P. v. Martin

Filed 6/15/07 P. v. Martin CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

‑‑‑‑

A jury convicted defendant Scott Lee Martin of first degree murder and found true an enhancement allegation that in committing the murder he personally used a deadly or dangerous weapon. (Pen. Code,  187, subd. (a), 12022, subd. (b)(1).)^[1] Sentenced to an indeterminate term of 25 years to life plus one year, he appeals from the ensuing judgment contending there is no substantial evidence the murder was of the first degree; the trial court erred in failing to conduct a competency to stand trial hearing and to instruct sua sponte that evidence of provocation can be considered in determining the degree of murder; his counsel rendered ineffective assistance in failing to request such an instruction; and the sentence for the offense constitutes cruel and unusual punishment in light of his history of use of controlled substances and psychiatric disorder. We shall affirm the judgment.

FACTUAL BACKGROUND

On Thursday, August 26, 2004, Manuel Acuna, a janitor at the John Moss Federal Building in Sacramento, failed to show up at work. The next day police officers went to his apartment and discovered that he had been killed. He was found lying on a mattress. His skull had been broken and his brain lacerated by at least two real hard swing(s) with a blunt object, e.g., a metal bar. He had also been hit in the lower left back. He had been struck while he lay in the position in which he was found. At least one of the head blows was delivered after he was bleeding enough from a previous blow to cause blood to spatter on the walls all over the apartment.

Acuna was a big man, he weighed 252 pounds. There were no injuries to his hands or arms, indicating he did not see the blows coming. The remote control for the television was lying in front of him. There were no signs that a struggle or fight had occurred.

A trail of blood drops led to the bathroom. In the tub police found his wallet, a pair of Faded Glory Authentic brand blue jeans, size 33 by 32, with dark grayish‑brown stains, a pair of size 46 blue jeans, and a towel. The clothing items were damp, as if they had been rinsed off. No cash was found in the wallet, nor anywhere in the apartment.

In the kitchen officers found a receipt from the nearby Ricks Uptown Market dated August 25, 2005, 5:24 p.m. A surveillance videotape from the market taken on that day showed defendant and Acuna grocery shopping together. Acuna paid, and received $9.18 in change.

That evening around 8:30 to 9:30 p.m., a neighbor of Acuna saw a young blond man leaving the vicinity of his apartment. The man had a dark backpack and a rolled yellow towel or blanket atop it.

At 2:00 or 3:00 a.m. on the morning of August 26, defendant came to the door of Ashley Graves. They had been friends since childhood. He had a backpack and wore a blood‑spattered T‑shirt. He told Graves that he got into a fight and had killed a man that night. He showed her a card with Acunas name on it. He said that he had allowed Acuna to go down on him and after Acuna was finished he had killed him. He asked Graves to go back to the scene with him to search for money or property. [Graves] was like whatever, you know, you need to leave. He left.

On August 31, 2004, defendant was arrested at the home of his father. A search revealed a steel bar, a backpack, a yellow blanket, and Faded Glory Authentic brand blue jeans, size 32 by 32 with staining similar to those found at Acunas apartment. A pipe used for smoking narcotics such as cocaine and methamphetamine was also found.

Defendant agreed to talk to the police after his arrest. He told the detective that he was 24 years old, unemployed, had been using drugs for about 10 years, drug use was a part of everyday life. He had no money to pay for a rehabilitation program, and [y]ou really get lost out there and . . . [i]ts all bad. He lived at his fathers home intermittently. He denied he killed Acuna. He agreed they were kind of, sort of more than friends and suggested Acuna got in a bad mood because defendant didnt want to be like that and told him to leave.

DISCUSSION

I

Defendant contends that there is not substantial evidence to support the verdict that the murder was of the first degree. He argues that the evidence at best, demonstrated [he] killed Acuna in a quick reaction to an argument between the two of them. He submits this is not sufficient under the teaching of People v. Anderson (1968) 70 Cal.2d 15 (Anderson). The Attorney General replies that the evidence suffices to show a planned killing because it affords inferences that defendant, reflecting on several perceived grievances, chose a deadly weapon, crept up on Acuna unawares, intentionally killed him, stopped once he succeeded, and then robbed Acuna.

The passage which defendant relies upon in Anderson, supra, 70 Cal.2d at pages 26-27, is as follows:

The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what [the] defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing‑‑what may be characterized as planning activity; (2) facts about the defendants prior relationship and/or conduct with the victim from which the jury could reasonably infer a motive to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of a pre-existing reflection and careful thought and weighing of considerations rather than mere unconsidered or rash impulse hastily executed (People v. Thomas [(1945)] 25 Cal.2d 880, at pp. 898, 900, 901); (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design to take his victims life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2).

Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).

Subsequent cases have cautioned that this planning, motive and method scheme is not exclusive. (E.g., People v. Elliot (2005) 37 Cal.4th 453, 470-471 [It is simply an aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse].)

The facts in this case, construed in the requisite light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 575-579), are as follows: Defendant was a drug user without the means to support himself or satisfy his cravings. He knew his sojourn with his patron Acuna was coming to an end. He armed himself with the heavy metal bar, approached Acuna surreptitiously, gave him a vicious blow to the head evincing an intent to kill, and then repeated that act. He washed up, gathered up Acunas valuables and left. Later that night he attempted to recruit a confederate to return to the scene for a more thorough search for loot.

These facts afford an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.

There are candidates suggested in the record for motives to kill other than the motive to take Acunas property. These come from statements that defendant made to Dr. Janice Nakagawa (the psychologist) and to Dr. Charles Schaffer (the psychiatrist), mental health specialists who interviewed him to determine the viability of a defense of not guilty by reason of insanity. ( 1027.) The statements to the psychologist were adduced when she was called as a defense witness. The statements to the psychiatrist were adduced when he was called by the prosecution as a rebuttal witness.

Defendant told the psychologist that at the time of the killing he thought he was being held hostage; he was being told by voices that he had to do something to get out of Acunas apartment or he would be there forever. Defendant also told the psychologist that he was angry because Acuna kept telling him he needed to get [him]self straightened up.

In a subsequent interview with the psychiatrist he first said that he was hearing voices but that they did not tell him to hit Acuna. Later he said they did tell him to do so. He offered other possible reasons for the attack. He said he was a little bit angry at Acuna because Acuna told him to get his life together or he would end up being a loser. He said that he had sexual relations with Acuna a few hours before the incident and that he did not feel comfortable with that. He attributed the deed to an impaired mental state due to being under the influence of drugs and alcohol. I did not know what I was doing. He never asserted that he felt he was being held hostage. On the contrary, he said he was fearful that Acuna was going to eject him from the apartment.

The trier of fact was not constrained to accept any of this self-serving, secondhand evidence about defendants mental state at the time of the killing. The jury was free to accept one part as consistent with the other evidence and to reject other parts. Even if the statements were accepted, there is no compelling evidence that when defendant killed Acuna he did so as a result of passion that would preclude preexisting reflection and weighing of considerations. For all the foregoing reasons, defendants contention that there is not sufficient evidence of first degree murder is not meritorious.

II

Defendant contends that the trial court erred in failing to suspend the proceedings and to conduct a mental competency hearing under section 1369. Defendant first argues the court stated a doubt as to his competence in the record within the meaning of section 1368^[2]and was thereby bound to conduct a competency hearing. Alternatively, he submits that there was substantial evidence before the court that he was mentally incompetent which required the court to conduct a hearing. Neither argument is persuasive.

The record concerning this issue is as follows. The information in this case was filed in February 2005. In late June 2005, the jail notified the court that defendant had been seen for psychiatric evaluation. On July 27, 2005, defendant entered a plea of not guilty by reason of insanity and the court, Judge Frawley presiding, appointed Drs. Nakagawa and Schaffer to conduct an evaluation pursuant to section 1026.

On August 8, 2005, a deputy superior court clerk sent a letter to Drs. Nakagawa and Schaffer that said Judge Frawley had appointed them to examine defendant for a determination under section 1367 et seq. of whether he was presently mentally incompetent. The letter explains recent changes in the law of mental incompetence.

On August 17, 2005, the deputy clerk sent another letter to Drs. Nakagawa and Schaffer that says Judge Frawley had appointed them to examine defendant pursuant to section 1027. This letter, bearing the handwritten notation corrected, explains the legal standards for not guilty by reason of insanity.

Defendant asserts that the letters from the clerk to Drs. Nakagawa and Schaffer are orders issued by the court and argues that the first such order amounts to the court stating a doubt as to his mental competence in the record, within the meaning of section 1368. He submits that having done so, the court was bound to conduct a competency hearing, citing, e.g., People v. Marks (1988) 45 Cal.3d 1335, 1340-1341.

The short answer to this claim is that a letter from the deputy clerk is not an order. From all that is made to appear, the deputy clerk made a clerical error in sending the wrong form letter to Drs. Nakagawa and Schaffer. There is no indication on this record that the court ordered an examination for purposes of determining defendants mental competency to stand trial. There is no colorable claim that the court stated a doubt as to defendants mental competence in the record within the meaning of section 1368.

Defendant next argues a competency hearing was compelled under People v. Hayes (1999) 21 Cal.4th 1211, 1280-1281 (Hayes), because there was substantial evidence that defendant was incompetent to stand trial. He submits this evidence consists of: (1) agreement by both Drs. Nakagawa and Schaffer that he was suffering from a mental disorder; (2) he had attempted to remove his eyeball while jailed; (3) he had been placed in acute in-patient hospitalization while in jail and was prescribed psychoactive drugs; (4) he asserted he had engaged in alcohol and other drug abuse since early childhood; and (5) he asserted a long history of auditory hallucinations and delusions.

In Hayes, the defendant asserted, inter alia, that migraine headaches, inability to sleep, use of medications, and solitary confinement rendered him incompetent. (Hayes, supra, 21 Cal.4th at p. 1281, fn. 30.) He also pointed to a babbling statement to police, testimony regarding his delusions while high on cocaine, a prior acquittal of murder on grounds of insanity, past psychiatric treatment, a prior finding of incompetence to stand trial, prior commitment to a mental institution, and treatment with psychotropic medication. (Ibid.)

The Supreme Court acknowledged the rule that the trial court is required to suspend criminal proceedings sua sponte and hold a hearing to determine competency whenever substantial evidence of incompetence is introduced. (Hayes, supra, 21 Cal.4th at p. 1281.) However, as to the actual claim tendered the high court said: Evidence regarding past events that does no more than form the basis for speculation regarding possible current incompetence is not sufficient. [Citation.] [] The short answer to [the defendants] claim is that nothing in the record suggests that at any time during these proceedings [he] was unable to understand the nature of the proceedings or to assist counsel in conducting the defense in a rational manner. (Id. at pp. 1281-1282.)

The Hayes opinion notes that defense counsel never expressed a reservation about competency and that there was nothing in the record of the defendants behavior during appearances in court which indicated present incompetency. (Hayes, supra, 21 Cal.4th at p. 1282.)

We glean from Hayes and other precedents that evidence of a mental disorder is not substantial evidence of incompetence to stand trial. (See also, e.g., People v. Ramos (2004) 34 Cal.4th 494, 509; People v. Welch (1999) 20 Cal.4th 701, 742.) The defendant must show evidence before the court specifically connecting the nature of a mental disorder to a conclusion it was rendering him unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. [A] reviewing court generally gives great deference to a trial courts decision whether to hold a competency hearing. As we have said: An appellate court is in no position to appraise a defendants conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper. (People v. Marshall (1997) 15 Cal.4th 1, 33.)

The contention that the trial court erred in failing to suspend the proceedings and to conduct a mental competency hearing under section 1369 is not meritorious.

III

Defendant contends the trial court erred in failing to instruct sua sponte, in the manner of CALJIC No. 8.73,^[3]that evidence of provocation should be considered in determining the degree of murder. In the alternative, he contends that, if there was no such duty, his trial counsel was prejudicially incompetent in failing to request that the court give such an instruction. Neither claim has merit.

As the Attorney General points out, and as the use note to the instruction declares, there is no duty to give CALJIC No. 8.73 sua sponte, as it is a pinpoint instruction. (E.g., People v. Rogers (2006) 39 Cal.4th 826, 878-879; People v. Lee (1994) 28 Cal.App.4th 1724, 1732-1734.) The contention to the contrary is meritless.

Defendants alternate contention of incompetency of counsel is also groundless. On appeal defendant argues that the issue of provocation was central to his defense at trial, hence, there can be no satisfactory tactical reason for failing to request this instruction. To show the centrality of this matter he cites several points in defense counsels closing argument where he argued that defendant should not be found guilty of first degree murder because he acted in a rash, impulsive state of mind when he killed Acuna. However, strikingly absent from these passages is any mention of the term provocation or of any reference to provocative conduct of the victim. Counsel pinned his hopes on the claim that defendant was psychotic and manic, had a mental disease and disorder, and exhibited uncontrolled behavior because he was not receiving needed psychoactive medication. Counsel may well have reasoned that any indication that the defense was blaming the victim would not have been well received by jurors on these facts.

The decision of how to argue to the jury after the presentation of evidence is inherently tactical . . . . (People v. Freeman (1994) 8 Cal.4th 450, 498.) To prevail on a claim that counsels approach in such a matter was ineffective, defendant must overcome the strong presumption that counsels actions were sound trial strategy under the circumstances prevailing at trial. (Ibid.; accord, Strickland v. Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 694-695].) (People v. Barnett (1998) 17 Cal.4th 1044, 1163-1164.) We cannot say that a decision to soft‑pedal provocation here would be beyond the tactical pale. The contention of incompetency of counsel is not meritorious.

IV

Defendant contends the sentence for the offense constitutes cruel and unusual punishment. He relies principally upon People v. Dillon (1983) 34 Cal.3d 441, in which various considerations led the Supreme Court to conclude that in the circumstances of that case the punishment by a sentence of life imprisonment as a first degree murderer violated the prohibition against cruel and unusual punishment. He argues that he compares favorably to the defendant in Dillon in light of the circumstances of this crime and his history of use of controlled substances and psychiatric disorder. We do not agree that the comparison weighs in his favor.

The review [the] defendant asks us to undertake affects the separation of powers between the judicial and legislative branches. Findings of disproportionality have occurred with exquisite rarity in the case law. Because it is the Legislature which determines the appropriate penalty for criminal offenses, defendant must overcome a considerable burden in convincing us his sentence was disproportionate to his level of culpability. (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.) (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.)

Various salient considerations which moved the court in Dillon are not present in this case. In Dillon the defendant was a minor convicted under the felony‑murder rule. (Dillon, supra, 34 Cal.3d at p. 482.) As such he received the highest punishment allowed by law, the same as if he had committed a premeditated first degree murder. Both the trial judge and the jurors indicated that they accepted his exculpatory account of his actions and state of mind and strenuously expressed misgivings about the severity of the rigid application of the felony‑murder doctrine. (Id. at p. 487.) The other defendants in the misadventure with him received the proverbial slap on the wrist. (Id. at p. 488.)

Here, defendant is an adult. This is not a felony‑murder case. Defendant was convicted of first degree murder based upon the Legislatures criteria for that offense‑‑intentional killing with premeditation and deliberation. There is no indication the court or jury credited his claims of mitigating circumstances. On appeal, we are constrained to read the record in support of the judgment and cannot indulge favorable assumptions about the conflicting evidence at trial. Defendant did not act to defend himself or others. He took advantage of a position of trust and confidence to commit a brutal, unprovoked killing. For all the foregoing reasons, we find no merit in the contention that the sentence imposed constitutes cruel and unusual punishment.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

NICHOLSON , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] Section 1368, in relevant part, is as follows:

(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.

(b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendants mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court.

(c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.

^[3] CALJIC No. 8.73 is as follows: If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.