People v. Millender

THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE MILLENDER, Defendant and Appellant.

B278727

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

July 16, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. TA140190)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Shultz, Judge. Judgment of conviction modified and, as so modified, affirmed; remanded for further proceedings.

Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Defendant and appellant David Lee Millender shot and killed his older brother, Willie. A jury convicted him of first degree murder with the personal use of a firearm, and the trial court sentenced him to 75 years to life in prison, plus five years. Appellant contends admission of a medical examiner's testimony violated his federal confrontation rights; the trial court erred by failing to instruct the jury on voluntary manslaughter on a heat of passion theory; the prosecutor committed misconduct and defense counsel provided ineffective assistance by failing to object; the cumulative effect of the errors requires reversal; and a domestic violence fee should be stricken. In supplemental briefing, appellant contends that the matter must be remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to recently amended Penal Code section 12022.53, subdivision (h).¹ We affirm appellant's conviction, but order the domestic violence fee stricken and remand the matter to allow the trial court to exercise its discretion and determine whether to strike or dismiss the firearm enhancements.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

Brothers David, Theodore and Willie Millender,² along with David's girlfriend Rochandra Roberson, lived together in a house located on 120th Street in Los Angeles. Willie, who was in his 60's, was the oldest; David, at 49 years old, was the youngest.Willie was nicknamed "Spike" or "Spikey." He was a long-term user of crack cocaine, and was unemployed. Theodore also smoked cocaine.

Each brother had his own bedroom. Willie's and Theodore's bedrooms were adjacent to the kitchen; the bedroom David shared with Roberson was at the other end of the house. To reach Willie's and Theodore's bedrooms from David's bedroom, it was necessary to cross through the kitchen. The property included a second house located behind the main house. The main house was equipped with a video surveillance system that filmed the kitchen, a patio area, and the driveway, but not the bedrooms.

Each of the four residents was responsible for a share of the household expenses. David collected the money and he and Roberson paid the bills. Willie's monthly share was $200. Frequently, Willie spent his entire monthly government check on cocaine and was late or unable to pay. When this happened, one of the others would cover Willie's share. Willie's failure to pay made "everybody," including David, "mad."

David insisted Willie and Theodore not smoke cocaine in the main house, because he was concerned that Roberson - who worked for the postal service and was subject to drug testing - might be affected by the fumes. Instead, the men were to smoke in the back house. This created tension because Willie felt he should be able to smoke wherever he wanted to. Additionally, Willie frequently asked other persons, including David's friends, for handouts of change and cigarettes, which sometimes displeased David.

In early May 2016, Willie failed to pay his share of the expenses. David told Roberson, "I'm going to get at Spike about him not wanting to pay."

Video footage from the kitchen surveillance camera showed that at approximately 9:45 p.m. on May 3, 2016, David walked through the kitchen to the area of Willie's room. Approximately a minute and a half later, Roberson hurried through the kitchen to Willie's room because she heard "scuffling" between David and Willie. Moments later, Roberson backed into the kitchen, obviously distraught, as David dragged Willie into the kitchen. While Willie was on his knees, David slammed Willie's face down onto the seat of a chair, and then threw him across the room, causing Willie to fall to the ground on his back. As Roberson pleaded with David to stop, David punched Willie, who was still prone on the floor, twice with his fist. David then left the kitchen, followed by Roberson. According to Roberson, the argument was about Willie's failure to pay his share of the expenses. David also asked Willie to go to the back house to smoke.

Willie got up from the floor and went back to his room. Roberson, either immediately or at some point shortly thereafter, left the house. Theodore then entered the kitchen. Within a minute after the punching incident, David strode back through the kitchen toward Willie's room, with a gun in his right hand. Approximately 15 seconds later, David reentered the kitchen with the gun still in his hand. During the next several minutes, David repeatedly traversed the kitchen, going back and forth between the areas of his and Willie's rooms. Theodore, who had heard what sounded to him like a "firecracker shot," found Willie lying on his (Willie's) bedroom floor. Theodore went to aneighbor's house, and paramedics were called. Within 10 minutes, David left the house, carrying some clothing.

When sheriff's deputies arrived they found Willie, deceased, lying on his side in his bedroom in a pool of blood. Theodore, who appeared distraught and frightened, told a deputy, " 'My little brother killed him.' " Later that night, Theodore told another deputy that he had been awakened by his brothers arguing about the bills, and saw David holding a black gun in his right hand.³

Deputies discovered a loaded nine-millimeter magazine and a "speedy loader" in David's bedroom. A single nine-millimeter shell was found in Willie's room. Two nine-millimeter handguns and ammunition were located in a hallway closet.

An autopsy confirmed that Willie died from a gunshot wound to the forehead. The absence of stippling or soot indicated the shot was likely fired from a distance of over three feet away. The entry wound went upwards at an approximate 70 degree angle. Within the body, the bullet moved front to back and upwards. A toxicology report showed the presence of cocaine in Willie's system, but this had no bearing on the cause of death. There were three lacerations on Willie's forehead which, according to a coroner's investigator's report, were likely caused by Willie's head hitting a nightstand in the bedroom. It could not be determined whether Willie was lying down or standing up when he was shot.

David surrendered to police and was arrested on May 21, 2016.

a. Defense evidence

(i) David's testimony

David testified on his own behalf, as follows. Between May 1, 2016, and the day of the shooting, as "punishment" for Willie's squandering his entire check on cocaine and his resultant failure to pay his share of the bills, when Willie's friends arrived to visit and smoke cocaine, David sent them away. This made Willie angry and he said to David, " 'You think you the boss.' "

When David initially went to Willie's room on the night of May 3, 2016, he intended to ask Willie what he meant by that comment. In Willie's bedroom, the men argued. David pointed out that Willie had failed to pay his share of the bills, told him his friends could no longer come over, and insisted that Willie not smoke in the house, due to David's concern about Roberson's drug testing requirement. Willie refused to go to the back house to smoke. Willie "got mad at [David] for what [David] said" and "tried to fight" David. Willie punched David. David tried to "detain" Willie, and they wrestled. David then dragged Willie into the kitchen. Although in the video it appeared that David was punching Willie while he was on the ground, the film did not accurately depict the incident. Willie was "fighting, too" and "wouldn't stop." David punched Willie to get him to stop "acting the way he was acting," but did not hit his face or head. David was "hot at the time. I was just mad. I don't know what I was doing. I was just mad."

David briefly returned to his bedroom. Approximately a week before the shooting, David had purchased a gun. David had the gun with him the entire day on May 3; he did not return to his bedroom to retrieve it. David then returned to Willie's bedroom, intending to display the gun in an effort to scare Willieinto going to the back house. David was not upset about the failure to pay the bills, which was a common occurrence; he was concerned about the smoking issue. When David entered Willie's room, Willie grabbed David and they tussled over the gun. They pushed each other, and David fell backwards. As David fell, the gun discharged accidentally. David did not aim the gun at Willie and did not intend to shoot or kill Willie; he just wanted to scare him. David was shocked and did not know what to do. He saw deputies as he was leaving the house, and discarded the gun in a trash can. He did not speak to police right away because he believed he needed a lawyer first.

David did not think he had chambered a round before entering Willie's room. He had not checked to see if the gun was loaded. He knew how to load a gun and slide the hammer back, but he was not really familiar with firearms operations and was...