Filed 6/2/16 P. v. Weber CA3
                                           NOT TO BE PUBLISHED



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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                                  C078550

                   Plaintiff and Respondent,                                      (Super. Ct. No. 13F7093)

         v.

BRADLEY JAMES ANDREW WEBER,

                   Defendant and Appellant.




         Defendant Bradley James Andrew Weber shot his son in the back and killed him.
A jury convicted him of second degree murder, rejecting his defense that he was not the
shooter. He urges us to reverse the judgment because the trial court refused to instruct
the jury on the lesser included offenses of voluntary manslaughter in the heat of passion



                                                             1
and voluntary manslaughter based on unreasonable self-defense. The essence of
defendant’s appeal is that evidence his son B.J. had assaulted him in the recent past and
father and son, both intoxicated, were engaged in a heated argument at the time of the
shooting constitutes substantial evidence he did not entertain the requisite malice to
sustain the murder conviction. The flaw in defendant’s argument is there is no evidence
their quarrel objectively was of a nature that a reasonable person would have lost reason,
or that subjectively defendant had become so angry and irrational, or that he actually but
unreasonably believed he was in imminent danger of death or great bodily injury. In the
absence of evidence of what defendant’s state of mind actually was at the time of the
shooting and not what it might have been, the court properly refused to instruct on either
variant of voluntary manslaughter. The judgment is affirmed.
                                          FACTS
       This case involves a coterie of relatives with drug and medical problems, living in
the aftermath of a devastating fire in Shasta County in 2013. William Romero (Will),
who is blind, lived on rural property that had burned in the fire. His drug of choice was
marijuana. His daughter’s mother Sheila visited frequently with his daughter, who is
autistic. His mother’s home, which had been located up the hill from his parcel, was
completely destroyed. On the day of the shooting, Will, his sister, and his niece were
digging through the ashes trying to find any remnants of jewelry or mementos.
       Defendant had moved a trailer onto the scorched property to help with the cleanup.
The victim, B.J., set up a tent close by. Defendant and B.J. both drank heavily and used
methamphetamine. Defendant’s girlfriend, Pamela Glasgow (Pam), was drunk often and
also used methamphetamine. She admitted defendant “smacked [her] around” a couple
of times. B.J.’s girlfriend, Misty Darden, stayed in the tent with B.J. and her four-month-
old son Payton. Misty, a military veteran, had brain cancer and took medication to
control her seizures.



                                             2
       Defendant and B.J. had a close relationship, but when they were under the
influence of drugs and alcohol, which was frequently, they fought. During one of those
fights less than a month before the fatal shooting, defendant hit B.J. in the back with a
long gun. B.J. knocked defendant to the ground, rendering him unconscious for about
40 minutes. Initially, B.J. told defendant that defendant had been attacked by some
unknown persons, but later he explained that he had knocked him out.
       On November 2, 2013, Misty and B.J. were helping with the cleanup. B.J. and
defendant were drinking that afternoon. Sometime in the afternoon defendant visited his
friend Terry Rawlins. According to Rawlins, defendant had been drinking but did not
appear to be drunk. Defendant showed Rawlins a .22 caliber, semiautomatic pistol he
retrieved from his trunk.
       By dusk, B.J. and Misty wanted to go to town for some chicken. B.J. asked to
borrow his father’s car. His father refused. An argument ensued about the car and
whether Misty would leave the baby with Pam, who was drunk. Defendant insisted that
they leave the baby; Misty refused. B.J. told Misty to take the baby and leave. She
complied and began walking to Will’s trailer. Within a few minutes, B.J. drove past her
in a quad, shouting, “He shot me, he shot me.”
       B.J. drove the quad to Will’s trailer, desperate for help. When he got inside the
trailer, in a panic he announced, “I have been shot. Uncle Will, my dad shot me in the
back. You got to get me to the hospital.” Will helped him into the passenger seat of
Sheila’s Jeep. Sheila jumped behind the wheel of the Jeep as Will put their daughter in
the backseat, and she raced off to the hospital. They stopped and picked up Misty and the
baby. B.J. was bleeding heavily. It was a 20-minute drive to the hospital.
       Meanwhile, Will walked up to defendant’s trailer and confronted him about the
shooting. Pam fell to her knees, saying she had told defendant that he shot B.J.
Defendant responded, “I shot him?” Will confirmed that defendant had shot B.J., and



                                             3
defendant drove off. He did not deny shooting his son. Shortly thereafter defendant and
Pam went to Crescent City. They did not go to the hospital or check on B.J.’s condition.
       B.J. died from a gunshot wound to the back. The pathologist recovered a .22-
caliber bullet from his chest, with the entry wound in his back.
       Police investigators found two .22-caliber casings near the exterior door of
defendant’s trailer, another .22-caliber cartridge casing under his bed, and other live .22-
caliber ammunition inside the trailer. They did not find a firearm. The expended casings
located outside the trailer and the casing found inside the trailer were fired from the same
firearm.
       Defendant called Will the following day. Will accused defendant again of
shooting B.J. Defendant did not deny it. Defendant and Pam eluded authorities for eight
days. They were arrested in Crescent City. Another live .22-caliber cartridge was found
in the toilet of their motel room. The brand of the cartridge was different from the ones
found in defendant’s trailer.
       Defendant admitted having an argument with B.J. over the car and the baby, but
he denied shooting him. He also admitted possessing a .22-caliber pistol, but he told
detectives he did not know where it was.
       Pam married defendant after the shooting. She testified she could recall very little
of what had happened because she was drinking heavily and consuming
methamphetamine. She could recall, however, that B.J. kicked and punched defendant
because defendant had said something negative about one of his ex-girlfriends. She also
recalled seeing B.J. with a pellet gun and a “sawed-off gun.” She testified she saw B.J.
drive off on his quad with Misty and the baby about one-half hour after the argument.
       Defendant’s daughter testified that her father and B.J. had a close relationship.
She acknowledged that they bickered and “roughhouse[d]” over the years but insisted
that their bickering never became physical or violent. She described her brother as
“rambunctious.”

                                              4
       Defendant was charged with murder. (Pen. Code, § 187, subd. (a).) The
prosecution also alleged that he personally and intentionally discharged a firearm during
the commission of the murder (Pen. Code, § 12022.53, subd. (d)) and that he had suffered
a previous serious or violent felony conviction under the “three strikes” law (Pen. Code,
§ 1170.12). Following 45 minutes of deliberations, the jury found defendant guilty of the
lesser included offense of second degree murder, also finding the personal and intentional
discharge of a firearm enhancement true. The court found the prior strike allegation also
true. The court sentenced defendant to state prison for a total term of 55 years to life and,
among other fines, fees, and assessments, imposed a 15 percent administrative fee.
Defendant appeals.
                                       DISCUSSION
                                               I
                       Voluntary Manslaughter: Heat of Passion
       A trial court has a duty to instruct the jury on all lesser included offenses if there is
substantial evidence the defendant committed the lesser, but not the greater, offense.
(People v. Williams (2015) 61 Cal.4th 1244, 1263; People v. Breverman (1998)
19 Cal.4th 142, 148-149 (Breverman).) Evidence is substantial if a reasonable jury could
find it persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102.)
       “Manslaughter is a lesser included offense of murder. . . . Heat of passion is a
mental state that precludes the formation of malice and reduces an unlawful killing from
murder to manslaughter. . . . Heat of passion . . . is a state of mind caused by legally
sufficient provocation that causes a person to act, not out of rational thought but out of
unconsidered reaction to the provocation. While some measure of thought is required to
form either an intent to kill or a conscious disregard for human life, a person who acts
without reflection in response to adequate provocation does not act with malice.”
(People v. Beltran (2013) 56 Cal.4th 935, 942, fn. omitted.) Defendant contends the trial



                                               5
court committed reversible error by failing to instruct on these principles. As support, he
urges us to consider People v. Millbrook (2014) 222 Cal.App.4th 1122 (Millbrook).
       Because of the abundance of evidence to support the voluntary manslaughter
instruction in that case, Millbrook actually exposes the weakness in defendant’s
argument, premised, as it is, on the thinnest of speculative inferences a juror might have
drawn in contrast to the volume of evidence offered in Millbrook that necessitated the
instruction. Jeremy Millbrook was a skinny 18 year old who initially resisted his
girlfriend’s invitation to join a party at her friend’s house because he was afraid of a
group of boys he thought might also attend. (Millbrook, supra, 222 Cal.App.4th at
p. 1128.) Eventually he relented but kept a gun in his waistband to protect himself should
any threats arise. (Ibid.) The hostess, a Target employee, had invited many of her friends
from Target to the party, including two security guards, Sione Manoa and Matthew
Galvan. (Id. at p. 1127.) Manoa was 5 feet 10 inches tall and weighed about 235 pounds;
Galvan was 6 feet 4 inches tall. (Id. at p. 1131.) The hostess did not want the partygoers
to be in her house other than to use the bathroom. But she became too intoxicated to
monitor the party and so sick she ended up in bed. (Id. at pp. 1128-1129.)
       Her friend, Millbrook’s girlfriend Jennifer Diaz, attempted to enforce the “no
house” policy. (Millbrook, supra, 222 Cal.App.4th at pp. 1128-1129.) In doing so, she
confronted Manoa and a very heated argument ensued. (Id. at p. 1129.) Others tried to
calm the situation and Diaz went outside. Shortly thereafter, another friend of the hostess
asked Manoa to leave. (Id. at pp. 1129-1130.) They, too, got into an argument.
Millbrook described the argument as “ ‘very intense’ ”; he had “ ‘never seen anyone so
angry.’ ” (Id. at p. 1130.) Earlier he had heard Manoa say, “ ‘I got my thing. I got my
thing.’ ” (Ibid.) He believed Manoa meant that he had a gun. (Ibid.)
       Galvan stood in front of Manoa with his hand on Manoa’s chest in an attempt to
persuade Manoa to leave the party. (Millbrook, supra, 222 Cal.App.4th at p. 1131.) Diaz
returned and Manoa, who was still enraged, told her, “ ‘Shut the fuck up, bitch.’ ” (Id. at

                                              6
p. 1132.) Millbrook was angry Manoa had called Diaz a “bitch” and felt he needed to
defend her. (Ibid.) Millbrook and Manoa exchanged obscenities. According to
Millbrook, Manoa moved toward him, “ ‘reaching, long steps, hands in the air,
gestures,’ ” and trying to get around Galvan, who was holding him back. (Ibid.) From
Millbrook’s perspective, it looked like Manoa was grabbing a gun and preparing to shoot
him or his girlfriend. (Id. at p. 1134.) He then saw Manoa point a “ ‘fairly big’ ”
semiautomatic with his arm fully extended. (Ibid.) Scared, Millbrook panicked, pulled
out his gun, and shot. Both Manoa and Galvan were injured. (Id. at pp. 1134-1135.) The
trial court did not give, and Millbrook did not request, a heat-of-passion instruction. (Id.
at p. 1136.) A jury convicted Millbrook of the attempted murder of Manoa and an assault
with a firearm on Manoa and Galvan. (Id. at p. 1126.)
       The Court of Appeal reversed the attempted murder conviction, finding substantial
evidence upon which the jury could have found that Millbrook was acting under the
actual influence of extreme emotion. “This evidence included testimony that Manoa had
acted belligerently throughout the party and had engaged in intense arguments with [his
girlfriend and her friend]; testimony that Manoa was the one who escalated the fight with
Millbrook; testimony that Manoa, who was much bigger than Millbrook, had clenched
his fists and ‘lunged’ at Millbrook before being shot; testimony that Galvan intervened in
the argument and had his hand on Manoa to prevent a physical altercation; testimony that
Manoa had threatened to get someone to beat Diaz and told Millbrook to ‘check your
bitch’ immediately before the shooting; testimony that Millbrook was angered by
Manoa’s treatment of Diaz; and testimony that Millbrook had been threatened in violent
incidents in the past and was intimidated by Manoa’s size and by being surrounded by
Manoa’s friends.” (Millbrook, supra, 222 Cal.App.4th at pp. 1139-1140.) The court’s
laundry list of evidence constitutes substantial evidence of the subjective component of
voluntary manslaughter, that is, that a defendant must have attempted to kill while under
the actual influence of a strong passion. (Id. at p. 1139.)

                                              7
       The court also catalogued the substantial evidence that objectively there was
sufficient provocation. “Objectively, the victim’s conduct must have been sufficiently
provocative to cause an ordinary person of average disposition to act rashly or without
due deliberation and reflection” under the given facts. (People v. Enraca (2012)
53 Cal.4th 735, 759.) Either the victim must cause the provocation or the defendant must
reasonably believe the victim caused it. (Millbrook, supra, 222 Cal.App.4th at p. 1140.)
The court first identified Manoa’s treatment of Millbrook’s girlfriend and the obscenities
he hurled at her. (Id. at pp. 1139-1140.) “The jury also could have found adequate
provocation based on Manoa’s other belligerent and threatening behavior. As mentioned
above, this evidence included testimony that Manoa had been aggressive throughout the
night, including engaging in shouting matches with [his girlfriend and her friend];
testimony that Manoa was the one who escalated the fight with Millbrook; testimony that
Manoa had his hands clenched and ‘lunged’ at Millbrook immediately before being shot;
and testimony that Galvan intervened right before the shooting with his hand on Manoa
to prevent an escalation of the argument. In short, evidence of Manoa’s treatment of
Diaz and of Manoa’s menacing behavior was sufficient to permit a jury to conclude that a
reasonable person in Millbrook’s position could have acted in the heat of passion.” (Id.
at p. 1141.)
       Contrast this wealth of evidence with the meager showing defendant offers here.
Unlike Millbrook, defendant chose not to testify. Thus, the jury in Millbrook heard the
defendant explain that he was actually scared, he felt a rush of anxiety and adrenaline as
Manoa lunged at him, and he was surrounded by what appeared to be Manoa’s friends,
which also reminded him of how he previously had been threatened by a group known as
“ ‘the Gun Boys.’ ” (Millbrook, supra, 222 Cal.App.4th at p. 1132.) There were ample
witnesses to the shooting, all of whom the jury heard describe what had occurred over the
course of the evening and in the moments immediately preceding the shooting.



                                             8
       In this case, however, there were no witnesses to the actual shooting other than the
decedent and defendant. The prosecutor argued that B.J. identified his perpetrator when
he told Misty, “He shot me, he shot me” and when he told Will, “my dad shot me.” The
prosecutor insisted that B.J. had no motive to lie, particularly since he stated he knew he
was dying. There is no other evidence to explain what was said or done immediately
before defendant shot him in the back.
       Defendant tries to draw parallels to Millbrook. He likens his fear of his son to the
fear Millbrook had of those who had tormented him in the past. He points to the
evidence that B.J. had knocked him unconscious less than a month before the shooting
and the testimony of multiple witnesses that the two had become embroiled in physical
altercations in the past, and his daughter’s testimony that her brother could be
“rambunctious.” Misty and Pam both confirmed that B.J. and defendant were in a heated
argument over the car and the baby before Misty took the baby and left and Pam went
inside the trailer. In defendant’s view, he, like Millbrook, was subjectively frightened by
the victim and objectively had sufficient provocation to shoot him. We disagree.
       There is little similarity between the situation that Millbrook found himself in and
the argument the elder Weber escalated. There was overwhelming evidence that Manoa,
the victim in Millbrook, was an ominous presence—angry, threatening, large, and
possibly armed. He was accompanied by another large man, security guard Galvan.
While Manoa may or may not have ever displayed a firearm, Millbrook testified he
believed he saw one and he was haunted by the vulnerability he had felt when threatened
by the Gun Boys. Millbrook had no preexisting relationship with Manoa, no reason to
know or understand him, and had observed a quick escalation of a life-threatening
situation.
       By contrast, defendant knew and loved his son, although they often argued when
they drank. The precipitating event was petty. Defendant was annoyed because Misty
did not want to leave her infant with his drunk girlfriend. There is absolutely no evidence

                                             9
that B.J.’s request to borrow the car actually inflamed defendant or that the dispute over
the car or the baby was sufficient provocation to incite a reasonable person. Indeed, the
overwhelming evidence is to the contrary.
       Will interacted with defendant on two occasions following the shooting, and at
neither time did defendant evidence extreme emotion, passion, or irrationality. Rather,
when confronted with the accusation that he had shot his son, he calmly inquired, “I shot
him?” Defendant did not deny the accusation, either in person on the night of the
shooting or on the telephone the following day. Nor did he go to the hospital and check
on his son’s condition. Instead, he fled to Crescent City.
       Defendant would have us speculate that the argument escalated to such a degree
that he did, in fact, lose his ability to reason and acted in the heat of passion. But there is
no evidence to support his conjecture. It is true that based on their history of quarreling,
he might have been more susceptible to a rash response and that he could have
overreacted. We must evaluate what the evidence actually is, however, not what it might
have been. And here the only evidence we have is that defendant shot his son in the back
after an argument over borrowing the car and taking the baby. Whereas young Millbrook
found himself in a threatening situation not of his own making, the only testimony the
jury heard was that defendant argued with B.J. and denied his request to borrow the car
because of a slight to his drunk girlfriend, now his wife. We agree with the trial court
that there is no evidence to support either the subjective or objective elements of
voluntary manslaughter as there was in Millbrook. Past altercations alone do not
constitute substantial evidence that on the night in question a reasonable person would
become so inflamed over a request to borrow the car and take the baby that he would kill
someone. Nor is there any evidence that defendant was embroiled in such a heat of
passion he lost his ability to think. The trial court had no duty to instruct on a lesser
included offense based solely on conjecture and speculation.



                                              10
                                              II
                 Voluntary Manslaughter: Unreasonable Self-Defense
       Defendant relies upon the same speculative inferences to justify his request for an
instruction on voluntary manslaughter based on his actual, but unreasonable, belief that
his life was endangered. The trial court properly denied his request for an instruction on
unreasonable self-defense.
       “If a person kills or attempts to kill in the unreasonable but good faith belief in
having to act in self-defense, the belief negates what would otherwise be malice, and that
person is guilty of voluntary manslaughter or attempted voluntary manslaughter, not
murder or attempted murder.” (People v. McCoy (2001) 25 Cal.4th 1111, 1116.) The
unreasonable self-defense variant of voluntary manslaughter is also a necessarily
included offense of murder (People v. Booker (2011) 51 Cal.4th 141, 181-183), and
therefore a trial court must instruct on it provided there is substantial evidence to support
the lesser offense (Breverman, supra, 19 Cal.4th at p. 162). Substantial evidence is not
any evidence, no matter how weak, but evidence from which a reasonable jury could find
the existence of the facts underlying the instruction and that the defendant was guilty only
of the lesser offense. (People v. Moye (2009) 47 Cal.4th 537, 553-555.)
       The doctrine of unreasonable self-defense, otherwise known as imperfect self-
defense, is narrow. “ ‘It requires without exception that the defendant must have had an
actual belief in the need for self-defense. . . . Fear of future harm—no matter how great
the fear and no matter how great the likelihood of the harm—will not suffice. The
defendant’s fear must be of imminent danger to life or great bodily injury. “ ‘[T]he peril
must appear to the defendant as immediate and present and not prospective or even in the
near future. An imminent peril is one that, from appearances, must be instantly dealt
with.’ ” ’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 581.)
       Defendant relies on B.J.’s conduct, not on the night of the shooting, but in the
weeks and months that preceded it. Again he relies on evidence that B.J. was

                                             11
“rambunctious” and that the father and son “roughhouse[d].” In particular, he points to
the evidence that B.J. had knocked him unconscious weeks before the killing as evidence
warranting the instruction. But there is no evidence that B.J. had threatened defendant or
engaged in any physical altercation with him on November 2 to give rise to a belief,
reasonable or not, that lethal force was required to repel him. Pam, the only person who
remained in the vicinity of the shooting, did not offer any statement or testimony to
support the suggestion that defendant feared for his life and subjectively believed he
needed to exert lethal force in self-defense. As the Attorney General aptly summarizes:
“This paucity of evidence left the jury, if given such an instruction, to speculate about
some scenario, devoid of evidentiary tether, where [defendant] perceived he was under
attack and he subjectively believed lethal defense was required. Such rank conjecture
cannot satisfy the requirement of substantial evidence warranting instruction on imperfect
self-defense. (People v. Mendoza (2000) 24 Cal.4th 130, 174; see also People v. Young
(2005) 34 Cal.4th 1149, 1200.)”
                                              III
                          Administrative Fee on Restitution Fine
         Defendant objects to a 15 percent administrative fee the trial court ordered in
addition to the $1,042 he was ordered to pay for victim restitution. In People v. Eddards
(2008) 162 Cal.App.4th 712 (Eddards), we held that Penal Code section 1203.1
authorized imposition of an administrative fee only where restitution was paid directly to
the victim and not to the restitution fund. (Eddards, at p. 717.) Defendant maintains that
pursuant to Eddards, the administrative fee is unauthorized and must be stricken. We
agree.
         The probation report recommended: “The Victim Compensation and Government
Claims Board (VCGCB) is seeking restitution in the amount of $1,042.00; $961.00 of
which was the benefit paid for the victim’s funeral and burial charges, and $81.00 paid
for mental health services for one of the three derivative victims, Rocksan Weber (the

                                              12
victim’s mother). Two other derivative victims have open claims; Jessica W. (the
victim’s sister) and Braeden M.; however no monies have been paid to date. It is
recommended restitution be reserved to VCGCB.”
       At sentencing the trial court stated: “The restitution fine of $10,000.00 for this
conduct is -- and this term is not appropriate, and, so, I am imposing that under [Penal
Code section] 1202.4. There’s a parole revocation restitution fine of $10,000.00 which I
am suspending. That will remain suspended, unless parole would be revoked. That’s
under [Penal Code section] 1202.45. [¶] . . . [¶]
       “I’m ordering victim restitution in the amount of $1,042.00, plus a 15 percent
administrative fee I’m -- as stated, to the Victim Compensation, et cetera, Board. I’m
reserving any further restitution.”
       The Attorney General argues that although the trial court imposed a “Restitution
Fund fine of $10,000,” it also awarded “actual restitution of $1,042.00 for cost of burial
and other claims by victims.” In the Attorney General’s view, if the restitution is
calculated based on costs actually incurred, the administrative fee can be imposed and
Eddards does not apply. The Attorney General misreads the court’s order, our opinion in
Eddards, or both.
       The question is not whether the restitution costs are actually incurred, as the
Attorney General argues, but whether the restitution is ordered to be paid directly to one
or more of the victims. Eddards made clear that the administrative fee is not authorized
for an order of restitution made to the compensation claims board to reimburse restitution
the board has paid to victims. (Eddards, supra, 162 Cal.App.4th at pp. 716-717.) Here
the court ordered defendant to pay $1,042.00 to the Victim Compensation and
Government Claims Board to reimburse it for the actual burial and mental health
expenses paid to the victims. Thus, the 15 percent administrative fee was not authorized
by statute and must be stricken.



                                             13
                                    DISPOSITION
      The 15 percent administrative fee is stricken. In all other respects, the judgment is
affirmed.



                                                           RAYE              , P. J.



We concur:



            BUTZ           , J.



            MAURO          , J.




                                           14
