Opinion
B224712
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. KEVAN BEECH, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Deputy Attorney General, Roberta L. Davis, Steven E. Mercer, and Shira Seigle, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA329925)
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael M. Johnson, Judge. Affirmed.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Deputy Attorney General, Roberta L. Davis, Steven E. Mercer, and Shira Seigle, Deputy Attorneys General for Plaintiff and Respondent.
Defendant and appellant Kevan Edward Beech appeals from his murder conviction, asserting instructional error. He contends that the trial court erred in refusing to instruct the jury on involuntary manslaughter as a lesser included offense of murder, based on unconsciousness due to voluntary intoxication, and that the court erred in failing to instruct the jury on voluntary manslaughter based upon the theory that defendant killed in the heat of passion. We find no error, and affirm the judgment.
BACKGROUND
1. Procedural Background
Defendant was charged with the murder of his roommate, Kenneth Flanders (Flanders). The information alleged that in the commission of the offense, defendant personally used a deadly weapon, a cast iron skillet, within the meaning of Penal Code section 12022, subdivision (b)(1). Defendant's first trial ended in mistrial after the jury became deadlocked. The jury in his second trial found defendant guilty of first degree murder, and found true the special allegation that he used a deadly weapon in the commission of the crime. The trial court sentenced defendant to 25 years to life in prison, enhanced by a consecutive one-year term due to the deadly weapon finding.
All further statutory references are to the Penal Code, unless otherwise indicated.
2. Prosecution Evidence
A. Police Interrogation
On October 3, 2007, defendant spoke to Detectives Daniel Gersna and Tommy Thompson in a lengthy interrogation, which was recorded and played for the jury at trial. Defendant admitted to the detectives that at approximately 11:00 p.m., October 1, 2007, he killed Flanders while Flanders slept, by hitting him several times in the head with a cast iron skillet. At first, defendant told the detectives that two unknown gunmen came into the house he shared with Flanders, told him to turn around and say nothing, and then went to Flanders's bedroom. Defendant claimed that he heard hitting sounds, and that when the men left, he found Flanders dead in his bed with the skillet nearby. Defendant did not summon help or call 911, but covered the body and stayed in the house until Flanders's nieces arrived the next evening. Later in the interview, defendant admitted that he had hit Flanders four times, and then placed a rag in his mouth and a pillow over his head to stop him from making noises as he died.
Flanders died as a result of blunt force which caused multiple skull fractures and a lacerated brain rather than suffocation.
Defendant told the detectives about his 24-year addiction to crack cocaine. He had smoked the drug throughout the weekend before the killing and had also been drinking hard alcohol and beer during that evening. Defendant claimed that while watching a television news report about a woman who had killed someone the idea came to him to do the same. He had been cleaning, and the frying pan "was just there." Defendant explained his actions: "Man, I didn't mean to kill Ken. It could have been the fucking Dalai Lama. I don't know why I did that shit. I'm drunk—I'm high, I'm needing dope, I'm just standing there watching the news and shit, and I was looking at that shit. I'm looking at this [news] segment and just—that's what happened, man. That's why I'm sitting here saying I just don't want to say it. Man, Kenny ain't never done nothing to me."
Later in the interview, defendant said, "[L]ike I said, when that happened, it could have been anybody." He told the detectives, "When I did do it, . . . it took [me] a while to do that." When Detective Thompson asked whether he meant that he had to "build up to it" and whether he looked at Flanders for awhile, defendant agreed that that was what he meant.
Defendant told the detectives that Flanders sold crack cocaine, and that he did not call 911 because there was evidence of drug dealing in the apartment. He also explained that there was a warrant for his arrest, and he was afraid he would be suspected of killing Flanders. Defendant said that Flanders was his roommate and drug dealer. They had been friends, had a good relationship, and did not usually fight. Although Flanders had given defendant a "very good credit line" for drugs in the past, they argued that day over defendant's debt. Flanders could be nice one day and mean the next.
B. Testimony of Flanders's Nieces
Flanders's niece Deion Augustus (Deion) testified that she had a good relationship with her uncle and spoke to him daily. On October 3, 2007, when she was unable to reach him, she went to his home, accompanied by her mother, sister, grandchild, and niece, arriving there between 7:00 and 8:00 p.m. Deion went to the door where defendant told her that Flanders was dead. She went to his bedroom, where she saw his body rolled up in a bloody blanket, toes sticking out. Deion went back to the car to inform the other women that Flanders was dead, and defendant followed her, repeating, "Kenny is dead."
Deion went back to the house, touched Flanders's toes, determined they were cold and hard, and returned to the car, where defendant was telling her sister Sharon Augustus (Sharon) the story of the two gunmen. Deion testified that she heard Sharon say to defendant that he was lying, and, "You did this." Defendant did not reply, but as she called 911, she asked him whether he did it, and defendant said, "Yes."
Sharon testified that when she asked defendant what had happened, he told her that two men came in, ordered him to turn around and kneel, and held a gun to his head. When he changed the facts, she told him that his story did not sound right, and asked what he had done to her uncle. She said, "I know you did something to my uncle," and he replied, "I did it." She then said, "Did you kill my uncle?" Defendant replied, "Yes, I did." Sharon called 911, and a recording of the call was played for the jury.
3. Defense Evidence
A. Expert Testimony
Forensic psychiatrist Ronald Markman testified regarding rock cocaine addiction and the effects of the drug on the user. Addiction occurred when the user developed a tolerance to the drug and required increased use to maintain the same effect. Ultimately, the primary goal in life for the addict would be to satisfy drug cravings.
Dr. Markman explained that the drug was a stimulant, and acted on the central nervous system, increasing heart rate, blood pressure, respiration, and metabolism, and decreasing concentration. He testified that the drug caused the user's thoughts to "race," adversely affecting his judgment and ability to control his behavior and impulses, and leading to the misinterpretation of the events surrounding him. Alcohol, a depressant, would reduce any hyperactivity, but further impair the user's judgment. The effect of the drug usually lasted four to five hours. Dr. Markman testified that most addicts became paranoid, and some experienced psychosis. Both conditions involved delusional thinking, but more so in psychosis. How a person would be affected on a particular occasion involved many variables, including the person's drug history and the amount ingested before acting.
Dr. Markman testified that he interviewed defendant in July 2009. Defendant told him that the evening of October 2, 2007, he had used cocaine at 8:00, 8:30, and 9:15 p.m.
B. Defendant's Testimony
Defendant testified that he started using rock cocaine in 1983. He attended several drug treatment programs over the years, and once stopped using the drug for 11 months. He also smoked marijuana and drank beer.
In 2006, defendant met Flanders when they both lived in a sober living home. Flanders became defendant's drug dealer, and they became roommates in August 2007. At that time, defendant used $30 to $40 worth of rock cocaine per day, which Flanders sold to him on credit. Defendant claimed that he paid his debt regularly, and also cleaned the house in exchange for the drug.
Defendant and Flanders were friends at first, but the relationship deteriorated. Flanders's all-night drug dealing interfered with defendant's sleep, because defendant slept in the living room, and had to get up at 4:00 a.m. to take the bus to work. When defendant asked Flanders to stop selling drugs late at night, the sales merely lessened. Flanders was messy, and defendant cleaned up after him. A little over a month after he moved in, Flanders refused to extend credit for drug purchases, knowing defendant had no money. Flanders could be mean, and belittled defendant in front of women. Once, in front of a woman friend of Flanders, Flanders demanded oral sex for drug money. Defendant orally copulated Flanders, although it made him feel very bad. Flanders was inconsistent, hard or soft, hot or cold from one day to the next. Defendant felt unappreciated. Defendant felt that he no longer had a friend in Flanders, and felt a sense of loss.
During the weekend before the killing, Flanders was furious with defendant, and they argued about Flanders's drug supplier. Flanders had given defendant two days of credit on Friday, and defendant owed him $170. Over the weekend, defendant used the drugs he had bought on credit from Flanders, as well as drugs supplied by others.
On Monday, October 1, 2007, defendant did not work. At approximately 3:30 p.m., defendant started cleaning the house and drinking malt liquor, Crown Royal whisky, vodka, and beer. When Flanders came home at 3:45 p.m., defendant asked for more credit, Flanders refused, and they argued. Just before Flanders went to bed, defendant asked him again for credit. Flanders smirked, said something like, "[I]f you want credit, suck my dick." Flanders also said, "No, I'm not fucking with you no more." Defendant thought Flanders was being petty. Flanders had never spoken to defendant like that before. Defendant testified that he felt that Flanders was playing with defendant's addiction, and that he meant nothing to Flanders, but he denied thinking about taking Flanders's life.
Defendant was twice able to obtain drugs elsewhere that evening. He brought them back and smoked them. Defendant claimed that he did not remember all the events that occurred while he was under the influence of the drugs. He had eaten and slept very little. He had no sleep Friday or Saturday, and only a few hours Sunday night. Defendant remembered cleaning the stove and watching the news on television. He heard the newscaster speak, and remembered telling police that something in his head told him "to do it," but he could not remember the details of the news broadcast, or what it was that the voice told him to do. Later in his testimony, defendant remembered that the newscast was about a woman with a mental issue who had killed a man or her children. Defendant testified that he did not remember picking up the frying pan. He did remember placing a sheet over Flanders's body, and placing a rag into Flanders's mouth, because he was startled by the noises Flanders was making.
The next day, defendant used some of the rock cocaine he found in Flanders's bedroom. He pressed 911 on his cellular telephone sometime during that day, although he thought he had no service. Defendant was startled to get an answer, hung up, and did not call again. He did not leave the house until Deion's arrival, and had no idea how much time passed. Although defendant told Deion and Sharon that two men had come into the house, he knew at the time he said it that it was not true.
On cross-examination, defendant remembered more details. He insisted that he did not kill Flanders, but admitted that he "caused [his] death." At approximately 11:00 p.m. that night, he heard the newscaster report that a woman had killed her husband or child. The skillet was on the stove before he walked into Flanders's room, but he did not remember carrying the skillet with him. Defendant could not recall getting the rag, but he remembered putting it in Flanders's mouth because of the disturbing choking sounds he was making. Defendant thought that he must have "blacked out" or "snapped" or something, and the noise brought him back to the present. He remembered running out of the room and waiting in his own room, frightened, until the noises had stopped. He did not recall putting a pillow over Flanders's head after inserting the rag.
Defendant agreed with the prosecutor that he could remember that he did not expect Flanders to make such noises after he had struck him four times with a cast iron skillet. Defendant added that he did not expect it, because he did not remember it.
Defendant testified that he was still high during the police interview on the evening of October 2 and early morning of October 3, and still had not slept much. Defendant did not remember giving a detailed story to detectives in the police interview room the night Flanders died. However, he remembered telling the detectives that he struck Flanders four times, although, in fact, he could not remember hitting him with the frying pan at all. Defendant explained that he gave the detectives the answers they wanted, because the interrogation was long and he did not want to be there all night. Defendant also remembered telling the detectives that he had thought Flanders would have just died, without making those noises.
Defendant denied telling Sharon he killed Flanders. However, he admitted that he testified at the preliminary hearing that he did tell Sharon at some point that he had killed him.
DISCUSSION
I. Unconsciousness Instruction
A. No Error in Refusing Instruction
Defendant contends that the trial court erred by refusing to instruct the jury that it could find him guilty of the lesser included offense of involuntary manslaughter, based on unconsciousness due to voluntary intoxication.
Unconsciousness due to voluntary intoxication does not excuse a homicide, but reduces the crime to involuntary manslaughter, a lesser included offense of murder. (People v. Ochoa (1998) 19 Cal.4th 353, 423; §§ 22, 26.) "Unconsciousness for this purpose need not mean that the actor lies still and unresponsive . . . . [It] '"can exist . . . where the subject physically acts in fact but is not, at the time, conscious of acting."' [Citations.]" (Ochoa, supra, at pp. 423-424; see § 26.) A trial court errs in failing to instruct on any lesser included offense that is supported by substantial evidence. (Ochoa, at p. 422.)
Evidence that the defendant did not remember killing the victim is insufficient, by itself, to justify an instruction on unconsciousness. (People v. Rogers (2006) 39 Cal.4th 826, 888.) Additional evidence to justify the instruction might be the cause of the memory loss, such as defendant's mental state. (See People v. Wilson (1967) 66 Cal.2d 749, 762.) Defendant's intoxication may also provide the additional evidence. (See People v. Coston (1947) 82 Cal.App.2d 23, 40.)
Here the trial court found the evidence insufficient to support an instruction on unconsciousness, because defendant remembered a great deal about the events, despite his claims of not remembering some portions. As defendant points out, a trial court should not evaluate credibility in determining whether substantial evidence supports such an instruction. (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) The court must consider the defendant's evidence as true, "regardless of whether it was of a character to inspire belief. [Citations.]" (People v. Wilson, supra, 66 Cal.2d at p. 762.)
However, "the existence of 'any evidence, no matter how weak,' will not justify instructions on a lesser included offense . . . ." (Breverman, supra, 19 Cal.4th at p. 162.) The evidence must be "'substantial enough to merit consideration' by the jury"; that is, "'evidence that a reasonable jury could find persuasive,'" such that it could conclude that defendant committed the lesser, but not the greater offense. (Ibid.)
Even considering all of defendant's testimony as true, it is doubtful that a reasonable jury would have found persuasive evidence of unconsciousness here. First, defendant's own expert on the effects of cocaine and alcohol was of the opinion that although the combination of the two substances would further impair the user's thinking and judgment, the alcohol would neutralize some of the effects of cocaine. He did not say that unconscious behavior could result.
Further, defendant's trial testimony showed that he remembered almost every detail of the events except picking up the skillet, delivering the actual blows, and smothering Flanders with the pillow. He remembered his feelings of rejection and humiliation, how much alcohol and drugs he ingested, and the subject of the newscast that precipitated his going into Flanders's bedroom.
Finally, shortly after the events, defendant remembered what he had done. His admission that he killed Flanders was made to Sharon the next day. He then told the detectives that he had hit Flanders with the skillet and had put the pillow over his face.
We are mindful that the court may not evaluate credibility or reject defendant's testimony in determining whether substantial evidence supported the instruction. (See Breverman, supra, 19 Cal.4th at p. 162; People v. Wilson, supra, 66 Cal.2d at p. 762.) However, it requires no evaluation of credibility or disbelief of defendant's testimony to conclude that any memory loss defendant may have suffered occurred long after he killed Flanders. Like the trial court, we do not find substantial evidence that defendant was unconscious when he killed Flanders, and conclude that the court did not err in refusing the instruction.
B. No Prejudice
Had the court erred, we would find the error harmless. Error in omitting an instruction on a lesser included offense is assessed for prejudice under the standard of People v. Watson (1956) 46 Cal.2d 818. (Breverman, supra, 19 Cal.4th at pp. 165, 178.) Under that standard, no prejudice is shown unless it appears that a more favorable result was probable absent the error. (People v. Watson, supra, at p. 836.) There is no such probability, and any error in failing to instruct is harmless when the factual question posed by that instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 96.)
Here, the jury found defendant guilty of first degree murder after the trial court had properly instructed the jury with CALCRIM Nos. 520 and 521, defining first and second degree murder. The court explained that first degree murder is committed only with a deliberate, premeditated intent to kill. The court further instructed the jury with CALCRIM No. 625 that it could "consider evidence, if any, of the defendant's voluntary intoxication . . . in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation." By finding defendant guilty of first degree murder, it necessarily found that defendant intended to kill Flanders, that he was capable of forming that intent, despite his intoxication, and that he premeditated his intent to kill Flanders. Thus, the jury necessarily found that defendant was conscious of his acts.
Defendant acknowledges that the jury necessarily found that he acted with an intent to kill, but argues that the instruction would have helped the jurors to better understand the significance of the evidence. He argues that the jury might then have realized that there was reason to believe that defendant was unaware of his actions, and thus conclude that he did not harbor an intent to kill. Defendant's argument presumes that jurors are unable to understand instructions. Rather, jurors are presumed to be intelligent and capable of understanding and applying their instructions. (People v. Lewis (2001) 26 Cal.4th 334, 390.) As nothing in the record reflects confusion on the part of the jury, we presume that the jurors understood the instructions and followed them. (People v. Sanchez (2001) 26 Cal.4th 834, 851.)
II. Instruction on Heat of Passion
Defendant contends that he was prejudiced by the trial court's refusal to instruct the jury that a defendant who kills in a heat of passion upon adequate provocation is guilty of voluntary manslaughter, a lesser included offense of murder.
Malice is negated, and murder reduced to voluntary manslaughter, when the defendant kills "upon a sudden quarrel or heat of passion." (§ 192, subd. (a).) "Heat of passion arises when 'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.' [Citations.]" (People v. Barton (1995) 12 Cal.4th 186, 201.) The trial court must instruct the jury on this theory only when justified by substantial evidence to support it. (Breverman, supra, 19 Cal.4th at pp. 156, 162.)
The facts and circumstances that would arouse the passions of an ordinarily reasonable person of average disposition must be viewed objectively. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143.) "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.'" (People v. Wickersham (1982) 32 Cal.3d 307, 326.) While the sufficiency of the provocation is measured by an objective standard, heat of passion also has a subjective component. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) The subjective component looks at the defendant's state of mind to determine whether, in fact, he acted in the heat of passion. (Ibid.)
Defendant contends that the instruction was justified by evidence that Flanders had been provoking him over a period of time. As provocation, defendant cites evidence that over a period of several weeks, Flanders could be mean and disrespectful, and sometimes refused to sell defendant cocaine on credit, although defendant always paid his debts. Defendant cites the facts that Flanders belittled defendant in front of women and once demanded oral sex as payment for drugs, talked about defendant in front of his niece, told defendant he made the drug supplier nervous, and told defendant not to talk to Flanders's friends or buy drugs at the pool hall unless Flanders was there with defendant. Defendant points out that he and Flanders argued over Flanders's refusal to sell defendant more drugs on credit. The night of the killing, Flanders again refused, and went to bed after saying with a smirk, "[I]f you want credit, suck my dick." Finally, defendant heard the newscast about a homicide, voices told him something to the effect that he should "do something like that," and he "blacked out" or "snapped."
Initially, we eliminate the final act described by defendant as precipitating the killing, because it was not conduct of the victim at all. It was thus not legally sufficient provocation. (People v. Moye (2009) 47 Cal.4th 537, 549-550.)
Defendant describes the other cited incidents as continuous and increasing over an extended period of time. Conduct by the victim occurring over a considerable period of time can be adequate provocation in some circumstances. (People v. Wharton (1991) 53 Cal.3d 522, 571.) Further, provocative conduct may be verbal. (People v. Moye, supra, 47 Cal.4th at p. 550.) However, obscenities, taunts, and epithets would not ordinarily drive a reasonable person to act rashly or without due deliberation or reflection. (People v. Najera (2006) 138 Cal.App.4th 212, 226.) Moreover, such conduct does not provide legally sufficient provocation when an ordinarily reasonable person has had time to „"cool[] off."' (People v. Moye, supra, at p. 551, quoting People v. Dixon (1995) 32 Cal.App.4th 1547, 1551-1552.)
Here, the evidence does not support defendant's description of the events as continuous or increasing. They consisted of mostly obscenities, taunts, and epithets in just a half dozen incidents that took place over a one or two-month period, with time to cool off after each incident. The events consisted of refusals to give defendant drugs on credit, a demand to leave Flanders's friends and drug supplier alone, and one incident of humiliating oral sex to which defendant consented, culminated by the utterance of an obscenity. By October 1, 2007, one month had passed since the consensual oral sex incident. The final refusal to give defendant narcotics occurred seven hours before the killing, and the obscene utterance occurred three hours before the killing.
Assuming for discussion that such events amounted to substantial evidence of legally sufficient provocation, there remained no need to give the instruction without evidence of the subjective component—defendant's state of mind—showing that, in fact, he acted in a heat of passion. (See People v. Steele, supra, 27 Cal.4th at p. 1252.) Defendant's own testimony and statements to the police established that he did not, in fact, kill Flanders in the heat of passion. Defendant described his emotions during the month before the killing as feeling bad and unappreciated, with a sense of loss. Defendant testified that when Flanders said, "Suck my dick," he did not think that Flanders meant it literally. Nowhere did he describe his feelings at the time of the killing as angry, passionate, heated, or frustrated. Defendant did not suggest that he was overcome by any emotion at all. Moreover, when defendant told the police that he did not know why he had killed Flanders, he added that Flanders had done nothing to him, and that it could have been the Dalai Lama, or anyone, lying there. He described his state of mind to the detectives as "needing dope." Thus, if defendant felt any strong emotion at the time, defendant's own testimony and statements established that it did not cause him to kill Flanders.
Defendant has pointed to no evidence suggesting that the provocation caused him to kill Flanders. Instead, relying on People v. Barton, supra, 12 Cal.4th 186, 199, he suggests that his having bludgeoned Flanders with a skillet, rather than slitting his throat or stabbing him in the heart, provides evidence that he acted in a fit of rage. His reliance is misplaced, as nothing in that opinion supports his argument.
Defendant also suggests that his feelings of frustration and rage may be inferred from the disrespect and abusive treatment inflicted on him by Flanders. In essence, defendant argues that no evidence of the subjective component is required, because his state of mind may be inferred from evidence of the objective component—provocation. We disagree. The trial court was not required to instruct on heat of passion without substantial evidence of both components. (See People v. Manriquez (2005) 37 Cal.4th 547, 585.)
We conclude that there was no substantial evidence that defendant acted in the heat of passion, and that the trial court did not err in refusing the instruction.
Moreover, our examination of the entire record reveals no reasonable probability that an instruction on voluntary manslaughter based on heat of passion would have resulted in a more favorable outcome, considering the overwhelming evidence that defendant killed Flanders to obtain drugs and that he premeditated the murder. Defendant waited until Flanders was asleep, bludgeoned him four times with a deadly weapon, stuffed a rag into his mouth and a pillow over his face when he did not die quickly enough, and then smoked the rock cocaine he found in Flanders's bedroom. Under such circumstances, the absence of the instruction if error, is harmless. (See Breverman, supra, 19 Cal.4th at p. 165; Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
J.
CHAVEZ
We concur:
Acting P. J.
DOI TODD
J.
ASHMANN-GERST