Wednesday, December 16, 2015
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C.A. Upholds Murder Conviction in Killing of Son’s Father
Panel Says Judge Should Have Given ‘Heat of Passion’ Instruction, but That Error Was Harmless
By KENNETH OFGANG, Staff Writer
The First District Court of Appeal yesterday affirmed the first degree murder conviction and life-without-parole sentence of a Bay Area woman who shot her son’s father to death after a number of arguments about the child’s care.
Div. One justices split 2-1 in concluding that a Contra Costa Superior Court judge erred in rejecting proposed jury instructions that would have allowed jurors to find Jennell Wright guilty of second degree murder or manslaughter in the shooting of Andrew Le’Mar Green if they found she had acted in the heat of passion.
But the majority agreed that the error was harmless because jurors found, as a special circumstance, that Wright was guilty of lying in wait. This meant she had the mental state required for a first degree murder conviction, so the jury could not reasonably have found her guilty of a lesser degree of homicide, Justice Robert Dondero wrote for the court.
Justice Sandra Margulies agreed, while Presiding Justice James Humes concurred separately, saying the requested instructions were correctly denied by Judge Leslie G. Landau.
Wright shot Green to death in February 2010. His body was found next to the driver’s door of his car, outside the home of his fiancée in the Contra Costa County city of Pittsburg.
Prosecution Theory
Prosecutors said the defendant was upset that Green after their relationship ended and he had become involved with another woman and sought more time with their son, who was three years old.
Even after Wright married another man, from whom she separated within about a month, she continued to harass Green with frequent phone calls, text messages and surprise visits to his job as a bus mechanic, according to family members quoted in local media reports.
Wright allegedly waited in a darkened area of the parking lot of the apartment complex waiting for him to return from work, then ambushed him as his sat in his parked car after 1 a.m. He was shot three times, according to testimony, before stumbling out of the vehicle.
The defense argued Wright was suicidal and disoriented when she went to pay Green a visit and had only planned to kill herself that night.
Jurors at Wright’s first trial, in late 2011 and early 2012, found her guilty of shooting at an occupied vehicle but could not reach an agreement on the murder charge.
Second Trial
That charge was retried in February 2013. After briefing by the parties as to whether Wright’s conviction of shooting at Green’s vehicle precluded her claims of self-defense or lack of malice or premeditation, the judge declined to give instructions on self-defense, imperfect self-defense, provocation, and voluntary manslaughter that had been given at the first trial.
Whereas the first jury was unable to reach a verdict on the murder charge after 10 days of deliberation, it only took the second jury a day to find Wright guilty.
Dondero, in his opinion yesterday, said Landau erred in focusing solely on the facts of the shooting in deciding that there was no evidentiary basis for instructions that would have allowed the jury to find the defendant guilty of second degree murder or manslaughter, based on provocation and heat-of-passion manslaughter.
(The court held, in an unpublished portion of the opinion, that the judge was not required to instruct on self-defense or imperfect self-defense.)
The justice agreed with the defense that “the trial court’s focus on the shooting alone was too narrow, and…abundant evidence adduced at trial about the acrimonious relationship between defendant and Green, particularly concerning their ongoing custody battle over their son, provided a substantial evidentiary basis for voluntary manslaughter instructions premised on a provocation/heat of passion theory.”
He cited an incident in which Green brought the child home one day later than agreed, in a diaper, dressed in clothes other than those she sent with him for the visit.
That incident, in and of itself, may have been “too trivial” to support the requested instructions, he wrote. But evidence the defendant spent the next two days “stewing in her own juices, debating whether to kill herself or talk to Green first, then kill herself,” suggested this may have been the culmination of a series of events that jurors might have determined led the defendant to kill while acting under a less culpable mental state, Dondero said.
Reversal Not Required
He went on to declare, however, that reversal was not required because “[t]his jury…must have believed the evidence showed defendant shot Green with ‘a state of mind equivalent to deliberation or premeditation’—as explained in CALCRIM No. 728—in order to return a true finding on the lying in wait special circumstance finding.”
Having so found, he continued, the jury could not find a lack of malice.
Humes argued in his concurrence:
“I have no quarrel with the majority that ‘long continued provocatory conduct’ matters in evaluating whether a heat-of-passion instruction must be given…but in my view there still must be something when the killing occurs—certainly something more than the victim’s just quietly sitting in his car, by his home, minding his own business—that stimulates the passionate emotion or immediate response of the killer.”
The case is People v. Wright, 15 S.O.S. 5982.
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