P. v. Hayes
Filed 6/25/13 P. v. Hayes CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BRANDON ALLEN HAYES et al.,
Defendants and Appellants.
D060781
(Super. Ct. No. 290952)
APPEAL from
a judgment of the Superior Court
of
County, Patricia K. Cookson, Judge. Affirmed.
Jerome P. Wallingford
for Defendant and Appellant Brandon Hayes.
David M.
McKinney for Defendant and Appellant Jeffrey Carl Reed.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Barry Carlton and Garrett
Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
In October 2009, the People charged
Brandon Allen Hayes and Jeffrey Carl Reed with several offenses related to the
May 16, 2009 murder of Hayes's grandmother, Eunice Cothron. The People charged Hayes and Reed with
212.5) (count 2), first degree burglary
(§§ 459, 460) (count 3), and carjacking (§ 215, subd. (a)) (count
4). As to count 1, with respect to each
defendant, the People alleged two special circumstances, namely that the murder
occurred during the commission of a robbery (§ 190.2, subd. (a)(17)), and
during the commission of a burglary (§ 190.2, subd. (a)(17)). In addition, as to counts 1, 2, 3, and 4, the
People alleged that Hayes personally used a deadly weapon, within the meaning
of section 12022, subdivision (b)(1).
The information also alleged that on or about April 11, 2009, Hayes had
unlawfully taken and driven Cothron's vehicle (Veh. Code, § 10851, subd.
(a)) (count 6). Finally, the information
alleged that Hayes had served two prior prison terms within the meaning of
sections 667.5, subdivision (b) and 668, and that Reed had suffered a prior
serious felony conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)), and a
prior strike conviction (§§ 667, subds. (b)-(i), 1170.12.)
The trial court held a joint trial
on counts 1 through 4, with a separate jury for each defendant.
through 3, and found true the two special circumstances alleged with respect to
count 1. The jury found Hayes not guilty
of count 4 and returned not true findings on the deadly weapon
allegations. The Reed jury found Reed
guilty of counts 1 through 4, and returned a true finding on each of the two
special circumstances alleged with respect to count 1. In bifurcated
proceedings before the court, Hayes admitted having served the prior prison
terms and Reed admitted having suffered the serious felony conviction and
strike conviction.
The court sentenced Hayes to life
without the possibility of parole on count 1 (§§ 187, subd. (a), 190.2,
subd. (a)(17)) (first degree murder with special circumstances). The court also sentenced Hayes to a
three-year term on count 6 (Veh. Code, § 10851, subd. (a)) (unlawful
taking of a vehicle), and two one-year terms for the two prison priors
(§ 667.5, subd. (b)), all to be served consecutively to the indeterminate
term. The court stayed execution of the
sentences on the remaining counts pursuant to section 654.
The court sentenced Reed to life
without the possibility of parole on count 1 (§§ 187, subd. (a), 190.2,
subd. (a)(17)) (first degree murder with special circumstances), plus an
additional five years to be served consecutively for the serious felony prior (§ 667,
subd. (a)(1)). The
court also sentenced Reed to five years on count 4 (§ 215, subd. (a))
(carjacking) to be served concurrently with the indeterminate sentence on count
1, and stayed the execution of the sentences on the remaining counts pursuant
to section 654. The court struck Reed's
prior strike (§§ 667, subds. (b)-(i), 1170.12, 668) in the interest of
justice (§ 1385).
On appeal, each defendant raises
several claims of error. We conclude
that the trial court committed no reversible error and affirm the judgment.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
A. The
People's evidence
1.
Hayes met Reed on May 5, 2009,
while the two were staying at an inpatient drug and alcohol detoxification
facility. On May 13, Hayes and Reed decided
to leave the facility together.
2. The
night before the murder
On May 16, at approximately 4:30 in the
morning, San Diego County Deputy Sheriff Thomas Fletcher encountered Hayes and
Reed at a gas station located near the victim's residence, in Alpine,
California. Because the two looked
suspicious, Deputy Fletcher made contact with them and conducted a field
interview of Reed and Hayes.
During a consensual search, Deputy
Fletcher retrieved a knife with a four-inch blade from Hayes's pocket. Fletcher also recalled observing a pair of
leather gloves, a head-mounted light and a glass cutting tool inside Hayes's
backpack. After the search, Fletcher
returned the knife and the other items to Hayes. Fletcher also conducted a records search and
learned that there was an unserved temporary restraining order prohibiting
Hayes from having contact with Cothron or being in the vicinity of her
residence. Fletcher served the
restraining order on Hayes. After
Fletcher served the restraining order, Hayes asked Fletcher how he would be
able to retrieve belongings that were at Cothron's residence. Fletcher told Hayes that he would have to
have a third party retrieve the items.
3.
At approximately 7:50 a.m. that same
morning, Cothron telephoned her daughter and told her that a man had come to
her front door and asked for Hayes's birth certificate. Cothron told the man that she did not have
the birth certificate.
At some time just prior to 9:30 a.m., Hayes and Reed entered the victim's
residence. Hayes strangled Cothron to
death, and Hayes and Reed stole money, jewelry and the victim's credit card
from the residence. The pair fled
in Cothron's car.
4.
Hayes and Reed disposed of two
knives taken from the victim's residence and Hayes's own knife on an embankment
on the side of a nearby road. Hayes and
Reed then went to a mall where they purchased some items. From the mall, Hayes drove Reed to a parking
lot near the international border. After
parking the car, the two walked into Mexico.
Surveillance video captured Hayes and Reed at the mall and crossing the
border.
While in Mexico, Hayes and Reed
went to a strip club together. Hayes
paid one of the dancers to have sex with him and offered her drugs and jewelry.
>
5.
On May 16, at approximately 9:00
p.m., a family member discovered Cothron's body inside her residence, a few
feet from her front door. Cothron had a bath towel stuffed in her
mouth. Hayes's DNA was found on samples
taken from the towel and from Cothron's fingernail scrapings.
Several dresser drawers in
Cothron's bedroom had been ransacked.
Jewelry, cash, and a credit card were missing.
On the kitchen floor, a family
member found a business card with the name Carlos Terrones on it. Police determined that Reed's fingerprint was
on the business card, as well as on a torn envelope found inside the
residence. In an interview with law
enforcement officers, Reed admitted that he had used the business card as part
of a ruse to gain access into Cothron's residence. (See pt. II.A.7, post.)
title="">[3] During the interview, Reed also admitted
having searched through envelopes inside Cothron's residence, looking for
money.
Police found Hayes's fingerprint on a
box located in the residence and on the
exterior of Cothron's car. His DNA was
found on the driver's seat and the steering wheel.
6.
Cothron had injuries to her neck
and head, bruises on her lip and nose, and bruises on her arms and legs. A medical examiner concluded that Cothron
died from strangulation. The medical
examiner added that a person would have had to apply pressure to Cothron's neck
for a few minutes to cause death.
7. Motive
evidence
Hayes had a long-standing drug
problem and was estranged from his family. Cothron had attempted to help Hayes with
his difficulties, and had provided him with financial assistance. The two had a good relationship before Hayes
stole Cothron's car in April 2009.
name="_ftnref4" title="">[4] As a result of that theft, and Hayes's denial
of having taken the car, Cothron obtained a restraining order against Hayes.
8.
A few days after the murder, Reed turned himself in to authorities at the
border between the United States and Mexico.
Detectives interviewed Reed shortly thereafter. After initially denying any
involvement in the charged offenses, Reed made a series of admissions
concerning his involvement. Reed told
the detectives that he had gone to Cothron's residence earlier on the morning
of the murder, at Hayes's request, to attempt to obtain Hayes's birth
certificate. After Cothron told Reed
that she did not have Hayes's birth certificate, he left to meet Hayes. The two of them returned to Cothron's
residence together. According to Reed,
as he and Hayes approached the residence, Hayes told Reed that Hayes intended
to grab his birth certificate and some of Cothron's money and jewelry from
inside the residence.
Reed told the detectives that when
he and Hayes arrived at Cothron's front door, Reed had Terrones's business card
in his hand and Hayes was holding a knife.
Reed knocked on the front door while Hayes hid behind the door. As Cothron opened the front door, Reed handed
her the business card, and began to speak to her. As Cothron took the card, Hayes opened the
door further, rushed around Reed through the open door, and knocked Cothron to
the floor. Hayes then got on top of
Cothron and put his hands around her neck.
Reed stated that Hayes said to him,
"Get the fuck in the house and shut the door." Reed entered the mobile home and shut the
door. Once inside, Reed saw Hayes
strangling Cothron and holding a knife near her neck. Reed told detectives that because he was so
upset by what he was witnessing, he walked into another room of the residence
and began to look for valuables to steal.
When Reed returned, the kitchen
drawer was open and Hayes was still on top of Cothron with a different knife in
his hand. According to Reed, he asked
Hayes to stop, and Hayes told Reed to "Shut the fuck up." Reed said he did not intervene on the
victim's behalf because Hayes had a knife in his hand and Reed was afraid that
Hayes would kill him.
According to Reed, at some point
during the incident, Reed grabbed an envelope that he found in Cothron's bedroom
and opened it to see if there was money inside.
Hayes ripped open two greeting cards, grabbed a jewelry box off of
Cothron's dresser, and took Cothron's purse and car keys. Hayes and Reed put the items into Cothron's
car and Hayes drove the two from the scene.
Reed said that as Hayes drove away,
he told Reed that he had not killed Cothron and that she was just
unconscious. Reed informed detectives
that he and Hayes disposed of the knives, the purse, and the jewelry box in
various locations near the freeway. Reed
acknowledged that he and Hayes used the proceeds of the robbery and burglary to
buy drugs in Mexico after the murder.
9.
officers
title="">[6]
Shortly after Reed turned himself in,
authorities detained Hayes at the border.
During an ensuing interview with law
enforcement, Hayes repeatedly denied involvement in the charged
offenses. Hayes told law enforcement
officers that while he and Reed were in Mexico, the two were "going to
bars, [and] strip clubs." Hayes
also acknowledged that while he was in Mexico, he was spending money on
"dope," "drinks," "hookers," and a hotel room.
B. The
defense
Neither Hayes nor Reed testified or
presented any evidence at trial. Hayes's
counsel conceded that Hayes had killed Cothron.
However, counsel argued that Hayes had acted without premeditation, and
that "frustration," "anger," and Hayes's "drug
addiction" had caused him to kill Cothron.
Hayes's counsel argued further that Hayes did not form the intent to
steal from Cothron until after he had killed her, and thus, that the jury
should not find him guilty of felony-murder, and should not find the special
circumstances to be true.
Reed's counsel argued that Reed had
participated in the events under duress.
Specifically, counsel argued that Hayes had displayed a knife outside
the victim's residence in order to ensure that Reed assisted Hayes in
committing the charged offenses.
III.
DISCUSSION
A.
1.
The trial court did not abuse its discretion in denying Hayes's motions
for
complete
severance; the trial court's decision to hold a single trial with
dual
juries did not result in gross unfairness
Hayes claims that the trial
court abused its discretion in denying his motions for complete severance. Hayes contends that he and Reed presented
antagonistic defenses and that the "dual jury trial with Reed resulted in
identifiable prejudice and gross unfairness."
a. Factual
and procedural background
Prior to
trial, Reed requested several continuances of the trial. During hearings on Reed's requests, Hayes's
counsel informed the court that Hayes was ready to proceed to trial. Hayes's counsel also orally requested that
the trial court sever Hayes's trial from Reed's. In connection with one of Reed's requests for
a continuance, the People filed a brief in which they argued that if the court
were to grant any continuance, the continuance should be granted as to both
defendants, and should not serve as a basis for severing Hayes's trial from
Reed's.
to sever, and granted Reed's requests to continue the case.
In addition, prior to the trial,
Hayes filed a written motion to sever.
In his motion, Hayes argued that the trial court should sever his trial
from Reed's for a number of reasons, including that Reed and Hayes might
present antagonistic defenses
name="_ftnref8" title="">[8] and that it would be unfair for members of
Hayes's jury to hear Reed's counsel's cross-examination of the witnesses.
After a hearing on the motion to
sever, the trial court denied the motion.
The court noted that it had denied several prior motions to sever and
that there was "abundant case law which support[s] a dual jury in this
particular instance."
During the trial, Hayes's counsel
objected to Reed's counsel's cross-examination of Deputy Fletcher concerning
whether Hayes had told the deputy why Cothron obtained a restraining order
against him. The trial court overruled
the objection, and Deputy Fletcher testified that Hayes informed him that
Cothron suspected Hayes of "stealing stuff." Outside the presence of the jury, Hayes's
counsel stated that he objected to an "interloper" (Reed's counsel)
asking questions in front of Hayes's jury, on the ground that this denied Hayes
the right to a fair trial.
Later during the trial, Hayes's
counsel objected to Reed's counsel's questioning of Hayes's father concerning
an incident from Hayes's youth during which Hayes allegedly put some type of
toxic foreign substance in his stepbrother's baby formula. Hayes moved for a mistrial and a severance on
the ground that Reed's counsel was eliciting irrelevant and prejudicial
information. Reed's counsel stated that
this issue had been explored during the prosecutor's direct examination,
without objection. The court overruled
the objection, and did not grant a mistrial or severance.
b. Governing
law
i.
The preference for joint trials
In People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 40 (Coffman),
the Supreme Court outlined the strong preference for joint trials in cases
involving defendants charged with the same crimes arising out of the same
events:
"Section 1098 expresses a
legislative preference for joint trials. The statute provides in pertinent
part: 'When two or more defendants are
jointly charged with any public offense, whether felony or misdemeanor, they
must be tried jointly, unless the court order[s] separate trials.' [Citation.]
Joint trials are favored because they 'promote [economy and] efficiency'
and ' "serve the interests of justice by avoiding the scandal and inequity
of inconsistent verdicts." '
[Citation.] When defendants are
charged with having committed 'common crimes involving common events and
victims,' as here, the court is presented
a ' "classic case" ' for a joint trial. [Citation.]"
ii.
Factors that a trial court is to consider in ruling on a
motion
for severance
The
a trial court may examine in ruling on a motion for severance:
"The court's discretion in ruling
on a severance motion is guided by the nonexclusive factors enumerated in People
v. Massie (1967) 66 Cal.2d 899, 917, such that severance may be appropriate
'in the face of an incriminating confession, prejudicial association with
codefendants, likely confusion resulting from evidence on multiple counts,
conflicting defenses, or the possibility that at a separate trial a codefendant
would give exonerating testimony.' "
(Coffman, supra, 34 Cal.4th at p. 40, fns. omitted.)
" 'Additionally,
severance may be called for when "there is a serious risk that a joint
trial would compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or
innocence."
[Citations.]' " (
848 (Homick).)
iii.
Antagonistic
defenses
The Supreme Court has explained
that severance is rarely compelled merely because codefendants present
antagonistic defenses. (See
of conflicting or antagonistic defenses alone required separate trials,
it would negate the legislative preference for joint trials and separate trials
"would appear to be mandatory in almost every case." ' [Citation.]
severance on the ground of conflicting defenses, it must be demonstrated that
the conflict is so prejudicial that [the] defenses are irreconcilable, and the
jury will unjustifiably infer that this conflict alone demonstrates that both
are guilty." '
[Citation.]" (
90, 111.) Further, it is well
established that where " 'there exists sufficient independent evidence
against the moving defendant, it is not the conflict alone that demonstrates
his or her guilt, and antagonistic defenses do not compel severance.'
[Citation.]" (
iv.
The
use of dual juries
"The use of dual juries is a
permissible means to avoid the necessity for complete severance. The procedure facilitates the Legislature's
statutorily established preference for joint trial of defendants and offers an
alternative to severance when evidence to be offered is not admissible against
all defendants. [Citations.]" (People
v. Cummings (1993) 4 Cal.4th 1233, 1287 (Cummings). "That
defendants have inconsistent defenses and may attempt to shift responsibility
to each other does not compel severance of their trials [citation], let alone
establish abuse of discretion in impaneling separate juries." (Ibid.)
v.
Standard of review
"A court's denial of a motion
for severance is reviewed for abuse of discretion, judged on the facts as they
appeared at the time of the ruling.
[Citation.] Even if a trial court
abuses its discretion in failing to grant severance, reversal is required only
upon a showing that, to a reasonable probability, the defendant would have
received a more favorable result in a separate trial.
"If the court's joinder ruling
was proper when it was made . . . we may reverse a judgment
only on a showing that joinder ' "resulted
'gross unfairness' amounting to a denial of due process." ' [Citation.]" (People
v. Lewis (2008) 43 Cal.4th 415, 452.)
The same standards apply to the
review of a trial court's decision to deny complete severance and to impanel
separate juries. (Cummings, supra, 4
Cal.4th at p. 1287 [applying "abuse of discretion" and "gross
unfairness" standards].)
c. Application
Hayes contends that the trial court
erred in denying his motions to sever because permitting a joint trial resulted
in Hayes and Reed presenting antagonistic defenses.
theory that he had killed the victim in a drug-induced fit of rage, and that he
lacked a preconceived plan to kill or steal, while Reed defended the case on
the theory that he participated in the crimes under duress stemming from
Hayes's implied threats to harm Reed.
Hayes also contends that the trial court's failure to sever the trials
resulted in gross unfairness. We are not
persuaded that the trial court abused its discretion in denying the motions to
sever, or that the joint trial resulted in gross unfairness.
To begin with, with respect to
Hayes's contention that he and Reed presented antagonistic defenses, Hayes
fails to point to any evidence
presented to, or statements made in front of, Hayes's jury that Reed offered in support of his duress
defense. Reed's out-of-court statements
to law enforcement and Reed's counsel's closing argument contending that these
statements demonstrated that Reed was not guilty of the charged offenses
because he had acted under duress on the day in question, were
Further, even assuming that Reed
did present a defense that was antagonistic to Hayes's defense, before Hayes's
jury, severance was not mandated because " 'there exist[e]d sufficient
independent evidence' " on which the jury could find Hayes guilty of the
charged offenses. (Letner and Tobin, supra,
50 Cal.4th at p. 150.) Specifically, the
jury was presented with ample independent evidence that Hayes committed the
charged offenses, including evidence that Hayes had a motive to kill the
victim, eyewitness testimony placing Hayes and Reed near the scene of the
charged offenses on the day of the murder, DNA and other physical evidence
linking Hayes and Reed to the charged offenses, and videotape evidence of Hayes
and Reed together shortly after the crimes.
(See pt. II.A., ante.) While the focus of Hayes's defense was that
he lacked the intent required to be found guilty of the charged offenses
because he did not have a preconceived plan to kill or to steal from the
victim, the evidence cited above, including evidence that Hayes was recently
estranged from his grandmother and needed money to purchase drugs, clearly
constitutes sufficient independent evidence that he harbored the requisite
intent to be convicted of the charged offenses.
(See, e.g., People v. Jaska (2011)
194 Cal.App.4th 971, 984
established by circumstantial evidence and the reasonable inferences to which
it gives rise' "].) Indeed,
Hayes does not argue that there was a lack of sufficient independent evidence
of his commission of the charged crimes.
Accordingly, we conclude that the trial court did not abuse its
discretion in denying Hayes's motions to sever.
(See Letner
compel severance where " 'there exists sufficient independent evidence
against the moving defendant' "].)
Hayes has
similarly failed to demonstrate that the joint trial resulted in gross
unfairness. Hayes notes that the
prosecutor stated during his opening statement that the police had learned the
location of two kitchen knives taken from the victim's residence and a third
knife tied to Hayes based on "information Mr. Reed provided." Even assuming that the prosecutor's comments
were improper because the trial court had previously ruled that Reed's
statements to law enforcement were not admissible as to Hayes, the prosecutor's
reference was fleeting, and did not pertain to a central piece of evidence in
the case.
title="">[10] Under these circumstances, any prejudice
stemming from the prosecutor's statement was cured by the trial court's
admonition to the jury, provided immediately after Hayes's counsel objected the
prosecutor's statements, that the attorneys' statements did not constitute
evidence.
Hayes also notes that during the
trial, Reed's counsel cross-examined Hayes's father concerning Hayes's
longstanding troubled relationships with various family members, and that this
caused unfair prejudice to Hayes.
However, the prosecutor covered that topic extensively during the direct
examination of Hayes's father. Thus,
Reed's counsel's cross-examination of Hayes's father did not involve the
presentation of any new prejudicial information to Hayes's jury, and thus, did
not result in gross unfairness to Hayes.
2.
trial court did not err in failing to instruct the jury sua sponte
concerning
evidence of Hayes's commission of uncharged bad acts
Hayes
contends that the trial court erred in failing to instruct the jury sua sponte
concerning evidence of Hayes's commission of various uncharged bad acts
Hayes contends that the trial court was required to instruct the jury sua
sponte that it could not consider this evidence for the purpose of determining
that Hayes is a person of bad character who is predisposed to commit crimes.
a. Governing
law
Generally speaking, a trial court
has no duty to instruct a jury sua sponte on the limited admissibility of other
crimes and bad acts evidence. (
'an occasional extraordinary case in which unprotested
evidence . . . is a dominant part of the evidence against
the accused, and is both highly prejudicial and minimally relevant to any
legitimate purpose.' " (People
v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 (Hernandez).)
b. Application
Although the People offered a
considerable amount of evidence pertaining to Hayes's commission of uncharged
bad acts, including his attempting to poison family members, stealing from
family members and friends, and using drugs, this evidence was far from the
" 'dominant part of the evidence against the
accused.' " (
Hayes's commission of the charged offenses, discussed in part II.A.1 through 5,
ante, constituted the bulk of the
evidence against Hayes.
Further, while some of the evidence
of the uncharged bad acts constituted evidence of serious criminal conduct,
these acts cannot be considered " 'highly prejudicial' " in
the sense of being "inflammatory" (People v. Mendoza (2011) 52 Cal.4th 1056, 1094 (
circumstances of the charged murder and special circumstances allegations.
Finally, as Hayes acknowledges in
his brief, Hayes's counsel did not object to the admission of the vast majority
of the bad acts evidence, and this evidence was far from " 'minimally
relevant to any legitimate purpose.' " (Hernandez,
p. 1052) Hayes
concedes that both the prosecutor and his own counsel presented arguments in
the trial court that "revealed the proper uses for the evidence of Hayes's
uncharged acts." In particular,
Hayes acknowledges that his counsel hoped that evidence of Hayes's troubled
relationships with members of his family would "help the jury understand
what Hayes thought when his grandmother rejected him shortly before the
homicide occurred."
Accordingly,
we conclude that "[t]his case does not present the type of 'extraordinary'
situation contemplated in [Collie],
supra, 30 Cal.3d 43, 177," for which the trial court was
required to instruct the jury sua sponte on the limited admissibility of the
uncharged bad acts evidence. (
3. The
trial court did not err in refusing to modify various jury instructions
pertaining
to consciousness of guilt
Hayes
contends that the trial court erred in refusing to modify several jury
instructions on consciousness of guilt that are based on the defendant's making
false or misleading statements, attempting to suppress evidence, and fleeing
from the scene of the crime (CALCRIM Nos. 362, 371, and 372). Hayes notes that these instructions informed
the jury that it could infer that Hayes was "aware of his guilt" if
the jury found that he had engaged in the conduct mentioned in the
instructions, and that the court should have modified the instructions to state
that the jury could infer that Hayes "did something wrong or had feelings
of guilt" from such conduct. Hayes
contends that without such modifications, the instructions improperly permitted
the jury to infer that he had "consciousness of guilt of the offenses
charged against him."
Hayes concedes that the California
Supreme Court has "rejected similar arguments in the past," but contends
that those "cases are wrongly decided." Hayes further acknowledges that this court
may consider itself bound by Supreme Court precedent, pursuant to
Cal.2d 450, 455, but presents this argument so that "he can ask the
California Supreme Court to reconsider its prior rulings in this area."
We agree
with Hayes that the California Supreme Court has rejected the argument that he
raises on numerous occasions. (See,
e.g., People v. Page (2008) 44
Cal.4th 1, 51-52 (Page).) For example, in Page, the Supreme Court considered a defendant's argument that it
was improper for the trial court to have instructed the jury that it could
infer that the defendant had "a consciousness of guilt" if the jury
found that the defendant had willfully made a false statement. (Page,
supra, at p. 49, fn. 23, quoting
CALJIC No. 2.03.) The
argument that the instruction permitted the jury to improperly infer that the
defendant harbored the requisite mental states for various charged crimes based
on the conduct referred to in the instruction, reasoning:
"[W]e disagree that the
instruction informed the jury that it could infer from defendant's willfully
false statements not only that he committed the crimes, but additionally that
he harbored the mental states required for a finding of first degree murder,
intent to commit a lewd act upon a child, and the related felony-murder special
circumstance. As defendant acknowledges,
we rejected this contention in People v. Crandell
(1988) 46 Cal.3d 833 (Crandell), in which we
observed that '[a] reasonable juror would understand "consciousness of
guilt" to mean "consciousness of some wrongdoing"
rather than "consciousness of having committed the specific offense
charged." The instructions advise
the jury to determine what significance, if any, should be given to evidence of
consciousness of guilt, and caution that such evidence is not sufficient to
establish guilt, thereby clearly implying that the evidence is not the
equivalent of a confession and is to be evaluated with reason and common
sense. The instructions do not address
the defendant's mental state at the time of the offense and do not direct or
compel the drawing of impermissible inferences in regard thereto.' (Id. at p. 871.)
"Defendant disagrees with
understand the reference to
'consciousness of guilt' to mean 'consciousness of some wrongdoing,'
and asserts that a reasonable juror would interpret 'guilt' to mean 'guilty of
the crimes charged.' But only if the phrase 'consciousness of guilt' is
considered without reference to the rest of the instructions can there be any
confusion concerning the word 'guilt.' A
jury is instructed regarding the mental state that must be found to have
existed at the time of the commission of the crimes in order to convict
a defendant of each offense and special circumstance alleged. No reasonable juror would conclude that
CALJIC No. 2.03's guidance concerning an inference that may be drawn from a
defendant's dishonest statements made after the commission of a crime
establishes what the defendant was thinking at the time of the commission of
the
supra, 44 Cal.4th at pp. 51-52.)
As Hayes properly acknowledges, we
are bound by the California Supreme Court's decisions on this point. (See Auto Equity
Sales, Inc. v. Superior Court, supra,
57 Cal.2d at p. 455.) Accordingly, we
conclude that the trial court did not err in refusing to modify CALCRIM Nos.
362, 371, and 372.
4.
The trial court did not err in failing to instruct the jury sua sponte
on the
lesser
included offense of involuntary manslaughter premised on voluntary
intoxication
Hayes claims that the trial
court erred by failing to instruct the jury sua sponte on the lesser included
offense of involuntary manslaughter premised on unconsciousness due to
voluntary intoxication.
a.
Standard of review
or de novo standard of review to the failure by the trial court to instruct on
an assertedly lesser included offense."
(People v. Cole (2004) 33 Cal.4th 1158, 1218.) In considering whether the trial court had a
sua sponte duty to instruct the jury on lesser included offenses, we construe
the evidence in the light most favorable to the appellant. (People v.
Turk (2008) 164 Cal.App.4th 1361, 1368 (Turk).)
b. Governing law
i.
A trial court's duty to
instruct on lesser included offenses
"A trial court must instruct
the jury sua sponte on a lesser included offense only if there is substantial
evidence, ' "that is, evidence that a reasonable jury could find
persuasive" ' [citation], which, if accepted, ' "would
absolve [the] defendant from guilt of the greater offense" [citation] but
not the lesser.' [Citation.]" (Cole, supra, 33 Cal.4th at p. 1218.) In other words, "[s]uch instructions are
required only where there is 'substantial evidence' from which a rational jury
could conclude that the defendant committed the lesser offense, and that he is
not guilty of the greater offense."
(People v. DePriest (2007) 42 Cal.4th 1, 50.)
ii. Involuntary
manslaughter premised on voluntary intoxication
In
Supreme Court has stated that, "A trial court must instruct the jury 'sua
sponte on involuntary manslaughter based on unconsciousness' whenever 'there is
evidence deserving of consideration[
that the defendant was unconscious due to voluntary
v. Halvorsen (2007) 42 Cal.4th 379, 418 (Halvorsen); see also
v. Abilez (2007) 41 Cal.4th 472, 515]; People v.
Ochoa (1998) 19 Cal.4th 353 (Ochoa); CALCRIM No. 626.)" (Turk,
supra, 164 Cal.App.4th at pp.
1371-1372, fn. omitted.)
CALCRIM
No. 626 states in relevant part:
"Voluntary intoxication may
cause a person to be unconscious of his or her actions. A very intoxicated person may still be
capable of physical movement but may not be aware of his or her actions or the
nature of those actions. [¶] . . . .
[¶] When a person voluntarily causes his
or her own intoxication to the point of unconsciousness, the person assumes the
risk that while unconscious he or she will commit acts inherently dangerous to
human life. If someone dies as a result
of the actions of a person who was unconscious due to voluntary intoxication,
then the killing is involuntary manslaughter."
c. Application
We assume for purposes of this
decision that Hayes is correct that "if a defendant kills while
unconscious as a result of voluntary intoxication, the homicide is involuntary
manslaughter," and that a trial court has a sua sponte duty to instruct on
this theory where there is substantial evidence that a defendant was
unconscious at the time of the killing due to voluntary intoxication. (See Turk,
1371-1372; but see also id., at p.
1376 [noting that in People v. Boyer (2006) 38
Cal.4th 412, 469, fn. 40, the Supreme Court stated in dicta that, in light of
certain statutory amendments, it " 'now appears that defendant's
voluntary intoxication, even to the point of actual unconsciousness, would not
prevent his conviction of second degree murder on an implied malice
theory' "].)
name="_ftnref12" title="">[12]
In making
this claim in his opening brief, Hayes fails to identify any evidence of his intoxication, much less evidence of
intoxication rising to the level of unconsciousness. In his reply brief, Hayes cites evidence that
during an interview with law enforcement officers, he denied involvement in the
murder and told the officers that he had been "getting high every
day" around the time of the murder.
Hayes contends that the jury could have inferred "from this
evidence that [he] was so intoxicated when the homicide occurred that he was
not aware what happened." We are
not persuaded. This evidence is clearly
not sufficient to warrant an involuntary manslaughter instruction premised on
unconsciousness. (See, e.g., Halvorsen, supra, 42 Cal.4th 379 at pp.
418-419 [expert testimony that the defendant's blood-alcohol content might have
approached .20 at the time of the shootings, and that the defendant "habitually
drank to excess with resultant memory losses," did not constitute
substantial evidence warranting an involuntary manslaughter instruction
premised on unconsciousness].)
Accordingly,
we conclude that the trial court did not err by failing to instruct the jury
sua sponte on the lesser included offense of involuntary manslaughter premised
on voluntary intoxication.
name="_ftnref13" title="">[13]
5. There is no
claims that to the extent this court concludes that no individual
error doctrine requires reversal of the judgment.
"Under
the 'cumulative error' doctrine,
a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694,
772, fn. 32.) We conclude in part
III.B.5., post, that the trial
court's failure to modify jury instructions pertaining to the defendants'
possession of recently stolen property, was not prejudicial as to Reed, and
Hayes fails to make any separate argument as to prejudice with respect to this
claim. We have rejected the remainder of
Hayes's claims. There is thus no
base a reversal of the judgment.
B.
1. The
trial court did not err in failing to instruct the jury sua sponte
on the
defense of necessity
Reed contends that the trial court
erred in failing to instruct the jury sua sponte on the defense of
necessity. Reed contends that there is
substantial evidence "that he had no alternative to breaking the law and
that his acts of assisting in searching for, and taking, Ms. Cothron's
valuables would have prevented a greater evil than the one avoided." Specifially, Reed argues that this is so
because he "believed it was a far less evil to rob than to be the victim
of an armed assault and perhaps murder."
a. Governing
law and standard of review
i. A
trial court's sua sponte duty to instruct on defenses
It is well established that a trial court's "duty to
is substantial
evidence supportive of a defense that is not
inconsistent with the defendant's theory of the case." (People
v. Barraza (1979) 23 Cal.3d 675, 691, citing People v. Sedeno (1974) 10 Cal.3d 703, 715-716.) " 'Substantial evidence is
"evidence sufficient 'to deserve consideration by the jury,' not 'whenever
any evidence is presented, no matter how weak.' " ' [Citations.]" (People
v. Wilson (2005) 36 Cal.4th 309, 331-332.)
In determining whether there is substantial evidence to support an
instruction concerning a defense, an appellate court views the evidence
in the light "most favorable to [the]
defendant." (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)
As applied to the defense of necessity, "the standard
for evaluating the sufficiency of the evidentiary foundation is whether a
reasonable jury, accepting all the [defendant's] evidence as true, could find
the defendant's actions justified by necessity.
[Citation.]" (
1532, 1538-1539.) However, a trial court has no sua
sponte duty to instruct the jury on the defense of necessity if there is
insufficient evidence in the record that would support the defense. (See, e.g., People v. Miceli
(2002) 104 Cal.App.4th 256, 267 ["Defendant failed to show
substantial evidence in support of the second and fifth elements [of the
defense]; thus, he was not entitled to instruction on necessity"];
Cal.App.4th 1146, 1165 (Verlinde)
["the trial court did not err in refusing to give a necessity defense
instruction because the evidence was insufficient to permit a reasonable jury
to find these elements were established"]; People v. Kearns (1997) 55 Cal.App.4th 1128, 1135 (
to permit a reasonable jury to find that these elements were established and
thus . . . the trial court . . . [did not]
err[]."].)
name="_ftnref14" title="">[14]
On appeal, we determine de novo whether the trial court had
a sua sponte duty to instruct on a defense
Cal.App.4th 1415, 1424 (Russell).)
ii. The
defense of necessity
" 'The necessity defense is very limited and depends on
the lack of a legal alternative to committing the crime. It excuses criminal conduct if it is
justified by a need to avoid an imminent peril and there is no time to resort
to the legal authorities or such resort would be futile.' [Citation.]
'By definition, the necessity defense is founded upon public policy and
provides a justification distinct from the elements required to prove the
crime.' [Citation.] 'Necessity does not negate any element of the
crime, but represents a public policy decision not to punish such an individual
despite proof of the crime.'
[Citation.]" (
In People v. Buena
Vista Mines, Inc. (1998) 60 Cal.App.4th 1198, 1202 (
outlined the elements of the defense of necessity and the defendant's burden of
proof in establishing that defense:
"To assert a defense of
necessity, the defendant must show, by a preponderance of the evidence, that he
or she 'violated the law (1) to prevent a significant and imminent evil, (2)
with no reasonable legal alternative, (3) without creating a greater danger
than the one avoided, (4) with a good faith belief that the criminal act was
necessary to prevent the greater harm, (5) with such belief being objectively
reasonable, and (6) under circumstances in which [he or] she did not
substantially contribute to the emergency.
[Citations.]' [Citations.]"
b.
Factual and procedural background
Reed did
not testify at trial, nor did he present any evidence in his defense. Reed contends, however, that statements that
he made during his interview with law enforcement officers, which the People
offered in evidence at trial, constitute substantial evidence to support a
necessity defense.
Although Reed does not precisely
identify in his brief which interview statements he contends support a
necessity instruction, his argument appears to focus on statements pertaining
to events that occurred immediately before he and Hayes entered the victim's
residence. Reed told officers that he
knocked on the front door of Cothron's home, and that when the victim opened
the door, he handed her a card. Reed
explained that he then "pulled some bullshit story outta [his] ass,"
telling the victim, "The sheriff wanted me to give this to you." According to Reed, as the victim took the
card, "[Hayes] was behind the door and . . . rushed
her." Reed said that "[Hayes]
knocked her on the ground and I walked in behind him and shut the door."
After a
detective asked Reed why he and Hayes had gone to the victim's residence, the
following colloquy occurred:
"[Reed]: I didn't even know what the fuck we were doing. All I know is that he just said that we were
gonna go in there and he was gonna grab his birth certificate, he was gonna
grab some of her jewelry and her money and we were gonna leave. He didn't say anything about hurtin' her,
killing her anything like that.
"[Detective]: So he's basically gonna steal those things
and then leave?
"[Reed]: But he didn't . . .
"[Detective]: When did he tell [you he] was gonna do that?
"[Reed]: He told me right before we went up to the
door.
"[Detective]: He said basically he was gonna go in and
steal those
things . . .
"[Reed]: He said and I . . .
"[Detective]: and then leave?
"[Reed]: told him 'I don't wanna [have] anything to do
with this.' He was 'All you have to do
is just fuckin' knock and get her to open the fuckin' door.' I said 'I don't wanna have anything else to
do with this.' So I knocked on the door
and that's what happened. And then I
wasn't gonna go in and he said, 'Get the fuck in the house and shut the door'
and he had his knife out already so I, I just went in. I went inside.
"[Detective]: He had; okay let's go back. So you guys are
talking outside. And he says he's just
gonna go in and steal some money and the jewelry and stuff, right?
"[Reed]: No verbal response.
"[Detective]: And he just wants you to knock on the door?
"[Reed]: (nods head)
"[Detective]: Am I? Do I have this right?
"[Reed]: Yes.
"[Detective]: At what point is his knife in his hand?
"[Reed]: It's already in his hand.
"[Detective]: He's already got it in his hand?
"[Reed]: (nods head).
"[Detective]: As you're going up to the front door?
"[Reed]: (nods head)."
Later during the interview, when
the officers returned to the issue of the manner by which Reed entered the
residence, the following colloquy occurred:
"[Detective]: [Hayes] was the first through the door and
you went in after him?
"[Reed]: I shut the door.
"[Detective]: And you shut the door?
"[Reed]: 'Cause he told me to.
"[Detective]: Well, why did you think you shut the door? Why do you think he wanted the door shut?
"[Reed]: I don't know.
"[Detective]: Maybe so . . . nobody would see?
"[Reed]: Probably.
I don't know (unin.) . . .
"[Detective]: Oh yeah.
"[Reed]: All I know is I know (unin.) when someone's
got a knife in their hand.
"[Detective]: Did he threaten you with the knife?
"[Reed]: No, not that I heard but he was starting to
get a little loud.
"[Detective]: Why didn't you just run?
"[Reed]: No verbal response.
"[Detective]: You're behind him. Why not open the door and
run?
"[Reed]: No verbal response.
"[Detective]: Could you have done that?
"[Reed]: No, I've got bad knees.
"[Detective]: Why not run out in the middle of the street
and scream and yell, 'Help, help, help, help, help?'
"[Reed]: To be honest with you, I don't know. My head.
I don't know what the hell . . . ."
c. Application
Even viewed in the light most
favorable to Reed, Reed's interview statements do not constitute a sufficient
basis for the trial court to instruct the jury on the defense of
necessity. To begin with, Reed's own
statements demonstrate that he did not act "to prevent a
significant and imminent evil." (
Vista Mines, Inc.,
supra, 60 Cal.App.4th at p.
1202.) Rather, Reed's statements
indicate that he willingly and freely agreed to participate in a ruse to gain
entry to the victim's residence merely upon Hayes's request that he do so, and
that any concern that Reed may have had about Hayes's possession of a knife
surfaced only after Reed had " 'substantially contribute[d] to the
emergency' " (ibid.) by
knocking on the victim's door:
"[I] told him 'I don't
wanna [have] anything to do with this.'
He was 'All you have to do is just fuckin' knock and get her to open the
fuckin' door.' I said 'I don't wanna
have anything else to do with
this.' So I knocked on the door and
that's what happened. And then I wasn't
gonna go in and he said, 'Get the fuck in the house and shut the door' and he
had his knife out already so I, I just went in.
I went inside." (Italics
added.)
Reed also failed to demonstrate that he had no
"reasonable legal alternative" but to participate in the
robbery. (Buena Vista Mines, Inc., supra,
60 Cal.App.4th at p. 1202.) When asked
whether Hayes had threatened him with the knife, Reed responded, "No not
that I heard . . . ." Reed also
acknowledged that he could not explain why he had failed to summon assistance
after he realized that Hayes had attacked the victim:
"[Detective]: Why not run out in the middle of the street
and scream and yell, 'Help, help, help, help, help?'
"[Reed]: To be honest with you, I don't know. My head.
I don't know what the hell . . . ."
(See
Kearns, supra, 55 Cal.App.4th at p. 1135 ["Most notably, Kearns
did not establish the absence of a reasonable legal alternative to committing
the crimes and clearly at least one such alternative existed, to wit, asking
the victim to call police rather than carrying out the robbery."].)
In addition, Reed failed to present
any evidence that his actions did not "creat[e] a greater danger than the
one avoided." (Buena Vista
Mines, Inc.,
supra, 60 Cal.App.4th at p. 1202.) Reed used a ruse to get the elderly victim to
open the front door to the residence, while knowing that Hayes was hiding
behind the front door with a knife in his hands, waiting to attack and rob the
victim. Any danger to himself that Reed
may have avoided was no greater than the danger that he created for the victim
by participating in the scheme to gain entry to the victim's residence. (Cf. Kearns,
["the necessity defense is inappropriate in this case because its
recognition would encourage rather than deter violence"].)
In sum,
because there is not substantial evidence in the record with respect to several
of the required elements of the defense of necessity, the trial court did not
err in failing to instruct on the defense.
2.
The trial court did not err in failing to instruct the jury sua sponte
on the
affirmative
defense of claim-of-right
Reed
contends that the trial court erred in failing to instruct the jury sua sponte
on the affirmative defense of claim-of-right.
a.
Governing law and standard of review
A claim-of-right defense
"negates the felonious intent necessary for conviction of theft or robbery,"
and applies where a defendant holds a good faith belief that he has a right or
claim to property that he takes from another.
(People v. Tufunga (1999) 21 Cal.4th 935, 938 (
court explained the rationale for the defense:
" ' "Although an
intent to steal may ordinarily be inferred when one person takes the property
of another, particularly if he [or she] takes it by force, proof of the
existence of a state of mind incompatible with an intent to steal precludes a
finding of either theft or robbery. It
has long been the rule . . . that a bona fide belief, even though mistakenly
held, that one has a right or claim to the property negates felonious
intent. [Citations.] A belief that the property taken belongs to
the taker [citations], or that he [or she] had a right to retake goods sold
[citation] is sufficient to preclude felonious intent. Felonious intent exists
only if the actor intends to
take the property of another without believing in good faith that he [or she]
has a right or claim to it." ' "
(Id. at p. 943.)
"[A]
good faith belief by a defendant, tried as an accomplice, that he was assisting
his coprincipal retake the principal's property negates the 'felonious intent'
element of both larceny and robbery, and that an instruction on the
claim-of-right defense must be given where substantial evidence supports such a
belief." (People v. Williams (2009) 176 Cal.App.4th 1521, 1528-1529 (
CALCRIM No. 1863 is a standard jury
instruction that delineates the claim-of-right defense. That instruction provides in relevant part:
"If the defendant obtained
property under a claim of right, (he/she) did not have the intent required for
the crime of (theft/ [or] robbery).
"The defendant obtained
property under a claim of right if (he/she) believed in good faith that
(he/she) had a right to the specific property or a specific amount of money,
and (he/she) openly took it."
A trial court must instruct the
jury sua sponte on a claim-of-right defense "if there is substantial evidence
that supports the defense and the defense is not inconsistent with the
defendant's theory of the case." (
review to a defendant's claim that the trial court erred in failing to instruct
the jury sua sponte on the affirmative defense of claim-of-right. (See id.
at p. 1424.)
b.
Application
Reed
contends that the trial court was required to instruct the jury on the defense
of claim-of-right because the record contains substantial evidence that Hayes's
and Reed's intent in entering the victim's residence was to retrieve Hayes's
birth certificate from the victim. Even
assuming that
| Description | In October 2009, the People charged Brandon Allen Hayes and Jeffrey Carl Reed with several offenses related to the May 16, 2009 murder of Hayes's grandmother, Eunice Cothron. The People charged Hayes and Reed with murder (Pen. Code, § 187, subd. (a))[1] (count 1), first degree robbery (§§ 211, 212.5) (count 2), first degree burglary (§§ 459, 460) (count 3), and carjacking (§ 215, subd. (a)) (count 4). As to count 1, with respect to each defendant, the People alleged two special circumstances, namely that the murder occurred during the commission of a robbery (§ 190.2, subd. (a)(17)), and during the commission of a burglary (§ 190.2, subd. (a)(17)). In addition, as to counts 1, 2, 3, and 4, the People alleged that Hayes personally used a deadly weapon, within the meaning of section 12022, subdivision (b)(1). The information also alleged that on or about April 11, 2009, Hayes had unlawfully taken and driven Cothron's vehicle (Veh. Code, § 10851, subd. (a)) (count 6). Finally, the information alleged that Hayes had served two prior prison terms within the meaning of sections 667.5, subdivision (b) and 668, and that Reed had suffered a prior serious felony conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)), and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12.) |
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