Opinion
G050828
05-23-2016
THE PEOPLE, Plaintiff and Respondent, v. BRIAN HUGHES BENEDICT, Defendant and Appellant.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09HF1629) OPINION Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed. Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Brian Hughes Benedict of first degree premeditated murder (Pen. Code, § 187, subd. (a); all statutory citations are to this code), found he personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), and found the allegations he committed the murder for financial gain while lying in wait (§ 190.2, subds. (a)(1) & (a)(15)) to be true. Benedict contends the trial court erred by failing to instruct the jury the motive for financial gain must have been a "but for" cause of the murder. For the reasons expressed below, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
After several years of marriage, Benedict's wife, Rebecca Clarke, filed for divorce. On September 10, 2009, Benedict and Clarke attended a family court hearing to resolve the remaining issues concerning custody of their young son, child support, and whether the court would order Benedict to pay attorney fees for Clarke's lawyer.
At the family court hearing, Benedict, who represented himself, testified he graduated from the Naval Academy with degrees in mathematics and physics. After fulfilling his service commitment as an Air Force officer, he worked for a defense contractor, where he made approximately $84,000 in 2004. He committed to work at the company for two years while he saved money for graduate school. After returning from a redeployment in Bosnia, he entered a doctoral program in physics to pursue a career as a researcher and university-level instructor. His salary as a graduate student was approximately $2,300 monthly.
Benedict acknowledged he told Clarke he did not want to pay child support in any significant amount because their current incomes were similar and "with half custody we should be sharing expenses." Benedict admitted he told Clarke he would attempt to evade paying court-ordered child support if he thought the amount was unreasonable. Benedict said he would donate the funds he was receiving from an investment account to charity, and he would work under the table so his assets would not be traceable. He conceded this "wasn't a reasonable thing to say."
At the family court hearing, Clarke testified Benedict admitted his former employer offered him a $250,000 yearly salary, but he decided to reject the offer because he was happier as a graduate student. Benedict also voiced objections to paying child support because it would "encourage [Clarke] to stay home and do nothing." Clarke had a bachelor's degree in biological sciences, but had worked as a waitress in a coffee shop before becoming pregnant. Now that A.B. was in school, she planned to attend a one-year program in cytotechnology and estimated she would make $65,000 yearly after obtaining her degree.
The court precluded Benedict from asking Clarke questions about her allegedly rude and unkind behavior toward his family and others, which he characterized as "character stuff" affecting her parenting ability. Clarke admitted telling Benedict during a heated argument something like, "Why don't you go ahead and do it, or kill yourself and calling Benedict a "piece of shit."
At the conclusion of the hearing, the family court awarded the parties joint legal custody after denying Clarke's request for sole legal and physical custody. The court granted Clarke physical custody with visitation for Benedict. The court imputed income to Benedict of $7,000 a month based on his ability to earn that amount, noting "care and maintenance of [his son] is ultimately more important that [your] . . . school plan." The court stated Benedict "just refuses to accept that responsibility and wants to do something that will enhance his enjoyment because he thinks it's more fun. The court does not accept that as a valid argument because the first priority is the support of the children." The court calculated child support at $920 a month. The court also ordered Benedict to pay Clarke attorney fees of $5,000.
Clarke's family law attorney testified at Benedict's murder trial that he comported himself well during the family court hearing and did not appear angry. Talbot noted Benedict had approximately $43,000 in various bank accounts, and was due about $83,000 from Clarke as part of the dissolution settlement, so he was "not broke by any means."
Three days later, on the evening of Sunday, September 13, Benedict killed Clarke when she arrived at his apartment to pick up her son. A neighbor, Flavio Andrade, was walking toward his truck when he saw Benedict chasing Clarke and shooting at her. Clarke fell to her knees. Benedict approached Clarke and shot her in the head and face. After the shooting, Benedict walked past Andrade, who described him as "zoned out." Another neighbor, Jesus Barrueta, heard gunshots and stepped outside. He saw Benedict and asked if he heard gunshots, but Benedict did not respond. Barrueta saw Clarke, lying on the ground surrounded by blood. Andrade, who had been holding Clarke, saw Benedict walking his son toward a car. Andrade and Barrueta stopped Benedict. According to Andrade, Benedict said "she hit me." Andrade responded, "that's your wife," exclaimed she's "not coming back" and punched Benedict. According to Barrueta, Benedict walked toward them with his hands in the air and said "I shot her. I did it. I surrender." Barrueta and Andrade took Benedict to the ground. A police officer arrived within minutes and Benedict complied with a command to get in a prone position and was handcuffed. Benedict declared, "I shot her. She hit me first." The officer did not see any injuries on Benedict.
Inside Benedict's cluttered apartment, investigators found a large canvas bag near the door. Atop the bag sat a wood-handled claw hammer with a clump of light brown hair entangled in the claw, and a .40-caliber semiautomatic handgun in a "locked open" position, meaning its 10-round magazine was empty. A small bag inside the larger bag contained over $20,000 in cash, clothing, jewelry, a loaded magazine, and a box of .40-caliber ammunition with 20 rounds missing. A handwritten note on the television stand described where various keys should go. Benedict's wallet containing his identification and credit cards was also on the stand.
Investigators found a typewritten will in the freezer and what appeared to be a murder-suicide note in his computer. In the note Benedict apologized to his son, family members, and others, and listed identification numbers, login names and passwords for various accounts at financial institutions where his money could be found. Benedict wrote he had "lost" his son, the family court hearing had gone "as poorly as possible," and the judge had chastised him for being a bad father. He expressed frustration about having income imputed to him by the court for an occupation he had not pursued for several years, and declared: "I am not going to go into turtle mode and give away the money." He stated his son would "need it" and he was "ready to die in any case."
A forensic pathologist testified Clarke suffered two gunshot wounds to her back, several in the face and head, and one in the armpit. There was a small amount of stippling on the left side of her face caused by unburned gunpowder, suggesting a shot from close range. One fatal shot perforated her lung, kidney and spleen, and caused her to bleed to death.
Following trial in August 2014, the jury convicted Benedict of the charged offenses as noted above. In September 2014, the court sentenced Benedict to a life sentence without parole, consecutive to a sentence of 25 years to life for the firearm enhancement. The court imposed a restitution fine of $10,000, victim restitution to Clarke's parents of $191,196.63, and granted custody credits for 1,826 actual days.
II
DISCUSSION
Financial Gain Special Circumstance
Section 190.2 provides, "(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: . . . (1) The murder was intentional and carried out for financial gain."
The court instructed (CALCRIM No. 720) the jury: "The defendant is charged with the special circumstance of murder for financial gain in violation of [] section 190.2(a)(1). [¶] To prove that this special circumstance is true, the People must prove that: [¶] One, the defendant intended to kill. [¶] And, two, the killing was carried out for financial gain. [¶] Murder for the purpose of avoiding a debt may constitute murder for financial gain."
Benedict contends the trial court erred by failing to instruct the jury the prosecution must prove the motive for financial gain was a "but for" cause of the killing. Benedict's argument finds no support in California law. Our Supreme Court has rejected identical claims on several occasions. Benedict's reliance on the United States Supreme Court's recent decision in Burrage v. United States (2014) 571 U.S. ___ [187 L.Ed.2d 715, 134 S.Ct. 881] (Burrage) fails to persuade us that case compels a different result here.
In People v. Edelbacher (1989) 47 Cal.3d 983, the defendant was $700 behind in child support payments and owed his former spouse over $48,000 to equalize the division of community property, but lacked the ability to meet these obligations. (Id. at p. 996.) The court noted that while the obligations to his former wife would not be extinguished by her death and would be enforceable by her estate, there was evidence he believed he would benefit financially because he expected to and did gain custody of his son, his former wife's heir, after her death. He applied for appointment as guardian of the person and estate of his son. Had he been appointed guardian he would have obtained control of his son's inheritance from his former wife's estate. (Id. at p. 1026.) Defendant remarked to a third party his former wife's death "'worked out good for [him] because [he didn't] have any child support payments now and I have custody of my son.'" (Id. at p. 1012.) The court held the evidence "was sufficient to support the finding that financial gain was a primary motive for the murder . . . ." (Id. at p. 1026.)
Edelbacher rejected the defendant's claim the special circumstance could not be construed to apply to the facts of his case without making it unconstitutionally vague and overbroad, both as failing to provide fair warning of the conduct prohibited and as failing to provide a meaningful basis for selecting death-eligible defendants. The court noted "[p]roof of actual pecuniary benefit to the defendant from the victim's death is neither necessary nor sufficient to establish the financial-gain special circumstance. As we recently explained, 'the relevant inquiry is whether the defendant committed the murder in the expectation that he would thereby obtain the desired financial gain.' [Citation.] As so construed, the special circumstance provision is not constitutionally vague or overbroad. It has been widely recognized that murder for financial gain is an especially vile crime for which the death penalty may appropriately be imposed. [Citation.]" (Edelbacher, supra, 47 Cal.3d at p. 1025.) The court also noted the jury instruction (CALJIC No. 8.81.1) was not inadequate because it failed to define "'financial gain'" and failed to explain that "'for'" connotes a motivation or an intention. "As we recently held, the term 'for financial gain' is not a technical one and need not be defined for the jury except in the situation where there is potential overlap with a felony-murder special circumstance. [Citation.]" (Edelbacher, supra, at pp. 1026-1027; see People v. Howard (1988) 44 Cal.3d 375, 410 (Howard).)
In People v. Noguera (1992) 4 Cal.4th 599, evidence suggested the defendant harbored two motives for murdering the victim: eliminating the chief obstacle to a relationship between the defendant and another person, and acquiring the principal assets of the victim's estate. The court rejected the defendant's argument financial gain must be a "'significant,'" "'dominant,'" or "'substantial,'" motive for the murder. (Id. at pp. 635-636 [citing Howard for proposition financial gain need not be "direct" or "motivating cause" of the murder]; see People v. Michaels (2002) 28 Cal.4th 486, 519 ["Defendant argues that his primary purpose in killing JoAnn was to protect Christina from abuse by JoAnn, but the financial gain special circumstance applies even if the gain is only a secondary purpose"]; People v. Hamilton (1989) 48 Cal.3d 1142, 1178 [court's instruction adequately conveyed a murder carried out "'for'" financial gain implies motive].)
Benedict asserts Burrage requires us to deviate from the holdings in Howard and Noguera and conclude the trial court erred when it failed to instruct the jury it was required to find Benedict's motive for financial gain was a "but for" cause of the killing. In Burrage the defendant was convicted of violating the federal Anti-Drug Abuse Act of 1986, which imposes a 20-year mandatory minimum sentence on a defendant who unlawfully distributes heroin when "'death or serious bodily injury results from the use of such substance.'" (Burrage, supra, 571 U.S. at p. ___ .) Medical experts testified they could not determine whether the victim would have lived had he not taken the heroin supplied by the defendant because the victim also had ingested other drugs. According to these experts, the heroin interacted with other drugs to cause the victim's death and therefore the heroin was a contributing factor in the victim's demise. The trial court declined to give defense proposed jury instructions that would have informed the jury the prosecution had to prove heroin use was the proximate cause of death and defined proximate cause as one that played a substantial part in bringing about the death. The proposed instruction further defined proximate cause to mean the death was either a direct result of or a reasonably probable consequence of the defendant's actions and the victim's death would not have occurred absent defendant's conduct. (Id. at p. ___ .)
The United States Supreme Court reversed the defendant's conviction, concluding that criminal liability under the Anti-Drug Abuse Act applies only when use of the drug is a "'but for'" cause of the victim's injury or death. (Id. at p. ___ .) Burrage noted when a crime requires a "'specified result of conduct,'" a defendant generally may not be convicted unless his conduct is the actual, or "'but for,'" cause of the result. (Burrage, supra, 571 U.S. at p. ___ [187 L.Ed.2d at pp. 887-888].) Burrage gave the phrase "'results from'" its dictionary meaning that a thing "'results'" when it "'[a]rise[s] as an effect, issue, or outcome from some action, process or design.'" This means the harm would not have occurred in the absence of, or "'but for,'" the defendant's conduct. The court noted Congress could have written the law to use a "contributes to" causation test, but chose instead to use language requiring but-for causality. The court noted, "Especially in the interpretation of a criminal statute subject to the rule of lenity," the court could not "give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant." (Id. at p. ___ .) Burrage observed California adhered to "a second, less demanding (but also less well established) line of authority, under which an act or omission is considered a cause-in-fact if it was a 'substantial' or 'contributing' factor in producing a given result." (Id. at p.___ ); see People v. Jennings (2010) 50 Cal.4th 616, 643.)
Here, the issue was not causation, but motive. There is no question Benedict was the actual or but for cause of Clarke's death. Burrage does not undermine California Supreme Court precedent allowing a true finding of special circumstance where financial gain is one of the motives for killing the victim. (Noguera, supra, 4 Cal.4th at p. 636 [rejecting a "'primary goal'" requirement].) Benedict does not challenge the sufficiency of the evidence to support a finding he committed intentional murder at least in part to eliminate his financial liability to Clarke.
Burrage did not purport to establish a federal constitutional rule of lenity binding on the states. To the extent Benedict argues we should apply, as the Supreme Court did in Burrage, the rule of lenity (see People v. Manzo (2012) 53 Cal.4th 880, 889 [when a statute defining a crime is susceptible of two reasonable interpretations, the rule of lenity requires a court to prefer the interpretation favoring the defendant; rule applies only if court can do no more than guess what the legislative body intended because of statutory ambiguity]), we are precluded from doing so by the California Supreme Court's prior interpretations of section 190.2, subdivision (a)(1). (Noguera, supra, 4 Cal.4th at p. 636 [rejecting a "'primary goal'" requirement]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Benedict must direct his contention concerning this special circumstance to the Supreme Court or the Legislature.
Because Benedict does not challenge the jury's special circumstance finding he committed the murder while lying in wait, his sentence would remain the same even if he obtained a reversal of the financial gain special circumstance. --------
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.