Opinion
C076124
05-03-2018
THE PEOPLE, Plaintiff and Respondent, v. ADAM TEIFER JACOB, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM037408)
Defendant, Adam Teifer Jacob, appeals from a final judgment entered after a jury convicted him of first degree murder in violation of Penal Code section 187, subdivision (a) (unless otherwise set forth, statutory section references that follow are found in the Penal Code) with a knife enhancement alleged under section 12022, subdivision (b)(1). He was sentenced to life in prison with the possibility of parole after 25 years plus one year for the use of a deadly weapon within the meaning of section 12022, subdivision (b)(1).
Defendant appeals contending (1) there was insufficient evidence of premeditation and deliberation to support his conviction for murder; (2) the trial court erred when it failed to instruct the jury regarding a lesser included offense of voluntary manslaughter; (3) the trial court's instructions allowed the jury to find him guilty of first degree murder "without considering whether unreasonable heat of passion rendered him unable to deliberate and premeditate"; (4) his counsel was ineffective for failing to request an instruction on provocation; (5) there was an accumulation of errors that require reversal of his conviction; and (6) the restitution awarded to the victim's estate is contrary to law. The People concede the restitution award must be stricken and we accept the People's concession. Finding no merit in defendant's remaining arguments, we otherwise affirm the judgment.
FACTS AND PROCEEDINGS
Because defendant does not challenge the sufficiency of the evidence establishing that he killed his mother, we will set forth the facts relevant to whether the evidence was sufficient to prove the murder was deliberate and premeditated and whether the facts support a claim of provocation. Because defendant failed to offer any witnesses in his defense, all of the facts set forth herein were presented in the People's case.
Defendant's marriage of approximately three years ended in April 2012. As part of the dissolution proceedings, defendant's ex-wife requested sole custody of the couple's son. Defendant's mother, Donna Teifer (sometimes Donna), gave defendant's ex-wife an affidavit supporting defendant's ex-wife's request for sole custody of their son. Defendant's relationship with his mother had been troubled for some time - loud shouting matches between the two took place - and the relationship deteriorated further as a result of Donna's support of defendant's ex-wife's custody request. There came a point where defendant refused to speak to his mother at all.
In July 2012, defendant sent his ex-wife a text message stating he did not care if his mother was dead. This scared his ex-wife, but defendant later explained to her that he did not want Donna to die, but "that it wouldn't matter to him if she did." Defendant repeated this sentiment to his friend saying, "he would not care if his mother was dead" on more than one occasion and saying, "I hate my mother." Defendant referred to his mother as a "nuisance" and a problem that "wasn't controllable." Although defendant was upset that his mother had taken his ex-wife's side in the custody dispute, he never expressly stated he was "going to go kill [his] mother."
On the evening of September 13, 2012, Donna was ending a telephone conversation with her friend, Dianne, when Donna told Dianne, nervously, not to hang up the telephone because the lights in her bedroom and her television had gone off. After Dianne asked if everything was okay Donna "let out a startled scream" but then, after a pause, told Dianne it was okay because it was just the defendant. Dianne insisted that if Donna did not call her back in a while, Dianne would call the police.
Donna called Dianne about 20 minutes later, crying and upset because defendant was berating her and he refused to leave. Defendant was armed with a hammer he was holding behind his back. Donna said to Dianne, "I wish you would have seen the look in his eyes. He hates me. I could tell just by the look in his eyes." Donna called defendant's father, who eventually persuaded the defendant to leave Donna's home.
After Donna did not appear at work on September 25, 2012, the sheriff's department went to Donna's home to conduct a welfare check and found Donna dead. Donna was in her nightgown lying face down on her bed in a pool of blood. She was near the end of the bed and oriented toward an open window, but neighbors had not heard any screaming or a struggle.
A window in another bedroom was open and the screen for that window was found with blood on it outside the house leaning against a fence. The house was otherwise undisturbed, aside from a piano bench in the entryway that was on its side with a broken leg.
Donna died in the position in which she was found, having bled to death as a result of 43 stab wounds to her head, neck, and torso. One s-shaped wound on her face was consistent with a knife being purposefully dragged over her face to "torture", rather than disable her. She had defensive wounds on her left arm, wrist, and hand. Her legs were not injured, but she had blood smeared on her ankles. Following an autopsy, a toxicology report showed Donna had .40 milligrams of morphine per liter of blood in her body at the time of her death.
When law enforcement authorities searched defendant's bedroom in the house where defendant was staying at the time of the murder, they found what appeared to be dried blood on a pair of socks and on bedsheets. They also discovered a document in defendant's trash that was stipulated by the parties to consist of Donna's draft declaration stating defendant was not then "capable of caring for his son." Finally, a folding knife with Donna's blood on it was recovered from a pile of dirt near the home.
The night before the discovery of Donna's body, defendant was wearing a shirt matching the one later recovered with Donna's blood on it.
When defendant visited a friend the afternoon of September 25, he was acting nervous, and biting his nails, and he said that he had a lot of things on his mind.
The People charged defendant with murdering his mother in violation of section 187, subdivision (a), with an enhancement under section 12022(b)(1) for the use of a knife. Defendant pleaded not guilty and the case was tried to a jury. The jury was instructed on first and second degree murder. The trial court did not instruct the jury on voluntary manslaughter or the reduction of first degree to second degree murder based on provocation because the trial court decided there was insufficient evidence of provocation.
The jury found defendant guilty of first degree murder and found the knife enhancement allegation to be true. Defendant was sentenced to 26 years in prison and ordered to pay $10,000 restitution to Donna's estate.
DISCUSSION
I
Sufficiency of the Evidence of Premeditation and Deliberation
Defendant urges he was denied due process of law because the evidence of premeditation and deliberation was insufficient to support his conviction for first degree murder.
The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 ; People v. Johnson (1980) 26 Cal.3d 557, 578.) " '[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) " 'The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.) "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt." ' (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)" (People v. Snow (2003) 30 Cal.4th 43, 66.)
" 'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]' (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) ' "Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." ' " ' " (People v. Solomon (2010) 49 Cal.4th 792, 812.)
" 'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.' " (People v. Pearson (2013) 56 Cal.4th 393, 443.)
The California Supreme Court in People v. Anderson (1968) 70 Cal.2d 15 articulated three categories of evidence that could show premeditation and deliberation: "planning activity, preexisting motive, and manner of killing." (Solomon, supra, 49 Cal.4th at p. 812.) These categories of evidence are not exhaustive, but are helpful in this case where we find all three are present. (See ibid.)
A. Planning Activity
Defendant argues there was no evidence he planned to kill his mother because there was no evidence of how the homicide took place or what brought it about. He argues the position of his mother's body at the foot of the bed was more consistent with the victim being attacked while standing at the foot of the bed, rather than sleeping in bed. First of all, we have a hard time understanding why the victim's being attacked standing at the end of her bed or attacked while sleeping in her bed would make a difference on the issues of premeditation and deliberation. In any event, we find neither of these arguments persuasive.
There was significant evidence that defendant planned to kill his mother before he did so. First, defendant surreptitiously entered Donna's home approximately two weeks before the murder in what the jury could have reasonably concluded was most likely a test run or, perhaps, an uncompleted plan to kill Donna which began with defendant shutting off the TV and lights in Donna's bedroom without announcing his presence in her home. Donna told her friend, Dianne, with whom she was speaking on the telephone that it was defendant who had entered her bedroom armed with a hammer and berated her with a look of hatred in his eyes. This constituted strong circumstantial evidence that defendant was planning to kill his mother at night in her bedroom as happened less than two weeks later.
We also reject that Donna's position, face down in her nightgown near the foot of her bed required the jury to conclude that they must have been arguing at the foot of the bed.
But once again, even if one accepts defendant's suggestion that the killing occurred only after he and his mother argued while his mother stood near the end of her bed, that suggestion does nothing to negate a finding of premeditation and deliberation. Put simply, the evidence is sufficient to support a reasonable inference that defendant planned ahead of time to confront his mother in her bedroom armed with a weapon with which to kill her. Whether that came after the two argued at the foot of the bed or while his mother slept without knowing of his presence is of little moment on the issue defendant presents here.
Finally, we note the murder weapon in this case was a folding knife, which are typically not kept in an unfolded state. Thus, the jury reasonably may have concluded that defendant unfolded the knife in order to kill Donna, which is also planning activity. (Cf. People v. Sanchez (1995) 12 Cal.4th 1, 34 [retrieving knife from kitchen as planning activity]; People v. Wharton (1991) 53 Cal.3d 522, 547 [bringing hammer or alternatively retrieving hammer from garage as planning activity].)
B. Motive
Defendant argues his anger with his mother Donna over her taking his ex-wife's side in the custody battle over his child is precisely the sort of thing that would result in unconsidered or rash impulses and does not support premeditation or deliberation.
As with defendant's argument above concerning the position of his victim's body, this argument speaks as much in support of premeditation and deliberation as it may against it. While it is true such disputes can lead to rash, unplanned and ill-considered behavior, it is equally true that such disputes can lead to a well-considered plan to kill. (See, e.g., People v. Streeter (2012) 54 Cal.4th 205, 244 [anger at victim who took defendant's son was cognizable motive supporting first degree murder]; see also People v. Kovacich (2011) 201 Cal.App.4th 863, 879, 882-83 [that wife was planning on leaving defendant was motive for murder].)
Finally, on the issue of motive, it is of some significance that defendant made statements to others that he did not care if his mother lived or died. But of much greater significance is the defendant's description of his mother as a problem that "wasn't controllable." The jury could reasonably infer that, if defendant thought his mother's presence was a problem in his dispute over the custody of his son "wasn't controllable" he may well have decided to "control" the problem she presented by taking her life.
In sum, the jury was entitled to make its own determination of defendant's motives and their effect and could reasonably have concluded those motives supported a finding of premeditation and deliberation.
C. Nature of the Killing
Finally, defendant argues that Donna being stabbed 43 times shows it was a rash, impulsive killing not a "particular and exacting" killing. His argument ignores the physical evidence associated with these wounds and the natural inferences that may be drawn therefrom. The 43 wounds were centered on the head, chest, and neck, showing defendant targeted areas likely to kill and thus supporting premeditation and deliberation. (See People v. Elliot (2005) 37 Cal.4th 453, 471 [repeated slashing of throat as showing "preconceived design to kill"]; People v. Pride (1992) 3 Cal.4th 195, 247-248 (Pride) [18 and 40 stab wounds to each victim, respectively, clustered near vital organs as supporting premeditation and deliberation]; People v. Hovey (1988) 44 Cal.3d 543, 556 [repeated stabbing and beating of head supports inference of calculated design to cause death].)
Once again, this evidence of the nature and number of wounds is as, if not more consistent, with defendant's premediated and continuing decision to control an "uncontrollable" problem by eliminating it.
For the reasons stated, we conclude there is substantial evidence of premeditation and deliberation supporting the jury's conviction for first degree murder.
II
The Failure to Instruct on Voluntary Manslaughter
Defendant argues the trial court erred in not instructing the jury on the lesser-included offense of voluntary manslaughter on a heat of passion theory. We find no error.
The trial court has a sua sponte duty to instruct on lesser included offenses in any case where substantial evidence could support a conviction of the lesser charge. (People v. Birks (1998) 19 Cal.4th 108, 118.) This duty exists even where the defense expressly objects to the instruction. (People v. Breverman (1998) 19 Cal.4th 142, 154.)
"[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. ([People v.] Flannel[ (1979)] 25 Cal.3d 668, 684, fn. 12, original italics; see also People v. Bacigalupo (1991) 1 Cal.4th 103, 127; People v. Ramos (1982) 30 Cal.3d 553, 582.) 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed. (Flannel, supra, at p. 684, quoting People v. Carr (1972) 8 Cal.3d 287, 294; accord, [People v.] Barton[ (1995)] 12 Cal.4th 186, 201, fn. 8 ['evidence that a reasonable jury could find persuasive'].)" (People v. Breverman, supra, 19 Cal.4th at p. 162.)
"A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.]
" ' "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.' " [Citation.]' [Citation.] '[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 may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Berry (1976) 18 Cal.3d 509, 515; [citation].)' [Citation.]
"To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. [Citation.] '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.]' [Citation.] ' "However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . ." [Citation.]' [Citation.]" (People v. Moye (2009) 47 Cal.4th 537, 549-550.)
In Pride, supra, 3 Cal.4th at page 250, defendant argued that criticism that he received at work three days before the killing and the possibility that the killing occurred after a "bitter argument" with the victim required the trial court to give an instruction on heat of passion voluntary manslaughter. The court rejected the argument, holding that an argument three days before the crime was insufficient as a matter of law to arouse feelings of homicidal rage in an ordinary person and that a suggestion that there may have been a "bitter argument" just before the killing was pure speculation.
The evidence in this matter is essentially the same. Arguments of the nature presented at trial between defendant and his mother over time cannot be said to be of a nature that they would give rise to a homicidal rage or passion arising on the night of September 25 in an ordinary person. And speculation that an argument might have taken place that would have given rise to such a rage the night of the killing is nothing more than that.
We hold that the evidence presented during the course of this trial was not sufficient to require the trial court to instruct the jury on voluntary manslaughter.
III
Provocation
Defendant argues the trial court erred in failing to instruct the jury that, even where the evidence of provocation is not sufficient to reduce the crime from murder to manslaughter, provocation may be sufficient to reduce the crime from first to second degree murder. He also argues that the People, under the circumstances here, were required to prove the absence of a heat of passion killing in order to prove defendant acted with premeditation and deliberation. And finally, he argues that because his attorney did not request the instructions to which he refers and challenge the instructions he challenges here, he suffered the ineffective assistance of counsel.
We note, first of all, that an instruction to the effect that, even though the provocation sufficient to reduce a murder to voluntary manslaughter is not present, it may be sufficient to negate premeditation and deliberation reducing the crime from first to second degree murder, is a "pinpoint" instruction that the court may give upon request but one that a court is not required to give sua sponte. People v. Rogers (2006) 39 Cal.4th 826, 877-880. There was no request for such an instruction in this case.
Defendant argues that Rogers is distinguishable. But we need not meet that argument here because each of these arguments noted above suffers from the same infirmity: There was insufficient evidence of heat of passion provocation here at the time he killed his mother to support any of defendant's assignments of error related to provocation. At most, the evidence shows that for a significant time before he murdered his mother, defendant was angry with her for supporting his former wife regarding the custody of his son. If pre-existing anger alone was sufficient to require heat of passion instructions, they would be required in very nearly every murder prosecution. That is not the law.
Finally, and specifically to defendant's ineffective assistance of counsel claims, we note that:
"To show ineffective assistance of counsel, defendant has the burden of proving that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674,693-694, 697-698]; People v. Frierson (1991) 53 Cal.3d 730, 747.)" (People v. Kelly (1992) 1 Cal.4th 495, 519-520.)
Given our holding that the evidence was insufficient to support claims based on "heat of passion," defendant's trial attorney cannot be faulted for failing to request instructions unwarranted by the evidence, that is, his representation cannot be said to have fallen below an objective standard of reasonableness.
IV
Cumulative Effect of Errors
Because we have found the trial court did not err, there were no errors to accumulate.
V
The Restitution Award
Defendant has argued the trial court's restitution award to Donna's estate is contrary to law and must be stricken. The People concede that the restitution award to Donna's estate was unauthorized because it represented expenses incurred after her death. (See People v. Runyan (2012) 54 Cal.4th 849.) We accept the People's concession and order the $10,000 award to Donna's estate stricken.
DISPOSITION
We affirm the judgment with the exception that the case is remanded to the trial court, which shall prepare a modified abstract of judgment, reflecting the striking of the $10,000 restitution award to the estate of Donna Teifer. The trial court is further ordered to forward this amended abstract to the Department of Corrections and Rehabilitation so that the defendant's file may be updated to reflect the accurate judgment.
HULL, J. We concur: RAYE, P. J. ROBIE, J.