Filed 2/8/22 P. v. Beardsley CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL BEARDSLEY,
Defendant and Appellant.
|
F079085
(Super. Ct. No. BF172966A)
OPINION |
APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge.
Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Timothy L. O’Hair, and Nikta Allami, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Michael Beardsley was convicted of first degree murder after he killed his cellmate in prison. On appeal, he claims his counsel failed to object to certain irrelevant evidence. He also challenges specific fines and fees imposed as part of the sentence. Finding no prejudicial error, we affirm the judgment.
BACKGROUND
Charges
The Kern County District Attorney charged Beardsley with first degree murder (Pen. Code,[1] § 187, subd. (a)). The charges included enhancements for using a deadly weapon (§ 12022.1, subd. (b)(1)) and prior convictions (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e), 667, subd. (a), 667.5, subd. (b)).
Trial Evidence
Beardsley killed his cellmate. When correctional officers arrived at the cell, they found the victim with a torn cloth sheet around his neck. Beardsley was interviewed and denied being the victim of a sexual assault. The interviewing officer later testified “it was eerily [sic]. It was kind of scary how calm [Beardsley] was with the whole situation.”
A forensic pathologist testified strangulation caused the victim’s death. The victim also suffered numerous bruises about his body.
Beardsley testified on his own behalf. He perceived a “mural” on the cell wall as a threat. At some point, he asked the victim why he was in prison. Instead of answering, the victim splashed water from a sink in Beardsley’s face. Beardsley thought the victim “was trying to attack [him]” and responded by striking the victim. A fight ensued. It ended when Beardsley used a makeshift clothesline to strangle the victim.
Prior to reaching for the clothesline,[2] Beardsley weighed the consequences of letting the victim live versus ending his life and chose to kill. He decided to kill because his own “life [was] over either way.” He did not regret it because he later learned the victim was a “child molester.” As Beardsley described it, they “got in a fight and [the victim] [got] the fuck … killed.” Some time after the homicide, Beardsley wrote a letter that included the lines, “I killed my celly because he washed his hands. LOL. Crazy, right?”[3]
Verdict and Sentence
Beardsley was convicted as charged. He was sentenced to serve 91 years to life in prison.
DISCUSSION
Two issues are presented on appeal. First, Beardsley blames his counsel for failing to object to the officer’s testimony he felt scared in Beardsley’s presence. Was counsel ineffective?
Second, during the sentencing hearing, Beardsley claimed he was unable to pay fines and fees imposed as part of the judgment. The court considered the objection and nonetheless imposed fines and fees. Were those fines and fees properly imposed?
We will conclude the officer’s testimony describing his own emotional state was irrelevant but did not prejudice the trial. We also find Beardsley failed to discharge his burden to prove inability to pay and the court did not otherwise deny him due process. Accordingly, we will affirm the judgment.
I. No Ineffective Assistance
Beardsley maintains his counsel was ineffective for failing to object to testimony an officer felt eerie and scared in Beardsley’s presence after the homicide. He argues the officer’s “feel[ing]” was irrelevant and “tilted the scales sufficiently to result in an unreliable verdict.”
The People suggest the officer personally observed Beardsley’s “calm demeanor shortly after the murder and testified that it was ‘eerie’ and ‘scary.’ ” Because the testimony was based on the officer’s personal observation, they conclude it “was therefore admissible.”
We believe the People fundamentally misunderstand the testimony. The officer’s personal observation was that Beardsley was calm. The fact it felt eerie or scary expressed the officer’s own emotional state. That was irrelevant. But lack of objection does not amount to ineffective assistance in this case.
“ ‘[T]o establish a claim of ineffective assistance of counsel, [a] defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] ... under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” ’ ” (People v. Bell (2019) 7 Cal.5th 70, 125 (Bell).) “ ‘ “If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ ” (Ibid.)
“[W]e ‘defer[ ] to counsel’s reasonable tactical decisions’ and presume that ‘counsel acted within the wide range of reasonable professional assistance.’ ” (People v. Arredondo (2019) 8 Cal.5th 694, 711.) “ ‘Whether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.’ ” (People v. Bernal (2019) 42 Cal.App.5th 1160, 1169.) This case is not the exception.
The officer’s emotional state in this case did not prove any fact relevant to the crime and was inadmissible.[4] But Beardsley’s testimony left little doubt as to the trial’s outcome. He testified he had subdued the victim, considered the consequences of killing him, then carried it out. Absent the testimony describing the officer’s emotional state, it is not reasonably probable the jury would have returned a different verdict because that testimony added little, if anything, to the calculus. (See Bell, supra, 7 Cal.5th at p. 125.) The ineffective assistance claim fails because the objectionable testimony was not prejudicial.
II. Fines and Fees Properly Imposed
In challenging fines and fees, Beardsley “submits that the trial court’s statement of reasons … did not fulfill its obligations to determine [his] ability to pay … and [the court] did not [otherwise] hold a hearing on the issue.” The People assert “[t]he trial court did find that [Beardsley] had an ability to pay and that finding was not an abuse of discretion.” They base their argument on the fact the court found Beardsley “would have the ability to earn prison wages over a sustained period.” For the reasons that follow, we hold the court did not err.
A. Additional Background
During sentencing, Beardsley’s counsel objected to fines and fees. He stated:
“[T]here is a recent case related to fines and fees and the ability to pay given an anticipated very lengthy sentence in addition to the sentence he’s already serving. I expect that Mr. Beardsley does not have the ability to pay fines and fees. People vs. Duenas, D-u-e-n-a-s, 2019 case, 30 Cal.App. 5th, 1157. The Court should consider Mr. Beardsley’s ability to pay.
“I suggest he does not have the ability to pay and I would ask the Court not impose any of the fines and fees based on that inability. Otherwise, I’m prepared to submit.”
The court responded,
“The Court does have some discretion to consider the defendant’s source of income which is minimal but he is given an inmate salary and he’ll have that inmate salary for the remainder of his life. I don’t think it is inappropriate to impose these minimum fees on him knowing that that simply would be paid out of his inmate account money even if he has no other income. I don’t think it’s prohibitive considering the length of the sentence.”
The court then imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations fee (§ 1465.8), and a $30 court facilities fee (Gov. Code, § 70373). After imposing the fines and fees, the court asked Beardsley and his counsel if there was “anything else” or “any questions?” Both responded “in the negative.”
B. Analysis
“[A] defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court.” (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) “pon proper objection, the court must hold a hearing at which [the] defendant will have an opportunity to bear his burden of proof on the issue of ability to pay.” (People v. Cowan (2020) 47 Cal.App.5th 32, 49-50.) In assessing ability to pay, a trial court may appropriately consider future income. (Id. at p. 48.) Future income includes wages earned in prison. (People v. Kopp (2019) 38 Cal.App.5th 47, 96.)
It is clear Beardsley objected to each fine and fee. But he failed to present any evidence supporting his position. For example, he failed to disclaim any assets or even to state his income level.[5] His total failure to offer evidence on the issue does not discharge his burden of proof.[6]
As for the complaint the court did not hold a hearing on ability to pay, we disagree. An ability-to-pay hearing need not resemble a full-blown trial nor must it occupy its own setting on the court docket. Indeed, it may properly occur—as it naturally would—during the formal sentencing hearing. (See Boddie v. Connecticut (1971) 401 U.S. 371, 377-379.) Due process is satisfied so long as the defendant is afforded a meaningful opportunity to discharge the burden to prove inability to pay. (Ibid.) Here, Beardsley was given the opportunity to present argument, evidence, and even to contest the court’s ruling. His failure to take advantage does not defeat due process. The court did not err in imposing the fines or fees.[7]
[u]DISPOSITION
The judgment is affirmed.
SMITH, J.
WE CONCUR:
LEVY, Acting P. J.
MEEHAN, J.
[1] Undesignated statutory references are to the Penal Code.
[2] Beardsley testified the clothesline was hanging in the cell before the altercation started.
[3] “LOL” means laugh out loud.
[4] “ ‘Relevant evidence’ means evidence … having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
[5] Granted, Beardsley was already in prison and his income was likely minimal. But there was no evidence in the record one way or the other. Ordinarily, some evidence on the matter is disclosed in a post-conviction probation report and interview. (§ 1203.) Beardsley apparently declined to participate.
[6] One might wonder how it is possible to prove inability to pay. We do not suggest it requires an overwhelming presentation and an unassailable conclusion. But there should at least be some evidence to support a reasonable inference of inability to pay. The record in this case is devoid of evidence on the matter.
To the extent Beardsley challenges the total $370 financial obligation as excessive under the Eighth Amendment, we disagree. Put simply, $370 in fines and fees is not disproportionate to murder. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 [proportionality is the touchstone of Eighth Amendment analysis].)
[7] The fact the trial court’s reasoning differs from ours is of no moment. “ ‘ “ ‘[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason.’ ” ’ ” (People v. Geier (2007) 41 Cal.4th 555, 582.)
