Petition for Writ of Certiorari — Michael Eugene Wyatt, Petitioner v. John Sutton, Warden

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2021

_______________________________________

MICHAEL EUGENE WYATT, Petitioner,

v.

JOHN SUTTON, Respondent

_______________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

_______________________________________

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

________________________________________

MARY E. POUGIALES

1 Blackfield Drive, # 111

Tiburon, CA 94920

(415) 847-6379

Counsel of record for Petitioner

INDEX TO THE APPENDICES

APPENDIX A: Ninth Circuit Court of Appeals Order Denying

Petition for Rehearing and Rehearing En Banc, Wyatt v. Sutton, Case No.

20-15203, filed February 1, 2021.

APPENDIX B: Unpublished Opinion of the Ninth Circuit Court of Appeals

affirming denial of habeas petition, Wyatt v. Sutton, Case No. 20-15203,

filed December 24, 2020.

APPENDIX C: United States District Court, Northern District of California,

Order Denying Petition for Writ of Habeas Corpus, Wyatt v. Sutton, Case

No. 18-cv-06588, filed December 5, 2019.

APPENDIX D: California Court of Appeal, First Appellate District, Opinion

affirming Judgment and Sentence, People v. Wyatt, Case No. A144872, filed

April 5, 2018.

APPENDIX A

Ninth Circuit Order Denying Petition for Rehearing and Rehearing En Banc

Michael Eugene Wyatt v. John Sutton

Case No. 20-15203

filed February 1, 2021

Case: 20-15203, 02/01/2021, ID: 11987726, DktEntry: 39, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

FEB 1 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MICHAEL EUGENE WYATT,

Petitioner-Appellant,

v.

JOHN SUTTON,

No.

20-15203

D.C. No. 4:18-cv-06588-PJH

Northern District of California,

Oakland

ORDER

Respondent-Appellee.

Before: W. FLETCHER, IKUTA, and VANDYKE, Circuit Judges.

The panel judges have voted to deny the appellee’s petition for panel

rehearing and rehearing en banc. The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on whether to rehear the

matter en banc. Fed. R. App. P. 35.

Appellee’s petition for panel rehearing and

rehearing en banc, (ECF 38) filed January 6, 2021, is DENIED.

APPENDIX B

Ninth Circuit Order Affirming District Court Denial of Habeas Petition

Michael Eugene Wyatt v. John Sutton

Case No. 20-15203

filed December 24, 2020

No. 20-15203

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Wyatt v. Sutton

Decided Dec 24, 2020

No. 20-15203

Wyatt's contention that the state court

unreasonably applied Jackson v. Virginia, 443

U.S. 307, 326 (1979), or reached an unreasonable

determination of the facts, cannot overcome the

double deference we afford to insufficient

evidence claims on habeas review of state court

convictions under the Antiterrorism and Effective

Death Penalty Act of 1996 ("AEDPA"), Pub. L.

No. 104-132, 110 Stat. 1214. See Johnson v.

Montgomery, 899 F.3d 1052, 1056-57 (9th Cir.

2018) ("In addition to Jackson's already

deferential standard .... we must conclude that the

state court's determination that a rational jury

could have found each required element proven

beyond a reasonable doubt was not just wrong but

was objectively unreasonable."); Coleman v.

Johnson, 566 U.S. 650, 656 (2012) ("[T]he only

question under Jackson is whether that finding

was so insupportable as to fall below the threshold

of bare rationality."). If the record supports

conflicting inferences, we "must presume—even if

it does not affirmatively appear in the record—that

the trier of fact resolved any such conflicts in

favor of the prosecution, and must defer to that

resolution." Jackson, 443 U.S. at 326.

12-24-2020

MICHAEL EUGENE WYATT, PetitionerAppellant, v. JOHN SUTTON, RespondentAppellee.

NOT FOR PUBLICATION

D.C. No. 4:18-cv-06588-PJH MEMORANDUM*

Appeal from the United States District Court for

the Northern District of California

Phyllis J. Hamilton, Chief District Judge,

Presiding Submitted December 11, 2020** San

Francisco, California Before: W. FLETCHER,

IKUTA, and VANDYKE, Circuit Judges.

* This disposition is not appropriate for

publication and is not precedent except as

provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case

is suitable for decision without oral

argument. See Fed. R. App. P. 34(a)(2).

2

Petitioner Michael Wyatt appeals the district

court's denial of his habeas petition under 28

U.S.C. § 2254. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253, and we review the

district court's decision de novo. Boyer v.

Belleque, 659 *2 F.3d 957, 964 (9th Cir. 2011). We

affirm.1

1 Because the parties are familiar with the

facts, we recite them here only as

necessary. --------

3

On habeas review of Jackson claims, "we ... look

to state law only to establish the elements of the

crime and then turn to the federal question of

whether the state court was objectively

unreasonable in concluding that sufficient

evidence supported *3 its decision." Johnson, 899

F.3d at 1056 (cleaned up) (citation omitted). In

California, a defendant commits first-degree

murder if the killing was willful, premeditated,

and deliberate. See Cal. Penal Code § 189; People

v. Sandoval, 363 P.3d 41, 64 (Cal. 2015).

1

Wyatt v. Sutton

No. 20-15203 (9th Cir. Dec. 24, 2020)

Specifically, "'[d]eliberation' refers to careful

weighing of considerations in forming a course of

action; 'premeditation' means thought over in

advance." Sandoval, 363 P.3d at 64 (quoting

People v. Koontz, 46 P.3d 335, 361 (Cal. 2002)).

California courts generally look to three nonexhaustive factors as guidelines in determining

premeditation and deliberation: planning, motive,

and manner of killing. Sandoval, 363 P.3d at 65.

4

Here, the state court reasonably determined that

Wyatt's first-degree murder conviction is

supported by sufficient evidence. With respect to

preexisting motive, it was not unreasonable for the

jury to conclude that Wyatt's increasingly violent

attempts to quiet his unarmed, mentally

handicapped roommate James Nobles evinced a

motive to accomplish what Wyatt had previously

and repeatedly asked for: peace and quiet free

from Nobles's "nagging." See People v. Boatman,

221 Cal. App. 4th 1253, 1268 (2013). With respect

to the manner of killing, a jury could have

reasonably determined that Wyatt considered his

previous unsuccessful attempts at quieting Nobles

and, instead of continuing to punch Nobles or

throw objects at him, deliberately resorted to

killing him by stabbing him in the chest to silence

him. Wyatt's decision to grab, and then plunge, a

knife into Nobles's chest, multiple *4 times, could

also reasonably reveal "a method sufficiently

'particular and exacting' to warrant an inference

that [Wyatt] was acting according to a

preconceived design" of quieting his roommate

once and for all. People v. Thomas, 828 P.2d 101,

115 (Cal. 1992); see also People v. Anderson, 447

P.2d 942, 949 (Cal. 1968) (surveying state law and

noting that "directly plunging a lethal weapon into

the chest evidences a deliberate intention to kill").

The jury could also have reasonably concluded

that Wyatt's additional actions—not immediately

seeking aid after he stabbed Nobles, waiting

twelve hours with Nobles's corpse before dumping

the body at a time least likely to be seen, and lying

to others (including the police)—all further evince

that Wyatt's conduct was not merely the product of

rash impulse. Cf. Boatman, 221 Cal. App. 4th at

1269 ("Defendant's actions immediately afterward

—directing Brenton to call 911 and attempting to

resuscitate Marth and seek medical aid—are not

the actions of an executioner."). Likewise, it

would be reasonable for the jury to infer that

Wyatt's previous murder of a friend after an

altercation also supported the conclusion that he

carefully weighed the considerations of stabbing

Nobles in advance of doing so. See People v.

Steele, 47 P.3d 225, 234 (Cal. 2002) ("[T]he more

often one kills, especially under similar

circumstances, the more reasonable the inference

the killing was intended and premeditated.").

5

While Wyatt contends that "[a]ll that was proven

here was a 'mere unconsidered or rash impulse'

that led to a spontaneous and frenzied lashing out

with *5 a knife," the controlling question under

AEDPA's double deference standard is whether

the state court's different conclusion was

objectively unreasonable. Johnson, 899 F.3d at

1056-57. As discussed above, it was not. And

Wyatt's argument that state law precludes the

jury's inferences and conclusions fails because

"the minimum amount of evidence ... require[d] to

prove the offense is purely a matter of federal

law," not state law. Coleman, 566 U.S. at 655.

The state court's decision was a reasonable

application of the law and based on a reasonable

determination of the facts, and therefore the

district court properly denied Wyatt's federal

habeas petition. See Moses v. Payne, 555 F.3d

742, 751 (9th Cir. 2009); 28 U.S.C. § 2254(d).

AFFIRMED.

2

Wyatt v. Sutton

No. 20-15203 (9th Cir. Dec. 24, 2020)

3

APPENDIX C

United States District Court, Northern District of California

Order Denying Habeas Petition

Michael Eugene Wyatt v. John Sutton

Case No. 18-cv-06588

filed December 5, 2019

Case No. 18-cv-06588-PJH

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Wyatt v. Sutton

Decided Mar 4, 2019

Case No. 18-cv-06588-PJH

03-04-2019

MICHAEL EUGENE WYATT, Plaintiff, v. JOHN

SUTTON, Defendant.

PHYLLIS J. HAMILTON United States District

Judge

ORDER FOR RESPONDENT TO

SHOW CAUSE

Petitioner, a California prisoner, filed a pro se

petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. The amended petition was

dismissed with leave to amend and petitioner has

filed a second amended petition.

BACKGROUND

Petitioner was sentenced to 56 years to life in

prison after being found guilty of first-degree

murder. People v. Wyatt, No. A144872, 2018 WL

1633816, at *5 (Cal. Ct. App. April 5, 2018). His

appeals were denied by the California Court of

Appeal and California Supreme Court. Docket No.

1 at 3. A pro se habeas petition to the California

Supreme Court was also denied. Docket No. 19 at

7-19.

In the California Court of Appeal petitioner

contended that: (1) there was insufficient evidence

of premeditation and deliberation for first degree

murder; (2) the court erroneously admitted

evidence of his prior conviction for voluntary

manslaughter; (3) the court should have instructed

the jury not to use the evidence of the prior

homicide unless it made a preliminary finding that

the homicide was committed with malice; (4) the

2

court should have instructed the jury on selfdefense and imperfect self-defense; (5) the

prosecutor committed misconduct by saying that

manslaughter was "murder with an *2 excuse;"

and (6) cumulative error. Wyatt, 2018 WL

1633816, at *1. The claims presented in the pro se

petition to the California Supreme Court are

difficult to understand but involve ineffective

assistance of counsel. Docket No. 19 at 7-19.

DISCUSSION

STANDARD OF REVIEW

This court may entertain a petition for writ of

habeas corpus "in behalf of a person in custody

pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the

Constitution or laws or treaties of the United

States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423

U.S. 19, 21 (1975). Habeas corpus petitions must

meet

heightened

pleading

requirements.

McFarland v. Scott, 512 U.S. 849, 856 (1994). An

application for a federal writ of habeas corpus

filed by a prisoner who is in state custody pursuant

to a judgment of a state court must "specify all the

grounds for relief available to the petitioner ...

[and] state the facts supporting each ground." Rule

2(c) of the Rules Governing § 2254 Cases, 28

U.S.C. § 2254. "'[N]otice' pleading is not

sufficient, for the petition is expected to state facts

that point to a 'real possibility of constitutional

error.'" Rule 4 Advisory Committee Notes

(quoting Aubut v. Maine, 431 F.2d 688, 689 (1st

Cir. 1970)).

LEGAL CLAIMS

1

Wyatt v. Sutton

3

Case No. 18-cv-06588-PJH (N.D. Cal. Mar. 4, 2019)

The first two petitions were dismissed with leave

to amend because it was not entirely clear the

claims petitioner had presented. Liberally

construing the second amended petition, petitioner

asserts that: (1) the trial court erred by failing to

instruct the jury on self-defense and imperfect

self-defense; (2) there was insufficient evidence of

premeditation and deliberation for first degree

murder; and (3) ineffective assistance of counsel

for failing to object to improper jury instructions

and failing to present a claim of self-defense.

These claims are sufficient to require a response.

If these are not the claims petitioner wishes to

proceed with, he must inform the court within

fourteen-days. *3

If petitioner wishes to respond to the answer, he

shall do so by filing a traverse with the court and

serving it on respondent within twenty-eight (28)

days of his receipt of the answer.

4. Respondent may file a motion to dismiss on

procedural grounds in lieu of an answer, as set

forth in the Advisory Committee Notes to Rule 4

of the Rules Governing Section 2254 Cases. If

respondent files such a motion, it is due fifty-six

(56) days from the date this order is entered. If a

motion is filed, petitioner shall file with the Court

and serve on respondent an opposition or

statement of non-opposition within twenty-eight

(28) days of receipt of the motion, and respondent

shall file with the court and serve on petitioner a

reply within fourteen (14) days of receipt of any

opposition.

CONCLUSION

1. All claims are dismissed except the claims

discussed above. If these are not the claims

petitioner wishes to proceed with, he must inform

the court within fourteen-days.

2. The clerk shall serve by regular mail a copy of

this order and the petition (Docket No. 19) and all

attachments thereto on respondent and

respondent's attorney, the Attorney General of the

State of California. The clerk also shall serve a

copy of this order on petitioner.

3. Respondent shall file with the court and serve

on petitioner, within fifty-six (56) days of the

issuance of this order, an answer conforming in all

respects to Rule 5 of the Rules Governing Section

2254 Cases, showing cause why a writ of habeas

corpus should not be granted. Respondent shall

file with the answer and serve on petitioner a copy

of all portions of the state trial record that have

been transcribed previously and that are relevant

to a determination of the issues presented by the

petition.

4

5. Petitioner is reminded that all communications

with the court must be served on respondent by

mailing a true copy of the document to

respondent's counsel. Petitioner must keep the

court informed of any change of address and must

comply with the court's orders in a timely fashion.

Failure to do so may result in the dismissal of this

*4 action for failure to prosecute pursuant to

Federal Rule of Civil Procedure 41(b). See

Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.

1997) (Rule 41(b) applicable in habeas cases).

IT IS SO ORDERED. Dated: March 4, 2019

/s/_________

PHYLLIS J. HAMILTON

United States District Judge

2

APPENDIX D

California Court of Appeal

Opinion Affirming Judgment and Conviction

People v. Michael Eugene Wyatt

Case No. A144872

filed April 5, 2018

A144872

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

People v. Wyatt

Decided Apr 5, 2018

I. FACTS AND PROCEDURAL

HISTORY

A144872

04-05-2018

THE PEOPLE, Plaintiff and Respondent, v.

MICHAEL EUGENE WYATT, Defendant and

Appellant.

NEEDHAM, J.

NOT TO BE PUBLISHED

OFFICIAL REPORTS

IN

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. (Alameda County

Super. Ct. No. CH54361)

Michael Eugene Wyatt appeals from a judgment

of conviction and sentence imposed after a jury

found him guilty of first degree murder. He

contends (1) there was insufficient evidence of

premeditation and deliberation for first degree

murder; (2) the court erroneously admitted

evidence of his prior conviction for voluntary

manslaughter; (3) the court should have instructed

the jury not to use the evidence of the prior

homicide unless it made a preliminary finding that

the homicide was committed with malice; (4) the

court should have instructed the jury on selfdefense and imperfect self-defense; (5) the

prosecutor committed misconduct by saying that

manslaughter was "murder with an excuse;" and

(6) cumulative error. We will affirm the judgment.

2

An information charged Wyatt with the 2012

murder of James Nobles (Pen. Code, § 187) and

alleged that he personally used a deadly weapon in

the commission of the offense (Pen. Code, §

12022, subd. (b)(1)). The information also alleged

that Wyatt had a prior serious felony conviction

for his 1995 voluntary manslaughter of Titus

Crowder in 1995 for purposes of Penal Code

section 667, subdivisions (a) and (e). *2

A. Prosecution Case

On February 8, 2012, the Alameda County

Sheriff's office received a report that a dead body

had been discovered near the Bay Area Rapid

Transit (BART) tracks in Hayward. Detective

Joshua Armijo of the Alameda County Sheriff's

Office responded to the scene and observed the

body of an African-American male at the bottom

of a dirt embankment, near the support pillar of

the elevated BART tracks. The body and clothing

were relatively clean, leading Armijo to conclude

that the victim had been killed elsewhere. The

victim had two incised puncture wounds on his

left chest, a swollen area on his left temple, a

blackened eye, jawline swelling, and blood from

his nostrils.

1. Investigation

The police did not find identification or personal

effects on the body, but used fingerprints to

identify the victim as James Nobles. Officers

contacted Nobles's cousin, Ioma Nobles. She told

them that Nobles had been living with "Mike" in

Hayward. Although she did not have the exact

1

People v. Wyatt

A144872 (Cal. Ct. App. Apr. 5, 2018)

address, she gave officers Mike's telephone

number, which she would call if she wanted to

reach Nobles. Police traced the phone number to

Wyatt, who lived on Hampton Road,

approximately a quarter-mile from where Nobles's

body was discovered. They also determined this to

be Nobles's last known address.1

and mumble things that did not make sense. Even

then, however, Nobles was not violent, and Ioma

had never seen him behave aggressively or assault

anyone.

4. Wyatt's Confession

Wyatt surrendered to police on February 12, 2012.

His shoes and pants had apparent bloodstains. He

waived his Miranda rights and agreed to be

interviewed by Detective Armijo and Alameda

County Sheriff's Sergeant Dave Dixon. (See

Miranda v. Arizona (1966) 384 U.S. 436.) A

redacted recording of the interview was played for

the jury.

1 Meanwhile, Ioma attempted to call Nobles;

Wyatt answered and said Nobles was at

church but he would tell Nobles she called.

(Because Ioma Nobles and James Nobles

have the same last name, we refer to Ioma

by her first name for clarity, without

disrespect.)

3

Police obtained a warrant to search Wyatt's

apartment on February 10, 2012. Officers

executing the warrant observed blood drops inside

the doorway and bloodstains on a mattress.

Forensic evidence specialists found trace amounts

of blood throughout the apartment. The search

lasted approximately 12 hours until the morning of

February 11; Wyatt was not there.

Wyatt told the officers that he was self-employed

and took care of people in their homes. Years

earlier he became friends with Nobles, who moved

in with him in mid-2010. Nobles usually used his

disability checks to pay the rent on the apartment.

Wyatt denied they had any romantic involvement,

but acknowledged that Nobles may have been

interested in one.

2. Forensic Pathologist

Wyatt generally did not have any conflict with

Nobles. However, sometimes Nobles would "go

off the deep end" and talk to himself, behave in a

childlike manner, and at times urinate on himself.

Wyatt would let him act out, and Nobles would

come back around. Most of the time, "[Nobles]

was a gentle, easy-goin' guy regardless of what the

circumstances," "he would not harm a fly," and he

was "never a threatening person."

Dr. Thomas Rogers conducted an autopsy on

Nobles's body. He observed several blunt force

injuries, including a bruise to the right eye, a

laceration on the right side of the nose, and a

bruise on the right arm. There were superficial

incised wounds on Nobles's *3 face, neck, and

lower right leg, as well as six deeper stab wounds

- two in the chest, one in the neck, one near the

jawline, and two in the leg - that had been inflicted

recently. The two chest wounds penetrated his left

lung and caused life-threatening injuries. Dr.

Rogers opined that multiple stab wounds and

incised wounds were the cause of Nobles's death.

3. Ioma's Testimony

Ioma testified that Nobles was mentally disabled

and could be "slow" and "childish." He took

medications to control his symptoms, but had

trouble remembering to take them. When he did

not take his medication, he would behave oddly

4

Wyatt claimed he did not know Nobles's

whereabouts and had not done anything to him.

After police said they could prove that Nobles was

killed in Wyatt's apartment, *4 however, Wyatt

admitted to killing Nobles during a fight. He

claimed that Nobles "flipped out," Wyatt tried to

subdue him, and "the next thing you know, it just

got outa hand and I lost it."

Wyatt recounted the events as follows. Two weeks

before the homicide, Nobles started acting out

consistently. Nobles acted out so much - every day

with constant movement or incessant babbling -

2

People v. Wyatt

A144872 (Cal. Ct. App. Apr. 5, 2018)

that Wyatt asked him to move to a board and care

home. Nobles did so for a while, but Wyatt let him

return to the apartment.

Around 2:00 or 2:30 that afternoon, things "came

to boil." Wyatt was watching basketball on

television. Nobles "started actin' crazy," and Wyatt

asked for quiet. Nobles continued with his

"madness" and "just kept on goin' and kept on and

just kept on goin."

Around 2:00 a.m. on Sunday, February 5, 2012,

Wyatt received a text from a male friend. Nobles

knew it was from a man, and he became upset.

Nobles started breathing hard and was constantly

moving, making noises, and "acting real bad."

Wyatt asked Nobles to "chill out," to no avail.

Wyatt repeatedly asked him to "just take it easy"

and lie down, but Nobles did not stop. Wyatt told

Nobles it would be best for him to leave at the end

of the month, "[b]ecause this is gettin' outa hand

here . . . [a]nd you constantly makin' it

uncomfortable where I'm livin' at." Nobles

"rant[ed] and rave[d]." Wyatt was unable to sleep

during Nobles's disruption, which continued until

around 6:00 a.m. on Sunday.2

Wyatt duct-taped Nobles's hands together, ducttaped his ankles, and put duct-tape over his mouth.

He also put Nobles in a corner and placed a

mattress over him. Nobles broke free, untaping his

hands and mouth. Wyatt unwrapped his ankles,

but Nobles "started back at his theatrics again."

Wyatt told Nobles it was best for him to "leave

next month," but Nobles said he did not want to.

Nobles's nagging persisted. Wyatt grabbed him by

the shoulders and shook him; Nobles flailed

around, " 'doin' his little strikin' and, you know,

kickin,' " and refused to "act like a civilized

person." In Wyatt's words, "it was just a naggin'

thing" and "it was just pressin' me and then it blew

me up." Wyatt grabbed a container of clear blue

cleaning liquid and threw the liquid in Nobles's

face. Nobles swallowed some of it, and it began to

run out of his nose.

2 At one point, Wyatt indicated that the text

and

subsequent

hours

of

disruption

occurred between approximately 2:00 a.m.

and 6:00 a.m. on Sunday. At another point,

he seemed to indicate it occurred on a

Thursday. The parties describe the event as

occurring on Sunday, which fits with the

rest of Wyatt's narrative. Whether it

happened on Thursday or Sunday, our

ruling would be the same.

Wyatt awoke around 9:00 a.m. on Sunday. Nobles

also awoke and was fine for a while, but then

restarted his barrage of noise and movement.

Wyatt repeatedly asked Nobles to calm down, but

Nobles didn't relent, which "got [Wyatt's] nerves

in a frenzy."

5

Wyatt described Nobles's behavior as "nagging,"

explaining it as follows: "Words, there was a lot of

movements . . . constant - he would get up and

then he would write on the floor and then he

would kick. It was just a lot of - I - I mean it may

seem petty. You know, but it was just a lot of

irritation. Just - just talking and you know and just

moving around. . . . It just didn't - it just didn't let

up." *5

6

Nobles "seemed like he was just [losin'] it."

Nobles kicked and slapped at Wyatt - which Wyatt

agreed was Nobles defending himself - and Wyatt

punched Nobles in the chin. Nobles came at Wyatt

again, and Wyatt punched him in the right eye.

Nobles "went to the bathroom" and then "jumped

and [] attacked again." Nobles had no weapon, but

he was "tryin' to swing and tryin' to grab." Wyatt

claimed that Nobles "flipped out" and it "scared"

him, although he acknowledged that Nobles never

threatened him or approached him in a threatening

manner.3 *6

3 Wyatt told officers that Nobles did not

threaten him, but he "felt threatened" when

Nobles snapped and Wyatt realized he was

going to keep making noise and acting out.

"Q1: Was there ever a point where he

threatened

you

during

this

incident

Michael? [¶] A: No. [¶] Q1: So he never

threatened you? [¶] A: No he - he never

3

People v. Wyatt

A144872 (Cal. Ct. App. Apr. 5, 2018)

believed Nobles was dead; he attempted chest

compressions, but he did not consider calling 911.

Wyatt knew, however, that he was in the wrong.

threatened me. [¶] Q1: You never felt

threatened by his behavior? [¶] A: No, not

until he just - just went - just completely

that night. You know he . . . [¶] Q1: No,

Confronted with the fact that Nobles had six stab

wounds rather than two, Wyatt initially maintained

he stabbed Nobles only twice, but eventually

agreed he had reached a boiling point and might

not have realized all that he did. He acknowledged

that a "few times in the past" he had become so

angry that he did not remember what he was

doing.

that's what I'm talking about. The - that the night of this incident. [¶] A: Mm-hm.

[¶] Q1: Was - was there ever a point where

you felt threatened by [Nobles]? [¶] A: No,

until he just - like I said until that particular

moment where he just snapped. [¶] Q1:

And when he snapped . . . [¶] A: That's

when I felt threatened . . . [¶] Q1: Tell us

why you felt threatened Michael? [¶] A:

Roughly 12 hours after he killed Nobles, Wyatt

put Nobles's corpse into one of the apartment

building's garbage cans and wheeled it over to the

BART tracks, where he dumped it around 3:00

a.m. He also burned some clothing and household

items to get rid of the evidence, and threw the

knife down a gutter near the apartment. The next

day, Wyatt left the apartment and did not return

until the search warrant had been executed.

'Cause I never sel- I never seen him in that

kind of outfit before. [¶] Q1: But what

about

his

behavior

made

you

feel

threatened? [¶] A: Before? [¶] Q1: At that

instant? [¶] A: It seemed like it was just

really to the point where he was just

unstoppable. You know it was, uh - he - he

- regardless of what I tried to do - and he

was just gonna be his way - that way,

regardless of how anybody else felt. [¶]

Q1: But what was he doing? [¶] A: Oh it

Wyatt admitted to the officers that he "went too

far" and stated repeatedly that Nobles did not

deserve what happened to him. When asked if he

premeditated the homicide, Wyatt responded "No,

no, no, I didn't."

was just - just a lot of noise, talking and

rambling and- and - and just going back,

like I say writing in - writing on the floor,

writing all these little notes and this and

that and . . . [¶] Q1: Did he ever approach

you in a threatening manner? [¶] A: No he

didn't. [¶] Q1: Okay what - how far away

were you guys when he was doing this

writing on the floor . . . [¶] A: I was just

sitting - I was just sitting in the bunk

myself. Watching - watching TV, trying to

just - you know trying to see if I can block

it out. [¶] Q1: Okay so he never threatened

7

Police later found the knife Wyatt used to kill

Nobles in the storm drain system, as Wyatt had

described. Police also found duct tape and the

clear blue cleaning liquid in Wyatt's apartment, as

well as the garbage can used to transport Nobles's

dead body. *7

5. Evidence of Wyatt's Killing of Crowder in 1995

you verbally? [¶] A: No he done - you

know [Nobles] was . . . was never a

threatening person."

Wyatt grabbed a small "folding-knife" and, in

"panic" and "rage," stabbed Nobles twice in the

chest. Wyatt heard a "poof" as the air exited

Nobles's lungs. Nobles fell down, voided his

bowels and bladder, and stopped moving. Wyatt

In 1995, the body of Titus Crowder, an AfricanAmerican man who lived in an Oakland care home

for men suffering from HIV, was found face down,

bloody, and lifeless in his living room. Crowder

was transported to a hospital and pronounced

dead. Officers had recovered nine bullet casings

near the body. They also found mail and other

paperwork bearing Wyatt's name, as well as

photographs belonging to Wyatt in a bedroom

dresser drawer.

4

People v. Wyatt

A144872 (Cal. Ct. App. Apr. 5, 2018)

About three weeks after the homicide, Wyatt was

arrested and interviewed by David Politzer, at the

time a sergeant with the Oakland Police

Department. Wyatt told Politzer that he did not

have a romantic relationship with Crowder but

they were friends. They had not had previous

arguments, but Crowder was "agitated" on the day

he was killed.

Wyatt recounted that, on the day of the homicide,

he and Crowder spent time together at a friend's

home and then went to Crowder's apartment,

where Crowder cooked dinner. After midnight, as

Wyatt got ready to leave, he asked Crowder about

$200 that Crowder owed him. Crowder became

angry, hit Wyatt in the jaw, and pulled out a gun

and pointed it at Wyatt. Wyatt wrestled the gun

away from Crowder, aimed it at him, and fired

until the gun was out of bullets. Wyatt fled with

the gun, walking from Crowder's apartment near

Oakland's Lake Merritt to a friend's house in

Emeryville. Wyatt threw the gun off of his friend's

balcony, where it was later discovered.

Wyatt pled guilty to voluntary manslaughter and

served 10 years in prison for killing Crowder.

B. Defense Evidence

Defense investigator Kingston Farady testified

that he interviewed Ioma, who told him Nobles

was a kind, gentle, and humble person, but he was

also a "fighter" who "wouldn't take crap from

anyone" and she had seen him become angry and

aggressive. In her testimony at trial, however,

Nobles denied making such statements.

8

Dr. David Howard, a forensic psychologist, opined

that Nobles suffered from schizophrenia. He

explained that schizophrenics can display

aggression and hostility and *8 frequently suffer

from delusions, hallucinations, and speech

disorders. They are more likely than an average

person to be violent and to be the victim of

violence. Although medications can be used to

treat the symptoms of schizophrenia, the

symptoms can reoccur if the patient stops taking

the medications.

Dr. Howard noted that Nobles had numerous

involuntary psychiatric holds and hospitalizations

due to his symptoms. According to medical

records, when Nobles stopped taking his

medication, he would hear voices, his speech and

behavior would become disordered, and he would

exhibit paranoid delusions, inappropriate affect,

fragmented thought processes, impaired speech,

and disturbed sleep. After reviewing a transcript of

Wyatt's interview, Dr. Howard found the

descriptions of Nobles's behavior - constant

words, writing on the floor, kicking, moving

around, and saying nonsensical things - consistent

with psychosis.

The parties stipulated that Nobles had been

convicted of misdemeanor battery in 2002, based

on his assault of a hospital admitting clerk.

C. Verdict and Sentence

The jury found Wyatt guilty of murder in the first

degree and found the weapon enhancement true.

The court found the prior conviction allegation

true and sentenced Wyatt to 56 years to life in

state prison. This appeal followed.

II. DISCUSSION

A. Sufficiency of the Evidence for First-Degree

Murder

Wyatt contends there is no evidence he killed

Nobles with the deliberation and premeditation

required for first degree murder. (See § 189.) We

review for substantial evidence.

" ' "Deliberation" refers to careful weighing of

considerations in forming a course of action;

"premeditation" means thought over in advance.

[Citations]. ' " 'The true test is not the duration of

time as much as it is the extent of the reflection.

Thoughts may follow each other with great

5

People v. Wyatt

9

A144872 (Cal. Ct. App. Apr. 5, 2018)

rapidity and cold, calculated judgment may be

arrived at quickly.' " ' [Citation.]' " (People v.

Casares (2016) 62 Cal.4th 808, 824.) *9

determined in his own mind a reason to kill

Nobles, even if it was not what most people would

consider a good one.

We typically consider three kinds of evidence to

determine whether a finding of deliberation and

premeditation

is

adequately

supported—

preexisting motive, planning activity, and manner

of killing. But these factors "are merely a

framework for appellate review; they need not be

present in some special combination or afforded

special weight, nor are they exhaustive." (People

v. Brady (2010) 50 Cal.4th 547, 561-562.)

2. Manner of Killing

In this case, there was no evidence of planning

activity. There was, however, other evidence that

supported a conclusion of deliberation and

premeditation.

1. Preexisting Motive

In his confession to police, Wyatt explained that

he killed Nobles after hours of Nobles moving,

making noise, babbling incoherently, acting out,

and failing to cease this activity no matter how

many times Wyatt asked. Despite Wyatt ducttaping Nobles's mouth, hands and ankles,

throwing cleaning liquid in his face, telling him to

move out, grabbing him by the shoulders and

shaking him, and punching him twice in the face,

Nobles's "nagging" appeared unstoppable. From

this evidence, the jury could reasonably conclude

that Nobles had become so annoying to Wyatt, and

Wyatt's efforts to quiet him and convince him to

stop or move out had proven so fruitless, that

Wyatt decided he had to kill Nobles in order to get

him to stop.

Evidence indicating that a killing was carried out

in a particular and exacting manner may, in

combination usually with evidence of planning or

motive, support a finding of premeditation and

deliberation. (People v. Anderson (1968) 70

Cal.2d 15, 27.)

10

Here, Wyatt's killing of Nobles was the

culmination of an escalating, hours-long incident,

in which Wyatt had ample time for reflection

before he inflicted the fatal stab *10 wounds. After

binding Nobles with duct tape, throwing cleaning

liquid in his face, grabbing him by the shoulders,

shaking him, and punching him to no avail, Wyatt

picked up the folding knife (it is unclear if he had

to unfold it) and plunged the blade twice into

Nobles's chest. Wyatt conceded that he might have

lost count of how many times he really stabbed

Nobles, and indeed, the coroner observed six

recent stab wounds on Nobles's body. From the

manner in which Wyatt killed Nobles - multiple

stab wounds to the chest - along with Wyatt's

motive for killing him, the jury could reasonably

conclude that Wyatt had weighed the

considerations and decided to end Nobles's life.4

4 Alternatively,

the

jury

could

have

reasonably inferred that Wyatt decided to

kill Nobles when he continued his barrage

of noise and movement as Wyatt tried to

watch the basketball game on Sunday

afternoon, before duct-taping him; if so,

Wyatt acknowledges that Nobles's conduct gave

Wyatt a reason to try to make Nobles stop his

behavior, but he argues it was not a motive for

Wyatt to actually kill him. Whether it was

reasonable for Wyatt to want to kill Nobles under

the circumstances is not the point, however; the

point is that the evidence suggested that Wyatt had

Wyatt's acts of duct-taping, throwing

cleaning liquid in Nobles's face, and

punching Nobles over a span of time could

be viewed as acts of torture leading up to

the fatal stabbing. Acts of torture may

support a conclusion of premeditation and

deliberation. (See People v. Proctor (1992)

4 Cal.4th 499, 529-530.)

3. Wyatt's Actions after the Killing

6

People v. Wyatt

A144872 (Cal. Ct. App. Apr. 5, 2018)

After Wyatt stabbed Nobles at least twice in the

chest, he heard a "poof" of air exit Nobles's lungs

and watched as Nobles collapsed and voided his

bladder and bowels. He did not call 911, either for

medical assistance or to summon the police.

Instead, he waited in the apartment with Nobles's

dead body for approximately 12 hours - until

around 3:00 a.m. when he would less likely be

seen by police or witnesses - and then wheeled the

corpse in a garbage can to the BART tracks and

dumped it. From this evidence, the jury could

reasonably infer that Wyatt's callousness toward

Nobles's body reflected not only his state of mind

after the stabbing, but his state of mind toward

Nobles before and during the stabbing, consistent

with his deliberative decision to end Nobles's life.

homicides, it was permissible for the jury to infer

that Wyatt's killing of Nobles was intended and

premeditated. (Ibid.)5

5 The court also instructed that the evidence

could be considered in deciding whether

Wyatt "had a character for violence and

acted in conformity with such character on

the occasion of the charged incident." That

was because, after the court admitted the

evidence

of

Crowder's

killing

under

Evidence Code section 1101, subdivision

(b), defense counsel introduced evidence of

Nobles's battery conviction, which in turn

permitted the jury to consider the evidence

of Wyatt's killing of Crowder for the

broader purpose of his character for

violence. (See Evid. Code, § 1103.)

11

Based on the evidence of motive, the manner of

the killing, and Wyatt's conduct after Nobles's

death, there was substantial evidence that the

murder of Nobles was perpetrated with

premeditation and deliberation - even without

consideration of the fact that Wyatt had also killed

Crowder in 1995, which we consider next. *11

Respondent argues that, due to the

4. 1995 Homicide

counsel would not have introduced the

The trial court admitted evidence of Wyatt's 1995

homicide of Crowder under Evidence Code

section 1101, subdivision (b) and the doctrine of

chances, and subsequently instructed the jury that,

if it found that Wyatt committed this uncharged

offense, "you may, but are not required to"

consider the evidence for the limited purpose of

deciding whether or not Wyatt "acted with the

specific intent and/or mental state required by the

charged offense or any lesser offense" and whether

Wyatt's explanation for the killing of Nobles was

true. (Italics added. See People v. Steele (2002) 27

Cal.4th 1230, 1244 (Steele).) The court further

instructed the jury to "consider the similarity or

lack of similarity between the uncharged and the

charged offense" in evaluating the evidence. From

the proof that Wyatt perpetrated the two

admission of the evidence under Evidence

Code section 1103, the admission under

Evidence Code section 1101, subdivision

(b) was not erroneous (or was harmless).

Wyatt counters that, had it not been for the

admission of the evidence under Evidence

Code section 1101, subdivision (b), defense

evidence

of

Nobles's

conviction,

so

Evidence Code section 1103 would not

have come into play. We need not and do

not rely on Evidence Code section 1103 to

resolve the appeal.

12

Wyatt insists there was no evidence that the killing

of Crowder or the killing of Nobles was

premeditated, so the combination of those two

killings cannot support a finding that the killing of

Nobles was premeditated because "[t]he sum of

zeroes is always zero." (Quoting People v. Haston

(1968) 69 Cal.2d 233, 246, fn.15 (Haston).) Our

Supreme Court held otherwise in Steele, as we

discuss further in the context of the admissibility

of the evidence, post. (Steele, supra, 27 Cal.4th at

pp. 1244-1245.) *12 Haston - which preceded

Steele by over three decades - is plainly

inapposite.6 And as discussed ante, Wyatt is

7

People v. Wyatt

A144872 (Cal. Ct. App. Apr. 5, 2018)

incorrect in his assumption that there was no other

evidence of Wyatt's premeditation in killing

Nobles.

6 In Haston, the court observed that the

existence of marks common to the charged

and uncharged crimes might not be

sufficient to be admissible on the issue of

identity if the marks were not distinctive,

as where the robber in both crimes wore

trousers and had two ears. (Haston, supra,

69 Cal.2d at p. 246, fn. 15.) Here, by

contrast, the evidence of the two killings

was

intent

and

deliberation,

offered

inferences

to

show

requiring

less

similarity

between

the

Furthermore,

as

discussed

crimes.

post,

the

similarities between the killing of Crowder

and the killing of Nobles were sufficiently

distinctive.

5. Wyatt's Arguments Regarding Premeditation

and Deliberation

Wyatt insists that the evidence showed he did not

act with premeditation and deliberation. In his

view, he tried "low-level physical efforts to stop"

Nobles's disruptions, which led to Nobles charging

Wyatt to kick and slap him; immediately before

the homicide, Nobles "attacked again," "snapped"

"in a rage," and was swinging his hands and trying

to grab Wyatt; and Wyatt reacted in a state of

"panic" and "rage" by grabbing the knife and

stabbing Nobles twice, trying thereafter to revive

him. But even if the evidence was reasonably

subject to an inference that Wyatt did not

premeditate or deliberate, it was also reasonably

subject to an inference that he did, choosing to end

Nobles's nagging once and for all by stabbing him

repeatedly in the chest until he was dead. It is not

our role to reweigh the evidence or choose

between permissible inferences; we merely

determine whether there was substantial evidence

to support the jury's verdict, and in this case there

was.

13

Wyatt told the police he did not premeditate the

killing and claimed he acted "out of the heat of

rage." The jury, however, did not have to believe

Wyatt's self-serving depictions of his mental state.

To the contrary, the jury could have reasonably

concluded that Wyatt's use of a legalistic phrase

such as "out of the heat of rage" was a

disingenuous attempt to minimize his crime, and

that Wyatt's story was so similar to the one he

gave police with respect to killing Crowder - a

good relationship with his victim until the victim

suddenly lashed out - that he lied to police about

his mental state in *13 killing Nobles to obtain a

deal based on a non-malice killing like he received

with respect to Crowder. The jury heard the

audiotape of Wyatt's confession, and it was for the

jury to determine the credibility of Wyatt's

assertions.

Wyatt argues that, if the jury did not believe him,

there was "no evidence of what happened" and

therefore no evidence of first degree murder. Not

so. The jury could have rejected Wyatt's depiction

of his state of mind, while accepting his depiction

of what occurred to the extent it was consistent

with the physical evidence. From the evidence of

what occurred, the jury could reasonably conclude

that, contrary to Wyatt's claims, Wyatt killed

Nobles with deliberation and premeditation.

Wyatt contends the jury should have believed him,

because his account of the killing of Nobles was

borne out by the evidence: his description of the

punches he threw to Nobles's jaw and eye

corresponded to Detective Armijo's observation of

those injuries; his description of stabbing Nobles

twice in the chest corresponded with Dr. Rogers's

testimony that the fatal wounds were two stab

wounds to the same area of the chest; and his

description of Nobles's disruptive behavior was

consistent with Dr. Howard's testimony of the

symptoms Nobles exhibited as a schizophrenic.

But that's the point: the jury could have accepted

Wyatt's version of what happened to the extent

8

People v. Wyatt

14

A144872 (Cal. Ct. App. Apr. 5, 2018)

consistent with other testimony, but concluded that

these events and the other evidence demonstrated

his premeditation and deliberation.

the incident in a manner substantially identical to

the testimony later given by Sergeant Politzer, set

forth ante.

Wyatt fails to establish that the evidence was

insufficient for first degree murder.7 *14

The trial court ruled that the evidence was

admissible under section 1101(b) to prove Wyatt's

intent and premeditation, relying on Steele and the

doctrine of chances. The court noted the

similarities between the two homicides and

rejected Wyatt's argument that the killing of

Crowder was not probative because it was not

itself a premeditated killing. The court also found

that, in light of the similarity between the two

killings, the evidence of the 1995 homicide was

not overly inflammatory and was not precluded by

Evidence Code section 352.

7 Wyatt contends in his reply brief that we

should not consider a factual theory the

prosecutor never argued. The theories we

acknowledge here, however, are entirely

consistent with the prosecutor's contentions

in

closing

argument.

The

prosecutor

asserted that first degree murder required

willfulness,

premeditation,

and

deliberation, explained how his prior

depictions of Wyatt's express malice

satisfied the elements of willfulness and

2. Section 1101(b)

premeditation, and argued there was

evidence of deliberation in Wyatt's decision

Subdivision (a) of Evidence Code section 1101

precludes the use of evidence of a defendant's

character, including a prior bad act, to prove that

the defendant acted in conformity with that

character on the occasion of the charged crime.

Section 1101(b) clarifies, however, that evidence

of a prior bad act may be admitted to establish

some relevant fact other than the person's

character or predisposition, such as the defendant's

mental state. (People v. Ewoldt (1994) 7 Cal.4th

380, 393, 399.)

to kill Nobles in beating him up, picking up

a knife, stabbing him in the "lungs," and

opting not to summon help for him. The

prosecutor specifically stated that "[t]he

evidence is there for first degree murder,

just like I've explained it to you." --------

B. Admission of Evidence of the 1995 Homicide

of Crowder

Wyatt contends the court erred in admitting

evidence of his voluntary manslaughter conviction

for killing Crowder under Evidence Code section

1101, subdivision (b) (section 1101(b)) and the

doctrine of chances. Although there was sufficient

evidence of premeditation and deliberation to

uphold the first degree murder conviction even

without the evidence of the killing of Crowder, we

will consider the propriety of this evidence in case

it had any effect on the trial.

1. Background

Before trial, the prosecutor sought an order that

evidence of Wyatt's 1995 homicide of Crowder

would be admitted under section 1101(b). In

opposing the motion, defense counsel described

15

More specifically, evidence is admissible under

section 1101(b) if the charged and uncharged

crimes are sufficiently similar to support a rational

inference of identity, common design or plan, or

intent. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)

Of these *15 three potential inferences, the least

degree of similarity between crimes is needed to

show intent. (Id. at pp. 402-403.) Thus, " 'if a

person acts similarly in similar situations, he

probably harbors the same intent in each instance'

[citations], and . . . such prior conduct may be

relevant circumstantial evidence of the actor's

most recent intent." (People v. Robbins (1988) 45

Cal.3d 867, 879.)

9

People v. Wyatt

A144872 (Cal. Ct. App. Apr. 5, 2018)

In Steele, supra, the defendant was charged with

the stabbing murder of his female victim. At trial,

the only question was whether he acted with

premeditation. The trial court admitted evidence

that the defendant was previously convicted of

second degree murder for stabbing another

woman. Our Supreme Court found no abuse of

discretion, noting the similarities between the two

crimes: the victims somewhat resembled each

other; the defendant manually strangled the

victims before he stabbed them; he inflicted eight

stab wounds in the chest or abdomen of each

victim; and he admitted the killings but supplied

an explanation (mescaline in one case, drinking

and hearing a helicopter in the other). (Steele,

supra, 27 Cal.4th at p. 1244.) The Supreme Court

explained that "the doctrine of chances teaches

that the more often one does something, the more

likely that something was intended, and even

premeditated, rather than accidental or

spontaneous. Specifically, the more often one

kills, especially under similar circumstances, the

more reasonable the inference the killing was

intended and premeditated." (Ibid.)

a. Wyatt's Two

Circumstances

Homicides

Had

Similar

Wyatt's homicide of Crowder and his homicide of

Nobles were similar in several respects. First, in

both cases, Wyatt's victims were AfricanAmerican men who suffered from serious medical

conditions. Crowder was HIV positive and lived

in a care home for men suffering from HIV-related

medical issues; Nobles had a documented history

of mental illness.

16

Second, both homicides occurred inside the

victim's residence, where Wyatt spent substantial

time. Although Wyatt claimed he was not living

with Crowder, Wyatt's mail and photographs were

found in a bedroom drawer, suggesting he spent

enough time there to store some personal

belongings; Wyatt was Nobles's roommate. *16

Third, Wyatt claimed he generally had a good

relationship with both victims, but the victims

became agitated on the day of the homicide and

engaged in sudden actions that led Wyatt to kill

them. Crowder supposedly pulled a gun on Wyatt

when asked about repayment of a loan; Nobles

supposedly "snapped" after Wyatt tried to get

Nobles to stop his annoying behavior.

Fourth, although Wyatt used a different weapon to

kill Crowder and Nobles, in both cases he reached

for a murder weapon that was close at hand.

Fifth, in both cases Wyatt made no attempt to seek

medical assistance for his victim or alert police to

his allegedly justified acts. Instead, he fled and

attempted to conceal evidence of his crimes. After

killing Crowder, he left the apartment where the

killing occurred and threw the gun over a balcony;

after killing Nobles, he dumped the body, burned

evidence, threw the knife into a gutter, and left the

apartment where the killing occurred.

Sixth, in both cases, Wyatt initially denied

responsibility but later confessed while blaming

his victim. Wyatt claimed Crowder pulled out a

gun and aimed it at him; Wyatt claimed Nobles

kept up his noise and movements and kicked and

grabbed at him.

Collectively, there was a sufficiently high degree

of similarity between the two killings to justify the

admission of the Crowder homicide evidence

under section 1101(b).

Wyatt attempts to minimize these similarities,

arguing it is "hardly surprising" the victims were

African-Americans he knew well, since Wyatt was

an African-American; the fact that Wyatt spent a

lot of time with his victims and tried to conceal

the killings is too generic; Wyatt's killing of

Nobles did not occur in a living room, since Wyatt

lived in a studio apartment; and Crowder, although

a resident of an HIV care home, was not

particularly vulnerable because he had a gun.

Wyatt also contends there were differences

between the two homicides: for example, Crowder

10

People v. Wyatt

17

A144872 (Cal. Ct. App. Apr. 5, 2018)

was not killed at Wyatt's home, Crowder used a

weapon first, and Crowder was killed by a gun

rather than a knife. However, the charged and

uncharged crimes do not have to be identical for

evidence of the uncharged crime to be admissible

under section 1101(b). (See Ewoldt, supra, 7

Cal.4th at p. 402.) Wyatt fails to show an abuse of

discretion. *17

maintained it was an accident, she was never

prosecuted for it, and her state of mind may have

been " 'wholly innocent' "].)

c. The 1995 Homicide Did Not Have to Be

Premeditated

Wyatt contends that because he was convicted of

the voluntary manslaughter of Crowder, rather

than a malice murder requiring premeditation, the

homicide of Crowder was not probative of his

intent and premeditation in this case.

b. Wyatt's Reliance on Federal Cases is Misplaced

Wyatt relies on three federal court cases to argue

that the evidence of the Crowder killing was

inadmissible. (United States v. Levario Quiroz

(5th Cir. 1988) 854 F.2d 69; State v. Elmer (D.

Ariz. 1993) 815 F.Supp. 319; United States v.

70… Greyeyes (9th Cir. 1991) No. 89-10605 *70733

(unpublished).)

Wyatt's reliance on these cases is misplaced.

Federal decisions are not binding on this court.

(People v. Williams (2013) 56 Cal.4th 630, 668.)

None of the cases addressed Steele, section

1101(b), or the California law of the doctrine of

chances. Moreover, all of the cases are

distinguishable on their facts. (Levario Quiroz,

supra, 854 F.2d at pp. 70-73 [defendant, charged

with shooting at a border patrol agent, claimed he

fired in self-defense after the agent fired first;

evidence that the defendant claimed to have acted

in self-defense in an earlier shooting was

inadmissible because it happened in a different

type of setting and appeared to involve a dispute

over a woman]; Elmer, supra, 815 F.Supp. at pp.

320-323 [border patrol agent, charged with

unlawfully shooting at people trying to cross the

border, asserted that he acted in self-defense;

evidence that the agent had claimed self-defense

in another similar shooting was inadmissible

where he had been acquitted of all wrongdoing in

the earlier shooting and the two incidents were

only superficially similar]; United States v.

Greyeyes, supra, 1991 WL 70733 [where wife was

charged with killing her husband by running over

him with a car, a prior incident in which she struck

her husband with a car was inadmissible since she

18

Our Supreme Court rejected a similar argument in

Steele: "[T]he doctrine of chances is based on a

combination of similar events. . . . The fact that

defendant killed twice under similar circumstances

is logically probative of whether the second killing

*18 was premeditated even if no independent

evidence existed that the first killing was itself

premeditated." (Steele, supra, 27 Cal.4th at pp.

1244-1245. Italics added.) Although the

conviction for killing Crowder was voluntary

manslaughter and not a malice murder, it was not

an accidental killing. The combination of the two

killings, under similar circumstances, was

probative of whether the killing of Nobles was

premeditated.

3. Evidence Code Section 352

Wyatt contends the evidence of his killing

Crowder should have been excluded under

Evidence Code section 352 because there was no

substantial showing of probative value. (Citing

People v. Sam (1969) 71 Cal.2d 194, 206.) As

stated ante, however, the evidence had substantial

probative value as to Wyatt's premeditation and

intent in killing Nobles. The court did not abuse

its discretion in admitting the evidence.

C. Preliminary Factual Finding

Under Evidence Code section 403, subdivision

(a), evidence is inadmissible unless the court finds

there is evidence sufficient to sustain a finding of

the existence of a preliminary fact required for its

admission, such as relevance, personal knowledge,

11

People v. Wyatt

A144872 (Cal. Ct. App. Apr. 5, 2018)

or authentication. The court "[m]ay, and on

request shall, instruct the jury to determine

whether the preliminary fact exists and to

disregard the proffered evidence unless the jury

finds that the preliminary fact does exist." (Evid.

Code, § 403, subd. (c)(1).) Here, the trial court

instructed the jury that it had to determine whether

the prosecution proved that Wyatt killed Crowder

and, if not, it had to disregard the evidence. The

court also instructed the jury that, in evaluating the

evidence, it should consider the "similarity or lack

of similarity" between the two homicides.

admissible, and the trial court's jury instruction

was deficient in failing to acknowledge the issue.

(Id. at pp. 130-131.)

Simon is inapposite. There, the previous non-fatal

assault was not relevant unless it was motivated

by jealousy; here, Wyatt's killing of Crowder was

relevant regardless of Wyatt's motivation, and

regardless of whether it was a malice murder or

another form of homicide. The probative value of

the Crowder homicide arises from the fact that

Wyatt killed two people under sufficiently similar

circumstances, which could warrant a finding that

the killing of Nobles was intentional and

premeditated. (Steele, supra, 27 Cal.4th at pp.

1244-1245; see also People v. Carpenter (1997)

15 Cal.4th 312, 383 [evidence of other crimes was

admissible on the issue of intent, because the more

often the defendant killed and raped the more

likely he intended and premeditated the result he

achieved; this "simple logic required no complex

instructions," and Simon was inapposite because it

involved a prior nonfatal assault, not an actual

killing].) Wyatt fails to demonstrate error.

Wyatt contends the trial court should have also

instructed the jury, pursuant to Evidence Code

section 403, that the jury had to make a

preliminary factual finding that Wyatt's killing of

Crowder was a malice murder before it could use

the evidence to determine Wyatt had committed

first degree murder. He is incorrect.

19

Wyatt relies on People v. Simon (1986) 184

Cal.App.3d 125 (Simon). There, the defendant had

shot and killed a man at his girlfriend's apartment.

The prosecutor contended that the defendant killed

the man out of jealousy, while the defendant *19

contended the man pointed a gun at him and the

killing was in self-defense. (Id. at p. 127.) The

prosecution introduced evidence that Simon had

previously pulled a gun on another man (Ashton)

at Simon's girlfriend's apartment; the girlfriend

previously told police she was having an affair

with Ashton, but both she and the defendant

testified at trial that he was selling drugs to her.

(Id. at pp. 128-129.) On appeal, the court ruled

that, if the assault on Ashton was motivated by

jealousy, it would be sufficiently similar to the

charged crime to be admissible on the issue of

self-defense; but if the assault on Ashton was

motivated by Simon's desire to keep his girlfriend

away from drug dealers, the prior incident would

not be relevant. Thus, Simon's motive in

assaulting Ashton was a critical preliminary

factual issue which should have been resolved

before the Ashton incident was deemed

D. Refusal of Self-Defense and Imperfect SelfDefense Instructions

20

Defense counsel asked the trial court to instruct

the jury with CALCRIM No. 505 (self-defense)

and CALCRIM No. 571 (unreasonable or

imperfect self-defense). Relying on testimony

from Dr. Howard that Nobles was suffering a

psychotic break, and on Wyatt's statement to

police that Nobles "snapped," defense counsel

argued that Wyatt acted in self-defense because he

reasonably believed he was in imminent danger.

*20 Counsel also argued that Wyatt acted in

unreasonable self-defense because his statement to

police demonstrated that he was in actual fear,

even if such a fear was unreasonable.

The trial court declined to give the requested

instructions, observing that Wyatt had not

indicated in his statement to police that he actually

believed Nobles posed a danger to him. Wyatt

contends the court erred.

12

People v. Wyatt

A144872 (Cal. Ct. App. Apr. 5, 2018)

1. Self-Defense and Imperfect Self-Defense

Under the doctrine of self-defense, a defendant

who killed his victim with an actual and

reasonable belief that killing was necessary to

avert an imminent threat of death or great bodily

injury has a complete justification for the killing.

(E.g., People v. Elmore (2014) 59 Cal.4th 121,

133-134 (Elmore).)

Under the doctrine of imperfect self-defense, a

defendant who killed with an actual but

unreasonable belief that the killing was necessary

to avert an imminent threat of death or great

bodily injury has no defense for the killing, but

because the defendant has not harbored malice, he

or she has committed only voluntary manslaughter

rather than murder. (Elmore, supra, 59 Cal.4th at

p. 134.)

When a defendant is charged with murder, a trial

court has a sua sponte duty to instruct on selfdefense when "it appears that the defendant is

relying on such a defense, or if there is substantial

evidence supportive of such a defense and the

defense is not inconsistent with the defendant's

theory of the case." (People v. Sedeno (1974) 10

Cal.3d 703, 716, overruled on other grounds in

People v. Breverman (1998) 19 Cal.4th 142, 165.)

Similarly, the court has a sua sponte duty to

instruct on imperfect self-defense if the "evidence

is such that a jury could reasonably conclude that

the defendant killed the victim in the unreasonable

but good faith belief in having to act in selfdefense." (People v. Barton (1995) 12 Cal.4th 186,

200-201.)

2. Application

21

No evidence supported Wyatt's claim of selfdefense, because there was no evidence that any

belief he had of being in danger of imminent harm

was reasonable. Nobles did not have a weapon,

and although he approached in a "rage," he was

merely "doin' his little strikin' and you know,

kickin'," and "tryin' to swing and tryin' to grab."

*21 There was no evidence of any significant force

in Nobles's attempted blows, or any reasonable

basis for believing that Nobles was about to cause

Wyatt great bodily injury.

Furthermore, no evidence supported Wyatt's claim

of self-defense or imperfect self-defense, because

there was no evidence that Wyatt had any actual

belief, reasonable or not, that he was in danger of

imminent harm. Wyatt repeatedly told officers that

Nobles did not have a weapon and that Nobles had

not threatened him. Although Wyatt claimed he

"felt threatened" at the particular moment when

Nobles "snapped," there was no evidence that

Wyatt believed he was in imminent threat of death

or great bodily injury. To the contrary, when asked

"what about his behavior" of Nobles made him

feel threatened, Wyatt said that Nobles was

"unstoppable" in his "noise, talking and rambling

and . . . writing on the floor." (Italics added.)

Wyatt insisted that Nobles never approached him

in a threatening manner, never threatened him

verbally, and "was never a threatening person."

Finally, Wyatt was not entitled to an instruction on

self-defense or imperfect self-defense because he

was the initial aggressor in the fight. (In re

Christian S. (1994) 7 Cal.4th 768, 773 fn. 1

[neither self-defense nor imperfect self-defense

may be invoked by a defendant who by wrongful

conduct such as initiation of a physical assault has

created circumstances under which his adversary's

attack is legally justified].) Although Wyatt

stabbed Nobles to death after Nobles approached

him and kicked and slapped him, that occurred

only after Wyatt had bound Nobles with duct tape,

taped over his mouth, put a mattress over him, and

threw cleaning solution into his face. Indeed,

Wyatt agreed in his interview with police that

Nobles's kicking and slapping, before Wyatt

punched him, was Nobles defending himself

against Wyatt.

Wyatt contends his acts of binding Nobles with

duct tape and throwing a cleaning solution at him

were lawful attempts to resist Nobles's

misdemeanor offense of disturbing the peace. (See

13

People v. Wyatt

22

A144872 (Cal. Ct. App. Apr. 5, 2018)

Pen. Code, § 415, subd. (2); § 693.) But Penal

Code section 693 only allows "[r]esistance

sufficient to prevent the offense." Wyatt's binding

Nobles with duct tape, dousing him with a

cleaning solution, and other acts were more than

that. *22

Wyatt also argues that he was not the initial

aggressor because, before Wyatt bound him with

duct tape, Nobles had made noise for hours. But

he provides no authority that Nobles's level of

disruption made him the initial aggressor in their

fight. In fact, Wyatt characterized Nobles's

behavior as "nagging" and conceded that others

might consider it petty.

D. Prosecutor's Closing Argument

Wyatt contends the prosecutor committed

misconduct by describing voluntary manslaughter

as "murder with an excuse" during closing

argument.

1. Prosecutor's Statements

Discussing the requirements for conviction of

murder and the lesser included offense of

voluntary manslaughter, the prosecutor argued:

"Voluntary manslaughter is murder with an

excuse. . . [y]ou have malice whether express or

implied. But for voluntary manslaughter you have

something else that's going on. There's an excuse,

a partial excuse that society is prepared to

recognize that negates the malice and lowers the

seriousness of the charge for murder to

manslaughter. [¶] So what is this that's going on

that you're going to be told about? Heat of

passion, members of the jury. In order to find that

the malice for murder is negated and society is

going to partially excuse what the defendant did,

you have to consider that the defendant was

provoked by the victim and as a result of the

provocation the defendant acted rashly and under

the influence of intense emotion that obscured his

reasoning or judgment. [¶] In addition to that you

have to find that the provocation would have

caused a person of average disposition to act

rashly and without due deliberation from passion

rather than from judgment. Those are the legal

words that define voluntary manslaughter that you

will hear from the Judge at the conclusion of our

presentation." (Italics added.)

23

The prosecutor gave examples of adequate

provocation, such as where a father attacks a

person he saw molesting his child. The prosecutor

also gave examples of inadequate provocation,

such as someone taking the last item off a grocery

store shelf or cutting a person off in traffic. *23

In addition, the prosecutor used a PowerPoint

slide outlining these principles, which explained

that voluntary manslaughter was a killing with

malice aforethought, "BUT there is an excuse that

negates the malice."

Defense counsel objected to the prosecutor's

argument, stating it was "glib." The court

overruled the objection, finding nothing

inappropriate in the content or tone of the

prosecutor's remarks.

2. Legal Standard

In determining whether a prosecutor's statements

to the jury constitute misconduct, " 'the question is

whether there is a reasonable likelihood that the

jury construed or applied any of the complained-of

remarks in an objectionable fashion.' " (People v.

Cunningham (2001) 25 Cal.4th 926, 1001.) A

prosecutor's improper comments violate the

federal Constitution if they infect the trial with

such unfairness as to make the conviction a denial

of due process. (Id. at p. 1000.) Comments that do

not violate the federal Constitution may still

violate state law if they involve the use of

deceptive or reprehensible methods to attempt to

persuade the court or the jury. (Ibid.)

3. Application

There is no reasonable likelihood that the jury

understood the prosecutor's comments in an

objectionable fashion. In saying that manslaughter

was "murder with an excuse . . . a partial excuse

14

People v. Wyatt

24

A144872 (Cal. Ct. App. Apr. 5, 2018)

that society is prepared to recognize that negates

the malice and lowers the seriousness of the

charge for murder to manslaughter," the

prosecutor was not saying that manslaughter was

murder, but that a killing which would constitute

murder if committed with malice is deemed to be

only manslaughter if it was in response to

sufficient provocation and, therefore, without

malice. (Italics added.) That is indeed the law:

"Manslaughter is an unlawful killing without

malice, the element necessary for the greater

offense of murder. . . . [P]rovocation . . .

mitigate[s] the offense by negating the murder

element of malice, and thus limit[s] the crime to

manslaughter." (People v. Rios (2000) 23 Cal.4th

450, 454.) Moreover, the prosecutor's statement

was consistent with the law as instructed by the

court, which informed the jury of the elements of

murder and that "[p]rovocation may . . . reduce a

murder to manslaughter," and "[a] *24 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," as when the "defendant was

provoked" (under specified circumstances). (See

CALCRIM Nos. 521, 522, 570.) While it is

technically true that provocation or the absence of

malice is not a legal "excuse" for murder - in the

sense of a justification or complete defense - the

upshot of the prosecutor's comment was correct: if

the jury found that Wyatt acted upon sufficient

provocation that he did not act with malice, the

jury should find him guilty of manslaughter rather

than murder.

Wyatt argues that by casting voluntary

manslaughter as murder with an "excuse," the

prosecutor shifted the burden of proof because he

implied that Wyatt had to provide an "excuse" as

to why the homicide was not murder, even though

it is the prosecution's burden to prove the absence

of provocation to obtain a murder conviction. The

argument is meritless. The prosecutor never stated

that Wyatt had the burden of proving an excuse or

provocation, and the jury was never instructed to

that effect. Although Wyatt contends an "excuse"

must be proven by the party asserting it under

Evidence Code section 115, the jury was never

instructed with Evidence Code section 115. To the

contrary, the court instructed the jury, pursuant to

CALCRIM No. 570, that the prosecutor had the

burden of proving the absence of provocation:

"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."

25

Wyatt also argues that the prosecutor trivialized

the crime of voluntary manslaughter by

analogizing it to annoyances during shopping and

driving, thereby discouraging the jury from

finding Wyatt guilty of manslaughter rather than

murder. Not so. The prosecutor used the analogies

to explain what was not sufficient provocation to

kill and what therefore would not provide a basis

for voluntary manslaughter. Wyatt fails to

demonstrate error. *25

E. Cumulative Error

Because Wyatt fails to establish that the trial court

committed any error, he is not entitled to relief

based on any cumulative effect of the prejudice of

errors. He fails to establish any basis for a

reversal.

III. DISPOSITION

26

The judgment is affirmed. *26

/s/_________

NEEDHAM, J. We concur. /s/_________

JONES, P.J. /s/_________

SIMONS, J.

15

People v. Wyatt

A144872 (Cal. Ct. App. Apr. 5, 2018)

16