Opinion
A146972
05-30-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL YOURAVISH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1302689)
Michael Youravish led Forrest Lovejoy down an isolated forest path, ostensibly to steal marijuana plants, then brutally stabbed him 35 times with a knife he took earlier that evening from a friend's home. He was convicted of first degree murder with a special circumstance of lying in wait. Youravish contends the evidence was insufficient to support the special circumstance, that the court misinstructed the jury on the effect of his voluntary intoxication, and that his counsel rendered ineffective assistance by failing to request adequate jury instructions. He also asserts his sentence of life in prison without the possibility of parole violates the Eighth Amendment. His contentions are meritless, so we affirm.
BACKGROUND
Youravish spent the afternoon of the murder drinking beer at a bar in McKinleyville with his acquaintance Lovejoy and his foster brother Ricky M. Youravish seemed "[r]eally hyper."
Ricky left the bar before his companions, but he encountered them later as he and his girlfriend walked to a store to pick up dinner. Lovejoy and Youravish were "joking around and laughing." Youravish, who was temporarily staying with Ricky, asked for the house keys. Ricky complied but told Youravish that Lovejoy could not go inside.
Ricky and his sister Tara lived with their father and 14-year-old nephew Zack. When Tara got home that evening Zack, Youravish, and Lovejoy were outside. Youravish and Lovejoy were talking about "some chomo," or child molester, "that they were having problems with." Youravish was bleeding from a cut on his forehead he said he got "messing around with . . . his little switchblade," and kept saying "he was going to gut a chomo." Tara sent Zack inside and told Youravish to calm down and clean up his face.
In the house, Youravish grabbed a large knife from the kitchen. Tara took it away from him, but when she left the kitchen he took it again and left with Zack. Tara called Ricky, told him about the situation, picked up Ricky and his girlfriend and brought them home. When they arrived Youravish, Lovejoy and Zack were down the street. Youravish was drunk and yelling something like " 'I told him I would do it if he didn't leave my girlfriend alone.' " Tara's kitchen knife was hanging from the back of Youravish's belt.
Youravish wanted to go "rob some weed plants" in "Baldy," a nearby forested area. He said either Zack or Ricky had to go with him, so Ricky decided that he would go. He testified, "I didn't know about Forrest and Michael was intoxicated, so it wasn't really a good idea to put my nephew, a 14-year-old kid, to go out doing something he shouldn't be doing."
Youravish, Lovejoy and Ricky walked to a path that had been barricaded with boulders to keep vehicles out. The path was so narrow they had to walk single-file into the woods, with "[n]ot really room to even ride a bicycle on." Youravish walked in front, followed by Lovejoy and then Ricky. Ricky was playing "Angry Birds" on his iPod, and looking up only every few steps to keep from tripping.
After they walked about 300 yards into the woods, Ricky looked up from his phone and saw Youravish suddenly turn around and stab Lovejoy three times in the belly. Lovejoy collapsed. Ricky testified that Youravish "started pointing the knife at me, and he told me to help him. And he kept screaming at me. And he told me he needs proof." When Ricky refused to help, Youravish threw him his phone and "made [him]" video the attack. Ricky complied and videoed Youravish repeatedly stabbing Lovejoy in the face, neck and abdomen. During the attack Youravish said something like " 'Snitches get stitches. They die in the dirt.' " Finally Ricky threw the phone down and fled.
A deputy sheriff testified it took about ten minutes to traverse the distance.
Not long after, Youravish caught up to Ricky on the street and told him " 'I got that snitch.' " Ricky responded, " 'Stay away from my family and don't say nothing to them.' " When they got back to the house Youravish "start[ed] threatening [Ricky's] family and telling me he's going to do the exact same thing . . . to them."
Youravish showed Tara's girlfriend a video on his cellphone. What she saw made her drop the phone, run into her room and lock the doors "[b]ecause I knew something bad had happened." Ricky told Youravish to leave. He complied, but called Ricky a "pussy" and said he "better not say nothing."
T. Gonzalez, who was dating one of Youravish's sisters, picked him up in McKinleyville that night as a favor to his girlfriend. Youravish insisted that Gonzalez watch a video on his cellphone, saying " 'Look at this. This is what happens to people who fuck with my family.' " To his horror, Gonzalez heard screaming and saw Youravish brutally and repeatedly stab a pleading victim. At one point in the video "there was a pause in the stabbing" and Youravish turned toward the camera to make sure he could be seen. He told Gonzalez, " 'Look. Look. Look. This is the best part.' " Although Gonzalez was trying to drive, he looked back at the video and saw Youravish holding a bloody knife. Youravish then turned back to the victim, who was slumped over on his knees, and continued to stab him in the head and upper body.
Gonzalez testified the victim "must have known something, because he began screaming 'I take Jesus Christ as my Savior.' " Youravish "stabbed him, you know, a bunch more times. Then he stopped, I would say, couple more seconds. Then he looked up and noticed that Ricky was gone or that he had taken off, like to the right. And he ran over to the camera. I—he might have even been screaming [Ricky's] name at that time. But you could tell in the video that he was shocked that he was now, like by himself, maybe." Youravish told Gonzalez the victim "was a rat and that he was fucking with his family." Gonzalez dropped Youravish off in Eureka.
One morning Youravish asked his acquaintance D. Little to drive him to McKinleyville, where they took Little's dog for a walk in the woods. Youravish was a few steps ahead of Little when they came across a body. Youravish told Little he had killed the man because he was a "child molester, or snitch, or something like that." Lovejoy's body was later found about 40 feet from the clearing where he was killed, covered with brush, debris and trash.
Investigator Todd Fulton testified that marijuana is grown on Baldy, "but not anywhere near the area Mr. Lovejoy was located. It's too close to the community." Marijuana is normally harvested from September through November; the buds would probably be "in infancy stage" at the time of the June murder.
The defense theory was that Youravish killed Lovejoy in a sudden drunken eruption of violence, without premeditation, deliberation or concealment of purpose. Youravish was convicted as charged of first degree murder with a special circumstance of lying in wait and sentenced to life in prison without the possibility of parole.
DISCUSSION
I. Substantial Evidence Supports the Lying In Wait Special Circumstance
Youravish contends the evidence was insufficient to support the jury's finding that he committed the murder while lying in wait. Not so.
A. Legal Standards
The test to assess a claim of insufficient evidence is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Reed (2000) 78 Cal.App.4th 274, 279.) "When an appellant attacks the sufficiency of the evidence to support a conviction, this court must examine the entire record in the light most favorable to the judgment below and presume in support of the judgment the existence of every fact that can reasonably be deduced from the evidence. [Citation.] Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. [Citation.] If the circumstances reasonably justify the findings of the trier of fact as to each element of the offense, an opinion of the reviewing court that the circumstances might also lead to a contrary finding does not warrant reversal." (In re Leland D. (1990) 223 Cal.App.3d 251, 258; People v. Bunyard (1988) 45 Cal.3d 1189, 1213, abrogated on another point in People v. Diaz (2015) 60 Cal.4th 1176, 1190.)
B. Analysis
Youravish argues there was no evidence he "harbored a murderous intent at any time prior to his attack on Lovejoy." We disagree.
Lying in wait requires "a concealment of purpose and a meaningful period of watching and waiting for an opportune time to attack, followed by a surprise lethal attack on an unsuspecting victim from a position of advantage," such as where the defendant "ambushes the victim after luring him or her to a secluded spot on a pretext." (People v. Carasi (2008) 44 Cal.4th 1263, 1310; see, e.g., People v. Bonilla (2007) 41 Cal.4th 313, 333-332 & fn. 6.) " ' "The element of concealment is satisfied by a showing" "that a defendant's true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim." ' " (People v. Hillhouse (2002) 27 Cal.4th 469, 500.)
Here, the evidence shows that under the pretext of stealing marijuana plants, Youravish lured Lovejoy into the woods with the intention of launching a surprise lethal attack on his unsuspecting victim. Investigator Fulton testified it was too early in the season to harvest marijuana and, in any event, that it was not grown anywhere near the murder site. Youravish was agitated and ranting about wanting "to gut a chomo" that evening. Before setting out for the forest he took a "really big knife" with a long blade from the kitchen—"the biggest kitchen knife you have in your kitchen . . . you know, like a Friday the 13th knife, you know, like quintessential stabbing knife." Youravish led Lovejoy down a series of increasingly narrow paths through trees and thick underbrush to a remote area. Then he suddenly turned and, without warning or preface, brutally stabbed Lovejoy with the kitchen knife. Youravish demanded that Ricky video the assault because "he need[ed] proof" and said "[s]nitches get stitches. They die in the dirt.' " Afterward he told Ricky " 'I got that snitch,' " and variously explained to other people that Lovejoy was a "snitch," a "rat," a child molester, or had "fuck[ed] with [his] family." This was ample evidence of lying in wait.
Youravish argues the evidence was insufficient to prove lying in wait because his motive for killing Lovejoy was unclear, but motive is not an element of the special circumstance. " 'Motive is not a matter whose existence the People must prove or whose nonexistence the defense must establish.'" (People v. Roldan (2005) 35 Cal.4th 646, 707, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Nor was it necessary, as Youravish suggests, for the prosecutor to identify the precise moment at which he decided to kill Lovejoy. "[T]he lying-in-wait special circumstance requires no fixed, quantitative minimum time, but the lying in wait must continue for long enough to premeditate and deliberate, conceal one's purpose, and wait and watch for an opportune moment to attack." (People v. Bonilla, supra, 41 Cal.4th at p. 333.) Ample evidence supports the jury's finding that Youravish killed Lovejoy while lying in wait.
II. The Jury Was Properly Instructed on Voluntary Intoxication
Youravish contends the court erred in instructing the jury with CALCRIM No. 625 on the effect of voluntary intoxication on intent, deliberation and premeditation. He argues the court should have modified the instruction to expressly apply to the lying-in-wait special circumstance as well as to the homicide charge. We disagree.
A. Background
After instructing the jury on the general principles of homicide, the court instructed the jury under CALCRIM No. 625 that "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation. [¶] A person is voluntarily intoxicated if he becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect or willingly assuming the risk of that effect. You may not consider the evidence of voluntary intoxication for any other purpose." (Italics added.)
The jury was also instructed that "In order to prove the special circumstance of lying in wait, the People must prove not only that the defendant did the act charged, but also that he acted with particular intent or mental state" and "To prove this special circumstance true, the People must prove that: One, the defendant intentionally killed Forrest Croft Lovejoy; and, two, the defendant committed murder by means of lying in wait. [¶] A person commits a murder by means of lying in wait if: One, he or she concealed his or her purpose from the person killed; two, he or she waited and watched for an opportunity to act; three, then he or she made a surprise attack on the person killed in a position of advantage; and, four, he or she intended to kill the person by taking the person by surprise. [¶] The lying in wait does not need to continue for any particular period of time. But its duration must be substantial and must show a state of mind equivalent to deliberation or premeditation. [¶] The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequence, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused a death." (Italics added.)
B. Analysis
Youravish says it was error for the court to instruct the jury that it could not consider voluntary intoxication for any purpose other than intent, premeditation or deliberation, because doing so "prevented the jury from considering evidence of voluntary intoxication as negating the mental state requisite for lying in wait, namely, as state of mind equivalent to deliberation or premeditation." The contention is meritless. " 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." [Citations.]' " (People v. Solomon (2010) 49 Cal.4th 792, 822.) "The meaning of instructions is tested by 'whether there is a "reasonable likelihood" that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.' " (People v. Fiu (2008) 165 Cal.App.4th 360, 370.)
Here, the jury was informed by CALCRIM No. 625 that it could consider the evidence of Youravish's voluntary intoxication only in deciding whether he "acted with an intent to kill . . . or . . . deliberation and premeditation." This instruction neither expressly limited the jury's consideration of Youravish's intoxication to whether he committed first degree murder nor suggested it was inapplicable to the special circumstance. To the contrary, the jury was instructed the requisite state of mind for lying in wait was equivalent to premeditation and deliberation, a point the prosecutor reinforced when he argued in closing that "[l]ying in wait does not need to continue on for any particular period of time. But its duration must be substantial and must show a state of mind equivalent to deliberation and premeditation. [¶] . . . [¶] The defendant acted deliberately if he carefully weighed the considerations for and against his choice, and knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. That's the same jury instruction as in first degree murder." Defense counsel argued the same point. "Now—now, this idea of lying in wait is essentially tantamount to the premeditation and deliberation. It's just sort of another way of saying it, but it's much more specific." As a matter of common sense and reasonable interpretation of the instructions as a whole, there is no doubt that the jury would have considered Youravish's voluntary intoxication in determining whether Youravish acted with the state of mind required for lying in wait.
Even if there were any doubt, an amplifying instruction expressly relating deliberation and premeditation to lying in wait would have made no difference. Youravish cannot explain how the jury could have found he was sober enough to premeditate and deliberate the murder and yet at the same time was too drunk to harbor the "equivalent" mental state for lying in wait. Plainly, it could not have done so. Thus, even were there any merit to his claim (there is not), the alleged error was harmless under any standard. (See People v. Flood (1998) 18 Cal.4th 470, 484 [error harmless where factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions].) These conclusions eliminate any need to separately address Youravish's claim that defense counsel provided ineffective assistance in failing to request an amplifying instruction. (See Strickland v. Washington (1984) 466 U.S. 668, 687 [defendant claiming ineffective assistance must show deficient representation and prejudice].)
III. The Sentence Does Not Constitute Cruel and Unusual Punishment
Youravish claims that, because he was 21 years old when he murdered Lovejoy, his sentence is unconstitutional in light of recent United States Supreme Court cases holding that mandatory life sentences without the possibility of parole for juveniles younger than 18 violate the Eighth Amendment's prohibition against cruel and unusual punishment. This claim, too, is meritless.
Following and developing upon its holdings in Roper v. Simmons (2005) 543 U.S. 551 (Roper) [execution of minors under 18 years old at the time of their crime violates the Eighth Amendment] and Graham v. Florida (2010) 560 U.S. 48 [juvenile's sentence of life without possibility of parole for non-homicide offense was unconstitutional], in Miller v. Alabama (2012) 567 U.S. 460 (Miller) the United States Supreme Court held that "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory-sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment." (Id. at p. ___, 132 S.Ct. at p. 2475.)
Youravish acknowledges these holdings do not apply to him, but argues they should be extended to his benefit because evolving standards of decency compel recognition that "the characteristics of juveniles that motivate the decision in Miller are also characteristics of 21-year-olds." But our Supreme Court has rejected this kind of attempt to extend Miller's rationale to adult murderers. In People v. Gutierrez (2014) 58 Cal.4th 1354, 1380, it observed that " '[d]rawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach.' [Citation.] But '[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood' [citation], and that is the line the high court has drawn in its Eighth Amendment jurisprudence." (Id. at p. 1380, quoting Roper, supra, 543 U.S. at p. 574 and Miller, supra, 567 U.S. at p. ___, 132 S.Ct at p. 2464.)
Similarly, in People v. Argeta (2012) 210 Cal.App.4th 1478, 1481-1482 the court of appeal rejected a claim that a defendant who committed murder at the age of 18 years and five months should receive the same sentencing considerations as a juvenile under 18. "These arguments regarding sentencing have been made in the past . . . . Making an exception for a defendant who committed a crime just five months past his 18th birthday opens the door for the next defendant who is only six months into adulthood. Such arguments would have no logical end, and so a line must be drawn at some point. We respect the line our society has drawn and which the United States Supreme Court has relied on for sentencing purposes, and conclude Argeta's sentence is not cruel and/or unusual under Graham, Miller, or Caballero." (Id. at p. 1482.) We reach the same conclusion and adhere to the established precedent. Youravish's sentence is not disproportionate and does not violate the Eighth Amendment.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Jenkins, J.