Filed 3/30/15 P. v. Mullennix CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A135983
v.
KENNETH DOYLE MULLENNIX,                                                 (Sonoma County
                                                                          Super. Ct. No. SCR576368)
         Defendant and Appellant.


         After a trial, a jury found defendant Kenneth Doyle Mullennix guilty of voluntary
manslaughter of his wife Buapha (“Bua”) Mullennix (Pen. Code, § 192, subd. (a)1),
together with a related true finding that he personally used a firearm during the
commission of the crime (§ 12022.5, subdivision (a)). The court sentenced defendant to
an aggregate term of 10 years in state prison, consisting of a term of six years for the
voluntary manslaughter conviction and a consecutive term of four years for the firearm
use enhancement. 2 Defendant contends the trial court committed prejudicial
instructional errors affecting the jury’s consideration of perfect, or lawful, defense of
others and evidence of uncharged domestic violence. We conclude defendant’s
contentions do not require reversal, and accordingly, we affirm the judgment.



1
         All further unspecified statutory references are to the Penal Code.
2
      Before trial, defendant pleaded no contest to possessing an assault weapon with a
detachable magazine (§ 12280, subd. (b)), as alleged in count two of the information. He
was sentenced to a concurrent term of two years.


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                 FACTUAL AND PROCEDURAL BACKGROUND
       Shortly after 10:00 p.m. on January 9, 2010, Petaluma police officers came to
defendant’s home in response to his 911 call in which he said his wife had tried to attack
him, she was insane, and he shot and killed her. When the police arrived, defendant was
standing in the doorway of the residence with a telephone in his hand. Following an
officer’s instructions, defendant put down the telephone and lifted up his shirt so the
officer could check for weapons. Defendant was ultimately handcuffed, arrested, and
placed in a patrol car and taken to the police department.3 In response to the officers’
requests through a public announcement system, defendant’s then 10-year-old daughter
and then 18-year-old stepdaughter, came out of the house and were ultimately taken to a
children’s center.
       When the police entered the residence, they found the wife lying on the floor in
the master bedroom, which was located on the second floor; there were two other
bedrooms on that floor. There was a large wound on the right side of her face and a pool
of blood around her head. The paramedics at the scene pronounced her death. An
autopsy showed the wife had died from a gunshot wound to her head; she had no other
injuries such as cuts, bruises, or rib fractures. A toxicology report of her blood came
back negative for alcohol and therapeutic prescription drugs in an upper range. The
condition of the body suggested the wife, when shot, had been standing up and the
muzzle of the gun was fired from a distance of at least 12 to 30 inches from her face; the
path of the bullet was straight from front to back of the skull and the wife died within
seconds. The wife’s hands tested positive for the presence of gun shot residue. However,
it was not possible to tell whether she had fired a gun, was in close proximity to a gun
3
        When he was initially arrested defendant did not show any sign that he was under
the influence of alcohol. About two hours after he had arrived at the police department,
defendant was tested to determine his blood-alcohol level. Defendant’s initial test results
showed a blood-alcohol level of 0.235 percent. Unless defendant was an alcoholic, the
result would be considered a high blood-alcohol level. Several hours later, defendant’s
blood-alcohol level was found to be 0.14 percent. Evidence was presented that when a
person consumed too much alcohol, it was possible that signs of mental impairment of
some degree could be present before outward signs of physical impairment.


                                             2
that was fired by someone else, or came into contact with a source of gunshot residue
particles. Although defendant’s hands were also processed for the presence of gun shot
residue, there was no analysis done of his sample.
          The police searched the master bedroom, which included an area with a bed, two
nightstands, a walk-in closet, a large dresser, and an alcove office area with a desk, a desk
chair, and a bookcase next to the desk. The wife’s body was found between the bedroom
area and the alcove office area, with her head pointed to the bedroom area and her feet
pointed toward the alcove office area. The police found a Glock pistol on the desk chair
about six or seven feet from the wife and a spent shell casing underneath the bookshelf
about two feet from the chair. The spent shell casing came from the Glock pistol, which
was loaded and ready to be fired by pulling the trigger; no comparison could be made
between the bullet found in the wife and a test-fired bullet. It was not possible to
calculate from where the gun was fired based on the location of the spent shell casing.
No usable latent fingerprints were found on the gun, its magazine, or the spent shell
casing, which was not unusual given the gun’s surface irregularities and the use of oil or
polish.
          The prosecution’s trial theory that defendant had committed murder was based, in
pertinent part, on varying statements defendant gave to the police, statements given by
his stepdaughter and his sister-in-law, the physical evidence at the crime scene, and the
position and condition of the wife’s body when found by the police. The prosecutor also
presented evidence showing that several months before the shooting sometime in the
summer of 2009, defendant learned his wife was having an affair with another man, he
was angry about the situation and wanted a divorce, and his wife had written a note
indicating that on October 3, 2009, defendant had been drinking, grabbed her throat “too”
tightly and pointed a gun at her. According to the prosecutor, on the day of the shooting
defendant had been drinking and was angry with his wife. During an argument with his
wife in the master bedroom, he could have walked out of the bedroom but chose to get
his Glock pistol that was hidden in a bookshelf and shot her from a distance of one to
three feet away. The prosecutor argued the evidence did not support defense theories that


                                              3
the shooting was an accident, that the wife shot herself, or that defendant had acted in
perfect self-defense or unreasonable self-defense or defense of others. Even assuming,
the prosecutor theorized, wife had armed herself with the pistol, the physical evidence
demonstrated that defendant had disarmed her, thereby ending his right to use deadly
force against her to defend himself and the children who were elsewhere in the house.
       In his defense, defendant presented evidence concerning wife’s history of mental
health treatment and her threatening, assaultive and violent conduct against defendant and
her daughters, his placement of a GPS device on wife’s car to track her whereabouts, his
previous confrontations with wife regarding her affair with another man and his plans to
divorce her, his drinking pattern and blood alcohol levels on the night of the shooting,
and wife’s knowledge of guns and the status of the Glock gun in the house on the night of
the shooting.
       Defendant also presented evidence regarding the events in the house on the night
of the shooting. Defendant and his daughters were in the house when the wife arrived
home at about 9:00 p.m. He had been drinking “quite a bit” and he went to the master
bedroom because he was upset and angry and wanted to avoid a fight with his wife who
was angry. He tried to read but he was too drunk and dozed off. His daughter came into
the room and read to him. Wife came into the room and stood at the foot of the bed,
glaring angrily at him and their daughter. Because it looked like his wife wanted to
argue, defendant told his daughter that it was time for bed. The daughter said she did not
want to leave and her mother got angry and started to yell at her. The daughter became
upset and stormed out of the room and went to her own bedroom. Wife closed the door
of the master bedroom. Defendant got off the bed and said he did not want to fight and
just wanted to get some sleep. Wife began to call him names. He took off his clothes,
paced back and forth, and said that wife should get out and leave the family alone. His
wife responded, but defendant could not recall exactly what she said. The next thing he
heard was his wife angrily saying, “I’m gonna kill you all” or “I’m gonna kill you,
everyone.” Defendant did not remember his wife saying to him, “I want you to die.” He
looked up and saw the Glock pistol in his wife’s hand; she was holding it in her right


                                             4
hand with her left hand holding her right wrist.4 Defendant did not recall seeing his wife
getting the gun, loading it, or readying it for firing. Defendant thought he reacted by
saying something like he did not want to die. He did not recall saying to his wife, “I want
you to die.” Defendant was angry and scared for his wife, himself and the children.
Unlike wife’s earlier threats, this time defendant believed that his wife’s threat “was
direct, it was like, I’m gonna kill you, everyone, like it was something she was going to
do right now.” The next thing defendant remembered was seeing his wife lying dead
with blood pouring out of her head. His ears were ringing from gunshot, and it smelled
like gunpowder. He did not know what had happened; he was just in shock and felt
horrible. He did not remember how his wife had secured the gun, how he got the gun, or
how his wife was shot. At trial, he testified that it was possible the gun went off when he
tried to take the gun away from his wife, “but [he was] taking responsibility.”
       Immediately before the shooting, defendant’s stepdaughter was in her bedroom
editing a video on her computer and defendant’s daughter was in her separate bedroom
listening to music. The daughters heard both parents arguing in the master bedroom.
Despite wearing a headphone, the stepdaughter heard her mother and defendant yelling
about her mother’s boyfriend and divorce. The argument was loud and went on for a
long time, and she heard defendant yell, “I want you to die.” The daughters heard a loud
noise. The stepdaughter took off her headphone and went toward the door of her
bedroom. Before she opened the door and left her room she heard defendant say, “[Y]ou
my wife, why you kill yourself.” In the hallway, the stepdaughter saw defendant




4
        Defendant had previously seen the Glock pistol several months earlier when he
had hidden it in the master bedroom bookcase. After looking at a photograph, defendant
identified the area of the bookcase where he had hidden the gun. He had not told his wife
the location of the gun and he did not know whether his wife found the pistol or knew
where it was after he had hidden it. Although the bookcase contained mostly defendant’s
books, it was also used by his wife for food packages and cards.

                                             5
standing in front of the doorway to the master bedroom. Defendant said, “Don’t go in
there.” 5
       Defendant further testified concerning the events after the shooting. He called 911
right away. When he was in the police car after his arrest, defendant was mumbling to
himself that he did not remember if his wife had a weapon. Later that evening, when
interviewd by the police, defendant only recalled going into the master bedroom, dozing
off, and the next thing he remembered was his wife being dead. Defendant had a vague
memory of his wife saying, “I’m gonna kill you,” but he did not remember that his wife
had a gun, his daughter had earlier come into the master bedroom, or his argument with
his wife. Defendant recalled the forgotten incidents after seeing a picture drawn by his
daughter. He told the police several times that he did not specifically remember shooting
his wife but he must have done so because he could not imagine what else happened.
       At the conclusion of evidence, the trial court instructed the jury on the charged
offense of first-degree murder, and the lesser included offenses of second-degree murder,
voluntary manslaughter (provocation, sudden quarrel/heat of passion, imperfect self-
defense, imperfect defense of others), involuntary manslaughter, and justifiable homicide
based on perfect, or lawful, self-defense. The jury was also instructed on related firearm
sentence enhancements. The jury found defendant not guilty of first- or second-degree
murder, guilty of voluntary manslaughter, and made a true finding that defendant
personally used a firearm during the commission of the crime.

                                        DISCUSSION
I.     Trial Court’s Refusal to Give an Instruction on Perfect or Lawful Defense of
       Others was not Prejudicial Error
       In its final instructions, the trial court advised the jurors that in evaluating the
circumstances of the crime, they could consider that defendant was not guilty of either
murder or manslaughter if “he was justified in killing” the wife by acting in perfect or
lawful self-defense. Specifically, the jury could acquit defendant if it found that

5
      Testifying after his stepdaughter, defendant either denied or did not remember
making the statements that she said he made during the argument and after the shooting.

                                               6
defendant “reasonably believed” he was in imminent danger of being killed or suffering
great bodily injury, the immediate use of deadly force was necessary to defend against
that danger, and he had used no more force than was reasonably necessary to defend
against that danger. In determining whether defendant’s beliefs were reasonable, the jury
was advised to 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.” However, the trial court denied defendant’s request to
allow the jury to consider whether the shooting was a justifiable homicide because
defendant acted in perfect or lawful defense of others based on a lack of sufficient
evidence to support the instruction.
       On appeal the parties present extensive arguments addressing whether the trial
court erred in refusing to instruct the jury on perfect or lawful defense of others.
However, we need not address those arguments. Assuming the trial court should have
given the requested instruction, defendant has failed to demonstrate prejudice requiring
reversal on this ground.
       Defendant argues the trial court’s failure to instruct the jury on perfect or lawful
defense of others is per se reversible error. However, he relies on lower federal appellate
court decisions, which he concedes are not binding on this court. Alternatively, he argues
we should apply the standard for federal constitutional error, which requires reversal
unless the omission of the instruction is found harmless beyond a reasonable doubt in that
there is no “ ‘reasonable possibility’ ” the error “ ‘might have contributed to the
conviction.’ ” (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) As best we
can tell, the Attorney General appears to argue that the omitted instruction was harmless
regardless of whether we apply the standard for state trial court error as articulated in
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) (reversal required if “it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error), or the more stringent Chapman standard. As we now
discuss, we conclude that any instructional error was harmless under either standard.



                                              7
       By finding the defendant guilty of manslaughter, the jury apparently found that
defendant either acted in imperfect or unreasonable self-defense or defense of others, or
was provoked by a sudden quarrel or heat of passion. (People v. Barton (1995) 12
Cal.4th 186, 200-201.) More significantly, and as defendant concedes in his reply brief,
the jury necessarily rejected that he acted in perfect or lawful self-defense. (People v.
Watie (2002) 100 Cal.App.4th 866, 881.) Defendant complains that if the jurors had been
properly instructed on perfect or lawful defense of others, one or more jurors could have
concluded that reasonable doubt existed about whether he killed his wife in defense of his
children. However, we see no merit to his speculative argument. Specifically, he fails to
explain on what basis the jury, having rejected his theory of perfect or lawful self-
defense, would have credited a perfect or lawful defense of others theory. The defense
theories of perfect or lawful self-defense and defense of others were based on the same
evidence - defendant’s testimony that the wife had armed herself and threatened to shoot
him and the children and the shooting may have occurred as he attempted to take the gun
away from his wife. We cannot imagine the jury rejecting the defense theory of
reasonable self-defense, but, then, relying on the same evidence, finding that he acted in
reasonable defense of his children. In other words, it is neither “reasonably possible” that
the omitted instruction might have materially influenced the jury in arriving at its verdict
(Chapman, supra, 386 U.S. at p. 24), nor “reasonably probable” that defendant would
have obtained a more favorable outcome had the omitted instruction been given (Watson,
supra, 46 Cal.2d at p. 836). Thus, we conclude any instructional error relating to the
theory of perfect or lawful defense of others was harmless.
II.    CALCRIM NO. 852 Instruction Concerning Jury’s Consideration of
       Evidence of Uncharged Domestic Violence was not Error
       A.     Relevant Facts
       Before trial, the prosecutor filed a motion in limine seeking the admission of
evidence of uncharged domestic violence committed by defendant against the wife in the
form of a note purportedly written by the wife concerning certain events that occurred on
October 3, 2009. (Evid. Code, §§ 1109, 1250, 1370.) Defendant opposed the request on


                                              8
grounds of state law hearsay foundational requirements and as a violation of his federal
and state constitutional rights of confrontation and due process. Over defendant’s
objection, the trial court granted the prosecutor’s motion in limine and admitted into
evidence the note during the testimony of the wife’s friend. Wife’s friend testified that
sometime in January or February 2010, she found a note written in a spiral notebook in a
vehicle formerly driven by the wife. In the note, dated October 3, 2009, the wife
described events that purportedly occurred after the wife had slept downstairs the
previous night and awoken that morning. When the wife went upstairs to find clothes to
wear, she was confronted by a drunk and angry defendant. He grabbed her neck “too”
tightly and she told him she could not breathe and he was hurting her. He also pointed a
gun in her face. She asked defendant to put the gun down, told him he was drunk
already, and, if not, she would call 911. During his trial testimony defendant denied
committing the events described in the note. He also testified that, after reviewing the
record of the GPS device that he had placed on his wife’s truck, the date of his wife’s
note, October 3, 2009, was the day that he, his wife, and their daughters had gone on an
all-day picnic and hike to Sugarloaf Ridge State Park.
       In its final instructions, the trial court told the jurors to consider the evidence of
uncharged domestic violence in the following manner: “The People presented evidence
that the defendant may have committed domestic violence that was not charged in this
case, specifically: grabbing Buapha around the neck and pointing a gun in her face. [6]
[¶] Domestic violence means abuse committed against an adult who is a spouse. [¶] Abuse
means intentionally or recklessly causing or attempting to cause bodily injury, or placing
another person in reasonable fear of imminent serious bodily injury to himself or herself


6
        The current patterned CALCRIM No. 852 instruction suggests the following
preamble sentence: “The People presented evidence that the defendant committed
domestic violence that was not charged in this case[, specifically: _____<insert other
domestic violence alleged>.]” (CALCRIM No. 852 (Fall 2014 ed.) p. 651.) In response
to defendant’s objection, the trial court modified the preamble language to read as it
appears in the text of this opinion, advising the jury that “the People presented evidence
that the defendant ‘may have’ committed domestic violence . . . .”


                                               9
or to someone else. [¶] You may consider this evidence only if the People have proved by
a preponderance of the evidence that the defendant in fact committed the uncharged
domestic violence. Proof by a preponderance of the evidence is a different burden of
proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact is true. [¶] If the
People have not met this burden of proof, you must disregard this evidence entirely. [¶] If
you decide that the defendant committed the uncharged domestic violence, you may, but
are not required to, conclude from that evidence that the defendant was disposed or
inclined to commit domestic violence and, based on that decision, also conclude that the
defendant was likely to commit and did commit Penal Code Section 187(a), Murder, as
charged in Count I, or Penal Code, Section 192(a), Manslaughter, a lesser included
offense to Count I. If you conclude that the defendant committed the uncharged domestic
violence, that conclusion is only one factor to consider along with all the other evidence.
It is not sufficient by itself to prove that the defendant is guilty of Penal Code Section
187(a), Murder, as charged in Count I, or Penal Code Section 192(a), Manslaughter, a
lesser included offense to Count I. The People must still prove the charge and each
allegation beyond a reasonable doubt.”

       B.     Analysis
       Defendant contends the CALCRIM No. 852 instruction, as given in this case, was
argumentative and, in effect, an improper pinpoint instruction favorable to the
prosecution. We disagree. CALCRIM No. 852 “does not merely pinpoint evidence the
jury may consider. It tells the jury it may consider the evidence but it is not sufficient by
itself to prove guilt. [Citation.] Defendant obviously does not quarrel with the
emphasized language. If the court tells the jury that certain evidence is not alone
sufficient to convict, it must necessarily inform the jury, either expressly or impliedly,
that it may at least consider the evidence.” (People v. Kelly (1992) 1 Cal.4th 495, 531-
532 (Kelly) [Supreme Court upholding an instruction advising the jury as to how it was to
consider specifically enumerated evidence demonstrating consciousness of guilt].) We



                                              10
also reject defendant’s related argument that the purportedly argumentative nature of
CALCRIM No. 852 instruction either influenced the jury’s evaluation of the uncharged
domestic violence evidence specifically and all the evidence generally or indicated a bias
on the part of the court in favor of the prosecution.
       Referencing the first sentence in the CALCRIM No. 852 instruction that was
given in this case, defendant argues the instruction created an impermissible burden-
shifting presumption in favor of guilt. We disagree. The first sentence of the CALCRIM
No. 852 instruction in this case set forth the evidence supporting the instruction. (Kelly,
supra, 1 Cal.4th at p. 531.) Unlike the situation in People v. Owens (1994) 27
Cal.App.4th 1155, 1158-1159, cited by defendant, we see nothing in the language used in
this case that suggests the trial court believed in the merits of prosecution’s evidence of
guilt, or otherwise “impermissibly slant[ed]” the determination of guilt or innocence on
the charged crimes toward the prosecution, or “raise[d] an obvious inference that the
prosecution had proved its case against” defendant. The court’s CALCRIM No. 852
instruction in this case further advised the jury that “the evidence of uncharged acts of
domestic violence may only be considered at all if it has been established by a
preponderance of the evidence and explain[ed] what is meant by that burden of proof.
The instruction also explain[ed] that if that burden is not met, the evidence must be
disregarded entirely. [¶] . . . CALCRIM No. 852 explain[ed] that if the jury finds the
defendant committed the uncharged acts, it may but is not required to conclude defendant
was disposed to or inclined to commit domestic violence and may also conclude that the
defendant was likely to commit and did commit the crimes charged in the case. . . .
CALCRIM No. 852 clarifie[d] that even if the jury conclude[d] the defendant committed
the uncharged acts, that evidence is only one factor to consider, along with all the other
evidence and specifie[d] that such evidence alone is insufficient to prove defendant’s
guilt on the charged offenses. CALCRIM No. 852 then [went] on to state that the People
must still prove each element of every charge beyond a reasonable doubt.” (People v.
Reyes (2008) 160 Cal.App.4th 246, 252.) “[N]othing in the instruction at issue
authorized the jury to use preponderance of the evidence as the burden of proof on any


                                             11
issue other than the preliminary determination whether the accused committed a previous
[act of domestic violence].” (Id. at p. 253.) Consequently, we reject defendant’s
argument “that a jury could reasonably interpret the instruction to authorize a guilty
verdict . . . on the basis of a lowered standard of proof.” (Ibid.)

                                      DISPOSITION
       The judgment is affirmed.



                                                   _________________________
                                                   Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.




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