People v. Clapps CA4/1 ( 2020 )

Filed 12/30/20 P. v. Clapps CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076657
Plaintiff and Respondent,
v. (Super. Ct. No. SCD280779)
EUGENE LAMONT CLAPPS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Peter L. Gallagher, Judge. Reversed in part and remanded.
Alex Coolman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and
Respondent.
Eugene Lamont Clapps appeals from a judgment entered after a bench
trial on the criminal charges brought against him. The trial court found
Clapps guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a))1 and
assault with a deadly weapon. (§ 245, subd. (a)(1).) The trial court sentenced
Clapps to a 13-year prison term.
Clapps contends that the attempted murder conviction should be
reversed because the trial court’s comments reveal that it based its decision
on an incorrect understanding of the applicable legal standards as to both
heat of passion and imperfect self-defense, either of which could reduce
attempted murder to attempted voluntary manslaughter. In addition, Clapps
contends that the trial court should have found that he acted in imperfect
self-defense in light of other comments it made when delivering its decision.
We conclude that reversal of the attempted murder conviction is
required because the trial court applied an erroneous legal standard when
determining whether Clapps acted in the heat of passion for the purpose of
reducing attempted murder to attempted voluntary manslaughter.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Clapps and Jeremy J.,2 who knew each other because they lived in the
same foster home during their youth, encountered each other on the street
one day. When Jeremy asked Clapps if he knew where to buy some
marijuana, Clapps said he knew where to go, and that Jeremy should give
1 Unless otherwise indicated, all further statutory references are to the
Penal Code.
2 We refer to the victim by his first name to preserve his privacy, and we
intended no disrespect by doing so.
2
him $20.00. Jeremy waited for Clapps to come back with the marijuana, but
Clapps did not return.3
Within the next few days, Jeremy and Clapps again saw each other on
the street, and Jeremy asked about his marijuana. According to Clapps,
Jeremy seemed aggressive during their interaction. Clapps told Jeremy he
would rectify the situation by rolling a blunt for Jeremy and smoking it with
him in Jeremy’s apartment.4 Jeremy and Clapps were in Jeremy’s
apartment for about 35 minutes, during which time Clapps rolled a blunt and
the men shared a smoke. According to Clapps, while in the apartment,
Jeremy seemed like he still had some animosity from what happened with
the failed marijuana transaction. According to Jeremy, he was bothered by
Clapps’s behavior in the apartment because Clapps was shouting down to
people on the street, telling them to come up to the apartment.
At some point, Jeremy told Clapps that he wanted Clapps to leave,5 but
Clapps refused to do so. A physical altercation ensued, which ended with
Clapps pulling out a knife and stabbing Jeremy in the chest six times. One of
the stabs was deep enough to enter Jeremy’s chest cavity and lacerate a lung.
3 The evidence was in conflict as to why Clapps did not return with
Jeremy’s marijuana. Clapps testified that he did not return because the
quality of the marijuana he purchased with Jeremy’s money was too poor to
take it to Jeremy. Jeremy testified that Clapps later claimed he didn’t return
with the marijuana because he got arrested.
4 A blunt is “a marijuana cigarette . . . made by putting marijuana into
the wrapper of a hollowed-out cigar.” (Collins English Dict. (online ed. 2020)
[as of Dec.
30, 2020]).
5 Jeremy testified he told Clapps to leave because Clapps couldn’t stay in
the apartment by himself after Jeremy left to do laundry.
3
Jeremy was hospitalized for several weeks.
Clapps was charged with attempted murder (§§ 664, 187, subd. (a)) and
assault with a deadly weapon (§ 245, subd. (a)(1)), with additional allegations
for both counts that Clapps inflicted great bodily injury on the victim (§§
1192.7, subd. (c)(8), 12022.7, subd. (a)), and used a knife in the commission of
the offense (§ 12022, subd. (b)(1)). It was also alleged that Clapps served
three prior prison terms. (§§ 667.5, subd. (b), 668.) Clapps waived his right
to a trial by jury.
Both Clapps and Jeremy testified at the bench trial. The two men gave
differing accounts of the physical altercation that led to the stabbing.
According to Jeremy, when he asked Clapps to leave the apartment
Clapps complied without argument but then returned a minute later. After
Clapps returned, Jeremy told Clapps more than once that he had to leave,
but Clapps said “Hell nah, I’m not leaving.” Jeremy pushed Clapps and the
two men ended up struggling, which Jeremy described as a “push and pull.”
Jeremy did not have any weapons and did not punch or kick Clapps. After
Jeremy pushed Clapps multiple times, Clapps pulled a knife and stabbed
Jeremy in the chest. Jeremy blacked out for a short time after being stabbed.
When he regained consciousness, Clapps was gone. Jeremy went downstairs
and asked the security guard to call 911.6
6 At trial, defense counsel attacked Jeremy’s credibility with evidence
that Jeremy gave the police several differing accounts of how he came to be
stabbed. Significantly, the first time Jeremy spoke with police, Jeremy
claimed he was stabbed at a location around the corner from his apartment
building by a green-eyed Hispanic man. Weeks later, after a detective
reviewed security camera videos from the apartment building and blood was
found in Jeremy’s apartment, Jeremy admitted that he was stabbed in the
apartment, but didn’t say who stabbed him. Finally, another month later,
Jeremy told the detective that Clapps stabbed him.
4
Clapps testified that he was in Jeremy’s apartment, when Jeremy
unexpectedly told him to leave. According to Clapps, Jeremy said, “My blunt
is rolled. We smoked a little bit, now nigga get the fuck out my house.”
While saying this, Jeremy was walking toward Clapps in an aggressive
manner. Clapps was “stunned, shocked and surprised.” Clapps believed that
he was “going out of [his] way to be a good man and a righteous man” by
making up for his failure to deliver marijuana to Jeremy. Because he was
shocked, Clapps did not register what Jeremy was saying and did not leave.
Jeremy then pushed Clapps and said, “Nigga, you hear me. Get the fuck out
of my house.” When asked whether he was angry with Jeremy, Clapps
testified, “What really made me angry was when he was walking up on me
telling me ‘get the fuck up out of my house.’ And walking up on me. . . . Then
he pushes me— . . . but I’m keeping my composure. I’m not fighting back.”
According to Clapps, after Jeremy pushed him several times, Jeremy
“put his head down and started swinging, but he wasn’t landing no blows,
and we broke off into a tussle—like a wrestle.” While they were wrestling,
Jeremy said, “Nigga, this is my house. I pay rent here. Get the fuck up out
of my house, little nigga, before I kill you.” In the course of wrestling with
Jeremy, Clapps ended up on top of Jeremy. He straddled Jeremy, pinning
Jeremy down “flat on his back.”7 While straddling Jeremy, Clapps pulled out
a pocket knife and stabbed Jeremy in the chest using an overhand motion
7 Clapps testified that while pinned on the ground, Jeremy was “laying
flat on his back with his arms side by side.” For clarification, counsel asked
Clapps, “when you say ‘side by side,’ you mean hands at the waist or are they
up?” Clapps responded by demonstrating in a manner not reflected in the
reporter’s transcript. The trial court stated during its findings that Jeremy
was “laying on the floor with his hands at his side.”
5
“like Chucky.”8 As Clapps explained, “[I] just hit him a few times to let him
know what’s happening and got the fuck out of there . . . The motherfucker
put his hands on me and threatened my life.” Clapps testified that he
stabbed Jeremy because “I was just trying to, one, get him off of me. And
two, . . . let him know real quick, . . . and get up out that house.”
Prior to closing arguments, counsel identified for the trial court the jury
instructions that it wanted the court to consider in deciding the case. As
relevant here, defense counsel identified CALCRIM No. 603, which sets forth
the requirements for finding attempted voluntary manslaughter based on
heat of passion, and CALCRIM No. 604, which sets forth the requirements
for finding attempted voluntary manslaughter based on imperfect self-
defense.
The trial court issued an oral decision. It found Clapps guilty of
attempted murder and assault with a deadly weapon and made true findings
on the deadly weapon and great bodily injury allegations. The trial court
explained its findings, including comments on why it concluded that Clapps
did not commit attempted voluntary manslaughter based on either a heat of
passion or imperfect self-defense theory.
“As to heat of passion, as defined in CALCRIM 603, there
was insufficient provocation to justify Mr. Clapps’ response with
the knife. Yes, there was a push. Yes, there was a tussle, but
none of these actions were sufficient provocation to cause a
person of average disposition to act in a manner of producing a
knife while the person was prone, and then stab them six times.
[¶] The push and pull or tussle was not an act to cause intense
emotions justifying someone to act in this matter. Per the
instruction, slight provocation is insufficient.
8 We understand Clapps to have been referring to the well-known
“Chucky” character in a series of horror films.
6
“As to the imperfect self-defense, Mr. Clapps did not
establish that he was in imminent danger of being killed or
suffering great bodily harm. When he produced a knife, [Jeremy]
was in a prone position with his hands at his side while the
defendant straddled atop him. [¶] No facts have been set forth to
show Mr. Clapps believed that the immediate use of deadly force
was necessary to defend against any imminent danger of being
killed or suffering GBI—great bodily injury.”
The trial court made true findings regarding Clapps’s prior convictions,
and it sentenced Clapps to prison for a term of 13 years.9
II.
DISCUSION
A. Legal Principles Applicable to Reviewing a Trial Court’s Decision in a
Criminal Bench Trial
Clapps’s appeal focuses on the attempted murder conviction. According
to Clapps, when delivering its ruling, the trial court made comments that
revealed it applied an incorrect understanding of the legal standards
governing both heat of passion and imperfect self-defense, either of which
could reduce attempted murder to attempted voluntary manslaughter.
As a first step in evaluating Clapps’s argument, we examine the case
law explaining the significance we may accord to the statements made by a
trial court when delivering its decision in a bench trial in a criminal
prosecution.
“As a broad general proposition, cases have stated that a trial court’s
remarks in a bench trial cannot be used to show that the trial court
misapplied the law or erred in its reasoning. [Citations.] These statements
are founded on the principle that, in a criminal bench trial, the trial court is
not required to provide a statement of decision and that any explanation of
9 On the assault with a deadly weapon count, the trial court imposed a
seven-year prison term and stayed the sentence pursuant to section 654.
7
his or her decision a trial judge provides is not part of the record on appeal.”
(People v. Tessman (2014) 223 Cal. App. 4th 1293, 1302 (Tessman).)
However, “[t]his broad proposition has been subjected to an important
limitation. . . . [W]e may nonetheless consider a judge’s statement when,
taken as a whole, the judge’s statement discloses an incorrect rather than a
correct concept of the relevant law, ‘embodied not merely in “secondary
remarks” but in [the judge’s] basic ruling.’ ” (Tessman, supra, 223
Cal.App.4th at p. 1302.) Under this approach, “[t]he oral opinion of the trial
court may be used in interpreting the court’s action in its decision of the case
if it unambiguously discloses the mental processes of the trial judge in
reaching his conclusion.” (People v. Butcher (1986) 185 Cal. App. 3d 929, 936
(Butcher).) Accordingly, a criminal defendant, may seek reversal on appeal if
the trial court’s statements in delivering its ruling, “unambiguously disclose
that, in his or her ruling, the trial judge applied an erroneous interpretation
of the law.” (Tessman, at p. 1303; see also In re Jerry R. (1994) 29
Cal. App. 4th 1432, 1440 (Jerry R.) [“An exception to this general rule exists
when the court’s comments unambiguously disclose that its basic ruling
embodied or was based on a misunderstanding of the relevant law”].)
Applying this principle, trial court rulings in bench trials are reversed
when the trial court’s comments reveal it applied an erroneous legal standard
in reaching a decision. (Butcher, supra, 185 Cal.App.3d at pp. 936-938
[reversing judgment based on trial court’s comments showing that it applied
the wrong legal standard regarding the crime of diverting construction
funds]; Jerry R., supra, 29 Cal.App.4th at pp. 1440-1441 [reversing the
court’s finding that the juvenile committed willful discharge of a firearm
because the finding was based on an incorrect legal standard for that crime].)
8
B. The Trial Court Unambiguously Applied an Incorrect Understanding of
the Law on Heat of Passion for the Purpose of Reducing Attempted
Murder to Attempted Voluntary Manslaughter
We next turn to Clapps’s contention that the trial court applied an
incorrect legal standard in deciding whether Clapps should be found guilty of
attempted voluntary manslaughter rather than attempted murder on the
ground that he acted in the heat of passion. Specifically, our inquiry is
whether the trial court’s comments unambiguously show that it applied an
incorrect legal standard in arriving at its decision with respect to heat of
passion.
We begin with an overview of the concept of heat of passion in the
context of a prosecution for murder (or, in this case, attempted murder). “The
mens rea element required for murder is a state of mind constituting either
express or implied malice. A person who kills without malice does not
commit 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 arises if, ‘ “at the time of the killing, the
reason of the accused was obscured or disturbed by passion to such an extent
as would cause the ordinarily reasonable person of average disposition to act
rashly and without deliberation and reflection, and from such passion rather
than from judgment.” ’ [Citation.] Heat of passion, then, 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.” (People
v. Beltran (2013) 56 Cal. 4th 935, 942 (Beltran).)10
10 These principles, applied to an attempted killing, are set forth in
CALCRIM No. 603, under which a finder of fact may find that the defendant
acted in the heat of passion if “[t]he provocation would have caused a person
of average disposition to act rashly and without due deliberation, that is,
from passion rather than from judgment” and “[t]he attempted killing was a
9
In Beltran, our Supreme Court clarified that in assessing the adequacy
of provocation for determining whether the defendant acted in the heat of
passion, the proper inquiry is not “whether an ordinary person of average
disposition would be moved to kill” under the circumstances at issue in the
particular case. (Beltran, supra, 56 Cal.4th at p. 946, italics added.) As
Beltran explained, “Adopting a standard requiring such provocation that the
ordinary person of average disposition would be moved to kill focuses on the
wrong thing. The proper focus is placed on the defendant’s state of mind, not
on his particular act. To be adequate, the provocation must be one that
would cause an emotion so intense that an ordinary person would simply
react, without reflection. To satisfy [the applicable standard], the anger or
other passion must be so strong that the defendant’s reaction bypassed his
thought process to such an extent that judgment could not and did not
intervene. Framed another way, provocation is not evaluated by whether the
average person would act in a certain way: to kill. Instead, the question is
whether the average person would react in a certain way: with his reason
and judgment obscured.” (Id. at p. 949, first italics added.) “Provocation is
adequate only when it would render an ordinary person of average
rash act done under the influence of intense emotion that obscured the
defendant’s reasoning or judgment.” (CALCRIM No. 603.) The instruction
also states, “Heat of passion does not require anger, rage, or any specific
emotion. It can be any violent or intense emotion that causes a person to act
without due deliberation and reflection. [¶] . . . While no specific type of
provocation is required, slight or remote provocation is not sufficient.
Sufficient provocation may occur over a short or long period of time. [¶] . . .
You must decide whether the defendant was provoked and whether the
provocation was sufficient. In deciding whether the provocation was
sufficient, consider whether a person of average disposition, in the same
situation and knowing the same facts, would have reacted from passion
rather than judgment.” (CALCRIM No. 603.)
10
disposition ‘liable to act rashly or without due deliberation and reflection, and
from this passion rather than from judgment.’ ” (Id. at p. 957.)
As Clapps points out, the trial court applied exactly the type of inquiry
that Beltran disapproved by focusing on Clapps’s act of stabbing Jeremy.
Specifically, the trial court stated, “As to heat of passion, as defined in
CALCRIM 603, there was insufficient provocation to justify Mr. Clapps’
response with the knife. Yes, there was a push. Yes, there was a tussle, but
none of these actions were sufficient provocation to cause a person of average
disposition to act in a manner of producing a knife while the person was
prone, and then stab them six times. [¶] The push and pull or tussle was not
an act to cause intense emotions justifying someone to act in this matter. Per
the instruction, slight provocation is insufficient.” (Italics added.) The trial
court’s comments show that it improperly inquired “whether the average
person would act in a certain way,” rather than whether an average person
would “react, without reflection” with “his reason and judgment obscured.”
(Beltran, supra, 56 Cal.4th at p. 949, italics omitted.)
The People acknowledge that the trial court’s comments set forth an
incorrect understanding of the applicable legal standard. Specifically, the
People state that “it is true the trial court here mistakenly commented that
the actions of Jeremy were not sufficient provocation to cause a person of
average disposition ‘to act in a manner of producing a knife while the person
was prone, and then stab them six times.’ ” Nevertheless, the People argue
that “the court’s statements taken ‘as a whole,’ . . . did not disclose an
incorrect concept of the relevant law.” According to the People, two aspects of
the trial court’s comments show that, taken as a whole, it understood and
applied the proper legal standard.
11
First, the People point out that the trial court referred to CALCRIM
No. 603 during its comments. The People contend that because CALCRIM
No. 603 “set[s] forth the proper application of provocation,” the trial court
must have understood and relied upon the correct legal standard in making
its ruling. We disagree. Although the trial court’s comments show that it
recognized CALCRIM No. 603 to be the applicable jury instruction, the trial
court’s discussion, taken as a whole, demonstrates it interpreted CALCRIM
No. 603 in an improper manner.
Next, the People focus on the last sentence of the trial court’s relevant
comments, in which the court observed that “[p]er the instruction, slight
provocation is insufficient.” As this simple statement unquestionably reflects
a proper statement of the law,11 the People contend that the trial court
rested its ruling on this accurate legal principle. The argument is not
persuasive. Placed in the context of the trial court’s entire comments, the
court’s statement about slight provocation is tainted by the court’s
fundamental error of focusing on whether provocation was sufficient to cause
an average person to commit the type of stabbing at issue here. The trial
court made the comment about slight provocation in the following context:
“The push and pull or tussle was not an act to cause intense emotions
justifying someone to act in this matter. Per the instruction, slight
provocation is insufficient.” (Italics added.) When viewed in this light, it is
apparent that the trial court determined the provocation was too “slight” to
cause an average person to “act in this manner,” namely stabbing Jeremy six
times while he was pinned on the ground.
11 CALCRIM No. 603 states, “While no specific type of provocation is
required, slight or remote provocation is not sufficient.” (CALCRIM No. 603.)
12
In sum, we conclude that the trial court’s comments on the issue of heat
of passion, when taken as a whole, “unambiguously disclose that its basic
ruling embodied or was based on a misunderstanding of the relevant law.”
(Jerry R., supra, 29 Cal.App.4th at p. 1440.)12
C. The Trial Court’s Error Requires Reversal of the Judgment on the
Attempted Murder Count
Having concluded that the trial court applied an incorrect legal
standard in determining whether Clapps acted in the heat of passion to
reduce attempted murder to attempted voluntary manslaughter, we next
consider whether that error requires that we reverse the attempted murder
conviction.
The parties disagree on whether we should conduct a harmless error
analysis. Relying on a comment in Butcher, supra, 185 Cal.App.3d at page
937, Clapps argues that it is inappropriate for us to attempt to assess
prejudice after having determined that the trial court’s comments
unambiguously establish that its decision was based on an incorrect legal
standard. Specifically, in Butcher the People suggested that the court
conduct a harmless error analysis, in which it would review the evidence in
the record to determine whether the evidence would have supported a finding
of guilt if the trial court had applied the correct legal standard. (Id. at p. 936
[“The People argue that we should indulge every favorable assumption in
12 This is not a case, as in Tessman, where the trial court’s comments
could be viewed as ambiguous on whether it relied on an incorrect statement
of law in reaching its ruling, or whether the reference to an incorrect legal
standard “was nothing more than a secondary slip of the tongue that did not
reflect its actual conclusions or reasoning.” (Tessman, supra, 223
Cal.App.4th at p. 1304.) The trial court in this case unambiguously applied
an incorrect understanding of the law in analyzing whether Clapps should be
convicted of the lesser included offense of attempted voluntary manslaughter
based on heat of passion.
13
support of the judgment and uphold it on the theory that the trial court could
have found that defendant ‘diverted’ more than the amount of the
recoupment, if any, to which he was entitled. If the trial court did so
conclude, any error of law concerning the effect of a right to recoupment
would not be prejudicial,” italics added].) Butcher rejected the People’s
argument, explaining that “it cannot be the law that a defendant may be
convicted in circumstances where the conviction appears to be based upon a
legally invalid theory of the law notwithstanding the presence of an
alternative valid theory.” (Id. at p. 937.) Therefore, without conducting a
harmless error analysis, Butcher reversed the judgment, concluding that
“[s]ince the trial court held an erroneous view of the meaning of [the
applicable statute] defendant’s conviction is infirm.” (Id. at p. 938.)
Similarly, in Jerry R., supra, 29 Cal.App.4th at pages 1440-1441, the
appellate court did not attempt to undertake any harmless error analysis
after it determined that the court’s finding that the juvenile violated a
criminal statute was based on an incorrect understanding of the applicable
law.
The People, in contrast, argue that a harmless error analysis is
required when the trial court’s comments show that a finding of guilt in a
bench trial was based on an incorrect legal standard. In support of their
position, the People analogize to case law establishing that a harmless error
analysis is appropriate when a jury is misinstructed on the applicable legal
standards. Further, the People argue that because the incorrect legal
standard that the trial court relied upon in this case concerned the lesser
included offense of voluntary manslaughter, the Watson standard for
assessing the prejudicial nature of state-law errors should apply. (See
Beltran, supra, 56 Cal.4th at p. 955 [applying state-law harmless error
14
analysis in analyzing prejudice from instruction on heat of passion that the
jury may have misunderstood based on comments from counsel, applying the
rule that “ ‘in a noncapital case, error in failing sua sponte to instruct, or to
instruct fully, on all lesser included offenses and theories thereof which are
supported by the evidence must be reviewed for prejudice exclusively under
[People v.] Watson [(1956) 46 Cal. 2d 818, 836]’ ” [(Watson)]].)13 “ ‘[U]nder
Watson, a defendant must show it is reasonably probable a more favorable
result would have been obtained absent the error.’ ” (Beltran, at p. 955.)
The People have not attempted to grapple with why, despite Butcher
and Jeremy R., the harmless error analysis applied in a jury trial should
apply here. However, we need not, and do not, resolve the issue of whether a
harmless error analysis is appropriate when a trial court’s comments
unambiguously show that its findings in a bench trial were based on an
incorrect legal standard. As we will explain, even assuming for the sake of
our analysis that a harmless error analysis is appropriate, we conclude that
the trial court’s error was prejudicial under any standard for assessing
prejudice, including the Watson standard, under which we may find prejudice
13 We are mindful that certain case law declines to interpret Beltran as
establishing that the Watson standard applies, rather than the standard for
federal constitutional error, whenever the jury is given an incorrect
statement of law in an instruction on heat of passion. (People v. Thomas
(2013) 218 Cal. App. 4th 630, 643-644; cf. People v. Franklin (2018) 21
Cal. App. 5th 881, 890 [in a case where the jury was misinstructed on the law
regarding heat of passion, the court declined to determine whether the
federal or state-law standard for assessing prejudice applied, describing the
“unsettled” law on the issue of whether the absence of instruction on heat of
passion amounts to federal constitutional error, and citing Thomas, among
other cases].) We need not resolve which harmless error standard applies
when the jury is misinstructed on heat of passion, as we find the error to be
prejudicial even if the Watson standard applies.
15
only if a more favorable outcome is reasonably probable without the error.
(Watson, supra, 46 Cal.2d at p. 836.)
We thus proceed to conduct the type of harmless error analysis that
would be appropriate in a jury trial. In the context of an error in instructing
the jury with an improper legal standard, the court may focus its harmless
error analysis on whether the evidence presented at trial would have strongly
supported a finding under the correct legal standard, had it been
communicated to the jury. (Beltran, supra, 56 Cal.4th at p. 956 [“ ‘an
appellate court may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected
the result’ ”].) The People argue that the trial court’s application of an
incorrect legal standard for determining whether Clapps acted under the
heat of passion was harmless because, when the correct standard is applied,
there is comparatively weak evidence to support a heat of passion finding. As
we will explain, we are not persuaded.
Under the standard that the trial court should have applied in
assessing the issue of objectively sufficient provocation, the inquiry is
“whether a person of average disposition, in the same situation and knowing
the same facts, would have reacted from passion rather than judgment.”
(CALCRIM No. 603.) “No specific type of provocation is required, and ‘the
passion aroused need not be anger or rage, but can be any “ ‘ “[v]iolent,
intense, high-wrought or enthusiastic emotion” ’ ” [citations] other than
revenge.’ ” (People v. Lasko (2000) 23 Cal. 4th 101, 108.) We focus our
harmless error analysis on the relative strength of the evidence to support a
16
finding that Clapps acted with objectively sufficient provocation under this
legally correct standard.
Although Clapps and Jeremy offered differing accounts of the
altercation that led to the stabbing, it is undisputed that the two men had
known each other for years and had once lived together as foster brothers. It
is further undisputed that the two men were in Jeremy’s apartment because
Clapps was trying to rectify his failure to return with the marijuana for
which Jeremy had paid. Clapps explained that, in his view, he was “going
out of [his] way to be a good man and a righteous man.” By all accounts, the
two men were having a friendly visit and smoked marijuana together when
Jeremy abruptly told Clapps that he had to leave the apartment. Jeremy did
not detail all of the words he used in telling Clapps to leave, but according to
Clapps, Jeremy repeatedly used profanity. As Clapps testified, after Jeremy
pushed him several times, Jeremy said “Get the fuck up out of my house,
little nigga, before I kill you.” Clapps explained that he became “angry” when
Jeremy walked up to him, pushed him, and used profanity in telling him to
leave. Clapps said he was “stunned, shocked and surprised.”14 Clapps’s
testimony supports a finding that he was subjectively provoked, but our focus
is on the strength of the evidence to support a finding that Clapps’s angry
and emotional response to the situation is, as an objective matter, the type of
response that a person of average disposition would have experienced.
“[W]ords of abuse, insult or reproach may incite the heat of passion . . .
and hence may constitute sufficient provocation to reduce the offense of
intentional homicide from murder to manslaughter.” (People v. Le (2007) 158
14 The trial court gave no indication in its comments whether it believed
or disbelieved Clapps’s testimony, and at one point in its comments, when
discussing the self-defense issue, the trial court stated it was “assuming facts
most favorable to Mr. Clapps.”
17
Cal. App. 4th 516, 526.) Here, not only did Jeremy make statements that
Clapps could reasonably perceive as insulting in the context of a friendly visit
where he was trying to be “a good man and a righteous man,” but Jeremy
also used physical violence toward Clapps in the form of repeated shoving
and attempts to punch him. Jeremy’s insulting behavior toward Clapps,
combined with his physical aggression, is the type of provocation that could
reasonably be found to be sufficient, on an objective basis, to give rise to heat
of passion. (People v. Elmore (1914) 167 Cal. 205, 211 [the evidence showed a
knife wound during a barroom altercation was “without legal malice and
solely as the result of the sudden heat of passion excited in [the defendant] by
the unprovoked attack and violent blows of [the victim],” whom the defendant
was trying to stop from inflicting abuse on an elderly man]; People v.
Millbrook (2014) 222 Cal. App. 4th 1122, 1141-1143 [evidence supported a heat
of passion instruction where, during a party, the victim engaged in a heated
argument with the defendant’s girlfriend, engaged in belligerent and
threatening behavior, and then clenched his hands and lunged at the
defendant immediately before the defendant shot him]; Beltran, supra, 56
Cal.4th at p. 946 [stating that “ ‘angry and sudden assaults upon one’ ”
constituted adequate provocation at common law]; cf. People v. Manriquez
(2005) 37 Cal. 4th 547, 585 [in a case where there was no prior physical
altercation between the defendant and the victim, evidence that the victim
insulted the defendant by calling him a “ ‘mother fucker’ ” and taunted him to
take out a weapon immediately prior to the shooting was not substantial
evidence of provocation to support a heat of passion instruction].)
A person of average disposition who is trying to have a friendly visit
with someone he has known for years could become angry and react rashly,
without reflection, when his host suddenly turns on him, abruptly uses
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profanity in telling him to leave, pushes him several times, tries to punch
him, and threatens to kill him. Although the trial court was not required to
conclude, based on the facts presented at trial, that a person of average
disposition would have reacted from passion rather than judgment, in our
view, it is reasonably probable that, had the court applied the correct
standard, it would have reached that conclusion.
Accordingly, even assuming for the sake of our analysis that the trial
court’s error in applying an improper legal standard when delivering its
decision during the bench trial is subject to harmless error review, we
conclude that the trial court’s error was prejudicial and requires that we
reverse Clapps’s conviction for attempted murder.15
15 Because we reverse the conviction for attempted murder based on the
trial court’s application of the incorrect legal standard for heat of passion, we
need not, and do not, consider whether the trial court’s comments also
establish error with respect to the issue of imperfect self-defense.
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DISPOSITION
We reverse Clapps’s conviction for attempted murder, and we affirm in
all other respects. This matter is remanded for proceedings consistent with
this opinion.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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