Filed 3/22/13 P. v. Pulley CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D060502

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD231564)

ROBERT G. PULLEY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed.



                                                             I.

                                                 INTRODUCTION

         Defendant Robert G. Pulley appeals from a judgment of conviction entered after a

jury convicted him of second degree murder, battery, and making a criminal threat. The

murder victim was Pulley's neighbor. The victim of the battery and criminal threat was

Pulley's son.
       On appeal, Pulley contends that there is insufficient evidence to support the

murder conviction. He first argues that his conviction for second degree murder based on

the shooting of his neighbor must be reversed because "the only reasonable conclusion

from the evidence was that [he] acted with the legal justification of defending against

harm to a person within one's home or . . . his property." He argues in the alternative that

even if this court does not agree that the evidence demonstrated that his act of shooting

his neighbor was justified, his conviction for second degree murder should be reduced to

voluntary manslaughter because the evidence supports a finding that he acted under the

heat of passion, and does not support a finding that he acted with implied or express

malice.

       Pulley also contends that the trial court should have granted his motion to sever for

trial a fourth count charging him with making a criminal threat against his wife—a count

on which he was acquitted—from the other three counts in the case.

       We reject all of Pulley's contentions on appeal, and affirm the judgment.

                                             II.

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     Factual background

       1.     The November 11, 2010 threat (count 4)

       On November 11, 2010, Pulley and his wife Angela had been drinking alcohol. At

9:37 p.m., Angela called 911 because Pulley wanted to go to a bar, and she felt that he

had already had too much to drink. A recording of the 911 call was played for the jury.

On the recording, Pulley can be heard shouting that he had a gun and that he was going to

                                             2
kill himself and kill his wife. He also shouted that Angela had threatened him, pulled a

gun on him, and tried to kill him.

       Angela told the dispatcher that Pulley had a .45-caliber gun, but said that she was

not worried about her safety. The dispatcher told Angela that she had to take seriously

what Pulley was saying. Angela told the dispatcher that there were other guns in the

house, but that those guns were locked in a safe.

       Another dispatcher located Pulley's address through the automatic firearm system

and determined that there were four or five firearms registered at that address. The

dispatchers sent 15 police units to the Pulley residence on Brown Street in Oceanside.

       When officers reached the Pulley residence, they heard a loud argument between

and man and woman. The front door to the house was open, but a security screen door

was closed. An officer could see Pulley, with his arms crossed, facing the door. Angela

had her back to the door and was saying to Pulley, " 'Put it away, just put it away.' "

Pulley was heard saying, " 'Fuck that. If they want me, I'm right here.' "

       Angela came out of the house and was met by Oceanside Police Sergeant Carl

Regalado. Angela told Regalado that Pulley had a .45-caliber handgun. Officers set up a

perimeter around the house. Pulley refused to come out of the house. After

approximately two hours, officer started to leave, concluding that there was not probable

cause to arrest Pulley for making criminal threats because Angela had told the police that

she was not in fear for her safety.

       Angela testified at trial that she never felt fearful of Pulley during this incident.



                                               3
       2.     The December 25, 2010 battery and threat (counts 2 and 3)

       At approximately 12:30 a.m. on December 25, 2010, Sergeant Regalado

responded to a noise complaint call from the 3900-block of Brown Street in Oceanside.

The only house that appeared to have anything going on was that of the Misaalefua

family, who lived across the street from Pulley's house. The garage door at the

Misaalefua residence was up, and there were fewer than a dozen people in the garage.

Regalado spoke with Jimmy Misaalefua, the host of the party, told him about the noise

complaint, and talked with him about ways that the group could be quieter. Misaalefua

was cooperative and apologetic. After talking with Misaalefua, Regalado left.

       At 1:53 a.m., Regalado returned to Brown Street in response to a call for police

assistance called in by paramedics who had arrived in response to what had originally

been a call for medical assistance. An earlier call from Pulley's son, Matthew, stating

that a woman had fallen and needed medical assistance had resulted in a paramedic and

fire response. When Regalado arrived, he saw four firefighters restraining Pulley, who

was on the ground in front of his residence. The firefighters explained that when they

arrived in response to the medical call, Pulley told them that he had a shotgun in the

house. The firefighters asked Pulley not to go inside until they administered medical aid,

but Pulley ignored them and started to go into the house. At that point, the firefighters

felt that it was necessary to restrain Pulley.

       Regalado and other officers completed a safety sweep of the residence. They

found Angela upstairs, in bed, covered with blankets. Officers called out to her but got

no response. They then tapped on her shoulder and were able to awaken her. Angela

                                                 4
acted as if she had been unaware that the police were there, and told the officers that she

was fine and did not need any help.

       Matthew explained that he and Pulley had gotten into a fistfight earlier that

evening. Matthew did not want to authorize an arrest of Pulley, but he did not want to go

back into his house. Officers gave Matthew a ride to a nearby restaurant, and Pulley was

released at his residence.

       At trial, Matthew testified that his mother had fallen while trying to break up a

physical altercation between Matthew and his father. Matthew called the fire department

to check on his mother and make sure she was not hurt. According to Matthew, the fight

between him and his father had started when Matthew and his father were talking about

the Marines and the Army, and Pulley "felt disrespected." During the altercation, Pulley

poured a drink on Matthew, and Matthew went outside to cool off. When Pulley went

outside to apologize, Matthew threw Pulley into the pool. Matthew then went inside and

began teasing Pulley. Pulley hit Matthew in the face, knocking him down. Matthew then

went outside and challenged Pulley to fight. When Pulley walked outside to meet

Matthew, Matthew grabbed a golf club and started antagonizing Pulley. At this point,

Pulley started to walk back into the house, and said that he needed to get away before he

shot, stabbed, or killed Matthew. Matthew told the police that Pulley had made direct

threats, saying, "I'm gonna kill him, I'm gonna shoot him and stab him." Matthew said

that he knew that Pulley was capable of carrying out the threats.




                                             5
       3.     The December 25, 2010 murder (count 1)

              a.     Other witness evidence

       Dexter Ena, Misaalefua's nephew, was at Misaalefua's house on Christmas Eve for

a family gathering. Ena saw Pulley walking toward Misaalefua's house and asked

Misaalefua who Pulley was. Misaalefua responded that Pulley was a neighbor. Ena

walked to the back of the garage to get a beer from a refrigerator. When he returned, he

saw Pulley and Misaalefua walking toward the street. Misaalefua had his arm around

Pulley and it appeared that they were talking in a friendly manner.

       Ena walked toward the street. When he got to the end of the driveway, he saw

Pulley fall to the ground. Misaalefua was standing over Pulley, and Ena assumed that

they were fighting. Ena ran to where Misaalefua was standing and asked what was going

on. Misaalefua told Ena to " 'leave it alone.' " Another of Ena's uncle's, Matt Young, ran

over to try to separate Misaalefua and Pulley.

       Pulley got up from the street and said to Misaalefua, " 'I thought we were

friends.' " Pulley then assumed a fighting stance. Young tried to push Misaalefua back,

and Ena grabbed Pulley and told him to calm down. Once Misaalefua and Pulley were

separated, Ena let go of Pulley. Pulley started walking back to his house. As he was

walking toward the house, he looked back at Misaalefua and said, " 'I got something for

you. I got something for you, mother fucker.' " Misaalefua yelled back something like,

" 'All right, mother fucker. Let's go. Bring it on.' "

       As Pulley walked toward his house, Misaalefua followed him. Ena attempted to

stop Misaalefua, telling him to leave it alone and to let Pulley go. Misaalefua told Ena to

                                              6
"shut up" and continued following Pulley, who had gone into his garage and then into his

house. When Misaalefua walked into Pulley's garage, Ena, who had been following,

stopped just outside the garage. Misaalefua took off his shirt and Ena assumed that he

was preparing to fight. Misaalefua waited approximately five to 15 feet outside the inner

garage door.

       Ena and Young tried to convince Misaalefua to return to his house with them. Ena

then heard Misaalefua say, " 'What are you going to do with that? Shoot me[?]' "

Immediately after Misaalefua said that, Ena heard a gunshot. After the gunshot,

Misaalefua said, " 'Is that all you got? Is that all you got?' " Pulley and Misaalefua then

started wrestling, and Ena heard more shots.1

       Ena moved through the garage and tried to shield himself behind a car. Young ran

up to the left side of a car that was parked in the garage. Misaalefua was fighting with

Pulley over the gun. Young reached the two men before Ena could. When Young got to

the men, they all fell down. Young yelled at Pulley to let go of the gun.

       Pulley was on top of Misaalefua when Ena got to them, and Young was on top of

Pulley, trying to get the gun. Misaalefua said, " 'Get this mother fucker off of me.' " Ena

told Pulley to let go of the gun, and tried to pull the gun away from Pulley. As Ena tried

to get the gun away, Pulley bit Ena, and Ena hit Pulley. At that point, Young and Pulley

both partially fell off of Misaalefua. Ena told Misaalefua, " 'Let's move, let's go.' "

Misaalefua just kept repeating, " 'Get this guy off of me, get this mother fucker off of


1      Although Ena's testimony was that there were "more gunshots," it seems clear
from the evidence that Pulley fired a total of two times.
                                              7
me.' " As Misaalefua spoke, his voice started to fade. Ena kept trying to hit Pulley to

make him to let go of the gun. This continued until the police arrived.

         Sao Young, Misaalefua's sister-in-law, called 911 at 2:43 a.m., which was only 13

minutes after Sergeant Regalado had cleared the earlier call involving Pulley and his son.

Sao Young reported that someone had been shot, and that her husband, Matt Young, was

wrestling with someone who was holding a gun.

         Sergeant Regalado returned to Brown Street in response to a call about shots being

fired. When Regalado arrived, he saw several people engaged in a struggle inside

Pulley's garage. Misaalefua was on the ground with his eyes closed. A pool of blood

was forming around him. Two women were standing over Misaalefua, crying and

grabbing at him. Two men were struggling to restrain Pulley.

         Regalado grabbed Pulley's right arm and Pulley released a small semi-automatic

handgun. As Regalado tried to hold onto Pulley's arm, Pulley stiffened in a manner that

made Regalado think that Pulley was trying to grab the gun. Regalado held Pulley's arm

tighter, picked up the gun, and moved it beyond Pulley's reach. Regalado then

handcuffed Pulley with the assistance of other officers.

         Misaalefua subsequently died at the hospital as a result of a gunshot wound to the

chest.




                                              8
              b.     Pulley's December 25 interview

       Detective William Wallace interviewed Pulley on December 25, 2010. A video of

the interview was played for the jury at trial. During the interview, Pulley told Wallace

that when officers arrived at his home the first time on December 25, he was thrown to

the ground, put in handcuffs, and placed in a patrol car for approximately 30 minutes.

Pulley said that at the time he did not know why this was happening. When the police

finally left, he walked over to Misaalefua's house to apologize for the disturbance.

According to Pulley, as he started to apologize to Misaalefua, Misaalefua hit him and

knocked him to the ground. Pulley got up, asked Misaalefua what was wrong with him,

and then ran back to his house because Misaalefua was "just going crazy." Pulley ran to

the front door, went inside the house and grabbed his gun. He ran around to the garage to

close the garage door, but someone was standing near the door and it would not close.

Pulley ran outside and said, "Get the hell off my property," or something to that effect.

He explained to Wallace that after that point, he did not remember what happened, other

than that he had been tackled.

       Pulley told Wallace that he kept his .25-caliber pistol in a china cabinet by the

front door in case of a home invasion. He owned a number of guns and kept another gun

by his bed. Pulley explained that he grabbed the gun from the china cabinet on his way

to close the garage door. Pulley said that he did not remember the gun going off, and also

did not remember taking the safety off of the gun to prepare to use it. Pulley admitted

that he had had "lots of weapons training" from his military experience, and said that he

did not normally take the safety off of a gun when he grabbed one.

                                             9
       Pulley told Wallace that he had been drinking vodka that night.

              c.       Other evidence

       The parties stipulated that Pulley's blood alcohol level at the time of the shooting

was approximately .19 percent. Misaalefua's blood alcohol level at the time of his death

was .18 percent.

       A criminalist with the San Diego County Sheriff's Department Crime Laboratory

analyzed the Browning .25-caliber pistol and two expended cartridge cases. The pistol

was working properly. It required six pounds of pressure to pull the trigger. The pistol

had a magazine safety mechanism, which meant that it would not fire if there was no

magazine in the weapon. The gun also had a manual safety.

       The criminalist determined that the muzzle of the gun had been less than six

inches from Misaalefua at the time it was fired.

       A firearm expert testified that the pistol used in the shooting required a six-pound

trigger pull, and that this was on the heavy side for a .25-caliber automatic pistol. In

order to activate the safety of the .25 Browning pistol, a person must execute a very

deliberate action, which makes it a relatively safe weapon.

       4.     Prior domestic violence evidence

       Pulley and Angela had been married for 21 years. Their relationship had been

volatile. In 1993, Angela filed for a restraining order, alleging that Pulley hit her on the

side of the head when he was drunk. The blow had caused her ear to ring for hours

afterward. The court granted the restraining order, but Angela filed for a dismissal of the

order a month later.

                                             10
       In 1994, Pulley came home drunk and began wrestling with and tickling his then

eight-year-old son to the point that the child started crying. Angela said, "[T]hat's

enough. Enough." She tried to separate the two. Pulley swung at Angela and hit her in

the face, breaking her nose in three places. Angela did not call the police, but she took

her children and drove herself to the hospital. After this incident, Angela applied for a

restraining order, which the court granted. She subsequently moved to dismiss that

restraining order, as well.

B.     Procedural background

       On May 3, 2011, the San Diego County District Attorney filed an information

charging Pulley with one count of murder (Pen. Code, § 187, subd. (a); count 1)2; one

count of misdemeanor battery (§ 242; count 3); and two counts of criminal threats (§ 422;

counts 2 and 4). With respect to the murder, the information alleged that Pulley

intentionally and personally discharged a firearm resulting in death (§ 12022.53, subd.

(d)) and personally used a firearm (§ 12022.5, subd. (a)).

       A jury found Pulley guilty of second degree murder (count 1), battery (count 3),

and one count of making a criminal threat directed at his son (count 2). The jury also

found true the firearm allegations charged in connection with count 1. The jury found

Pulley not guilty of one count of making a criminal threat directed at his wife (count 4).

       The court sentenced Pulley to 40 years to life in state prison. Pulley filed a timely

notice of appeal.



2      All statutory references are to the Penal Code unless otherwise specified.
                                             11
                                              III.

                                          DISCUSSION

A.     There is sufficient evidence that Pulley committed murder

       Pulley first contends that the evidence is insufficient to support his conviction for

second degree murder because, he asserts, the only reasonable conclusion that a fact

finder could reach from the evidence presented at trial is that he acted with legal

justification in defending himself within his home. Pulley's argument is, in essence, that

the evidence established justified self-defense as a matter of law. We disagree with

Pulley's contention that the only reasonable inference from the evidence is that he had

legal justification to kill Misaalefua.

       When the sufficiency of the evidence is challenged, the court is not required to

" ' "ask itself whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt." [Citation.] Instead the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]"

(People v. Johnson (1980) 26 Cal.3d 557, 576; see also Jackson v. Virginia (1979) 443

U.S. 307, 319.)

       "In determining whether a reasonable trier of fact could have found defendant

guilty beyond a reasonable doubt, the appellate court 'must . . . presume in support of the

judgment the existence of every fact the trier could reasonably deduce from the evidence.'

[Citations.] The court does not, however, limit its review to the evidence favorable to the

respondent. . . . '[O]ur task . . . is twofold. First, we must resolve the issue in the light of

                                               12
the whole record—i.e., the entire picture of the defendant put before the jury—and may

not limit our appraisal to isolated bits of evidence selected by the respondent. Second,

we must judge whether the evidence of each of the essential elements . . . is substantial; it

is not enough for the respondent simply to point to "some" evidence supporting the

finding, for "[n]ot every surface conflict of evidence remains substantial in the light of

other facts." ' [Citation.]" (People v. Johnson, supra, 26 Cal.3d at pp. 576-577, quoting

People v. Bassett (1968) 69 Cal.2d 122, 138.)

         Pulley relies on the presumption created by section 198.5 as support for his

argument that his conduct in killing Misaalefua was legally justified. Section 198.5

provides:

            "Any person using force intended or likely to cause death or great
            bodily injury within his or her residence shall be presumed to have
            held a reasonable fear of imminent peril of death or great bodily
            injury to self, family, or a member of the household when that force
            is used against another person, not a member of the family or
            household, who unlawfully and forcibly enters or has unlawfully and
            forcibly entered the residence and the person using the force knew or
            had reason to believe that an unlawful and forcible entry occurred.

            "As used in this section, great bodily injury means a significant or
            substantial physical injury."

         Section 198.5 was created "to permit residential occupants to defend themselves

from intruders without fear of legal repercussions, to give 'the benefit of the doubt in such

cases to the resident . . . .' [Citation.]" (People v. Owen (1991) 226 Cal.App.3d 996,

1005.)

         Pulley argues that it was incumbent on the prosecution to prove beyond a

reasonable doubt that Pulley's conduct in shooting Misaalefua was without legal

                                              13
justification, and that there is insufficient evidence for the jury to have determined that he

acted without that legal justification. A review of the record establishes that there is

sufficient evidence that Pulley's conduct was not legally justified under section 198.5.

       Pulley acknowledges that the jury was properly instructed concerning self-defense,

voluntary manslaughter, and defense of home or property. With respect to defense of

home and property, the jury was instructed with CALCRIM No. 506, as follows:

          "The defendant is not guilty of murder or manslaughter if he killed
          to defend himself or any other person in the defendant's home. Such
          a killing is justified, and therefore not unlawful, if:

          "1. The defendant reasonably believed that he was defending a home
          against Jimmy [Misaalefua], who violently or riotously or
          tumultuously tried to enter that home intending to commit an act of
          violence against someone inside;

          "2. The defendant reasonably believed that the danger was
          imminent;

          "3. The defendant reasonably believed that the use of deadly force
          was necessary to defend against the danger; AND

          "4. The defendant used no more force than was reasonably necessary
          to defend against the danger.

          "Belief in future harm is not sufficient, no matter how great or how
          likely the harm is believed to be. The defendant must have believed
          there was imminent danger of violence to himself or someone else.
          Defendant's belief must have been reasonable and he must have
          acted only because of that belief. The defendant is only entitled to
          use that amount of force that a reasonable person would believe is
          necessary in the same situation. If the defendant used more force
          than was reasonable, then the killing was not justified.

          "When deciding whether the defendant's beliefs were reasonable,
          consider all the circumstances as they were known to and appeared
          to the defendant and consider what a reasonable person in a similar
          situation with similar knowledge would have believed. If the

                                             14
          defendant's beliefs were reasonable, the danger does not need to
          have actually existed.

          "A defendant is not required to retreat. He is entitled to stand his
          ground and defend himself and, if reasonably necessary, to pursue an
          assailant until the danger of death/bodily injury has passed. This is
          so even if safety could have been achieved by retreating.

          "The People have the burden of proving beyond a reasonable doubt
          that the killing was not justified. If the People have not met this
          burden, you must find the defendant not guilty of murder or
          manslaughter."

       We presume that the jury understood and followed this jury instruction (see

People v. McKinnon (2011) 52 Cal.4th 610, 670), and thus we further presume that the

jury properly considered whether the People met their burden of proving that Pulley was

not justified in killing Misaalefua. There is sufficient evidence to support a conclusion

that the killing of Misaalefua was not justified. In particular, there is sufficient evidence

to support a conclusion that Pulley used more force than was reasonable in shooting

Misaalefua.

       Pulley and Misaalefua got into a physical altercation after Pulley walked over to

Misaalefua's house on the night in question. The evidence demonstrates that Pulley fell

to the ground, either because he stumbled or because he was knocked down by

Misaalefua, as the two were walking together toward Pulley's house. At that point,

Pulley started to threaten Misaalefua, saying, "I got something for you. I got something

for you, mother fucker." This clearly took place before either man arrived at Pulley's

house. After these events, both men continued toward Pulley's home. Pulley entered the

house through an interior garage door, while Misaalefua stood in the garage, between five


                                              15
and 15 feet away from that interior door, waiting for Pulley to return. The jury could

have reasonably inferred that Misaalefua was not attempting to enter Pulley's home, and

that Pulley could have avoided the entire incident if he had simply remained inside his

house.

         Instead, Pulley grabbed a firearm from inside his house and went back out to the

garage where Misaalefua was standing. When Misaalefua saw the gun he said, " 'What

are you going to do with that[?] Shoot me[?]' " Without any further physical threat from

Misaalefua, Pulley fired a shot at Misaalefua. Only then did the two men begin to

physically wrestle, and Pulley fired another shot.

         It is clear from these facts that Pulley increased the violence in this altercation by,

as the prosecutor argued, bringing a gun to what was, essentially, a fistfight. Further,

because Misaalefua did not attempt to follow Pulley into Pulley's house, the jury could

have reasonably concluded that the fight had essentially ended when Pulley walked inside

the house and closed the door. Instead of locking the door or calling the police, Pulley

grabbed a gun and walked back out to the garage and did what he had earlier essentially

threatened to do, i.e., he gave "something" to Misaalefua. The jury could have concluded

that in retrieving a gun and shooting an unarmed man, Pulley used more force than was

reasonably necessary to protect himself or his house, and thus, that the presumption of

justification embodied in section 198.5 had been overcome by contrary evidence.

         Given the state of the evidence, we must uphold the jury's conclusion that Pulley

was not justified in killing Misaalefua. Although, as Pulley has argued on appeal, a jury

might have concluded that his conduct was justified, as long as the circumstances

                                                16
reasonably justify the jury's findings, we will not reverse the jury's verdict simply

because the evidence might support a contrary conclusion. (People v. Sassounian (1986)

182 Cal.App.3d 361, 408.) The circumstances more than reasonably support the jury's

rejection of the justification defense in this case.

B.       There is sufficient evidence that Pulley acted with malice, such that his conviction
         for second degree murder need not be reduced to voluntary manslaughter

         Pulley argues that even if this court disagrees that the only reasonable conclusion

from the evidence is that he acted with legal justification, this court should nevertheless

reduce his conviction to voluntary manslaughter on the ground that the evidence

demonstrates, at most, that he acted pursuant to the heat of passion, and that there is thus

insufficient evidence that he acted with the requisite malice required for second degree

murder. We reject this argument, as well.

         We apply the same standards for reviewing a claim of insufficiency of the

evidence that we set out in part III.A., ante, in considering Pulley's related sufficiency

claim.

         Murder is the unlawful killing of a human being "with malice aforethought."

(§ 187, subd. (a).) Pulley was convicted of second degree murder, which is "the unlawful

killing of a human being with malice aforethought but without the additional elements,

such as willfulness, premeditation, and deliberation, that would support a conviction of

first degree murder." (People v. Knoller (2007) 41 Cal.4th 139, 151 (Knoller).) Malice

may be either express (as when a defendant manifests a deliberate intention to take away

another person's life) or implied. (People v. Blakeley (2000) 23 Cal.4th 82, 87.) "Malice


                                               17
is implied when the killing is proximately caused by ' "an act, the natural consequences of

which are dangerous to life, which act was deliberately performed by a person who

knows that his conduct endangers the life of another and who acts with conscious

disregard for life." ' [Citation.] In short, implied malice requires a defendant's awareness

of engaging in conduct that endangers the life of another . . . ." (Knoller, supra, at p.

143.)

        Malice may be, and often must be, proved by circumstantial evidence. (See

People v. Lashley (1991) 1 Cal.App.4th 938, 945-946; People v. James (1998) 62

Cal.App.4th 244, 277.) "One who intentionally attempts to kill another does not often

declare his state of mind either before, at, or after the moment he shoots. Absent such

direct evidence, the intent obviously must be derived from all the circumstances of the

attempt, including the putative killer's actions and words. Whether a defendant possessed

the requisite intent to kill is, of course, a question for the trier of fact." (People v.

Lashley, supra, at pp. 945-946.)

        Pulley contends that the evidence showed that he acted not with express or implied

malice, but instead, pursuant to the heat of passion, such that the element of malice was

negated. He argues that the prosecution failed to prove malice aforethought because it

failed to prove the absence of provocation and heat of passion beyond a reasonable doubt.

Pulley maintains that we should find that provocation and heat of passion existed as a

matter of law, and reduce the offense to voluntary manslaughter. We reject Pulley's

contentions.



                                               18
       "Where an intentional and unlawful killing occurs 'upon a sudden quarrel or heat

of passion' (§ 192, subd. (a)), the malice aforethought required for murder is negated, and

the offense is reduced to voluntary manslaughter—a lesser included offense of murder."

(People v. Carasi (2008) 44 Cal.4th 1263, 1306.) Heat of passion has both objective and

subjective components. (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) To satisfy

the objective component, the claimed provocation must be sufficient to cause an ordinary

person of average disposition to act rashly or without due deliberation and reflection,

from passion rather than from judgment. (Id. at p. 550.) "The provocation . . . must be

caused by the victim [citation], or be conduct reasonably believed by the defendant to

have been engaged in by the victim." (Id. at pp. 549-550.) A defendant may not " ' "set

up his own standard of conduct and justify or excuse himself because in fact his passions

were aroused. . . ." ' " (People v. Cole (2004) 33 Cal.4th 1158, 1215-1216, quoting

People v. Steele (2002) 27 Cal.4th 1230, 1252.) "To satisfy the subjective element of this

form of voluntary manslaughter, the accused must be shown to have killed while under

'the actual influence of a strong passion' induced by such provocation." (Moye, supra, at

p. 550.)

       Pulley correctly points out that when murder and voluntary manslaughter are

under consideration, the burden is on the prosecution to prove, beyond a reasonable

doubt, the absence of a sudden quarrel or heat of passion, in order to establish the malice

element of murder. (People v. Rios (2000) 23 Cal.4th 450, 454.) However, "[e]ven if

defendant's testimony provided some evidence of provocation for the jury to consider, it

remains the jury's exclusive province to decide whether the particular facts and

                                            19
circumstances are sufficient to create a reasonable doubt as to whether the defendant

acted under a heat of passion. [Citations.]" (People v. Bloyd (1987) 43 Cal.3d 333, 350.)

" 'The jury [is] not required to accept defendant's version of the killing. [Citations.]'

[Citation.]" (People v. Harris (1971) 20 Cal.App.3d 534, 537.) Here, the trial court

properly instructed the jury as to both murder and voluntary manslaughter and we

" 'credit jurors with intelligence and common sense' [citation] and presume they generally

understand and follow instructions [citation]." (People v. McKinnon, supra, 52 Cal.4th at

p. 670.)

       The question before this court is whether, examining the entire record in the light

most favorable to the judgment, a reasonable jury could have found that Pulley harbored

the malice necessary to support a second degree murder conviction. We conclude that

there was ample circumstantial evidence of an intent to kill (express malice), as well as

evidence of an awareness of the risk to life and action in conscious disregard for life

(implied malice).

       The evidence showed that after having engaged in an altercation with Misaalefua,

Pulley walked back to his house, saying, "I got something for you." He went into his

house and retrieved a loaded gun. Pulley took off the safety of the gun, which required a

very deliberate action, and walked back out to where Misaalefua was waiting. Pulley

then shot at Misaalefua at close range, twice.3 He had to apply six pounds of pressure to

pull the trigger each time. Shooting at a person from very close range is a strong


3      One of the gunshots entered Misaalefua's chest from a distance of less than six
inches.
                                              20
indicator of an intent to kill. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690; see

also People v. Lashley, supra, 1 Cal.App.4th at p. 945 ["The very act of firing a .22-

caliber rifle toward the victim at a range and in a manner that could have inflicted a

mortal wound had the bullet been on target is sufficient to support an inference of intent

to kill." Shooting at point blank range "undoubtedly creates a strong inference that the

killing was intentional"].) Beyond this, there was evidence that Pulley was clearly aware

of the dangerousness of bringing a loaded gun outside during an altercation, and taking

the safety off, such that the jury could have inferred that Pulley acted with conscious

disregard for life.

       Even if Pulley was upset due to the altercation with Misaalefua, the evidence

demonstrated that Pulley had separated himself from Misaalefua and that he had time to

cool off and rationally consider his actions. Instead of remaining inside his house, or

even reengaging in an unarmed physical confrontation with Misaalefua, Pulley

purposefully retrieved a gun, walked back out to his garage, and shot his neighbor at

close range. Although the initial altercation had come to an end, Pulley clearly decided

not only to continue it, but to escalate it. From this evidence, the jury could have

reasonably concluded that Pulley intended to kill Misaalefua, and that he was not

sufficiently provoked or acting under the heat of passion when he shot at Misaalefua, so

as to reduce the crime from murder to manslaughter. Pulley in effect is asking this court

to reweigh the evidence and to reach a result different from the result that the jury

reached. However, that is not our role in examining the sufficiency of the evidence to

support a conviction.

                                             21
C.     The trial court did not abuse its discretion in denying Pulley's motion to sever the
       charge in count 4 from the other counts

       Pulley contends that the trial court denied him a fair trial by denying his motion to

sever count 4, the charge arising from the threats to his wife on November 11, 2010, from

the remaining counts.

       The statutory authorization for joinder of criminal charges is set forth in section

954. That section provides in relevant part:

           "An accusatory pleading may charge two or more different offenses
           connected together in their commission, or different statements of
           the same offense or two or more different offenses of the same class
           of crimes or offenses, under separate counts, and if two or more
           accusatory pleadings are filed in such cases in the same court, the
           court may order them to be consolidated."

       In this case, it is clear that all of the offenses charged were of the same class, in

that they were all violent crimes against another individual (battery, criminal threats,

murder). The offenses thus met the requirements of joinder under section 954, which

Pulley concedes.

       Even where criminal charges are properly joined pursuant to section 954,

however, a trial court may exercise its discretion to order separate trials in the interests of

justice. "[A] determination as to whether separation [of the trial of offenses] is required

in the interests of justice is assessed for abuse of discretion." (People v. Alvarez (1996)

14 Cal.4th 155, 188.)

       "In the context of severing charged offenses, we have explained that 'additional

factors favor joinder. Trial of the counts together ordinarily avoids the increased

expenditure of funds and judicial resources which may result if the charges were to be

                                               22
tried in two or more separate trials.' [Citation.] Accordingly, when the evidence sought

to be severed relates to a charged offense, the 'burden is on the party seeking severance to

clearly establish that there is a substantial danger of prejudice requiring that the charges

be separately tried. [Citations.]' " (People v. Hernandez (2004) 33 Cal.4th 1040, 1050,

italics added.)

       "Whether a trial court abused its discretion in denying a motion to sever

necessarily depends upon the particular circumstances of each case. [Citations.] The

pertinent factors are these: (1) would the evidence of the crimes be cross-admissible in

separate trials; (2) are some of the charges unusually likely to inflame the jury against the

defendant; (3) has a weak case been joined with a strong case or another weak case so

that the total evidence on the joined charges may alter the outcome of some or all of the

charged offenses; and (4) is any one of the charges a death penalty offense, or does

joinder of the charges convert the matter into a capital case. [Citation.] A determination

that the evidence was cross-admissible ordinarily dispels any inference of prejudice.

[Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 27-28.)

       Generally, in determining whether the trial court abused its discretion in denying a

motion to sever, an appellate court must examine the record that was before the trial court

at the time of its ruling. (People v. Mendoza (2000) 24 Cal.4th 130, 161.) However,

"[e]ven if a trial court's severance or joinder ruling is correct at the time it was made, a

reviewing court must reverse the judgment if the 'defendant shows that joinder actually

resulted in "gross unfairness" amounting to a denial of due process.' [Citation.]" (Id. at

p. 162.)

                                              23
       Pulley contends that the evidence concerning the incidents in counts 1 through 3

and the incident in count 4 would not have been cross-admissible, and further contends

that the evidence was fairly strong as to the first three counts, but relatively weak as to

count 4.4 According to Pulley, the evidence about the threat against Pulley's wife

prejudiced the jury against Pulley and made the jury less likely to conclude that he acted

in self-defense or lacked the requisite mental state for second degree murder. The record

does not support Pulley's contentions.

       Specifically, it is clear that the evidence pertaining to counts 2, 3, and 4 would

have been cross-admissible in separate trials of those counts because those counts all

involved domestic violence perpetrated by Pulley against members of his family.

Evidence Code section 1109 makes evidence of a defendant's commission of other

uncharged acts of domestic violence admissible in an action in which the defendant is

accused of an act of domestic violence. This dispels an inference of prejudice from the

joinder of these offenses. Further, even if we were to assume that evidence as to the

charge in count 4 would not have been cross-admissible with respect to the murder

charge in count 1, we would still not conclude that Pulley demonstrated the existence of

prejudice from the joinder of these charges. Pulley's suggestion that the joining of an

allegedly weak case (count 4) somehow bolstered the admittedly strong case against him

in counts 1 through 3 makes little sense. The fact that the jury acquitted Pulley of the

charge in count 4 indicates that the jury was not convinced that he committed that crime.



4      Pulley notes that he was, in fact, acquitted on that count.
                                              24
It seems unlikely that the jury would have used evidence of a crime for which they

acquitted him to conclude that Pulley was a bad character who was likely to have

committed murder. It is clear that the jury considered each count on its own merits, and

that it did not rely on some generalized notion of Pulley's bad character to find him guilty

of any particular charge. There is simply no indication of any prejudicial "spillover"

effect from the joining of the counts in this case.

       Similarly, there is no reason to believe that the presentation of evidence pertaining

to count 4 was likely to inflame the jury against Pulley generally. The evidence

pertaining to the criminal threat charge involving Pulley's wife was not particularly

egregious. If anything, the concern would be that the joining of count 1, the murder

charge, might be likely to inflame the jury against the defendant and make it more likely

that the jury would want to punish Pulley for the other charged offenses, including count

4. However, the jury did not convict Pulley on count 4. It would thus not be reasonable

to conclude that the jury was inflamed by the murder charge in count 1, such that it was

more likely to convict him of count 4.

       To the extent that Pulley is arguing that it is not only the evidence of the criminal

threat against his wife that was prejudicial, but also the prosecutor's presenting evidence

of his uncharged acts of domestic violence in 1993 and 1994, we reject this argument, as

well. First, the jury was specifically instructed that it could "not conclude from this

evidence that the defendant has a bad character or is disposed to commit crimes." We

presume that the jury followed this instruction. (See, e.g., People v. Avila (2006) 38

Cal.4th 491, 574.) Indeed, it seems that the jury did not use this evidence to conclude

                                              25
that Pulley had a bad character or was disposed to commit crimes, since the jury acquitted

him on count 4—one of the domestic violence counts.

       Further, it was clearly within the trial court's discretion to join the charges in

counts 1 through 3, since they were all of the same class and occurred on the same date

and close in time. In fact, Pulley does not argue that the joinder of counts 2 and 3 with

count 1 was erroneous or prejudicial. Because counts 2 and 3 related to domestic

violence toward Pulley's son, the evidence going to Pulley's earlier uncharged acts of

domestic violence would have been admissible as to these counts, even if count 4 had

been severed and prosecuted in a separate trial. Thus, any presumption of prejudice

arising from the admission of this other bad acts evidence as a result of the joinder of

count 4 with the other counts is dissipated.

       We conclude that the trial court's ruling on Pulley's severance motion was not an

abuse of discretion at the time it was made, and further conclude that the joinder of these

charges in a single trial did not result in "gross unfairness" amounting to a denial of due

process. It is simply not reasonably probable that Pulley would have obtained a more

favorable verdict in separate trials of counts 1 through 3, and count 4. Pulley was

acquitted on count 4, and the jury convicted him of second degree murder on count 1, a

lesser offense than the charged first degree murder. Pulley was not deprived of his right

to a fair trial or due process.




                                               26
                                         IV.

                                   DISPOSITION

    The judgment of the trial court is affirmed.




                                                   AARON, J.

WE CONCUR:



         HALLER, Acting P. J.



                      IRION, J.




                                         27
