Opinion
C041389.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. RANDY CHARLES CARRELL, Defendant and Appellant.
Defendant was convicted by a jury of the first degree murder of George Shtaway (Pen. Code, § 187 [all further unspecified statutory references are to this code]), with true findings that defendant used a knife (§ 12022, subd. (b)(1)) and that the murder was committed in the course of a burglary and robbery. (§ 190.2, subd. (a)(17).) The jury also convicted defendant of the substantive crimes of first degree burglary (& sect; 459) and attempted robbery (§§ 664, 211), augmented by knife use enhancements for these offenses (§ 12022, subd. (b)(1)). Sentenced to life in prison without the possibility of parole plus one year, he appeals.
Defendant claims his trial attorney was ineffective for failing to request a pinpoint instruction on voluntary intoxication as it affected his mental capacity to commit the crimes of burglary and robbery. He also asserts that the court erred in depriving him of presentence custody credit. We will modify the sentence to include the claimed custody credit and affirm the modified judgment.
BACKGROUND
On May 17, 2000, Charlene Shtaway (Charlene) and her husband George Shtaway (George) were living in a rented house on Filbert Avenue in Orangevale. Georges parents owned a flower shop and, due to the Mothers Day holiday, business was at its peak. George, who was exhausted from working 20-hour days at two jobs, retired early that evening.
Later the same evening Michelle French, a family friend and neighbor, came to the Shtaway residence to borrow $60. Charlene retrieved the cash from under their mattress in the bedroom, where she knew George kept valuables, and gave it to French. As George operated a cash business, there was a lot of money under the mattress.
Charlene retired around 12:30 a.m. that night, lying down next to her husband on their king-size bed. She awoke to find someone on the bed on top of George, straddling him. The intruder appeared to be punching George, and Charlene screamed "Why are you hitting my husband?" She and George both fought with the stranger.
The stranger threw Charlene off the bed and continued to struggle with George. As George stood up, Charlene saw that blood was spattered on the walls, and realized he had been stabbed. Charlene became tangled up in the bedding as the two men carried on a fierce struggle in the hallway, where she could hear them banging against the wall. Charlene freed herself and ran to the family room, where she saw the intruder administer one final stab wound to George. The intruder pushed George on top of Charlene and ran out the door.
Sheriffs deputies who were summoned to the house found Charlene hysterical and George lying face down on the carpet, with multiple stab wounds to his upper chest and face. The victim had died of his injuries. The officers later discovered more than $2,300 under Georges mattress, and a blood-laden knife in the master bedroom. The murder weapon was later determined to be a Berghof chefs knife which had been taken from Michelle Frenchs kitchen.
French, testifying under a grant of use immunity, stated that defendant was a "good friend" of her brother Bobby Mucks, and that she had known him for 10 to 12 years. She confirmed that she borrowed money from Charlene the night of the murder, but claimed the amount was $40. She admitted she knew that George kept a substantial amount of cash at his house, but denied suggesting to defendant that he go there to steal it.
According to French, defendant arrived at her house around 5 a.m. that night and instructed her to drive him to a side street near the Shtaway house. Defendant never told her why he needed the ride, and she did not ask. After she drove him to the specified location, defendant got out of the car, telling her "I wont be long." About 20 to 30 minutes later, defendant came running back to the car. He was "out of breath and in a hurry." He told her "something went wrong," and to "go." French claimed she never saw blood on defendant that night, but acknowledged that when they arrived home, he did a load of wash. On cross-examination, French admitted that she and defendant ingested methamphetamine on a daily basis and "probably" did so before they went over to the Shtaway home.
Kelly Underwood, another good friend of defendants, testified that he came knocking on her door about 11 a.m. the morning after the murder. He looked clean, cleaner than she had ever seen him. Defendant appeared agitated. He kept saying "I fucked up" over and over again, while pacing back and forth. He confided to Underwood, "I did a home invasion." Defendant explained that someone had told him there was "$10,000 in cash in there," but he "didnt get shit." Defendant recounted that he knocked on the door and rang the bell but no one answered, so he entered the house and was shocked to find two occupants in the bedroom. Defendant said he began fighting with one of them and stabbed the man while trying to flee.
During this conversation, defendant did not indicate he knew that the stabbing victim had died. However, a couple of days later, after Underwood had learned from news reports that Charlenes husband had been stabbed to death, defendant told her "Im sure you put two and two together." He said the police were looking for Bobby Muck as a potential suspect, but Muck did not do it, because "I did."
Underwood did not tell law enforcement about defendants revelations until she was arrested months later for possession of methamphetamine. She then volunteered to disclose defendants admissions about the homicide as a bargaining chip to stay out of prison. Underwood pleaded guilty to possession for sale and transportation of methamphetamine in return for a probation sentence, conditioned upon her testifying truthfully at defendants trial. She also tried to get defendant to confess in a monitored jail cell conversation. While initially making incriminating statements, defendant ended up denying both that he committed the murder and confessing to her.
In a tape-recorded conversation between defendant and his aunt during her visit to his jail cell, defendant essentially admitted his participation in the Shtaway home invasion, but added that "[i]t was Michelle [French]s idea."
Defense
Defendant did not testify. His defense was built around a theory of third party culpability. Defense counsel suggested two possible suspects — Frenchs brother, Bobby Muck and Charlene, the victims wife.
Shortly after the murder, Charlene told people that she suspected that Muck, who did not testify and was never located by the police, was her husbands murderer. Defendants eight-year-old son testified, in response to leading questions, that he saw Muck around the approximate time of the murder with a cut on his hand and blood on his knife.
French testified that a month before the murder she encountered Muck and Charlene asleep in bed together. A family friend testified that Charlene tried to seduce him within a week after George was killed. A lifelong friend of Charlenes vaguely remembered a conversation involving Charlene and others about Georges life insurance, and the fact that the benefits would double if he suffered a violent death.
APPEAL
I
Ineffective Assistance
Citing Michelle Frenchs testimony that she and defendant ingested methamphetamine the night of the murder, and other testimony that French said if she got defendant "whacked out," she could get him to do anything, defendant claims the jury should have been given CALJIC No. 4.21, modified to advise that evidence of voluntary intoxication could bear on whether defendant harbored the specific intent required to commit the crimes of burglary and robbery, crimes which could elevate the homicide to first degree felony murder. Because CALJIC No. 4.21 is a pinpoint instruction which need not be given unless requested (People v. Saille (1991) 54 Cal.3d 1103, 1119-1120), defendant claims his defense counsel was ineffective for not tendering the instruction. The claim has no merit.
The pattern instruction states in part: "In the crime[s] of [______,] of which the defendant is accused in Count[s] [______] . . ., a necessary element is the existence in the mind of the defendant of the [specific intent to ______] . . . . [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required [specific intent] . . . . [¶] If from all the evidence you have a reasonable doubt whether the defendant formed that [specific intent] . . ., you must find that [he] did not have such [specific intent] . . . ."
"To establish a claim of ineffective assistance of trial counsel, a defendant must show by a preponderance of the evidence that the attorneys performance fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsels conduct, the result of the proceeding would have been different. Courts must in general exercise deferential scrutiny in reviewing such claims; the reasonableness of defense counsels conduct must be assessed `under the circumstances as they stood at the time of counsels acts or omissions; `second-guessing is to be avoided. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 449.) Defendant has failed to establish ineffective representation, as we shall discuss.
The trial court is obligated to give a pinpoint instruction on request only where there is substantial evidence which supports the defense theory. (People v. Moore (2002) 96 Cal.App.4th 1105, 1115-1116 citing People v. Ervin (2000) 22 Cal.4th 48, 91 and In re Christian S. (1994) 7 Cal.4th 768, 783.) The theory suggested here is that defendants faculties were so impaired by methamphetamine on the night in question that it affected his ability to form the specific intent required to commit either burglary or attempted robbery.
However, defendant cites only two bits of evidence supportive of that theory: Frenchs testimony that she and defendant ingested methamphetamine on the night of the murder and Frenchs comment about getting defendant to "do anything" if he was "all whacked out."
As the relevant excerpt from the transcript reveals, French was far from conclusive on the subject of whether defendant was under the influence of methamphetamine when he committed the home invasion of the Shtaway residence:
"Q: . . . On May 17th, were you using methamphetamine?
A: Yes.
Q: How much had you used?
A: Um, I dont now. Probably about half a gram.
Q: By yourself?
A: . . . . . yeah. [¶] . . . [¶]
Q: Had you used methamphetamine with Randy on the 17th of May 2000?
A: Probably, yes.
Q: And how about after midnight, did you continue using methamphetamine?
A: I dont remember exactly.
Q: Do you know of your own knowledge whether Mr. Carrell was using methamphetamine?
A: Yes.
Q: Okay. Was he using it during the day of the 17th?
A: Yes.
Q: And was he using it during the early morning hours of the 18th?
A: Yeah, I guess, yes, yeah.
Q: Are you guessing or do you actually have a —?
A: I didnt see him, no. I know he used, and used that day.
Q: I am just asking about what you saw.
A: That I saw him, yes, on that day.
Q: On the 17th?
A: Yes.
Q: But yes, did you see him yes or no, you did not see him use on the 18th?
A: Well, it was a daily event usually, so if he — yes." (Italics added.)
The only thing French was clear about was that defendant had used methamphetamine during the day on May 17th. She never saw him use the drug during the critical early morning hours of May 18th when, according to her testimony, she gave him a ride to the Shtaway residence. French was never asked how much methamphetamine defendant used, or, more importantly, whether he appeared to be under its influence at or around the time of the Shtaway home invasion. (See People v. Williams (1997) 16 Cal.4th 635, 677; People v. Marshall (1996) 13 Cal.4th 799, 848.)
The plausibility of defendants intoxication theory sinks even further when one considers that the jury heard at least four conversations in which defendant, to a greater or lesser extent, confesses his involvement in the murder of George Shtaway: Frenchs testimony, Kelly Underwoods testimony, and two tape-recorded jailhouse conversations with Underwood and with his aunt. In none of these conversation does defendant ever suggest that he was "whacked out" or "high" at the time he committed the charged crimes.
Defendants argument is not helped by the testimony of Larry Teague that French once "joked" that if she got defendant "all whacked out drugs, she could get him to do anything[]." Unsupported by substantial evidence that defendant was, in fact, "whacked out on drugs" during the early morning hours of May 18th and absent an explanation for what French meant by "gett[ing] him to do anything," such a remark was virtually meaningless and carries no evidentiary weight.
We conclude the evidence was not substantial enough to warrant a pinpoint instruction on voluntary intoxication. A fortiori, counsel was not incompetent for failing to ask for one.
Defendants claim must be rejected for the additional reason that his trial attorneys failure to request CALJIC No. 4.21 is explainable as a rational tactical choice. Counsel vigorously argued that reasonable doubt existed because there were too many other possible culprits to conclude that defendant was guilty. One of the cornerstones of this argument was to accept at face value defendants tape-recorded admission to his aunt that he went to the Shtaway house to rob George. Defense counsel argued that the nature of the two fatal stab wounds demonstrated that they were inflicted, not by defendant while trying to flee an attempted robbery, but by someone else, in a deliberate and premeditated attempt to murder the victim. He suggested that Charlenes behavior during the struggle was illogical and inconsistent with her innocence, and implied that she collaborated with the real killer.
Requesting CALJIC No. 4.21 would have totally undermined this theory of third party culpability by essentially conceding that defendant was the lone culprit and had inflicted the fatal wounds. Omitting it was thus a plausibly sound tactic. Because counsels failure to request the subject instruction can be explained as a sound strategical choice, we must reject the claim of ineffective assistance. (People v. Burnett (1999) 71 Cal.App.4th 151, 180; People v. Barnett 17 Cal.4th 1044, 1125.)
Defendant also contends that trial counsel "apparently realized the importance" of the voluntary intoxication defense as exemplified by his unsuccessful attempt to admit the expert testimony of Dr. Eugene Schoenfeld on the effects of drug use and addiction on a persons tendency to commit certain crimes. The suggestion that counsel suffered from a sudden loss of brain power when it came to proposing jury instructions, however, is unfounded.
Dr. Schoenfelds testimony was introduced for the purpose of showing third party culpability, i.e. that other persons in the Orangevale subculture who were selling and using methamphetamine were generally more prone to violent and uncontrollable behavior, and therefore were likely to have committed the murder. Thus, counsels proposed use of expert testimony was fully consistent with his trial strategy, which was to raise reasonable doubt by pointing the finger at other possible suspects.
II
Sentence Error
The probation report reflects that defendant served 631 days of presentence custody. However, the court checked a box which deprived him of any credit for presentence custody, citing section 2933.2. As the People concede, section 2933.2 pertains to work time credits and to pre- and post-sentence conduct credits. (People v. Cooper (2002)27 Cal.4th 38, 41, fn. 2; People v. Herrera (2001) 88 Cal.App.4th 1353, 1367.) It does not deprive convicted murderers of custody credit for time served prior to sentence. (§ 2900.5.) Consequently, we will modify the judgment.
DISPOSITION
The judgment is modified to award defendant 631 days of custody credit for time served. So modified, the judgment is affirmed. The clerk of the superior court shall forward a certified copy of the corrected judgment to the Department of Corrections.
We concur RAYE, J. and MORRISON, J.