55 Cal.4th 342, 367.)
       C.     Analysis
       Matchett raises two primary arguments: First, he contends the trial court
erroneously admitted the informant’s statement to Hughes for an irrelevant nonhearsay
purpose. Second, he asserts introduction of the informant’s statement violated his
confrontation rights under the Sixth Amendment as set forth in Crawford v. Washington
(2004) 541 U.S. 36 (Crawford) and Davis v. Washington (2006) 547 U.S. 813. He argues
his convictions must be reversed because the jury heard he “had shot an individual” and
the firearm used had been “buried” in a particular location.
       The People dispute these assertions, claiming Matchett has forfeited these
arguments on appeal following a failure to raise them in the lower court. The People also
argue that the content of the informant’s tip was relevant, and no constitutional violation
occurred because the informant’s statement was admitted for a nonhearsay purpose.
Finally, the People maintain that Matchett cannot establish prejudice even if error
occurred.

                                             19.
       We need not address the parties’ disputed points regarding whether or not it was
relevant to admit the informant’s statement; whether or not such a statement violated the
Sixth Amendment under Crawford, supra, 541 U.S. 36, and its progeny; or whether
Matchett has forfeited these claims on appeal. Instead, even if we assume error occurred
that was not forfeited, reversal is not warranted because Matchett cannot establish
prejudice.
       Our Supreme Court has held that a constitutional challenge under Crawford,
supra, 541 U.S. 36, can be resolved without analyzing the actual constitutional issue if
any assumed error was harmless beyond a reasonable doubt. (People v. Jennings (2010)
50 Cal.4th 616, 652; People v. Jenkins (2000) 22 Cal.4th 900, 1015-1016 [finding it
unnecessary to examine “complex constitutional question” because any error was
harmless].) This is such a situation.
       Here, after the burglary, Matchett informed his brother that he was going to “take
care of it,” which Brandon assumed was a reference to Mixon. Matchett indicated he was
angry at Mixon, and Brandon described him as a “time bomb.” On the night of the
shooting, Matchett had blood on his face, wanted to create an alibi, later admitted he shot
Mixon, and assured his brother he would “take care” of his gun. After he was
incarcerated, Matchett asked Brandon to move the gun to another location and grind
down the gun’s serial numbers. After the shooting, Matchett apologized to Roberson and
said he was not out for him but for the person who had robbed him, set him up, and
caused him to lose everything. At trial, Mixon identified Matchett as his shooter and
expressed certainty in his identification. Finally, the forensic evidence established that
the buried gun registered to Matchett had fired the bullets in the attack on Mixon.
       Based on this record, any assumed error associated with admitting the informant’s
statement was harmless beyond a reasonable doubt. Accordingly, Matchett is not entitled
to reversal for any alleged Sixth Amendment violation (People v. Jennings, supra, 50



                                             20.
Cal.4th at p. 652) or under the lower Watson standard for any evidentiary error under
state law (People v. Partida, supra, 37 Cal.4th at p. 439).

IV.    Matchett cannot establish prejudice associated with the introduction of the
       letters he purportedly wrote
       Matchett maintains the trial court erred when it admitted several letters he
purportedly wrote from the jail facility. He contends these letters were not properly
authenticated and constituted inadmissible hearsay.
       A.      Background
       After Matchett was arrested, four letters were intercepted at the Kern County Jail
that were addressed to Brandon Matchett in Tehachapi. Jail officials were suspicious
because the letters had the same mailing address for both the sender and the recipient.
       One letter was addressed to Brandon at 21533 Golden Hills Boulevard,
Apartment A, in Tehachapi, with a return address of “S. Matchett” at the same address.
The other letters were addressed to Brandon at Post Office Box 2501 in Tehachapi, with a
return address of “S. Matchett” at the same address.
       The prosecution introduced evidence that in 2011 Matchett resided at 21533
Golden Hills Boulevard, Apartment A. The prosecution also introduced evidence that
three letters were intercepted in January 2012 and a final letter was intercepted in
February 2012. Matchett was housed in the jail facility when these letters were
intercepted.
       The letters were tested for fingerprints, which did not reveal any usable prints. In
the letters, the author instructed Brandon to be ready to answer questions “in code,” and it
contained instructions on what Brandon and other potential witnesses should say to law
enforcement. The prosecution introduced these letters into evidence.
       B.      Analysis
       Matchett contends it was error to admit these documents into evidence because
nothing established who wrote them. No fingerprints were discovered on the letters. No


                                            21.
testimony was introduced from a witness familiar with Matchett’s handwriting. No
witness observed Matchett writing these letters. He argues these documents were hearsay
and the prosecution failed to establish the essential foundation necessary to qualify them
as a party admission. (Evid. Code, § 1220.)
       Further, Matchett maintains these letters were improper “propensity” evidence and
contained such detailed instructions they should be considered “tantamount to a
confession.” He asserts that his due process rights to a fair trial were abridged and seeks
reversal under the standard set forth in Chapman, supra, 386 U.S. at page 24 or, in the
alternative, under Watson, supra, 46 Cal.2d at page 836.
       The People maintain the letters were adequately authenticated by their contents
and the circumstances, and any error was harmless under Watson, supra, 46 Cal.2d at
page 836.
       We need not analyze or address the parties’ dispute regarding whether or not the
prosecution properly authenticated these documents. We also need not analyze or
address whether these documents were inadmissible hearsay or “propensity” evidence.
Matchett was entitled to a fair trial but not a perfect one. (People v. Hill (1998) 17
Cal.4th 800, 844.) His judgment will not be reversed absent a clear showing that a
miscarriage of justice occurred. (Ibid.) As discussed above, overwhelming evidence
established Matchett’s guilt. Based on this record, we find the introduction of these
letters was harmless beyond a reasonable doubt even were we to assume error occurred.
Accordingly, Matchett cannot establish prejudice.




                                             22.
                                DISPOSITION
    The judgment is affirmed.

                                              _____________________
                                                            Smith, J.
WE CONCUR:


_____________________
Hill, P.J.


_____________________
Kane, J.




                                    23.
