People v. Gautier CA2/6 ( 2023 )

Filed 6/20/23 P. v. Gautier CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B318911
(Super. Ct. No. 2021001035)
Plaintiff and Respondent, (Ventura County)
v.
TIM RAY GAUTIER,
Defendant and Appellant.
Tim Ray Gautier appeals from the judgment entered after a
jury had convicted him of first degree murder. (Pen. Code, §§
187, subd. (a), 189, subd. (a).)1 The victim was his wife, Gina
Gautier (wife). The jury found true an allegation that he had
personally discharged a firearm causing death. (§ 12022.53,
subd. (d).) For the murder, appellant was sentenced to prison for
25 years to life. For the firearm enhancement, he was sentenced
to a consecutive term of 25 years to life.
1 All statutory references are to the Penal Code.
Appellant contends the trial court erroneously failed to
instruct the jury sua sponte on the lesser included offense of
voluntary manslaughter based on provocation and heat of
passion. In addition, he claims the trial court abused its
discretion in denying his request to strike the firearm
enhancement. We affirm.
Appellant’s Trial Testimony
In “determin[ing] whether the trial court had a duty to
instruct on a lesser included offense,” we must “consider
the evidence in the light most favorable to the defendant.
[Citation.] We recount the facts below with this standard in
mind.” (People v. Miranda (2021) 62 Cal.App.5th 162, 168.) We
rely on appellant’s trial testimony.
Appellant testified that wife had severe mental problems.
She “cried every day for two weeks.” She became paranoid.
“[S]he began to think that people were following us.” “In late
2020, [wife] barely spoke. Whenever she spoke to me, it would be
about things that weren’t reality based.” “She was consumed
with fear.” “She thought her [employer] and the Thousand Oaks
Sheriff’s Department had placed listening devices in the vents in
our house.” Because of wife’s mental problems, “the stress level
[at home] was super high. It was a very toxic environment.”
In the morning on January 11, 2021, appellant and wife got
into an argument. Appellant “grab[bed wife] by the lapel[s of her
bathrobe and said] . . . ‘Knock it off. What are you doing? Why
are you playing games with me?’ And she went into a rage.”
Wife “stabbed [appellant] with a pen.” “We’re fighting. She’s
going crazy.” “We struck each other.”
Appellant said, “‘Stop,’” and walked away. “And [wife]
began to follow me. Like stalking me.” “Like following me
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around the apartment.” Wife looked in the mirror and said,
“‘Look what you did to my face.’”
Appellant “noticed that [his] arm’s bleeding.” He said, “‘I’m
going to take a photo of [the blood], and I'm calling the police.’”
Appellant walked into the kitchen to take the photograph. Wife
“whacked” him on the head with a frying pan.
Appellant testified: “I got hit. I don’t know what it was. I
didn’t know what happened. All I know is it went black. I didn’t
know where I was. Honestly, I didn’t even know if I was dead or
alive.” “The next thing I remember happening is I’m stumbling
out in the living room . . . . I don’t know how I got there.”
Appellant walked into the bathroom, looked in the mirror,
and saw “a knot on my head, above my right eye.” He said to
wife: “‘Look what you did to my head’ . . . Im going to shoot you.’”
Appellant continued: “I was fearing for my life. I thought
she was going to kill me. So I ran . . . back to [the bedroom to] get
the gun.” The firearm – a nine-millimeter semi-automatic
handgun – was under the bed inside a safe. Appellant opened the
safe and removed the gun.
Wife was standing by the open front door. She was not
holding the frying pan. Appellant “turn[ed] around to put the
gun away. But as I was walking . . . , the Holy Spirit said, she
may hit me in the back of the head. I was scared at that point.
So I turned [around], and there she is with that pan.” Wife
advanced toward appellant. She raised the pan upward as if she
were going to strike him with it.
“At this point,” appellant was “totally confused. The room
is starting to spin. My head feels like it’s going to explode, like
literally inflating. Like somebody's putting helium in it.”
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Wife started “[b]acking away from me with the pan.”
“[S]he’s walking back saying, ‘You’re going to shoot me. You’re
going to shoot me.[’] And all I remember is yelling, screaming,
head feeling like it’s going to explode, ringing in my ears.”
Appellant “just started shooting at that point.” “I just
started firing the gun because I don’t want to die.” “She already
hit me with that pan once, blind sided me. I’m not dying here.”
“After the shots rang out, I couldn’t believe I shot her. I was in
shock.”
On redirect examination, appellant was asked, “Are you
shooting your wife because you think you are going to get
assaulted with that pan again?” Appellant answered:
“Absolutely. That’s the only reason I shot my wife.” (Italics
added.) “I’m afraid I’m going to die.” Appellant was asked, “You
didn’t shoot your wife because you were mad at her?” Appellant
responded, “No. I shot my wife because I thought I was going to
die.”
Appellant’s 911 Call
After the shooting, appellant called 911. He told the
operator that he had just shot his wife: “She got shot, she hit me
with a pan and . . . I shot her. She was coming at me.” “She
came at me with a frying pan . . . .” “She’s fuck’n dead.” “I tried
everything to help her. . . . [B]ut she was having a mental break
down . . . .”
Cause of Death and Other Injuries
The cause of death was “multiple gunshot wounds.” Wife
was shot twice. One of the bullets perforated her heart. Wife
had sustained recent bruising to her face, eyelid, and lips.
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Jury Instructions Given
The jury was instructed on first and second degree murder
(CALCRIM Nos. 520, 521), the effect of provocation on the degree
of murder (CALCRIM No. 522), lawful (reasonable) self-defense
(CALCRIM Nos. 505, 3471, 3472, 3474), and voluntary
manslaughter based on imperfect (unreasonable) self-defense
(CALCRIM No. 571).
Jury Instruction Not Given: Voluntary
Manslaughter Based on Heat of Passion
The omitted instruction, CALCRIM No. 570, provides:
A killing that would otherwise be murder is reduced to
voluntary manslaughter if the defendant killed someone because
of a sudden quarrel or in the heat of passion.
The defendant killed someone because of a sudden quarrel
or in the heat of passion if:
1. The defendant was provoked;
2. As a result of the provocation, the defendant acted rashly
and under the influence of intense emotion that obscured
(his/her) reasoning or judgment;
AND
3. The provocation would have caused a person of average
disposition to act rashly and without due deliberation, that is,
from passion rather than from judgment.
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.
In order for heat of passion to reduce a murder to voluntary
manslaughter, the defendant must have acted under the direct
and immediate influence of provocation as I have defined it.
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.
It is not enough that the defendant simply was provoked.
The defendant is not allowed to set up (his/her) own standard of
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conduct. 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 from
judgment.
The People have the burden of proving beyond a reasonable
doubt that the defendant did not kill as the result of a sudden
quarrel or in the heat of passion. If the People have not met this
burden, you must find the defendant not guilty of murder.
Duty to Instruct Sua Sponte on Lesser
Included Offense and Standard of Review
“[W]hen the evidence suggests the defendant may not be
guilty of the charged offense, but only of some lesser included
offense, the jury must be allowed to ‘consider the full range of
possible verdicts—not limited by the strategy, ignorance, or
mistakes of the parties,’ so as to ‘ensure that the verdict is no
harsher or more lenient than the evidence merits.’
[Citations.] . . . [R]egardless of the tactics or objections of the
parties, or the relative strength of the evidence on alternate
offenses or theories, [this] rule requires sua sponte instruction
on any and all lesser included offenses, or theories thereof, which
are supported by the evidence. In a murder case, this means that
both heat of passion and unreasonable self-defense, as forms of
voluntary manslaughter, must be presented to the jury if both
have substantial evidentiary support.” (People v. Breverman
(1998) 19 Cal.4th 142, 160.) “‘“Substantial evidence” in this
context is “‘evidence from which a jury composed of reasonable
[persons] could . . . conclude[ ]’” that the lesser offense, but not
the greater, was committed. . . .’” (People v. Moye (2009) 47
Cal.4th 537, 553 (Moye).) “In deciding whether evidence is
“substantial” . . . , a court determines only its bare legal
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sufficiency, not its weight.” (Id. at p. 556.) “We review de novo a
trial court’s failure to instruct on a lesser included offense . . . .”
(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
Any Error in Failing to Instruct Sua Sponte on Heat
of Passion Voluntary Manslaughter Was Harmless
We need not decide whether the evidence is substantial
enough for a “reasonable juror [to] conclude [that, as a result of
sufficient provocation, appellant had] acted ‘“‘rashly or without
due deliberation and reflection, and from this passion rather than
from judgment,’” . . . ’” when he shot wife. (Moye, supra, 47
Cal.4th at p. 553.) “Assuming arguendo it was error
to fail to instruct on heat of passion voluntary manslaughter on
this factual record, we find any such error harmless under the
applicable Watson test (People v. Watson (1956) 46 Cal.2d 818,
836 . . .).” (Id. at p. 541.) “[A]ny such error was harmless [under
this test] as it is not reasonably probable [appellant] would have
obtained a more favorable outcome had the jury been so
instructed.” (Id. at p. 556.) Appellant erroneously claims that
“[t]he standard of prejudice . . . is harmless beyond a reasonable
doubt under Chapman v. California (1967) 386 U.S. 18 . . . .”
“In employing the Watson standard of review here, it is
reasonable to assume the jury considered all of the defense
evidence bearing on [appellant’s] state of mind and the question
whether he harbored malice when it entertained and rejected his
claims of reasonable and unreasonable (or imperfect) self-
defense.” (Moye, supra, 47 Cal.4th at p. 556.) “Once the jury
rejected [appellant’s] claims of reasonable and imperfect self-
defense, there was little if any independent evidence remaining
to support his further claim that he killed in the heat of passion,
and no direct testimonial evidence from defendant himself to
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support an inference that he subjectively harbored such strong
passion, or acted rashly or impulsively while under its influence
for reasons unrelated to his perceived need for self-defense.” (Id.
at p. 557.) Appellant testified that “the only reason” why he shot
wife was that he feared she would assault him again with the
frying pan. “[T]he jury having rejected the factual basis for the
claims of reasonable and unreasonable self-defense, it is not
reasonably probable the jury would have found the
requisite objective component of a heat of passion defense (legally
sufficient provocation) even had it been instructed on that theory
of voluntary manslaughter.” (Ibid.)
Moreover, the jury found appellant guilty of first degree
murder. Pursuant to CALCRIM No. 521, the trial court
instructed the jury: “The defendant is guilty of first degree
murder if the People have proved that he acted willfully,
deliberately, and with premeditation. The defendant acted
willfully if he intended to kill. The defendant acted deliberately if
he carefully weighed the considerations for and against his choice
and, knowing the consequences decided to kill. The defendant
acted with premeditation if he decided to kill before completing
the act that caused the death.” Based on this instruction, the
jury “must have believed the evidence showed [appellant] shot
[wife] with ‘a state of mind equivalent to deliberation or
premeditation’ . . . . That finding cannot be reconciled with a
finding [appellant] . . . lacked malice because [wife’s] conduct
provoked in [him] an ‘emotion so intense that an ordinary person
would simply react, without reflection.’” (People v. Wright (2015)
242 Cal.App.4th 1461, 1497.)
Our Supreme Court applied similar reasoning in People v.
Wharton (1991) 53 Cal.3d 522, 572: “By finding defendant was
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guilty of first degree murder, the jury necessarily found
defendant premeditated and deliberated the killing. This state of
mind, involving planning and deliberate action, is manifestly
inconsistent with having acted under the heat of passion . . . and
clearly demonstrates that defendant was not prejudiced by the
failure to give his requested instruction.”
Finally, “the jury was instructed on second degree murder,
and accordingly had a choice in evaluating [appellant’s]
culpability.” (People v. Avila (2009) 46 Cal.4th 680, 707.) The
jury was instructed: “Provocation may reduce a murder from first
degree to second degree . . . . [¶] If you conclude that the
defendant committed murder but was provoked, consider the
provocation in deciding whether the crime was first . . . or second
degree murder.” The jury rejected a second degree murder
verdict. “[W]e conclude that the jury in this case, by rejecting the
lesser-included offense of second degree murder [and convicting
appellant of first degree premeditated murder], necessarily
rejected the factual basis upon which it might have rendered a
verdict on the lesser-included offense of [heat of passion]
voluntary manslaughter.” (Turner v. Commonwealth (Va.App.
1996) 476 S.E.2d 504, 508, fn. omitted, affirmed by Turner v.
Commonwealth (Va. 1997) 492 S.E.2d 447.)
Thus, “it is not ‘reasonably probable’ [appellant] would
have obtained a more favorable outcome at trial had a heat
of passion instruction been given.” (Moye, supra, 47 Cal.4th at
pp. 557-558.)
Appellant Has Failed to Show that the Court Abused Its
Discretion in Refusing to Strike the Firearm Enhancement
The trial court denied appellant’s request to strike the
firearm enhancement in furtherance of justice pursuant to
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sections 1385 and 12022.53, subdivision (h). We review its
decision for abuse of discretion. (People v. Carmony (2004) 33
Cal.4th 367, 374 (Carmony).)
“In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘“[t]he burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of
such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.”’ [Citations.] Second, a ‘“decision will not be
reversed merely because reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’”’
[Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it.” (Carmony, supra, 33 Cal.4th at pp. 376-377.)
Appellant has failed to carry his burden “‘“to clearly show
that the sentencing decision was irrational or arbitrary. . . .”’”
(Carmony, supra, 33 Cal.4th at pp. 376-377.) In his opening brief
appellant makes a perfunctory, undeveloped argument that the
trial court abused its discretion: “Given, appellant’s age, of 57
years, lack of prior criminal record and the unique circumstances
of the offense, the court’s failure to strike the firearm
[enhancement] was an abuse of discretion.” Appellant also
claims the trial court abused its discretion because “[a]bsent the
firearm enhancement, appellant’s sentence would still have been
25 years to life.”
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Appellant does not mention the trial court’s detailed,
careful analysis of the firearm enhancement at the sentencing
hearing. The court considered each of the nine mitigating
circumstances listed in subparagraphs (A) through (I) of section
1385, subdivision (c)(2). Subdivision (c)(2) provides, “In
exercising its discretion [whether to strike an enhancement]
under this subdivision, the court shall consider and afford great
weight to evidence offered by the defendant to prove that any of
the mitigating circumstances in subparagraphs (A) to (I) are
present. Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” The court
explained why none of the mitigating circumstances applied.2
Appellant does not dispute this finding.
2 The nine mitigating circumstances are:
“(A) Application of the enhancement would result in a
discriminatory racial impact as described in paragraph (4) of
subdivision (a) of Section 745.
“(B) Multiple enhancements are alleged in a single case. In
this instance, all enhancements beyond a single enhancement
shall be dismissed.
“(C) The application of an enhancement could result in a
sentence of over 20 years. In this instance, the enhancement
shall be dismissed.
“(D) The current offense is connected to mental illness.
“(E) The current offense is connected to prior victimization
or childhood trauma.
“(F) The current offense is not a violent felony as defined in
subdivision (c) of Section 667.5.
“(G) The defendant was a juvenile when they committed
the current offense or any prior offenses, including criminal
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The trial court expressed concern that appellant’s
comments about the offense “seem to show a defiance as to what
happened, not any remorse for what happened.” The court
believed that these comments indicate “there still is a potential
for a danger to public safety and a risk to physical injury to
someone else if [appellant] were released” at a future date.
The court found only a single mitigating factor – appellant’s
lack of a criminal record. As an aggravating factor, the court
found that appellant’s conduct showed “sophistication or
planning.” The court stated: “You [appellant] watched a
[You]Tube video shortly before the murder on how to fire the gun.
You’re heard muttering as you go get the gun. [‘]Self-defense.[’][3]
You get the gun. The shooting isn’t immediately after you're hit
in the head with the frying pan. The shooting takes place after
you told her 17 times to close the [front] door. She doesn’t close
the door. She says the reason she doesn’t close the door is
convictions and juvenile adjudications, that trigger the
enhancement or enhancements applied in the current case.
“(H) The enhancement is based on a prior conviction that is
over five years old.
“(I) Though a firearm was used in the current offense, it
was inoperable or unloaded.” (§ 1385, subd. (c)(2), subparagraphs
(A)-(I).)
3 Here, the trial court was referring to what it had heard
while listening to audio recordings of events inside appellant’s
residence around the time of the shooting. The audio recordings
were played for the jury. The audio was captured by security
cameras that appellant had installed. There were three cameras.
“One was in the kitchen, one in the living room and another one
was inside the guest bedroom.”
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because she's afraid you’re going to shoot her. You say if I was
going to shoot you I would have already done it, and then you
shoot her not once, but twice.”
As an additional aggravating factor, the court found: “The
victim was particularly vulnerable. She was unarmed, and
apparently . . . was suffering from some level of mental illness.”
“The court's detailed explanation of its reasoning
demonstrates that, as directed by section 1385(c), it engaged
in a [w]holistic balancing with special emphasis on the
enumerated mitigating factors.” (People v. Ortiz (2023) 87
Cal.App.5th 1087, 1096, review granted 4/12/23, S278894.) In his
opening brief appellant fails to present any analysis of the court’s
reasoning. He simply ignores it.
In his reply brief appellant responds to the trial court’s
reasoning by arguing: “The potential danger to public safety if
appellant, who was 57 at the time of sentencing, were to bec[o]me
eligible for parole in 25 years was non existent. First of all, if
despite his old age the parole board considered him a danger they
would not be required to parole him. In all likelihood his mental
health issues which played an important part both in the offense
and in his statement at sentencing would be addressed during his
first 25 years in prison.[4] If so his rationality, if not fragility,
would prevent him from being a danger to the public. If not he
would remain in prison. The evidence that the court and
respondent see . . . as evidence of premeditation, buying a gun
4 But the trial court found that appellant’s commission of
the offense was not connected to any mental illness on his part.
The court said, “[T]he predominant theme throughout the trial
certainly was mental illness, but it was mental illness of Gina
[wife], it wasn't mental illness of the defendant.”
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and trying to figure out how to shoot it was more likely due to the
same fear or paranoia that caused him to put up the elaborate
security system. While under normal circumstances buying . . . a
gun and learning to shoot could be seen as evidence of planning,
installing the security system indicates otherwise.” Appellant
omits to mention that although the gun was purchased in 2019, it
was not until January 9, 2021 – two days before the murder –
that appellant viewed a YouTube video “on how to properly grip a
semi-auto pistol handgun.” (Capitalization omitted.)
Appellant does not consider other aspects of the trial court’s
reasoning, e.g., the inapplicability of the mitigating factors listed
in section 1385, subdivision (c)(2), subparagraphs (A) through (I);
the finding that wife “was particularly vulnerable”; and the
finding that appellant’s comments about the offense “seem to
show a defiance as to what happened, not any remorse for what
happened.”
“[I]t is settled that: ‘A judgment of the lower court
is presumed correct. . . . [E]rror must be affirmatively
shown. . . .’” (Denham v. Superior Court (1970) 2 Cal.3d 557,
564.) Because appellant has failed to clearly show that the trial
court’s reasoning for refusing to strike the firearm enhancement
was irrational or arbitrary, the “‘“court is presumed to have acted
to achieve legitimate sentencing objectives . . . .”’” (Carmony,
supra, 33 Cal.4th at pp. 376-377.)
Disposition
The judgment is affirmed.
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NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Anthony J. Sabo, Judge
Superior Court County of Ventura
______________________________
Marilee Marshall, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, David A. Voet, Deputy Attorney General, for
Plaintiff and Respondent.