Opinion
C041297.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY PHILLIP KIEHN, Defendant and Appellant.
A jury convicted defendant Jeffrey Phillip Kiehn of first degree murder (Pen. Code, § 187, subd. (a); further undesignated statutory references are to the Penal Code) and found that defendant intentionally and personally discharged a handgun in the commission of that offense (§ 12022.53, subd. (d)). Sentenced to an aggregate prison term of 50 years to life, defendant appeals, asserting that (1) the court erred in instructing the jury on consciousness of guilt and (2) a sentence of 25 years to life for the weapons enhancement violates constitutional proscriptions against cruel and unusual punishment. Neither contention has merit, and we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Defendant had a lengthy history of drug use and psychological problems, including depression. The events relating to this offense began when defendant purchased marijuana from the victim, Legion Dobbins, and later discovered that the victim had shorted him about 10 grams.
Defendant returned to the victims apartment with a nine-millimeter gun he had stolen earlier from his brother. He sat on a couch across from the victim for about an hour and played with the gun, then stood up and shot the victim in the head and in the neck, killing him. A neighbor heard the shots, and heard a voice yell, "fuck you, Legion."
Defendant returned to his own apartment with an assortment of drugs, including heroin, marijuana, and LSD. He took LSD with his roommate, John Prewitt, and the two sat together and talked. Defendant held the gun in his hand, and at one point said, "Legion, wherever you are," kissed the gun barrel, and placed it on the table. He told his roommate that within eight hours the word would be out that Legion was dead. He described shooting the victim twice in the throat, saying he had fired the shots through his backpack. He said he knew people had heard the shots, but no one saw him.
At one point during this conversation, Prewitt handled the gun and removed the bullets. He did not call the police.
When detectives later questioned Prewitt at the apartment, Prewitt denied any knowledge of the murder. However, when the officers said that Prewitt might be a suspect, he gave them a statement implicating defendant.
The officers subsequently recorded a pretext telephone call between Prewitt and defendant, in which Prewitt expressed his concern that his own fingerprints might be on the gun. Defendant assured him that the gun had been wiped clean and disposed of hundreds of miles away but added that he needed to get the ammunition out of the house.
Defendant then chastised Prewitt for talking about the incident on the telephone. He said he was angry that Prewitt "had fucked up repeatedly and royally" and warned Prewitt to "[u]se [his] brain." Defendant said, "If you dont get stupid and dont get frantic and dont panic, theres not gonna be any problem." When Prewitt said, "Im just scared because I touched the gun," defendant replied "what gun?" Defendant then warned, "Dude, Im gonna hurt you. If you keep on going on this level, Dude, you have a problem, and it has nothing to do with the police. Do you understand?" He added, "Youre getting frantic and getting stupid."
Defendant told Prewitt to remember that "[o]ne, you didnt do anything. Two, you dont know anything. Remain calm, act normal, and you dont have a problem." When Prewitt said he wished defendant had not told him that he killed Dobbins, defendant replied that he wished Prewitt "wouldnt keep on saying it," and added "[c]ause that never happened." But he then said, "[Y]ou had to be filled in because of my involvement with you for fear if you would do something if some cop showed up on your door, started asking you questions about shit you didnt know about, then you might really freak out and you might start puttin shit — shit together and he might see that on your face as youre puttin shit together and going, oh, my god and startin to freak out and then gettin all scared cause theres cops in front of you. So I had to tell you whats goin on. But now youre gettin so stupid and frantic about this shit that Im not sure which is worse. If youd get your fuckin head out of your ass and start thinking and calm the fuck down, there isnt a problem. `Cause you never touched anything. You dont know anything and you just — you dont know."
Defendant was arrested and interviewed by detectives. He said he had heard about the murder but denied any responsibility. He said he had heard that the victim was killed because of "some bad business [the victims roommate] had done . . . ." He denied having a nine-millimeter gun.
The investigators confronted defendant with statements he had made to Prewitt, and defendant began to make various admissions. He said the gun was hidden, and that he had carried the gun for a couple of weeks while he thought he might kill himself. He said he hadnt tried to rob the victim. He admitted telling Prewitt that he shot the victim through his backpack, and he told police he left the victims apartment about 20 seconds after the shooting. Defendant said he burned the clothes he had worn at the time, and acknowledged he had dyed his hair. He said he had disposed of the gun in brush on the beach in San Luis Obispo, and he agreed to take the detectives there to find it.
The search for the gun was unsuccessful, but bullets were found hidden in a heater in defendants apartment, just as defendant had intimated to police.
In another interview a few days later, defendant reiterated an earlier comment that he had thought about robbing a bank and wondered if he had the ability to kill anyone if that was necessary. He had first thought he would kill someone else who was angry with him, but then focused his anger about the drug-deal-gone-bad on Dobbins instead. He described himself as "the greatest salesman and the smoothest talker," and said he thought he could have successfully attributed the killing to others. He explained that he told Prewitt about his involvement so that Prewitt would be prepared when questioned by the police. Defendant expressed his disbelief that Prewitt, instead of being calm, had told the police "everything," thereby taking away defendants "leverage and game plan." Defendant had suspected others were listening to the telephone call Prewitt had made to him.
At trial, Prewitt described his conversation with defendant about the murder, and the prosecutor played recordings of the pretext telephone call and defendants two interviews.
Defense witnesses focused on defendants mental state, and defense counsel argued that defendant was guilty only of manslaughter, not murder. A psychiatrist testified that defendant suffered from chronic mental illness, and had a history of drug abuse and depression. He believed defendants thinking was compromised at the time of the shooting.
Under cross-examination, the psychiatrist described an interview with defendant in which defendant said he had shot the victim twice, took a lighter from the victims hand, and removed everything in the victims apartment that he had touched. The psychiatrist also testified he was aware that defendant had dyed his hair after the murder, and disposed of his backpack, clothing, the gun and bullets.
The jury convicted defendant of first degree murder and found that he intentionally and personally discharged a firearm in the commission of the offense. The trial court imposed an aggregate prison term of 50 years to life, reflecting a mandated sentence of 25 years to life for murder and another 25-to-life term for the enhancement.
This appeal followed.
DISCUSSION
I
Consciousness-of-Guilt Instructions
Defendant contends the court erred in instructing the jury on consciousness of guilt. He raises two distinct claims. First, he contends the instructions violate due process because they are skewed toward the prosecution. Second, he asserts there was no evidence to warrant giving these instructions. Neither claim has merit.
Three consciousness of guilt instructions are at issue, CALJIC Nos. 2.03, 2.04, and 2.06.
CALJIC No. 2.03 ("Consciousness of Guilt-Falsehood") provides: "If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crime for which he is now being tried, you may consider that statement as a . . . circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."
CALJIC No. 2.04 ("Efforts by Defendant to Fabricate Evidence") provides: "If you find that a defendant attempted to persuade a witness to testify falsely regarding evidence to be produced at this trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide."
CALJIC No. 2.06 ("Efforts to Suppress Evidence") provides: "If you find that a defendant attempted to suppress evidence against himself in any manner, such as by the intimidation of a witness or by destroying evidence or by concealing evidence, this attempt may be considered by you as a circumstances tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide."
Defendant asserts that these instructions favor the prosecution and therefore violate due process guarantees. The California Supreme Court has rejected the identical contention. (People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224.) "[E]ach of the [three] instructions made clear to the jury that certain types of deceptive or evasive behavior on a defendants part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendants guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.] We therefore conclude that these consciousness-of-guilt instructions did not improperly endorse the prosecutions theory or lessen its burden of proof." (Id. at p. 1224.)
We note that defendant specifically contends that the instruction we discuss here "emphasize[d] the prosecutions interpretation of events," even though People v. Jackson held that the instructions about which defendant complains did not improperly endorse the prosecutions theory. Disappointingly, defendant failed to acknowledge People v. Jackson or attempt to distinguish it in his opening brief. Worse, he failed to do so in his reply brief after respondent cited and discussed the case. Attorneys have the obligation to advise the court of authority that is contrary, or arguably contrary, to their position on any given issue and point out why that authority should not apply. Only by doing so do they avoid a conclusion, one that we must draw here, that they have consciously sought to mislead the court on the law.
Defendants other claim, that the evidence did not support the giving of the consciousness-of-guilt instructions, is equally unavailing.
"`It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference." (People v. Hart (1999) 20 Cal.4th 546, 620.) This case is replete with such evidence.
Defendant contends the court should not have instructed pursuant to CALJIC No. 2.03 ("Consciousness of Guilt-Falsehood") because, although defendant initially denied any involvement in Dobbinss death, he later confessed to investigators during interviews. Defendant asserts that in People v. Mattson (1990) 50 Cal.3d 826, 872, the California Supreme Court recognized that the probative value of, and inference of consciousness of, guilt from the initial denial might, under these circumstances, be too tenuous to warrant giving CALJIC No. 2.03.
Initially, we note that in his argument to the jury, counsel outlined this instruction and expressly stated "there is no argument about that. [Defendant] flat out lied." The prosecutor urged the jury to focus on defendants mental state at the time of the shooting, rather than any after-occurring facts. In effect, trial counsel recognized that substantial evidence supported giving this instruction.
Defendant reads too much into Mattson in arguing otherwise on appeal. The Mattson court did not conclude that giving CALJIC No. 2.03 was error. Instead, it found no reasonable probability that the jury would have reached a different verdict "absent the error, if it was error." (People v. Mattson, supra, 50 Cal.3d at p. 872, italics added; see People v. Wimberly (1992) 5 Cal.App.4th 773, 795.) In fact, in People v. Nicolaus (1991) 54 Cal.3d 551, 579, the court approved the use of CALJIC No. 2.03 even though the defendant ultimately admitted committing the homicide.
Here, defendant denied any involvement in Dobbinss death and any knowledge of the murder weapon, and admitted his role only after being confronted with statements he had made to his roommate. Defendants initial statements to the police denying responsibility for the murder provided evidentiary support for CALJIC No. 2.03. (See People v. Kelly (1992) 1 Cal.4th 495, 531.) There was no error in giving this instruction.
Defendant relies on the same Mattson-based argument in asserting that there was no evidentiary support for CALJIC Nos. 2.04 or 2.06. In arguing that CALJIC No. 2.04 was erroneously given, defendant downplays the comments he made to Prewitt and asserts: "Whatever weak inference might be drawn from these vague comments, not clearly a request that Prewitt lie, was destroyed, as in Mattson, when [defendant] admitted that he had told Prewitt about the homicide." Similarly, defendant asserts that because he admitted burning his clothes and helped officers try to find the gun he had thrown away, "[t]hese ameliorative efforts rendered any inference of consciousness of guilt extremely tenuous," and negated any basis for giving CALJIC No. 2.06.
We do not agree. Defendants comments to Prewitt were far from vague: Defendant encouraged and threatened Prewitt to lie for him. Defendant threw away the murder weapon, hid the guns ammunition, and burned his clothes in an effort to conceal incriminating evidence. This evidence was more than sufficient to warrant giving consciousness-of-guilt instructions. In fact, when the propriety of CALJIC No. 2.06 was discussed at trial, defense counsel expressly acknowledged that there was evidence to support this instruction. Defendant cannot argue otherwise on appeal.
The fact that defendant ultimately admitted involvement in the murder does not mean that his earlier denials, his suppression of evidence, and his efforts to have Prewitt lie for him were no longer probative of consciousness of guilt. The weight to be given to this conduct was for the jury to determine. There was sufficient evidence to warrant giving the challenged consciousness-of-guilt instructions.
II
Cruel and Unusual Punishment
Section 12022.53 provides additional punishment for the use of a firearm during specified felonies. Subdivision (d) of this statute imposes a consecutive term of 25 years to life if a person convicted of one of these felonies "intentionally and personally discharge[d] a firearm and proximately cause[d] great bodily injury . . . or death . . . ."
Defendant contends this provision is unconstitutional because it violates state and federal proscriptions against cruel and unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
Defendants failure to raise this claim in the trial court waives the matter on appeal. (People v. Kelly (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
However, to forestall a claim of ineffective assistance of counsel, we note that defendants claim lacks merit. Defendant asserts that section 12022.53 is unconstitutional on its face because the statute fails to consider "individual culpability, mitigating circumstances, or gradations in punishment." Other courts have rejected the same assertions. (E.g., People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214-1215; People v. Martinez (1999) 76 Cal.App.4th 489, 493-496.) And, for the reasons expressed in those opinions, we likewise reject defendants claims.
Defendant also argues that a sentence of 25 years to life is cruel and unusual punishment under the facts of this case. He asserts that this punishment is excessive because he "was a relatively young man [21 years old at the time of the offense], burdened by his brain damage, mental illness and deep substance abuse problems . . . ."
A punishment may violate the California Constitution if it is so disproportionate to the crime for which it is imposed "that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) In undertaking this analysis, courts examine the nature of the offense and/or the offender, compare the punishment with the penalty for more serious crimes in the same jurisdiction, and compare the punishment to the penalty for the same offense in different jurisdictions. (Id. at pp. 425-426.) To demonstrate that a sentence is unconstitutionally cruel or unusual, a defendant must make a factual showing in the trial court under one or more of these three tests.
Defendant has put all of his eggs in the nature-of-the offender basket. He ignores the egregious nature of the offense itself. Defendant went to the victims house, sat with him for an hour while continuously engaging and disengaging the safety of a gun, and then shot him in the face and neck. The jury considered defendants claim of an impaired mental state in determining whether the crime was murder or manslaughter, and the jury resolved that question by convicting defendant of first degree murder. Despite defendants youth, minor criminal record, and psychological and drug abuse problems, he willfully committed a cold-blooded murder.
A term of 25 years to life for the intentional personal discharge of a firearm in the commission of a brutal murder cannot be deemed excessive or grossly disproportionate. It does not shock the senses, and therefore does not constitute cruel or unusual punishment under the California Constitution. (People v. Lynch, supra , 8 Cal.3d at p. 424; People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38; see People v. Gonzales (2001) 87 Cal.App.4th 1, 17.)
Defendants claim is no more successful under the federal constitution. The United States Constitution prohibits cruel and unusual punishment by a different standard, limiting its analysis in noncapital cases to a "`narrow proportionality principle," i.e., "`it forbids only extreme sentences that are "grossly disproportionate" to the crime." (Ewing v. California 538 U.S. ___, ___, ___ [155 L.Ed.2d 108, 117, 119 (plur. opn. of OConnor, J.); id. at p. ___ (dis. opn. of Breyer, J.).) For the reasons just stated, a term of 25 years to life for using a firearm while intentionally taking a life is not grossly disproportionate to defendants offense. This sentence is not cruel and unusual punishment under the Eighth Amendment.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J. and MORRISON, J.