P. v. Howell















Filed 3/26/13 P. v. Howell CA2/26











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.



IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE
DISTRICT



DIVISION SIX




>

THE PEOPLE, Plaintiff and Respondent, v. KENNETH HOWELL, Defendant and Appellant.

2d Crim. No. B237884 (Super. Ct. No. MA046867) (Los Angeles County)

Kenneth
David Howell appeals from the judgment entered after his conviction by a jury
of first degree murder (Pen. Code,
§§ 187, subd. (a), 189),href="#_ftn1"
name="_ftnref1" title="">[1]
two counts of aggravated sexual assault upon a child (§ 269, subds. (a)(4)
& (a)(5)), and two counts of lewd act on a child by use of force. (§ 288. subd. (b)(1). Appellant admitted that he had served one
prior prison term. (§ 667.5, subd.
(b).) He was sentenced to prison for an
indeterminate term of 55 years to life plus a consecutive determinate term of
17 years.

Appellant
contends that the prosecutor improperly used his post-arrest silence to impeach
him. He also contends that (1) the trial
court erroneously instructed the jury, and (2) defense counsel was ineffective
because she failed to object to some instructions and failed to request other
instructions. We affirm. However, we direct the trial court to correct
an omission in the abstract of judgment.




>Facts

People's
Evidence

In
the evening on August 23, 2009,
appellant and his wife, T., argued inside their bedroom. H. exited the bedroom and walked into the
kitchen to get something to drink. H.'s
15-year-old son, J. P., asked her if she was okay. She replied that she was okay and walked back
into the bedroom. Before J.P. went to
sleep in the living room, he heard T. yell to him to " 'please help.'
" He did not intervene because he
was scared of appellant. Appellant
"used to beat [him]."

That
night, appellant forced T.'s daughter, S, to have sex with him. S was 13 years old, and appellant was not her
biological father. (3RT 942, 944)~
While S. was sleeping in the living room, appellant picked her up and carried
her into her mother's bedroom. T. was
lying on the bed with a blanket covering her head. She was not moving or making any sounds. Appellant placed S. on the bed next to her
mother. Appellant kissed S. on the neck
and mouth and touched her breasts. He
removed his and S.'s clothing. Appellant
placed his mouth on S.'s vaginal area.
Appellant then "put [her] legs on his shoulders." S. felt "something go inside [her]
vagina." It was painful, and she
started to cry. Appellant said that
"if [she] didn't stop crying, he was going to duct tape [her] head
next." Appellant was on top of S.,
moving his body back and forth.

J.P.
awoke at noon. He tried to open the door
to his mother's bedroom, but "there was this chair in the way, which
prevented [him] from opening it."
Appellant, who was inside the bedroom, asked J.P. what he wanted. J.P. replied that he was looking for S. Appellant said that S. was with him. J.P. went back into the living room.

Appellant
eventually exited the bedroom. He had a
"big grin on his face" and "pushed [J.P.] out of the
way." Appellant went into the
garage and drove away.

J.P.
entered his mother's bedroom. T. was
lying in bed on her stomach "with her hands tied behind her back with duct
tape." A plastic bag completely
covered her head. The bag was secured
with duct tape "from her neck to the top of her head." S. "was at the edge of the bed on her
knees, crying."

T. was dead. The forensic pathologist who performed an
autopsy opined that she had "died as a result of asphyxia, which is the
lack of oxygen due to suffocation."
The suffocation was caused by the plastic bag over her head.

Defense
Evidence

Appellant
testified as follows: On August 23, 2009, he and T. got into an argument about
buying a car. T. wanted to buy the car,
but appellant did not want to buy it.
The argument ended, and the couple made up. Appellant took drugs and had sex with T. He "wanted to get high some more,"
but T. was "complaining and nagging" that he should take a shower and
get ready for work. Appellant put his
arm around T.'s neck "to put her to sleep." When her body went "limp," he
"laid her down [on] the bed."
His "intent was just to put her to sleep for a while so [he could]
continue and use more drugs." He
duct-taped her hands behind her back so that she would be unable "to stop
[him] from doing more drugs."
Appellant then went into the bathroom, where he smoked and injected
methamphetamine. When he exited the
bathroom, T. was dead. Appellant put a
plastic bag over her head because he could not bear to look at her face. He put some duct tape around the bag to hold
it in place.

Appellant
denied having sex with S. He testified
that she was not inside the bedroom with him.

The
defense retained a forensic
pathologist to review the autopsy report and photographs. He opined that the cause of death was
"consistent with a carotid compression," which occurs when a person
uses his forearm to compress the carotid artery in the neck of another
person. Peace officers occasionally use
this technique to subdue an arrestee.
"[Y]ou block blood flow into the head and into the brain without
blocking the airway. And the purpose of
that is to render the person rapidly unconscious so they can be controlled or
handcuffed." If the compression
completely obstructs the carotid artery for approximately one minute, the
person will die "unless they get defibrillated."

>Impeachment of Appellant by Post-Arrest
Silence

After
appellant had testified as to his version of events, on cross-examination the
prosecutor asked, "The first that we hear this version as to what happened
from you is today; correct?"
Appellant answered, "Yes, Ma'am." Appellant contends that the prosecutor used
his post-arrest silence to impeach him in violation of the principles of >Doyle v. Ohio (1976) 426 U.S. 610 [96
S.Ct. 2240, 49 L.Ed.2d
91]. "In
Doyle, the United States Supreme Court held that it was a violation of href="http://www.fearnotlaw.com/">due process and fundamental fairness to
use a defendant's postarrest silence following Miranda warnings[href="#_ftn2" name="_ftnref2" title="">[2]] to impeach the defendant's trial
testimony. [Citation.]" (People
v. Collins (2010) 49 Cal.4th 175, 203.)

Appellant "did not object on Doyle
grounds below, and thus has forfeited this claim." (People
v. Tate (2010) 49 Cal.4th 635, 692.)
But appellant argues that defense counsel's failure to object denied him
his constitutional right to the effective
assistance counsel. The standard for
evaluating a claim of ineffective counsel is set forth in Strickland v.
Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674]:
"First, [appellant] must show that counsel's performance was deficient. .
. . Second, [appellant] must show that
the deficient performance prejudiced the defense."

Appellant has not shown that counsel was
deficient. Doyle error occurs only when the prosecutor impeaches "a
defendant's exculpatory trial name="citeas((Cite_as:_49_Cal.4th_635,_*692,_2">testimony with
cross-examination about his or her postarrest silence after receiving Miranda
warnings. [Citation.]" (People
v. Tate, supra, 49 Cal.4th at pp.
691-692.) The record is devoid of any
evidence that appellant was given Miranda
warnings. Appellant concedes that
"there is no mention in the record of appellant specifically being advised
of his Miranda rights." But he argues that it must be assumed he was
so advised because "[s]uch advisements are mandated." We disagree.
"A defendant who is never questioned need not be Mirandized . . .
." (People v. Delgado (1992) 10 Cal.App.4th 1837, 1843.) Appellant has not referred us to any evidence
in the record showing that he was questioned by law enforcement officials. Thus, "we have no basis whatsoever to
assume that [appellant] was given his [Miranda]
rights." (Ibid.)
"Because there was no sound legal basis for objection, counsel's failure
to object to the admission of the evidence cannot establish ineffective assistance." (People
v. Cudjo (1993) 6 Cal.4th 585, 616.)

>Limiting
Instruction for Fresh-Complaint Evidence

Pursuant
to the fresh-complaint doctrine, the trial court permitted the prosecutor to
present evidence that, several days after appellant's sexual assault, S.
complained about it to law enforcement officials. "[T]he trial court upon request must
instruct the jury to consider such evidence only for the purpose of
establishing that a complaint was made, so as to dispel any erroneous inference
that the victim was silent, but not as proof of the truth of the content of the
victim's statement.
[Citations.]" (>People v. Brown (1994) 8 Cal.4th 746,
757.) Appellant contends that his
counsel was ineffective because she failed to request a limiting instruction.

To
establish deficient performance by counsel, "the defendant must show that
counsel's representation fell below an objective standard of
reasonableness." (Strickland v.
Washington, supra, 466 U.S. at p.
688.) Appellant has failed to make the
requisite showing. A reasonable attorney
could have concluded that a limiting instruction would be detrimental to
appellant because it would highlight the fresh-complaint evidence. (See People v. Hinton (2006) 37
Cal.4th 839, 878 ["Defendant also complains that counsel's failure to
request a limiting instruction concerning his prior murder conviction
demonstrated ineffective assistance, but counsel may have deemed it unwise to
call further attention to it"]; People v. Ferraez (2003) 112
Cal.App.4th 925, 934 ["the decision not to request [a limiting
instruction] was a reasonable tactical choice by defense counsel to avoid
directing the jury to focus on the evidence . . . ."].)

>CALCRIM No. 318

Appellant maintains that the trial
court erred in giving CALCRIM No. 318, which provided: "You have heard
evidence of statements that a witness made before the trial. If you decide that the witness made those
statements, you may use those statements in two ways: [¶] 1. To evaluate
whether the witness's testimony in court is believable; [¶]
AND [¶] 2. >As evidence that the information in those
earlier statements is true."
(Italics added.) The Bench Notes
to CALCRIM No. 318 state that it should be used "when a
testifying witness has been confronted with a prior inconsistent
statement." (1
Judicial Council of Cal., Crim. Jury Instns. (2012)name="SR;12842"> p. 96.) Appellant argues that the italicized portion
of the instruction wrongly informed "the jury that they >could in fact consider [S.'s
fresh-complaint evidence] as proof of the alleged misconduct." (Bold and capitalization omitted.)

The evidence supported the giving of
CALCRIM No. 318 because S. had made prior inconsistent statements to Sergeant
Kenneth Clark and a social worker. In
his opening brief, appellant acknowledges that S. "gave inconsistent
accounts" of the incident. On the
same day that her mother was killed, S. told Clark that she "went to her
parents' bedroom around sunrise," "got into bed with her mother and
father," and "slept there."
S. did not say that appellant had carried her into the bedroom and had
sexually assaulted her. She explained
that she had not disclosed this information to Clark because she was
embarrassed and scared of appellant.

On
the same day that S. spoke to Clark, she told a social worker that she was in
her own bedroom when she heard appellant leave the house. At that point, she went into her mother's
bedroom and found her mother dead on the bed.
S. mentioned nothing about appellant's sexual assault. Two days later, S. told the social worker
that appellant had "just touch[ed] her on the surface." At trial, on the other hand, S. testified
that she felt "something go inside [her] vagina" when appellant was
on top of her.

Appellant
is in effect contending that the trial court should have modified the
instruction sua sponte to make clear that it did not apply to S.'s
fresh-complaint evidence. The contention
is forfeited because defense counsel did not object below. "[D]efendant is not entitled to remain
mute at trial and scream foul on appeal for the court's failure to expand,
modify, and refine standardized jury instructions." (People
v. Daya (1994) 29 Cal.App.4th 697, 714.)


We
reject appellant's contention that defense counsel was deficient because she
failed to object. As discussed in the
preceding section of this opinion, counsel may have had good reason for not
wanting to highlight the fresh-complaint evidence.

>No Duty to Instruct
Sua Sponte on Voluntary Manslaughter

Appellant argues that the trial
court had a duty to instruct sua sponte on the lesser included offense of
voluntary manslaughter. Appellant
"submits there was sufficient evidence to warrant sua sponte voluntary
manslaughter instructions predicated on either an unintentional killing
committed with conscious disregard for human life upon a sudden quarrel or in
the heat of passion or an intentional
killing committed under such circumstances."

"
'[T]he factor which distinguishes the "heat of passion" form of
voluntary manslaughter from murder is provocation. The provocation which incites the defendant
to homicidal conduct in the heat of passion must be caused by the victim
[citation], or be conduct reasonably believed by the defendant to have been
engaged in by the victim. [Citations]. The provocative conduct by the victim . . .
must be sufficiently provocative that it would cause an ordinary person of
average disposition to act rashly or without due deliberation and
reflection. [Citations.]" (People
v. Manriquez (2005) 37 Cal.4th 547, 583-584.)

"[A]
trial court errs if it fails to instruct, sua
sponte, on all theories of a lesser included offense which find substantial
support in the evidence. On the other
hand, the court is not obliged to instruct on theories that have no such
evidentiary support. Accordingly, we . .
. consider whether there was substantial evidence in this case to support a
verdict of manslaughter based on heat of passion. In our view, [no] such evidence existed
here." (People v. Breverman (1998) 19 Cal.4th 142, 162.) According to appellant, he applied pressure
to T.'s carotid artery because she was "complaining and
nagging" that he should stop taking drugs and get ready for work. T.'s conduct was not "sufficiently
provocative that it would cause an ordinary person of average disposition to
act rashly or without due deliberation and reflection. [Citations.]" (People
v. Manriquez, supra, 37 Cal.4th
583-584.)

Furthermore,
appellant's "testimony contained no indication that [his] actions
reflected any sign of heat of passion . . . .
There was no showing that [he] exhibited anger, fury, or rage; thus,
there was no evidence that defendant 'actually, subjectively, kill[ed] under
the heat of passion.'
[Citation.]" name="sp_7047_373">(Ibid.) (>People v. Manriquez, >supra, 37 Cal.4th at p. 585.) Appellant testified that the argument about
the car had ended and he and T. had "ma[d]e up." Appellant continued: "We weren't even
arguing in the bedroom." "[M]y
mind was just focused on I want to do more drugs." "

In
any event, "[b]y finding [appellant] was guilty of first degree murder,
the jury necessarily found [appellant] premeditated and deliberated the
killing. This state of mind, involving
planning and deliberate action, is manifestly inconsistent with having acted
under the heat of passion . . . and clearly demonstrates that [appellant] was
not prejudiced by the failure" to instruct sua sponte on voluntary
manslaughter. (People v. Wharton (1991) 53 Cal.3d 522, 572.)

>Counsel's Failure
to Request CALCRIM No. 522

>and an Instruction
on Voluntary Manslaughter

CALCRIM
No. 522 provides: "Provocation may reduce a murder from first degree to
second degree [and may reduce a murder to manslaughter]. The weight and significance of the
provocation, if any, are for you to decide.
[¶] If you conclude that the defendant committed murder but
was provoked, consider the provocation in deciding whether the crime was first
or second degree murder. [Also consider
the provocation in deciding whether the defendant committed murder or
manslaughter.]" CALCRIM No. 522
"is a pinpoint instruction that need not be given on the court's own
motion." (People v. Rogers (2006) 39 Cal.4th 826, 880.) Appellant claims that his counsel was
ineffective for failing to request this instruction as well as an instruction
on voluntary manslaughter.

Counsel's
performance was not deficient because, as explained above, the evidence does
not support a theory of provocation.
Moreover, as a matter of trial tactics, a reasonably competent attorney
could have decided not to request the instructions because they were
inconsistent with the defense theory. As
counsel explained in closing argument, the defense theory was that appellant
was guilty of involuntary manslaughter because he had no intent to kill T. This theory was based on appellant's
testimony that he had intended "just to put her to sleep for a while so [he could]
continue and use more drugs." "
' "Reviewing courts defer to counsel's reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation] . . . ."
' " (People v. Jones (2003) 29 Cal.4th 1229, 1254.) In any event, appellant has failed to
establish the requisite prejudice because he has not shown "that there is
a reasonable probability that, but for counsel's [allegedly] unprofessional
errors, the result of the proceeding would have been different." (Strickland v. Washington, >supra, 466 U.S. at p. 694.)

>Abstract of
Judgment

Neither party has directed this
court's attention to an omission in the abstract of judgment. Both parties agree that, as to the
indeterminate term, appellant was sentenced to 25 years to life for first
degree murder (count 1) plus a consecutive term of 15 years to life for each of
the two counts of aggravated sexual assault upon a child (counts 2 and 3). Thus, the total indeterminate term is 55
years to life. The abstract of judgment
does not show that the indeterminate terms on counts 2 and 3 are consecutive to
the indeterminate term on count 1.

>Disposition

The judgment is
affirmed. The trial court is directed to
amend the abstract of judgment to show that each indeterminate term of 15 years
to life for the two counts of aggravated sexual assault upon a child (counts 2
and 3) shall run consecutively to the indeterminate term of 25 years to life for
first degree murder (count 1). The court
is further directed to transmit a certified copy of the amended abstract of
judgment to the Department of Corrections
and Rehabilitation.

NOT TO BE PUBLISHED.







YEGAN,
J.





We
concur:







GILBERT, P.J.







PERREN, J.





Lisa
M.Chung, Judge



Superior
Court County of Los Angeles



______________________________





Edward H. Schulman,
under appointment by the Court of Appeal, for Defendant and Appellant.



Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Pamela C. Hamanaka, Deputy Attorney General, for Plaintiff
and Respondent.