P. v. Davis

Filed 8/8/08 P. v. Davis CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed.

After jury trial on charges of three counts of murder (Pen. Code,^[1]187, subd. (a)) with the personal use of a dangerous weapon, a knife ( 12022,subd. (b)(1)), and a multiple murder special circumstances allegation ( 190.2, subd. (a)(3)), Charles Bernard Davis was found guilty of three counts of second degree murder and the weapon use allegations were found true. The trial court sentenced Davis to prison for a total term of 48 years to life, consisting of three consecutive indeterminate 15-year-to-life terms for the murders plus three consecutive one-year determinate terms for the enhancements.

Davis appeals, contending CALCRIM No. 355 misstates the law regarding a nontestifying defendant, and his convictions should be reduced to voluntary manslaughter based on imperfect self-defense because the prosecutor failed to prove he did not believe he needed to defend himself. We affirm.

FACTUAL SUMMARY

As Davis does not challenge the sufficiency of the evidence, we summarize the facts presented at trial as background for our discussion of Davis's contentions on appeal. Those facts show that on May 12, 2006, at around 3:41 a.m. the police were called by Davis's daughter and a neighbor to come to an apartment complex in Oceanside, where they discovered Dana Beckmeyer, along with two men, Adrian Vanengelen and Bruce Carriker, all dead in her small apartment. The police found Beckmeyer in the kitchen area with four stab wounds to her left shoulder and chest, Vanengelen slumped over in the living room between the coffee table and the couch with at least nine stab wounds in his left chest shoulder area and back, and Carriker in the bathroom with six stab wounds.

At about 6:50 a.m. that morning while police were investigating the matter, Davis's daughter approached an officer outside Beckmeyer's apartment and handed him her cell phone, telling him Davis was on the phone. Davis told the officer that he was "the guy you're looking for" and that he wanted the police to come get him.

Davis was subsequently taken into custody and questioned by police over the next several days. He explained how he came from the east coast three months earlier to live with his daughter in Oceanside and then moved in with Beckmeyer three weeks before the incident after conflicts with his daughter about her lifestyle and his relationship with Beckmeyer. Davis then made statements to the police about the events before and after the incident, which he initially claimed he did not remember. That evening Beckmeyer had two male friends over and they were all drinking and watching television. At some point she told Davis that she and the two men were going to get some drugs to smoke and asked him to go sleep in her car. Davis could not remember what happened between being out in Beckmeyer's car and walking in an unknown area before calling his daughter and speaking to the police.

After further questioning, Davis, who had drank four or five glasses of vodka earlier that evening, said he recalled getting out of the car and going back into the apartment to ask Beckmeyer what he had done and to get a blanket. There was no arguing or yelling, he "just kind of lost it . . . just kind of blanked out." He did not know what happened after Beckmeyer told him she just wanted him to leave and he heard "[o]ne of the guys [say] something" as he started to do so. He just remembered "walking down the damn street."

As the questioning proceeded, Davis remembered he had gone to his daughter's apartment and obtained her phone number after being sent out to Beckmeyer's car the second time and then he punctured one of the tires on Beckmeyer's car. Although Davis said he did not remember "doing any violence to nobody" or "stabbing nobody," he thought he had hurt someone because there was blood on his pants. His daughter had also told him that he had stabbed some people. Davis said that if he had done so the police should just "lock [his] ass up and . . . give him a lethal injection." He continued to profess that he did not remember the details of any stabbing.

At trial, Davis's statements during his first several interviews, which were videotaped, were shown to the jury.^[2] In the course of presenting their case, the prosecution also called witnesses who had seen Davis the evening before the killings and several that he had seen or talked to afterward. One neighbor of Beckmeyer's had visited her apartment at around 7:30 to 8:00 p.m. on May 11, 2006, while Beckmeyer was making dinner. At that time, there were other men in the apartment and Davis was drinking vodka, saying he was getting drunk.

Several friends of Davis's daughter, Quentin Howell and Randell Murphy, who lived in nearby apartments, testified that on the night of the crimes, Davis and his daughter came to their apartment complex with two other people. Davis's daughter was crying and looked shocked as Davis admitted to Howell and Murphy that he had "killed three motherfuckers." According to Howell, Davis, who appeared intoxicated and "fucked up," said he stabbed them but "didn't go into detail." Davis told Murphy that the three people were "talking bad about his daughter and . . . him,"^[3]and they were acting like they were "going to jump him or something [but he] got them first. . . ." To Murphy, Davis appeared to be happy when he discussed the incident. Murphy then saw Davis take off a jacket and shoes that had blood on them, walk to a dumpster and return without them and put on some other shoes. After telling Murphy that he was going to run away, Davis left the apartment complex with his daughter in her car.

The neighbor who, along with Davis's daughter, had initially called police to report the murders, testified that at around 3:30 a.m. on May 12, 2006, he had been awakened by Davis's daughter calling to say she needed help. He then went with her to Beckmeyer's apartment next door to his, climbed in through a window and discovered the bodies inside. He was the person who talked with the police dispatcher after Davis's daughter dialed 911.

Davis's father testified that Davis had called him in Colorado around 1:00 a.m. on the night of the incident, saying he believed he had killed three people and he needed money. His father told Davis to turn himself in.

Blood evidence at the crime scene revealed that the victims had all died where they had been stabbed. No blood was found in Beckmeyer's or Davis's daughter's cars. Blood tested on a jacket and shoe found in a dumpster near the apartment complex matched that of Beckmeyer and Vanengelen. "Wearer DNA" from the shoe matched Davis. The blood on the clothes Davis was wearing when he was arrested also matched the DNA profiles of the three murder victims. Testing also revealed that both Beckmeyer and Vanengelen had methamphetamine in their blood at the time of death and that all three victims had measurable amounts of alcohol in their blood. Davis's blood alcohol level was .01 percent at approximately 9:30 a.m. on May 12, 2006.

In addition to calling several witnesses who testified about Davis's daughter's wild lifestyle and conflicts with Beckmeyer, the defense presented the testimony of a forensic scientist who had conducted a crime scene analysis and opined that the lack of cleanup evidence after the killings combined with the lack of bloody finger or shoe prints indicated the crime scene was "staged."

In closing, the prosecutor advanced the theory that Davis had killed Beckmeyer, Vanengelen and Carriker out of jealousy because Beckmeyer, with whom he had a romantic relationship, kicked him out of the apartment he shared with her so she could do drugs and be intimate with other men. The defense claimed that Davis in his drunken state could not have possibly committed the murders, that the evidence pointed to the crime scene being staged, and that Davis's daughter and her friends, upset with Davis's situation, "decided to do something about the . . . Beckmeyer problem." Essentially the defense argued that Davis, as his interview with the police revealed, really did not remember the details of the stabbings because he did not do it and was basically covering for his daughter who had a long running feud with Beckmeyer. The jury rejected Davis's arguments he did not commit the stabbings, finding he was guilty of second degree murder as to each victim.

DISCUSSION

I

CALCRIM NO. 355

Before closing arguments, the trial court instructed the jury under CALCRIM No. 355 that "[a] defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way."

On appeal, Davis claims the giving of CALCRIM No. 355 mandates reversal of the judgment in this case because it misstates the law, lessening the prosecution's burden of proof because it "effectively tells the jury a defendant who does not testify has strengthened the prosecutor's case against him and must mount an argument to overcome the fact that he did not testify." Although Davis recognizes that two fairly recent decisions, People v. Ibarra (2007) 156 Cal.App.4th 1174, 1191-1192 (Ibarra) and People v. Anderson (2007) 152 Cal.App.4th 919, 941 (Anderson), each rejected related constitutional challenges to CALCRIM No. 355, he asserts those cases did not address the exact issue he is raising, which is that the language of CALCRIM No. 355 "creates a situation calling for more than just relying on the state of the evidence and the constitutional burden of proof. If the defense does not mount an argument, the prosecutor is that much closer to 'proving' his case." In other words, Davis contends that CALCRIM No. 355 lessens the prosecutor's burden of proof by "placing too much weight on the defense argument."

As additional support for his position, Davis compares the language of CALCRIM No. 355 with that contained in CALJIC Nos. 2.60^[4]and 2.61^[5]which generally were given in past criminal trials where a defendant did not testify. He argues that because CALCRIM No. 355 does not include language similar to that in CALJIC No. 2.61 regarding the burden of proof not being affected by a nontestifying defendant, it necessarily suggests that lack of a defendant's testimony "will require argument that the prosecutor failed to prove his case."

We fail to see much difference in Davis's attacks on CALCRIM No. 355 and that made by the defendant in Ibarra, supra, 156 Cal.App.4th at pages 1191-1192. The defendant in Ibarra focused his challenge on the same language Davis has challenged here, arguing that " 'it [was] not up to him to prove he [was] not guilty.' " (Id. at p. 1191.) Although the defendant in Ibarra presented a slightly different issue than Davis, going to the ultimate inquiry of whether CALCRIM No. 355 imposed a duty on a defendant to present a defense, the court's reasoning in resolving the matter necessarily also resolved any question of whether the instruction changed the prosecution's burden of proof and is therefore dispositive of Davis's claim. (Ibarra, supra, 156 Cal.App.4th at pp. 1191-1192.)

In sum, CALCRIM No. 355 does not change the prosecution's burden of proof in any manner as claimed by Davis. The trial court therefore did not err or deny Davis's due process or fair trial rights by giving the instruction.

II

NO REDUCTION TO VOLUNTARY MANSLAUGHTER

BASED ON IMPERFECT SELF-DEFENSE

During jury instruction discussions, the court noted that there was sufficient evidence to give CALCRIM No. 570 on the lesser included offense of voluntary manslaughter heat of passion and would give that instruction even though the defense did not think the evidence to give the instruction was credible. The court then commented that even though it really did not think there was evidence to support a theory of voluntary manslaughter under an imperfect self-defense theory, it would consider giving CALCRIM No. 571 because the defense was specifically requesting it should the court rule it would give CALCRIM No. 570. After the prosecutor pointed out that there was some evidence in the record that Davis "thought he was going to get jumped and he jumped them first," that would support the giving of the instruction, the trial judge stated:

"All right. Even though the evidence is small for the giving of this instruction, I think there's at least some basis for it. And since the defense is specifically requesting it be given, in light of the fact the Court's giving [CALCRIM] 570, I will give [CALCRIM] 571 as well."

On appeal, Davis contends his murder convictions should be reduced to voluntary manslaughter based on imperfect self-defense because the prosecutor failed to prove he did not believe he needed to defend himself. Davis argues that once the evidence was presented supporting the instruction on imperfect self-defense and such instruction was given the jury, "the prosecution had a due process requirement, in order to secure murder convictions, to prove beyond a reasonable doubt [he] did not believe he needed to defend himself."

On this record, we decline to engage in a lengthy discussion of the theory of imperfect self-defense, Davis's numerous arguments about his belief in needing to defend himself and whether the evidence is thus insufficient to support the second degree murder verdicts.^[6] As the record clearly reveals, Davis's counsel argued in closing that the incident about someone coming at Davis in the living room of Beckmeyer's apartment, "didn't happen." Davis simply did not rely on the theory of imperfect self-defense in this case. Rather, Davis's defense was that he was not in the apartment at the time the victims were stabbed and that someone else committed the triple murders. Essentially, Davis's counsel argued that Davis's daughter's friends were not telling the truth when they testified about what Davis said after the stabbings at their apartment complex. A reasonable jury listening to defense argument could have thus easily rejected a theory of imperfect self-defense centered on what appellate counsel now claims the prosecutor was required to prove.

Moreover, the fact that a jury is given instructions on any theory does not necessarily mean that that instruction is applicable in any particular case. As CALCRIM No. 200 given the jury in this case states in pertinent part: "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." We presume the jury considered this instruction along with the other instructions on the murder charges and lesser included offenses in its deliberations. Based on the fact that the defense was not claiming that Davis had any actual belief in the need for self-defense or any fears of immediate harm that needed to be instantly dealt with, the jury could have reasonably concluded that the instructions on voluntary manslaughter based on imperfect self-defense were not applicable to the facts in this case.

We conclude Davis has failed to show any legal ground for the reduction of his second degree murder convictions to voluntary manslaughter based on imperfect self-defense.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] A large portion of Davis's postarrest statements were suppressed because they were made after he had made several requests for an attorney and were not admitted in the prosecution case.

^[3] Davis used the word "stunting," which Murphy explained means "trying to act like you better . . . you talk down on somebody."

^[4] CALJIC No. 2.60 provides that "[a] defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way."

^[5] CALJIC No. 2.61 provides that "[i]n deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on the defendant's part will make up for a failure of proof by the People so as to support a finding against him on any essential element."

^[6] As noted earlier, Davis does not directly challenge the sufficiency of the evidence to support his convictions, only indirectly via the giving of the lesser included offense instruction based on imperfect self-defense.