Opinion
F071055
11-06-2017
THE PEOPLE, Plaintiff and Respondent, v. KEITH JEFFREY BEYER, Defendant and Appellant.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F12909621)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.
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Keith Jeffrey Beyer strangled his wife with a shoelace after raping his 11-year-old stepdaughter. He was convicted of (1) first degree murder with a lying-in-wait circumstance; (2) forcible rape; (3) forcible sodomy; (4) forcible lewd act; and (5) forcible oral copulation. His sentence was life without parole plus 45 years to life.
Beyer now argues that the evidence was insufficient to show the murder was in the first degree or that he lay in wait for his wife. He also challenges the pattern jury instructions on lying in wait and claims his counsel was ineffective in not requesting different instructions on that issue. Beyer further claims his counsel was ineffective for failing to request, and the court erred in not giving on its own motion, jury instructions regarding provocation or heat of passion as they relate to the distinctions between first-and second degree murder and between murder and voluntary manslaughter. Finally, he contends that the trial court erred in its handling of his two motions to replace his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, because it did not adequately inquire into his claims regarding counsel's effectiveness and did not allow his private investigator to help him make his presentation.
We reject these contentions and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On the Saturday after Thanksgiving in 2012, Beyer was driving his stepdaughter A. home from Millerton Lake. On the way, he stopped the car, took a gun from under the seat, and told A., then 11 years old, to walk into an orchard with him. In the orchard, he pulled her to the ground, pointed the gun at her head, licked her vagina, squeezed her breasts, and put his penis in her mouth. Then he drove her home, where he and S.—his wife and A.'s mother—argued over Beyer keeping A. out late, driving in the dark and the fog, and not calling. A. did her homework and went to bed. Before she went to bed, she saw Beyer and S. on the couch in the living room watching television. During the night, Beyer came into A.'s room with the gun. He prefaced his acts by saying he was about to make a big mistake. Then he forced his penis into her vagina and anus. She screamed and bled during the rape. He slapped her for screaming. He said if she woke up S., S. would call the police, and he would shoot them all. Then he went into his and S.'s bedroom. He opened the door just far enough to fit through the opening and closed it behind him. After about 15 or 20 minutes, he emerged and told A. he was leaving forever. He said A. should let S. sleep in the next day. He did not immediately leave, however. A. saw him in the living room watching television. Then A. went to sleep. She never heard any struggle or screaming.
Around 7:00 a.m. the next morning, Beyer called his grandmother and said he had killed S. The grandmother called the police, who went to the house, where they knocked on the door and woke A. They found Beyer and S.'s bedroom door locked. They broke the door open and found S.'s body in the bed, under the covers.
A black shoelace was wrapped three times and tightly fastened with two knots around S.'s neck. She had died by ligature strangulation. The hyoid bone in her neck had been broken, she had three loosened or knocked out teeth, there was a large bruise on her upper left chest or left shoulder, and there were abrasions on her face. According to a forensic pathologist from the coroner's office, there were no internal injuries beneath the bruise on the left chest or shoulder and the bruise could have been caused by a knee used to pin S. while the shoelace was being applied. Despite the loosened or knocked out teeth, there was no sign of a head injury. There were no defensive wounds on her hands and no signs of struggle in the room. S. had long fingernails, but there were no scratch marks on her neck near the shoelace, such as would be consistent with an attempt by her to prevent suffocation, and none of her fingernails were broken.
Beyer's boots were in the closet near the bed. The laces had been removed from both and one lace was inside one boot.
A. was examined by a nurse that day. There were blunt force injuries in and around her vagina. Sperm cells containing Beyer's DNA were found inside her anus.
Beyer was arrested one day later. During booking, he made an unsolicited confession that he killed S. Later he elaborated, telling a detective S. was hitting him and he decided to make her stop by rendering her unconscious. He said, "I killed my wife. I told her I was going to choke her out if she wouldn't stop hitting me. She didn't stop. I had to do it, and she didn't wake back up. I have to suffer the consequences of what I did." He said he planned to kill himself. He confessed a third time in court during his arraignment, saying, "I took my wife's life and I am accepting full responsibility for that." Then he said he wanted the death penalty.
Beyer was examined by a nurse. He had some bruises and scratches on his chest and arms consistent with bite and scratch marks. A. bit him while trying to escape from his assault in the orchard.
The district attorney filed an information charging Beyer with five counts: (1) murder committed by lying in wait (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15)); (2) forcible sodomy (§ 286, subd. (c)(2)); (3) forcible rape (§ 261, subd. (a)(2)); (4) forcible lewd act against a victim less than 14 years old (§ 288, subd. (b)(1)); and (5) forcible oral copulation against a victim less than 14 years old (§ 288a, subd. (c)(2)(B)). The information alleged that Beyer personally used a firearm in committing counts 2 through 5 (§ 12022.3, subd. (a)). It also included prior conviction allegations for sentence enhancement purposes, but these allegations were dismissed at the request of the prosecutor at the end of the trial.
Further statutory references are to the Penal Code unless otherwise noted.
The jury found Beyer guilty of all counts and found the murder was in the first degree. It found true the lying-in-wait and firearm-use allegations.
The court sentenced Beyer to a term of life without the possibility of parole on count 1. On counts 2, 3, and 5, the court imposed three consecutive terms of 15 years to life. It imposed a concurrent term of 15 years to life on count 4.
DISCUSSION
I. Sufficiency of Evidence
Beyer claims the evidence was insufficient to prove the murder was in the first degree or the lying-in-wait special-circumstance allegation was true. When considering a challenge to the sufficiency of the evidence to support a judgment, our review is deferential. We review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
A. First Degree Murder
Among the types of first degree murder enumerated in section 189, two are relevant in this case: murder perpetrated by means of lying in wait, and any willful, deliberate and premeditated murder. Beyer argues that the evidence was sufficient to establish neither of these. We find the evidence was sufficient to support the premeditation theory.
As will be seen, the evidence also was sufficient to support the jury's finding that Beyer killed S. by lying in wait.
In People v. Anderson (1968) 70 Cal.2d 15, 26-27, our Supreme Court described three types of evidence that are relevant in determining whether premeditation, willfulness, and deliberation have been proved: (1) evidence of planning activity before the killing; (2) evidence about the prior relationship between the killer and victim that indicates the killer's motive; and (3) evidence about the nature of the killing indicating that it was done according to a preconceived design. The law does not, however, "require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive." (People v. Pride (1992) 3 Cal.4th 195, 247.) The ultimate question is "whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse." (Ibid.)
Beyer's opening brief contains a misleading quotation regarding the Anderson factors for analyzing evidence of premeditated murder. The quotation is as follows: "'The rule is this: the evidence is sufficient as to premeditation and deliberation if and only if there is (1) evidence of planning and motive and manner; or (2) extremely strong evidence of planning; or (3) evidence of motive and either planning or manner." These words are from a dissenting opinion by Justice Mosk in People v. Perez (1992) 2 Cal.4th 1117, 1135, and they are not the law. The majority in Perez expressly stated that the Anderson factors are not exhaustive or exclusive; they are merely common factors that can be helpful to the analysis. (Perez, supra, 2 Cal.4th at p. 1125.) Beyer's citation failed to identify the quotation as being from a dissenting opinion, or as representing a view rejected by a majority of our Supreme Court.
The evidence that Beyer removed the laces from his boots, wrapped one around S.'s neck three times, and knotted it twice, was evidence both of planning activity and of the nature of the killing indicating a preconceived design. The jury could reasonably find Beyer removed the laces from his boots in accordance with a plan to use them as weapons and that the way in which one of the laces was used—methodical wrapping and knotting—was in accordance with a deliberate plan to ensure death, rather than a rash impulse.
Beyer cites People v. Rowland (1982) 134 Cal.App.3d 1 (Rowland), which he says is similar to this case and in which the evidence was found on appeal to be insufficient to prove premeditated murder. The only significant point that case has in common with the present case, however, is that it involved a ligature strangulation. The victim in Rowland was strangled with an electrical cord, which the Court of Appeal viewed as an ordinary object the defendant could have employed on a rash impulse; there was no evidence that the defendant acquired the weapon in advance or used it according to a preconceived plan. (Id. at pp. 7-9.) Our holding is not that premeditation is shown by a ligature strangulation alone. The evidence here sufficed to show a methodically planned ligature strangulation.
Beyer also contends he might have taken the laces off his boots to air the boots out or because that is his normal way of storing boots and laces. He argues further that the two knots Beyer tied were "more consistent with a hasty rash impulse than ... with premeditation and deliberation" because knots "can be tied quickly and can lead to a rapid death." But when conducting a sufficient evidence review, we ask only whether the evidence was sufficient to allow a reasonable factfinder to conclude as the jury concluded, not whether the evidence can be reconciled with another conclusion. The mere suggestion of alternative scenarios that might be consistent with the evidence is not enough to establish its insufficiency.
Other evidence bolstered the jury's findings. Beyer had a motive to kill S. in the manner in which he did it. By waiting until S. was in the bedroom, slipping in, and killing her silently and in private (as opposed to using his gun, or perpetrating the killing when he first got home and he and S. argued, for instance) and telling A. not to wake her, he provided himself time to flee both before the murder would be discovered and before the sexual assaults would be reported. (That he caused his grandmother to alert the police the next day does not prove he never intended to flee.) The existence of this motive indicates that the killing was well thought out and the method carefully chosen, and thus supports the finding of premeditation.
For these reasons, we reject Beyer's contention that a reasonable jury could not find the murder to be in the first degree.
B. Lying-in-wait Special Circumstance
Section 190.2, subdivision (a)(15), provides that a defendant found guilty of first degree murder must be sentenced to death or life without the possibility of parole if it is also found that "[t]he defendant intentionally killed the victim by means of lying in wait." Proof of this special circumstance requires proof of an intentional murder committed under circumstances including (1) a concealment of the killer's purpose; (2) a substantial period of watching and waiting for an opportune time to act; and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. (People v. Jurado (2006) 38 Cal.4th 72, 119.)
Beyer does not argue that the evidence of an intentional murder was insufficient, but he does say there was insufficient evidence that his purpose was concealed, that there was a substantial period of watching and waiting for an opportune time to commit the crime, or that he launched a surprise attack from a position of advantage.
The prosecutor urged the jury to find Beyer lay in wait because the evidence indicated he waited until S. was asleep and took advantage of her helplessness while sleeping to strangle her. Beyer contends that the evidence is inconclusive regarding whether she was awake or asleep—he told the police she was awake and hitting him—and that even if she was asleep, the evidence failed to establish that he formed an intent to kill and then waited for her to go to sleep.
In our view, although this is not an easy or obvious case of lying in wait, the evidence was sufficient to support the jury's finding. It is true that the evidence did not show exactly when Beyer killed S. He could have done it after A. went to bed but before the rape, or after the rape but before he said he was leaving, or after he said that but before morning. But the evidence did support the conclusion that S. was asleep or unconscious when Beyer applied the shoelace. There was some evidence of a struggle between S. and Beyer. A blow from him could have loosened or knocked out her teeth and abraded her face and she could have inflicted the bites and scratches on his chest and arms. Yet the nature of the evidence suggested that the struggle did not take place while the shoelace was being applied. The lack of scratch marks on her neck around the shoelace, despite her long fingernails, indicates she was unable to use her hands to attempt to relieve the pressure to save her life; yet it is difficult to conceive how Beyer could have tightly wrapped and tied the shoelace while also restraining her hands. It might be supposed that he pinned them with his knees, but the bruise on her chest indicated that he was applying at least one knee to that position instead as he tightened the shoelace. The evidence thus suggests either that S. woke up and struggled after the shoelace was in place (when Beyer's hands would have been free to restrain hers) or she was rendered unconscious somehow during the struggle and the shoelace was applied afterward.
The evidence better supported the conclusion that she was asleep when the shoelace was applied, and then woke and struggled, rather than being knocked out during the struggle and then having the shoelace tied on. A. heard nothing, indicating that S. had already been rendered unable to scream by the time the struggle commenced. S.'s teeth were loosened or knocked out, but there was no evidence that she received a blow to the head sufficient to knock her out. Beyer claimed he choked her into unconsciousness because she was hitting him, raising the possibility that he did this with his hands and then tied on the shoelace afterward. But the forensic pathologist testified that while it was not impossible that an element of manual strangulation was present, the primary indications were of ligature strangulation.
Beyer suggests the jury was required to accept his statement that he began choking S. while she was conscious because no evidence directly contradicted this. He is mistaken. The jury could weigh his statement against other evidence relevant to the sequence of events. Further, it is worth pointing out, in this context, the theory of the case in support of which Beyer's counsel chose to present Beyer's claim that he began choking S. while she was conscious: Counsel suggested to the jury that Beyer rendered S. unconscious by choking her with his hands, but he did not kill her. Instead, a person or persons unknown entered the room later and killed her with the shoelace. The extreme unlikeliness of this theory may well have influenced the jury's weighing of the evidence when it was deciding whether to accept his theory or the People's theory that he tied the shoelace around her neck as she slept. It is not our task to reweigh it.
As for evidence that Beyer watched and waited for the time when S. would be asleep and vulnerable, the jury could reasonably rely on several factors. Beyer's behavior throughout the course of events described by the evidence indicated an intention to destroy his family and flee. Before raping A., he announced his plan to make a big mistake, by which he meant he was going to commit a serious crime. He spoke of shooting everyone. He said he was leaving forever. These were words of a man carrying out a destructive plan deliberately. There also was his act of removing the shoelaces, taking one, and leaving the other in the closet. The jury could reasonably regard this as indicative of an intent to prepare a weapon and in order to have it ready at an opportune time. The jury also could consider the fact that Beyer was armed with a gun the whole evening and could have killed S. at any time. He could have shot her when they argued, for instance. But he did not. The jury could reasonably find that he chose instead to bide his time and wait until she was alone and defenseless and he could kill her silently and unseen. Indeed, in light of all these circumstances, the jury could reasonably find the lying-in-wait circumstance true even if it was not convinced S. was asleep when Beyer began strangling her. It could find he bided his time after he got home, waiting to descend on her in her bed and kill her in private by means of a silent method even if she was awake.
For these reasons, we reject Beyer's contention that the evidence failed to support the jury's finding on the lying-in-wait special circumstance. II. Jury Instructions
Because evidence that establishes the lying-in-wait special circumstance also is sufficient to prove that a murder is in the first degree because it was committed by lying in wait (People v. Mendoza (2011) 52 Cal.4th 1056, 1073), the above discussion shows that this theory of first degree murder was proved as well.
Beyer challenges the giving or omission of a number of jury instructions.
In a criminal trial, the court must give an instruction requested by a party if the instruction correctly states the law and relates to a material question upon which there is evidence substantial enough to merit consideration by the jury. (People v. Avena (1996) 13 Cal.4th 394, 424; People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on other grounds by People v. Barton (1995) 12 Cal.4th 186, 201.) The court must also give some instructions sua sponte:
"'[E]ven in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial. "The most rational interpretation of the phrase 'general principles of law governing the case' would seem to be as those principles of law commonly or closely and openly connected with the facts of the case before the court."'" (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)
The court has no duty to give an instruction if it is repetitious of another instruction the court gives. (People v. Turner (1994) 8 Cal.4th 137, 203, overruled on other grounds by People v. Griffin (2004) 33 Cal.4th 536, 555, fn.5.) "'"[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."'" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) The question of whether a jury instruction is correct and applicable is predominantly a question of law, which we review under the de novo standard. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
A. CALCRIM Nos. 521 and 728 on Lying in Wait
The court instructed the jury in accordance with CALCRIM No. 521 on lying in wait as a basis for first degree murder and in accordance with CALCRIM No. 728 on the lying-in-wait special circumstance. Beyer argues that these instructions were inadequate because they failed to explain properly the specific intent required for lying in wait.
As stated orally by the court in its charge to the jury, the CALCRIM No. 521 instruction was as follows:
"The defendant is guilty of first degree murder if the People have proved that the defendant murdered while lying in wait or immediately thereafter.· The defendant murdered by lying in wait if, one, he concealed his purpose from the person killed, two, he waited and watched for an opportunity to act, and, three, then from the position of advantage, he intended to and did make a surprise attack on the person killed. The lying in wait does not need to continue for any particular period of time, but its duration must be substantial enough to show a state of mind equivalent to deliberation or premeditation. A person can conceal his or her purpose, even if the person killed is aware of the person's physical presence. The concealment can be accomplished by ambush or some other secret plan."The CALCRIM No. 728 instruction as given by the court was as follows:
"Special circumstance, lying in wait. The defendant is charged with the special circumstance of murder committed while lying in wait. To prove the special circumstance is true, the People must prove that, one, the defendant intentionally killed [S.], and two, the defendant committed the murder by means of lying in wait. A person commits a murder by means of lying in wait if he or she concealed his or her purpose from the person killed, he or she waited and watched for an opportunity to act, then he or she made a surprise attack on the person killed from a position of advantage, and he or she intended to kill the person by taking the person by surprise.· The lying in wait does not need to continue for any particular period of time, but its duration must be substantial, and must show a state of mind equivalent to deliberation and premeditation. The defendant [acted] deliberately if he carefully weighed the considerations for and against his choice, and knowing the consequence, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act, causing death of a person. A person can conceal his or her purpose, even if the person killed is aware of the person's physical presence. The concealment can be accomplished by ambush or by some other secret plan."
Beyer's criticism of these instructions is that they failed to express the idea that a defendant's mental state must include a specific intent to use the period of watching and waiting as part of the means of carrying out the lethal act, as opposed to (for example) watching and waiting for a time and then forming the intent to commit the lethal act afterward.
We agree that the defendant must watch and wait for the purpose of carrying out the lethal act, but the instructions adequately expressed that requirement. They cannot reasonably be understood to suggest otherwise.
Our Supreme Court considered a similar criticism of the CALJIC instruction on the lying-in-wait special circumstance in People v. Streeter (2012) 54 Cal.4th 205, 251 (Streeter). The defendant there argued that although he lay in wait and although he killed the victim, he did not yet intend to commit the act that killed her during the time he was lying in wait. He claimed that CALJIC No. 8.81.15, with which the jury was instructed, allowed the jury to find the lying-in-wait special circumstance in spite of this.
In rejecting this, the Supreme Court summarized the instruction as follows:
"CALJIC No. 8.81.15 instructed that 'for a killing to be perpetrated while lying in wait': (1) the killing must be intentional and (2) 'both the concealment and watchful waiting as well as the killing must occur during the same time period, or in an uninterrupted attack commencing no later than the moment concealment ends.' In addition, the instruction required an immediate killing or a continuous flow of the uninterrupted lethal events from the period of lying in wait. (Ibid.) Finally, the instruction stated that, '[W]hen a defendant intentionally murders another person, under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage, the special circumstance of murder while lying in wait has been established.'" (Streeter, supra, 54 Cal.4th at p. 251.)
The court explained that this instruction was not reasonably open to the interpretation the defendant feared the jury might have placed on it. "Because the instruction required an intentional killing and an uninterrupted connection between the lethal acts and the period of lying in wait, a reasonable jury would not have believed" that the nonlethal act he allegedly harbored an intention of commiting during the waiting period "would have satisfied the requirements of concealment of purpose and watchful waiting to act." (Streeter, supra, 54 Cal.4th at p. 251.)
Similar reasoning defeats Beyer's argument. In both CALCRIM No. 521 and CALCRIM No. 728, the jury was told Beyer murdered by lying in wait if he concealed his purpose from the victim, watched and waited for an opportunity to act, and then made and intended to make a surprise attack on the person killed. (Only CALCRIM No. 728 refers to an intent to kill, but this is appropriate, since the lying-in-wait special circumstance requires an intent to kill while first degree murder by lying in wait can be committed with implied malice instead of an intent to kill. (People v. Cage (2015) 62 Cal.4th 256, 278.) The description of these requirements in CALCRIM Nos. 521 and 728 may be plainer and less legalistic than the language used in CALJIC No. 8.81.15, but this does not make it subject to the interpretation Beyer suggests. A reasonable jury receiving these instructions would not believe it could find either the lying-in-wait special circumstance or first degree murder by lying in wait if it thought the defendant watched and waited with only a nonlethal act in mind, and developed the intent to commit the act that killed by surprise only once the period of watching and waiting had concluded.
Streeter involved the CALJIC instruction on the lying-in-wait special circumstance, as we have said. The Court of Appeal applied similar reasoning to uphold CALJIC No. 8.25 on first degree murder by lying in wait against a similar argument in People v. Laws (1993) 12 Cal.App.4th 786, 791, 796. Laws supports our conclusion just as Streeter does. The jury in Laws was instructed: "'Murder which is immediately preceded by lying in wait is murder of the first degree. [¶] The term "lying in wait" is defined as a waiting and watching for an opportune time to act, together with concealment by ambush or some other secret design to take the other person by surprise. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation." (Laws, supra, at p. 791.) The defendant argued that the instruction was "defective because it 'fails to require that the "lying in wait" be the "means" by which the murder was accomplished.'" (Id. at p. 796.) The court held that this argument "ignores a common sense reading of the instruction as a whole." (Ibid.) It stated that "[i]ntelligent jurors would construe this instruction as requiring them to find that the act constituting murder had to be accomplished by means of lying in wait in order to be first degree murder under the theory that it was perpetrated by means of lying in wait." (Ibid.) The same goes for the CALCRIM instructions here.
Beyer also asserts that his trial counsel provided ineffective assistance when he did not request instructions on lying in wait different from CALCRIM Nos. 521 and 728. The above discussion disposes of this contention. If the instructions were adequate and correct, counsel did not fall below the standard of professional reasonableness (Strickland v. Washington (1984) 466 U.S. 668, 688) by not asking for others.
B. Provocation and Heat of Passion
1. First Degree Murder vs. Second Degree Murder
Beyer contends that his trial counsel rendered ineffective assistance by not requesting a jury instruction in accordance with CALCRIM No. 522. This instruction explains that if a defendant who committed murder was provoked, the provocation could reduce the murder from first degree to second degree. Provocation evidence can reduce the degree of murder by raising a reasonable doubt about whether the killing was deliberate and premeditated. (People v. Thomas (1945) 25 Cal.2d 880, 903.) Beyer's view is that this instruction should have been given based on the evidence of his statement to the police that S. had been hitting him when he killed her.
This instruction must be given, if the evidence supports it, only if requested by a party. The court has no duty to give the instruction on its own motion. (People v. Rogers (2006) 39 Cal.4th 826, 877-880.) As the instruction was not requested in this case, Beyer argues only that his counsel rendered ineffective assistance by not requesting it, not that the court erred by not giving it.
To establish ineffective assistance of counsel, a defendant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at pp. 688, 694; see People v. Hester (2000) 22 Cal.4th 290, 296.) When determining whether counsel's performance was professionally unreasonable, we must consider whether the appellate record affirmatively shows this or whether, by contrast, it is possible that considerations not appearing in the record could have justified counsel's conduct. If the situation is simply that nothing could justify the attorney's action, then we can find ineffective assistance on direct appeal; but if counsel could have had a tactical reason for acting as he or she did, and this reason does not appear in the record, then the matter should be addressed instead in habeas proceedings, where a record of counsel's reasons can be developed. (People v. Pope (1979) 23 Cal.3d 412, 425-426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10; In re Dennis H. (2001) 88 Cal.App.4th 94, 98 & fn. 1; People v. Plager (1987) 196 Cal.App.3d 1537, 1543.) Further, it is not necessary to determine whether counsel's challenged action was professionally unreasonable in every case. If the reviewing court can resolve the ineffective assistance claim by proceeding directly to the issue of prejudice—i.e., the issue of whether there is a reasonable probability that the outcome would have been different absent counsel's challenged actions or omissions—it may do so. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
As we have mentioned, Beyer's counsel argued at trial that Beyer choked S. with his hands, but did not kill her, and did not tie the shoelace around her neck. Counsel suggested to the jury that DNA testing of the shoelace should have been carried out, since it could have shown that someone else tied it around S.'s neck. The People now argue that, given this theory of the case, defense counsel could reasonably make a tactical decision not to advance an alternative theory according to which Beyer did kill S. but did so in response to provocation, as this alternative theory would have focused the jury's attention on his statements to the police, in which he claimed S. hit him but also insisted he had killed her. Beyer responds by pointing out that the court gave, at defense counsel's request, jury instructions on imperfect self-defense (CALCRIM No. 571). According to these instructions, a killing that would otherwise be murder could be reduced to voluntary manslaughter if the defendant unreasonably believed immediate use of deadly force was necessary to defend against an imminent danger of death or great bodily injury. The basis of these instructions was the evidence that S. was hitting Beyer when he killed her, so defense counsel could not have been pursuing a strategy of deflecting the jury's attention from the statements containing that evidence. Beyer says it follows that there could be no reasonable tactical basis for not requesting CALCRIM No. 522 on provocation as a basis for finding second degree murder instead of first degree murder.
We conclude there is no need to decide whether Beyer's trial counsel acted in a professionally unreasonable manner in not requesting CALCRIM No. 522, because Beyer has not shown that the omission of this instruction was prejudicial. The totality of the circumstances indicates it is not reasonably probable the result would have been different if the instruction had been given. Three factors support this conclusion: (1) The jurors rejected the imperfect self-defense theory, indicating they were not persuaded that Beyer believed he was in imminent danger of great bodily injury or death. (2) They embraced the theory that Beyer killed by lying in wait, indicating they believed he planned the killing rather than carried it out impulsively in response to provocation. (3) The evidence of the manner of the killing—strangulation by a shoelace that was apparently prepared as a weapon in advance and then wrapped around the victim's neck three times and knotted twice—is very difficult to square with a theory of a killing that was an impulsive response to provocation. (As we have suggested, Beyer's theory that someone else came in and strangled S. with the shoelace after he merely choked her into unconsciousness with his hands was wildly implausible.)
Separately, these factors might or might not show Beyer has failed to demonstrate prejudice. Together, we are convinced they do.
2. Murder vs. Voluntary Manslaughter
Again relying on his statement to the police that S. hit him, Beyer maintains the court erred by not giving, on its own motion, jury instructions on heat of passion as a basis for reducing murder to voluntary manslaughter. Beyer also argues that his trial counsel rendered ineffective assistance when he withdrew his request for those instructions.
When supported by substantial evidence, jury instructions on the reduction of murder to voluntary manslaughter based on heat of passion must be given with or without a request. (People v. Moye (2009) 47 Cal.4th 537, 548.)
We need not resolve the question of whether it was error not to give these instructions in this case, because any error was harmless. In People v. Cruz (2008) 44 Cal.4th 636, 664-665, our Supreme Court considered an argument that the jury should have been instructed on a heat of passion theory of voluntary manslaughter. The court concluded that any error in not giving the instruction was harmless because of two special circumstances included in the jury's findings: murder for the purpose of perfecting an escape and murder by means of lying in wait. To escape from a deputy's custody, the defendant waited 15 minutes to select the best moment to retrieve a weapon he had concealed and then shot the deputy in the back of the head. These special-circumstance findings would have been inconsistent with a finding that the defendant acted in the heat of passion, so there was no possibility the defendant was prejudiced by the lack of a heat of passion instruction. Beyer's case is similar. The finding that he lay in wait to strangle S. with his shoelace would be inconsistent with a finding that he acted impulsively in the heat of passion.
Arguably, the lying-in-wait finding provides an additional basis for concluding any error in not instructing the jury on provocation as a basis for reducing the degree of the murder from first to second was harmless: the jury could not consistently determine, on the one hand, that the special circumstance was true, but, on the other hand, that the murder was not in the first degree because Beyer did not lie in wait and did not premeditate. We did not find a case so stating, however, so we will put the point aside.
The above reasoning also refutes Beyer's claim of ineffective assistance of counsel on this point. The lack of the instruction was harmless, so there was no prejudice under Strickland. III. Marsden Motions
Beyer made a Marsden motion before trial and a second Marsden motion before sentencing. He maintains that the trial court failed to make adequate inquiries into his claims at the hearings on these motions and erred in barring his private investigator from participating in the second hearing.
Upon the defendant's request, the trial court must provide the defendant with an opportunity to state reasons for desiring a new attorney and must consider any specific examples of inadequate representation the defendant offers. (People v. Webster (1991) 54 Cal.3d 411, 435; People v. Marsden, supra, 2 Cal.3d at pp. 123-125.)
A trial court should grant a Marsden motion and appoint substitute counsel "when, and only when, necessary under the Marsden standard, that is, whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel." (People v. Smith (1993) 6 Cal.4th 684, 696.) A defendant's tactical disagreements with counsel are not grounds for granting a Marsden motion (People v. Dickey (2005) 35 Cal.4th 884, 922), although it is possible for tactical disagreements to be substantial enough to "signal ... a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel." (People v. Barnett (1998) 17 Cal.4th 1044, 1095).
One basis for finding a substantial impairment is that the defendant and counsel "'"'have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.'"'" (Barnett, supra, 17 Cal.4th at p. 1085.) An attorney's conflict of interest is another ground for granting a substitution of counsel. (People v. Bonin (1989) 47 Cal.3d 808, 833-837.) Defendants often also argue for substitution of counsel on the ground that appointed counsel did not investigate or present matters defendants believed should have been investigated or presented. (See, e.g., People v. Vera (2004) 122 Cal.App.4th 970, 979-980.)
In the post-conviction context, if the defendant satisfies the trial court that adequate grounds exist, the court should appoint new counsel to investigate whether a new trial motion should be filed based on a theory of ineffective assistance of previous counsel. (People v. Smith, supra, 6 Cal.4th at p. 696.)
We review the court's ruling on a Marsden motion for abuse of discretion. (People v. Jones (2003) 29 Cal.4th 1229, 1245.)
A. Pretrial Motion
Beyer made an oral motion for substitution of counsel at a pretrial hearing on December 1, 2014. The trial court cleared the courtroom and heard Beyer's contentions. Although he stated that he trusted his attorney, Roberto Dulce, and repeatedly affirmed that he did not want to lose Dulce's representation, Beyer felt he was not receiving adequate communication from Dulce and Dulce was not sufficiently following up on his suggestions on how to defend him. Specifically, Beyer claimed a basketball coach said A. said she framed him on the sexual assault charges because she believed he killed S. Further, he claimed A. had been raped and molested by an uncle, and learned from this experience how to frame Beyer. He had a theory according to which, if he had raped A., A. would have needed to go the hospital to get stitches. Beyer wanted the theory that A. framed him to be investigated, "DNA evidence or not." Beyer averred, "I know beyond a shadow of a doubt, beyond a shadow of a doubt, I didn't do any of these things," and more thorough investigation could have helped his defense.
On one occasion, Beyer contacted the police independently of Dulce in the hope that this would get Dulce's attention and cause him to come talk to Beyer. On another occasion, Beyer told Dulce he wanted all court documents and transcripts that existed in the case, and Dulce said these would be available at the time of appeal. Beyer took this to mean Dulce assumed he would be convicted.
Because of these matters, Beyer believed that "animosity," "issues," and "frustration and resentment" existed between him and Dulce.
Dulce responded that he was aware of Beyer's dissatisfaction and his theories regarding defense strategies. He had followed up on Beyer's suggestions and found them not to be fruitful. He did not believe any investigation would lead to admissible evidence that A. ever said she framed Beyer. He did not think there was more that reasonably could be done to prepare the case on the sexual assault charges, in light of the DNA evidence. In Dulce's view, the best defense strategy for the case as a whole was to challenge the sufficiency of the People's evidence to prove guilt beyond a reasonable doubt.
The court asked Dulce if he thought there was animosity between him and Beyer that would make it impossible for him to render effective assistance. Dulce asked if he could "go beyond 'yes' and 'no' on that one." The court said he could. Dulce said he had visited Beyer in jail 15 to 20 times and did not think communication between him and Beyer had been inadequate. Nevertheless, in light of Beyer's views, Dulce submitted that the situation between them could be viewed as a breakdown in communication, and he was willing to defer to Beyer's view or the court's judgment on the question. He admitted he had been upset when Beyer tried to communicate with the police.
The court denied Beyer's motion:
"Mr. Beyer, you've made a record of your concerns. You have indicated, however, that you want to keep Mr. Dulce as your attorney. Although I understand your frustration, I believe that you haven't told me anything that would indicate Mr. Dulce had done anything but provide you with quality representation in this case."
Beyer's argument on appeal is that trial counsel's above-summarized remarks "indicated that [counsel] did not believe appellant" and "suggested that counsel did not trust appellant and did not want to defend him, and may have been withholding a vigorous investigation because he believed him to be guilty." Beyer says that for this reason, the trial court was obligated to conduct an inquiry into counsel's state of mind like the inquiry described by the Court of Appeal in People v. Munoz (1974) 41 Cal.App.3d 62, 66 (Munoz). This contention is without merit.
In Munoz, the defendant told the court his attorney was unwilling to defend him and had told him he was guilty and had no chance. He said he wanted a different attorney. Defense counsel did not respond. Without making any inquiry of counsel or conducting any followup with the defendant, the trial court informed the defendant that his appointed counsel would continue to represent him. The case proceeded and the defendant was convicted. (Munoz, supra, 41 Cal.App.3d at pp. 64-65.) The Court of Appeal reversed, holding that because the trial court did not ask any questions about why the defendant thought he was not receiving adequate representation, it failed to make an adequate Marsden inquiry. (Id. at p. 65.) Among other things, the Court of Appeal stated: "[I]f after appointment the attorney becomes convinced of his client's guilt to the extent that he is unable to defend the client vigorously and effectively at the trial, he should withdraw from the case." (Id. at p. 66.) Among the matters the trial court erroneously failed to ask about was "the state of mind of the court-appointed attorney." (Ibid.)
This case is not at all similar to Munoz. The trial court made a thorough inquiry of both Beyer and his counsel. Further, counsel's remarks revealed his attitude toward Beyer to be unobjectionable and his approach to the case to be reasonable. The attack on A. suggested by Beyer could reasonably be regarded as unwise under the circumstances. (We will address this point further in our discussion below of posttrial motion.) Counsel's remarks indicated nothing untoward in his state of mind. Contrary to Beyer's assertion in his appellate briefs, there was nothing to support the notion that counsel did not want to defend Beyer or was withholding a vigorous defense. Rather, his remarks indicated a considered judgment that a defense based only on a challenge to the sufficiency of the evidence was the soundest defense available. Counsel may indeed have believed Beyer to be guilty, given his multiple confessions and the DNA evidence, but criminal defense lawyers are not required to believe their clients are innocent despite overwhelming evidence of guilt. Not believing in a client's innocence is not a bar to competent representation. Munoz does not hold otherwise. The trial court did not fail to make an adequate inquiry into Dulce's state of mind.
We are not persuaded otherwise by the fact that Dulce admitted he had been upset at one point and wanted to "go beyond 'yes' and 'no'" when answering the court's question about whether there was animosity that would interfere with his effectiveness. After hearing the purported basis for the animosity and counsel's statements on how he handled the situation, the court could reasonably find that there was no obstacle that would prevent effective representation.
B. Posttrial Motion
During a posttrial hearing, Beyer again sought substitute counsel. We construe his request as a motion for appointment of substitute counsel for the purpose of filing a new trial motion based on ineffective assistance of trial counsel.
The trial court cleared the courtroom and allowed Beyer to state his reasons for requesting substitution of counsel. Beyer stated numerous complaints about Dulce and his conduct of the investigation and trial. After hearing Dulce's responses, the court denied the motion.
On appeal, Beyer raises three of the issues he spoke of during the hearing: (1) he claims Dulce had a conflict of interest based on his friendship with a friend of S.; (2) he contends that Dulce failed to investigate and act on several specific suggestions for developing the defense that A. framed him on the sexual assault charges; and (3) he maintains the trial court erred when it refused to allow his private investigator to make a presentation during the hearing. We will analyze each of these in turn.
1. Attorney Conflict of Interest
Beyer told the trial court he was concerned that Dulce would be improperly influenced by his "very close" friendship with a man named Frank Rojas. According to Beyer, Rojas, who had died the previous July (the hearing was in January 2015), had been employed in the public defender's office where Dulce worked, had been a "very good friend" of S., and had been S.'s softball coach in sixth grade. Rojas also had been a "very good friend" of S.'s father, as well as an elder and assistant pastor at Beyer's church. Beyer and Rojas had visited each others' homes. Beyer said he had a witness willing to testify that Rojas and Dulce had a conversation about Beyer. Beyer also said Dulce attended Rojas's funeral.
Dulce stated that Rojas had been a long-time investigator with the public defender's office. He had retired five or six years earlier. Dulce thought he probably went to Rojas's funeral, but was not sure. He had no conversations with Rojas about Beyer's case, which was assigned to another investigator.
Beyer's argument now is that the trial court failed to make an adequate inquiry into the alleged conflict of interest. "Because an actual conflict of interest was alleged, the court had an obligation to inquire of counsel and to obtain from counsel an adequate answer to the allegation," he states.
"To the extent defendant contends the court erred in failing to conduct a proper inquiry into the alleged conflicts of interest, we observe that reversal for any such ... error requires a showing that an actual conflict of interest existed and that the conflict adversely affected counsel's performance." (People v. Barnett, supra, 17 Cal.4th at p. 1109, fn. 40.) Beyer has not made this showing. His statement at the hearing was merely that Dulce was a coworker and friend of a man who also was a friend of S. and her father and an acquaintance of Beyer; he also said Dulce spoke to Rojas about him. This does not amount to a showing of an actual conflict of interest or an adverse effect on Dulce's performance as counsel. The court asked Dulce about this and Dulce said there were no improper conversations. Given this record, no requirement of a deeper inquiry on the trial court's part was triggered.
2. Beyer's Theory that A. Framed Him
At the hearing, Beyer made many statements about actions he thought Dulce should have taken to investigate and develop the theory that A. framed him on the sexual assault charges. On appeal, he reiterates claims about four matters on which Dulce allegedly failed to make an adequate investigation: (a) prior false molestation accusations by A.; (b) A.'s alleged statement to a basketball coach, mentioned by Beyer at the first Marsden hearing, that she framed Beyer; (c) A. allegedly falling down at Millerton Lake before the assaults, possibly explaining the injuries to her genitals that were found during her medical examination; and (d) allegedly conflicting pretrial statements made by A.
When asked at the hearing to reply to Beyer's claims that Dulce should have done more to discredit A.'s testimony, Dulce said, "The DNA would have shot down everything that would have been attempted as far as that is concerned." He consulted with a DNA expert who told him there was no basis for attacking the DNA test results. As the People point out in their appellate brief, the significance of the DNA evidence in this context was that, given the fundamental strength of the People's case on the sexual assault charges, an aggressive approach on the issue of A.'s veracity would have been unlikely to have a positive effect on the jury, even if there had been some potential for undermining parts of her account.
When the trial court denied the second Marsden motion, it described Dulce's actions with respect to A. as reasonable tactical decisions, and particularly stressed the role of the DNA evidence in those decisions:
"With respect to your allegations of what Mr. Dulce did or should have done, the things of which you complain really are reasonable tactical decisions made by Mr. Dulce and are not ineffective assistance of counsel. Particularly with respect to the DNA evidence, Mr. Dulce did consult with a renowned expert on DNA and was advised that there was no basis to attack the DNA evidence in this case ...."
On each of the four points listed above, Beyer argues now that the court made an inadequate inquiry about why Dulce did not pursue or present evidence on these topics as a basis for impeaching A.'s testimony. Details on these claims follow.
a. Prior False Molestation Allegations
Beyer stated, as he had at the first Marsden hearing, that A. had been molested by an uncle. Beyer said he had new evidence on this topic in the form of "twelve reports," and that he knew of a police officer, a therapist, and someone named Eric Green with knowledge of the subject. Dulce and the court both responded that evidence of this had been ruled inadmissible upon the People's motion in limine. This appears to be a reference to a discussion during the hearing on motions in limine in which the court asked Dulce whether he intended to present evidence on prior false molestation allegations by A. Dulce said no, and on that basis the court stated that no such evidence would be admitted. (There was not in reality any ruling on admissibility.) Beyer thus did not actually claim in either Marsden hearing that A.'s prior molestation claim was false, but we will assume this notion is what he, Dulce, and the court had in mind. Apart from its remark about the in limine ruling, the trial court did not follow up on Beyer's contentions on this topic. Beyer contends it ought to have done so.
b. A.'s Alleged Statement that She Framed Beyer
Beyer told the court his private investigator was waiting outside the courtroom and could tell the court about new evidence he had gathered. (We will discuss the private investigator and his alleged new evidence further below.) The court asked Dulce if he was aware of this new evidence. Dulce said it related to Beyer's claim that A. told a basketball coach or coaches she had framed Beyer. Beyer told Dulce he heard about this from a correctional officer named Wendall Wilson. Dulce's investigator contacted Wilson by email, and Wilson wrote back that he never said this. Dulce did not recall any other alleged new evidence, though he thought Beyer would probably say there was more. Beyer now argues that Dulce ought to have asked the coach or coaches themselves and that the trial court was remiss in not trying to obtain an explanation of why he did not do this.
c. A.'s Alleged Injury at the Lake
Jacqueline Bruzee, a registered nurse, testified during the trial about her examination of A. the day after the crimes. Bruzee found serious lacerations and bruises in A.'s genital area that she considered unusual, having never before seen any like them in a forensic examination of a child, nor any as serious in any forensic examination. They were blunt force injuries. They were consistent with causation by a penis, but she could not say what caused them. They could have been caused by multiple impacts, but also could have been caused by a single impact from an object large enough to cause them all at once.
At the posttrial Marsden hearing, Beyer said that when they were at Millerton Lake, A. "tumbled down the hill and hurt herself, and she was examined by someone who has a medical background and can state to her injuries, and she is a female." He said Dulce "refused to call any witnesses to the lake." Dulce did not specifically address this claim when he responded to Beyer's remarks at the hearing.
d. Allegedly Conflicting Pretrial Statements by A.
During the posttrial Marsden hearing, Beyer said: "The alleged victim was and gave four different stories. Even on the stand she contradicted herself, and he refused to further ... cross-examine the alleged victim." He did not say what these four stories were, what they pertained to, or how they conflicted. Dulce did not specifically address the remark about four stories.
Beyer now contends that the court should have asked Beyer what he was referring to. He also criticizes Dulce's cross-examination of A. as having been too brief.
e. Analysis
In our view, the trial court was correct in concluding that Beyer's statements at the hearing expressed tactical disagreements with Dulce. Dulce described efforts he made to follow up on Beyer's suggestions—particularly Beyer's claim that a correctional officer told him A. told a basketball coach she framed Beyer—but his main response was that in his judgment, pursuing a strategy of attacking A. would have been pointless under the circumstances. The DNA evidence of Beyer's sperm in A.'s anus proved he sexually assaulted her, so the most that could be attempted would be to persuade the jury that fewer assaults took place than the number charged or that they were committed in a less horrific manner (for instance, without the gun or the death threats). Achieving Beyer's stated goal—persuading the jury he was not guilty of the sexual assault charges at all—was unrealistic. Dulce reasonably decided the limited potential for achieving any benefits was outweighed by the likelihood of alienating the jury by aggressively impeaching and cross-examining a child sexual assault victim. It was not necessary for Dulce to exhaust every investigative avenue related to a strategy he reasonably concluded would be counterproductive. Likewise, it was not necessary for the court to demand further explanation of his tactical choices. Beyer has shown neither that Dulce's representation of him was substantially impaired nor that the trial court failed in its duty to inquire into the basis of Beyer's Marsden arguments.
There also is nothing to Beyer's contention that Dulce's decision not to dig deeper in search of evidence that A. framed him shows Dulce had a disloyal state of mind into which the trial court should have probed further at the second Marsden hearing, in accordance with the doctrine of Munoz, supra, 41 Cal.App.3d 62. Dulce's decision was a reasonable tactical one. --------
3. Investigator Not Allowed to Participate in Hearing
During the hearing, Beyer asked the court if he could have a private investigator named Jeff Gunn enter the courtroom and "articulate the new evidence" Beyer believed existed. Gunn was in the courthouse at the time. Dulce explained that Gunn had been "recently retained" by Beyer and Dulce had made no objection to Beyer hiring him. Dulce told the court he did not mind if Gunn participated in the hearing.
The court asked Beyer to describe the new evidence. Beyer said he had had a conversation with a local law enforcement officer regarding a prior molestation of A. Beyer said he did not want to name the officer and wanted Gunn to explain the evidence on the subject. Beyer said the new evidence also included pictures of himself, an audio recording of him telling Gunn "what transpired," and "other things that Mr. Gunn can articulate that transpired that is evidence into this case . . . that has a very big bearing on this case." Gunn was never called into the courtroom and did not participate in the hearing.
Beyer now contends that, by not granting Beyer's request to allow Gunn to make a presentation, the court failed in its duty to allow Beyer to state the basis of his motion, as well as in its duty to make followup inquiries.
We disagree. Beyer never claimed he could not himself describe the evidence Gunn would have described. He only indicated he preferred to have Gunn do it. The right to effective counsel protected under Marsden did not require the trial court to allow others to articulate Beyer's claims for him at the hearing. Further, Gunn's proposed presentation was to be in support of Beyer's belief that better trial tactics would have included an aggressive attack on the veracity of A., in order to advance the notion that she framed him on the sexual assault charges. As we have said, the trial court could reasonably accept Dulce's explanation that this would have been an unwise approach. The court was not obligated to allow Beyer's private investigator to weigh in on how this unwise approach to the trial could have been executed. There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.