Summary
finding § 1170.1, subd. (f) "prevents execution of sentences for multiple [weapon] enhancements [in the commission of a single offense], but not the procedure of imposing but staying all but the greatest enhancement falling within the statute"
Summary of this case from People v. PonceOpinion
No. B178046.
January 25, 2006. [ CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are identified as those portions between double brackets, e.g., [[/]].
Appeal from the Superior Court of San Luis Obispo County, No. F350519, John A. Trice, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Sharon E. Loughner, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Clinton Duane Crites appeals the judgment after his conviction for first degree murder (Pen. Code, §§ 187, subd. (a), 189). Among other enhancement findings, the jury made true findings on separate allegations that Crites had personally used two deadly or dangerous weapons in the commission of the murder. (§ 12022, subd. (b)(1).) Crites contends there was insufficient evidence of premeditation and deliberation to support a first degree murder conviction. He also claims that the trial court erred in denying his Marsden motion and in staying, rather than striking, one of the two section 12022, subdivision (b)(1) enhancements. We hold that the trial court properly imposed a one-year section 12022, subdivision (b) enhancement for use of one deadly weapon and imposed, but stayed, an additional enhancement under the same statute for use of a second weapon. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156, 465 P.2d 44].
FACTS
In July and August 2003, appellant's wife Christy Crites was living in the apartment of victim Douglas Okashima. Crites and his wife had separated but he continued to visit her and their children at Okashima's apartment. Mrs. Crites moved out of the apartment in late August or early September 2003.
Crites believed that his wife was having an affair with Okashima and, in statements to friends, threatened to kill Okashima for having the affair. In September 2003, Crites told one friend that he "might have to fuck . . . up" the man his wife was staying with. About a week before the murder, he told another friend he was going to "smash" the person who was sleeping with his wife. Mrs. Crites also told the police that Crites had said "Doug's gonna get his" prior to the murder.
During the night of September 17, 2003, Crites drove to Okashima's apartment and killed him. Okashima died of multiple stab wounds to the head, and multiple skull fractures inflicted when he was kicked by Crites, who was wearing steel-toed boots. Crites had bought the boots a week before the murder.
On September 18, 2003, after the murder, Crites told a third friend or acquaintance that he had "smashed someone." Crites also returned to Okashima's apartment for the purpose of cleaning up evidence of the crime, retrieving and disposing of the knife used in the killing, and moving Okashima's body to another location. Crites placed the body in a blue recycling bin or dumpster that was kept in the alley between a restaurant and Okashima's apartment. A still photograph from the restaurant's surveillance cameras shows that the recycling bin was in the alley at 5:22 a.m. on September 18, but another photograph showed that it had disappeared three hours later. The second photograph showed Crites climbing over the fence with something in his hands.
Crites later loaded the recycling bin containing Okashima's body onto a truck and drove the bin to the location where it was found by the police. Crites threw the knife and steel-toed boots into the ocean.
Okashima was reported to the police as missing on September 19, 2003. That evening, the police found the dumpster and Okashima's body.
Crites testified on his own behalf at trial. He testified that he drove to Okashima's apartment to collect some of his wife's belongings that she had left at the apartment when she moved out. Crites testified that when he returned to the apartment a second time to finish picking up his wife's belongings, he was greeted by an angry Okashima. After a hostile exchange of words, Okashima attacked Crites with a kitchen knife. Okashima was cut during the struggle over the knife. The knife broke when both men fell to the floor. Crites testified that he got up and kicked Okashima in the head with his steel-toed boots when Okashima grasped his leg as Crites tried to leave. Crites admitted that he may have continued to kick Okashima after he was released from Okashima's grasp. Crites considered calling an ambulance but, instead, ran from the apartment. He admitted that he returned to the apartment shortly thereafter to retrieve the knife and some of his family's property, and to clean up the apartment.
DISCUSSION [[/]]
See footnote, ante, page 1251.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ( People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Johnson (1980) 26 Cal.3d 557, 578.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. ( People v. Jones (1990) 51 Cal.3d 294, 314.) We will uphold a judgment whenever the evidence reasonably supports the jury finding even if the circumstances could be reconciled with a contrary finding. ( People v. Stanley (1995) 10 Cal.4th 764, 792-793; see also Bolin, supra, at p. 331.) "Substantial evidence includes circumstantial evidence and the reasonable inferences flowing from it." ( People v. Vang (2001) 87 Cal.App.4th 554, 563.) Crites relies on People v. Anderson (1968) 70 Cal.2d 15, 26-27, which directs courts to consider three categories of evidence in determining the existence of premeditation and deliberation: Conduct before the killing consistent with an intent to kill that may be characterized as "planning activity," conduct from which the jury could infer a motive, and facts regarding the manner of the killing from which the jury could infer a preconceived intent to kill. These categories are useful, but only guidelines that need not be present in a special combination or accorded special weight. ( People v. Bolin, supra, 18 Cal.4th at pp. 331-332; People v. Pride (1992) 3 Cal.4th 195, 247.) Premeditation and deliberation can occur in a brief interval rather than over an extended period of time. Thoughts may follow each other with great rapidity and a cold, calculated judgment may be arrived at quickly. (E.g., Bolin, supra, at pp. 331-332; People v. Memro (1995) 11 Cal.4th 786, 863.) Any substantial evidence permitting a reasonable inference that the killing resulted from preexisting reflection as opposed to an unconsidered or rash impulse will support a finding of premeditation and deliberation. ( Bolin, supra, at pp. 331-332; Pride, supra, at p. 247.) Crites argues that there was insufficient evidence of planning because the knife used to kill Okashima was not brought to the scene by Crites and because steel-toed boots were his everyday footwear. Even if these factual assertions are given credit, substantial evidence supports the inference that Crites formulated his action over a significant period of time. Evidence shows that he believed his wife was having an affair with Okashima, and he made statements to friends that he was going to "smash" Okashima. Crites' post-killing statement that he had "smashed" Okashima also provides insight into his thought processes before the killing. ( People v. Mayfield (1997) 14 Cal.4th 668, 768.) This evidence reasonably permits the inference that Crites reflected on his action in the days before the killing, communicated his intent to kill to others, and went to Okashima's home after having made a decision to kill. Crites argues that he had a "stale" motive because Mrs. Crites moved out of Okashima's apartment before the killing, signaling the end of her affair with Okashima. The record does not establish that Crites believed the affair ended when Mrs. Crites moved out of Okashima's apartment and, in any case, Mrs. Crites moved out only a matter of days or at most a few weeks before the murder. No evidence in the record compels a reasonable jury to conclude that Crites' anger had abated or his threats against Okashima had been abandoned because the affair ended shortly before the murder. To the contrary, it is more than reasonable for the jury to conclude that Crites' anger over the affair remained paramount in his mind at the time of the killing. Crites argues that there was insufficient evidence of an "exacting manner of killing" because the evidence shows that he stabbed and kicked Okashima numerous times and in a random and indiscriminate fashion. Forensic evidence, however, shows that most of the blows targeted Okashima's head and neck. He stabbed Okashima three times in the neck and face, and kicked Okashima multiple times in the head with his steel-toed boots. A severe beating around the head inflicted with great force and with deadly weapons suggests Crites intended to make certain that Okashima died. A reasonable jury could infer that the manner of killing was consistent with a deliberate decision to kill. Moreover, although a brutal killing may be as consistent with a rash impulse as with a calculated murder, we are not required to determine whether there is sufficient evidence of premeditation and deliberation based solely on the method of killing. Here, the record includes evidence that Crites formulated an intent and plan to kill Okashima, had a strong motive for murder, and killed in a manner that was consistent with a deliberate attack. (See People v. Alcala (1984) 36 Cal.3d 604, 627, overruled on other grounds in People v. Falsetta (1999) 21 Cal.4th 903, 911.)
No Error in Denying Marsden Motion Crites asserts that he made two Marsden motions after completion of trial but before sentencing. ( People v. Marsden, supra, 2 Cal.3d 118.) He contends that the trial court erred in denying his second motion as untimely without conducting a hearing on its merits. We disagree. The record shows that the trial court was informed of the reasons why Crites desired new counsel and offered Crites an opportunity in open court to present his position in further depth. A defendant is entitled to a hearing on a request for appointment of substitute counsel whether made before, during or after trial and conviction. When a defendant requests new counsel after trial based on the inadequacy of trial counsel, a trial court cannot thoughtfully exercise its discretion without listening to the defendant's reasons for believing he was inadequately represented at trial. (See People v. Hart (1999) 20 Cal.4th 546, 603; People v. Marsden, supra, 2 Cal.3d at pp. 123-124.) Specifically, "`. . . the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant's claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a "colorable claim" of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. . . .'" ( People v. Smith (1993) 6 Cal.4th 684, 692-693, quoting People v. Diaz (1992) 3 Cal.4th 495, 573-574.) In this case, shortly after the mid-July verdict, the trial court set a sentencing hearing and a hearing on a new trial motion for August 31. On July 30, Crites sent a letter to the trial court stating that he was not "confident" that his counsel, a public defender, would adequately prepare for the new trial motion. The letter also stated that he was making a Marsden motion and requested a hearing on the motion. On August 9, the court conducted a hearing so that Crites could provide further and more specific reasons for requesting a change in counsel. At that time, Crites withdrew his Marsden motion. The next day, Crites sent another letter to the court requesting "another oral Marsden motion hearing." In the letter, Crites stated that he had been unprepared for the August 9 hearing but was now prepared, and had "several very serious issues" to relate to the court. On August 31, the trial court denied the motion as untimely and did not conduct a further hearing. Accordingly, the record shows that the trial court was informed of the reasons why Crites was requesting substitute counsel in the July 30 letter, and provided Crites with a hearing on August 9 to argue his position in further depth. Instead of taking advantage of the opportunity, Crites withdrew his motion. In his August 10 letter, Crites claimed that he had been unprepared the preceding day but the record does not show that he requested a continuance on August 9, nor does it adequately explain why he was unprepared or how he had suddenly become prepared one day later. In short, the trial court conducted a hearing by considering the substance of the two letters and allowing Crites an opportunity to present his position orally. The court did everything it was required to do and properly exercised its discretion in declining to consider the purported second Marsden motion. (See People v. Smith (2003) 30 Cal.4th 581, 607; see also People v. Whitt (1990) 51 Cal.3d 620, 659; People v. Lara (2001) 86 Cal.App.4th 139, 151.) Moreover, there is nothing in the record that supports Crites' assertion that he received ineffective assistance at any time during trial, and no basis for his motions other than dissatisfaction with the jury verdict. The evidence clearly reveals that the only issue in legitimate dispute in the case was whether the murder was committed with premeditation and deliberation. Defense trial counsel vigorously argued that such a finding was unwarranted, vigorously cross-examined witnesses in pursuit of that result, and filed and argued posttrial motions for new trial and to reduce the conviction to second degree murder which also challenged the finding of premeditation and deliberation.]]
Second Weapons Enhancement Properly Stayed
The People alleged that Crites personally used two deadly or dangerous weapons (a knife and steel-toed boots) as separate section 12022, subdivision (b) enhancements. The jury found both allegations true, and the trial court imposed a one-year sentence for use of a knife and imposed, but stayed, a one-year sentence for use of steel-toed boots. Crites contends that two "identical" enhancements under section 12022, subdivision (b) cannot be imposed on the same offense against the same victim. Crites argues that, although stayed, imposition of the second enhancement was unauthorized. We disagree.
Section 1170.1, subdivision (f) provides that, "[w]hen two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. . . ." This language prevents execution of sentences for multiple enhancements, but not the procedure of imposing but staying all but the greatest enhancement falling within the statute. ( People v. Jones (2000) 82 Cal.App.4th 485, 492-493 [ 98 Cal.Rptr.2d 329]; People v. Espinoza (1983) 140 Cal.App.3d 564, 567 [ 189 Cal.Rptr. 543].)
In the Jones case, the trial court imposed enhancements for personal use of a handgun (§ 12022.5) and personal use of a knife (§ 12022, subd. (b)) with respect to the same offense against the same victim. The appellate court concluded that section 1170.1 required the court to stay the lesser section 12022, subdivision (b) enhancement. ( People v. Jones, supra, 82 Cal.App.4th at p. 493.)
Crites concedes that Jones applies when one enhancement is lesser than the other, but argues that, when the enhancements are equal, one must be stricken, and not stayed. Crites presents no persuasive argument for this distinction, and it is not supported by legal authority. "`A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency . . .,'" whereas striking an enhancement "`. . . implies that the enhancement is legally insupportable, and must be dismissed. . . .'" ( People v. Carrillo (2001) 87 Cal.App.4th 1416, 1421 [ 105 Cal.Rptr.2d 360].) (3) Here, there is no basis to reject the jury's factual findings as to both personal use allegations, and a reversal on appeal of one enhancement is a "defined contingency" where imposition of a term of imprisonment for the other would be warranted. The trial court properly imposed both enhancements, but stayed execution of one of them.
The judgment is affirmed.
Gilbert, P. J., and Coffee, J., concurred.
Appellant's petition for review by the Supreme Court was denied April 26, 2006, S141580.