Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF119058. Thomas C. Hastings, Judge. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
In 1995, Bernice Michiels, the mother of defendant John Richard Michiels, disappeared. In 2004, defendant’s adult son and daughter gave statements to the police indicating that defendant had killed his mother and buried her body in the desert. Defendant admitted burying the body, but he claimed that his mother had committed suicide. Nevertheless, he was found guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189) and sentenced to 25 years to life in prison.
Defendant contends:
1. There was insufficient evidence of premeditation and deliberation.
2. The trial court erred by instructing that voluntary manslaughter requires the intent to kill.
3. The trial court erred by refusing to award any presentence conduct credit.
The People concede that the trial court erred by refusing to award defendant any presentence conduct credit. We find no other prejudicial error. Accordingly, we will reverse the judgment and remand solely with respect to presentence conduct credit. In all other respects, we will affirm.
I
FACTUAL BACKGROUND
A. Bernice’s Disappearance.
In June 1994, defendant’s father died. A few months later, defendant and his youngest daughter Charlene moved in with defendant’s mother, Bernice Michiels.
Bernice was 70 years old. She had “mood swings.” Sometimes she would lock herself in her room for days at a time. She could be “verbally abusive.”
Charlene testified that, as of Easter 1995, she was nine years old. On the day after Easter — the first day of school after spring break — Bernice failed to wake her up. She went to Bernice’s bedroom to check on her. Bernice came out and said she was fine. She gave Charlene a hug and a kiss. That was the last time Charlene ever saw Bernice.
Charlene found a note on the refrigerator, in Bernice’s handwriting; it said something about 30 days. When defendant read the note, he told Charlene that she was not going to school; instead, she should pack, because they were going to move back in with her mother. At first, Charlene argued with defendant, because she did not want to live with her mother. Then, while Charlene was packing, she heard defendant and Bernice arguing. Minutes after that, she heard a loud thump. Later that day, defendant took her to school. The next day, defendant told her that Bernice had gone “on vacation.”
Defendant’s brother James lived in Louisiana but spoke to Bernice frequently. The last time they spoke was on Good Friday in 1995. After that, he kept trying to call her every couple of weeks, but without success.
Around July 1995, when James called again, defendant’s wife answered. James then spoke to defendant. Defendant seemed “nervous” and “evasive.” He said that Bernice “had found someone who would take care of her the rest of her life,” and they had gone to Mexico. James did not believe this, because Bernice did not go on long trips, and she “enjoyed her family up to a certain level.” Defendant also said that Bernice had left behind her car, her credit cards, her clothes, and her Bible. Bernice had had the Bible for years and, in James’s opinion, would never have gone anywhere without it.
After that, James “spoke to [defendant] quite a few times... trying to... ascertain exactly what was truly going on.” In November 1995, he told defendant that, because he was not getting any satisfactory answers, he was going to file a missing persons report. Defendant became “extremely upset” and said “he had to get off of the phone.” Accordingly, James called the police and reported Bernice missing.
When the police questioned defendant, he told them that Bernice had gone to Mexico with a friend. He also said he was “in charge of his mother’s affairs,” including her house, her car, her bank account, and her gas credit card. He was endorsing her name on checks made payable to her, and he was signing her name on checks drawn on her bank account to pay bills.
B. Jim’s Account.
In August 2004, the police reopened the investigation. When they questioned defendant again, he seemed “nervous” and “agitated.” He said that Bernice “had gone to Mexico with another woman.”
The police also contacted defendant’s adult son, Jim. Jim requested and received immunity. Thereafter, he gave them the following account, which he reiterated at trial.
“[S]hortly after Easter” in 1995, defendant showed up at Jim’s house. Jim found this odd, because they were “on bad terms.”
Defendant said that he had killed Bernice. He added that he needed help to dispose of her body “[b]ecause he couldn’t lift her.” Defendant explained that Bernice had been “making comments about him and [his late father] being gay.” As a result, defendant “snapped.” He strangled her with her own vacuum cleaner cord. “[H]e didn’t even realize what he was doing at first....” When he “recovered his senses,” he realized that he was strangling her, but she was still alive, and he “knew that he had to finish the job.”
Jim decided to help defendant, because, he explained, “he was my dad, and I wanted a relationship with him.” They went back to Bernice’s house. Her body was on the bedroom floor. Jim tried not to look at her. However, he did not see any blood or any signs of a struggle.
They put the body in the trunk of a car, then drove out to the high desert. Defendant had brought along a shotgun that he had borrowed from Jim’s brother. He indicated that it was to prevent Bernice from being identified by her dental records. Jim was afraid that defendant would use it to shoot him. To keep the shotgun away from defendant, Jim chose to be the one who shot Bernice in the head. He fired four times, to use up all the ammunition. They then buried her. Jim later returned the shotgun to his brother.
Defendant had initially suggested using lye or lime to “help speed up the decomposition process,” but Jim had no idea where to obtain any.
Jim admitted that, at the time, he was using methamphetamine almost daily.
John Michiels, Jr. — defendant’s son and Jim’s brother — confirmed that “several months” after his grandfather died, defendant borrowed his shotgun. Defendant explained that “[h]e was going to be shooting over the weekend.” He had never borrowed it before or since. Jim returned it about three days later.
C. Defendant's Partial Confession.
On August 28, 2004, the police questioned defendant again. He was “abrasive” and uncooperative. He repeated that Bernice had run off to Mexico with another woman.
When confronted with Jim’s statement, defendant said that Jim “was doing a lot of drugs” and “it was probably one of his dreams or hallucinations....” However, defendant also said that, while his father was still alive, his mother had “nearly killed his father” by accusing the two of them of having a homosexual relationship.
Three days later, on September 1, 2004, defendant tried to commit suicide by overdosing on insulin. He left a suicide note. In a section that was addressed to the police, defendant stated, “[W]hat Jim said to you is true as far as he knew, but what I never told him was that my mother hung herself....” He claimed that Bernice left a note asking him to conceal the fact that she had committed suicide. Accordingly, he “made up the murder story....” The note gave directions to where the body was buried. (These specified roughly the same area that Jim had described.) However, it added, “... I doubt if you’ll ever find it. Even with directions.” The police searched the area repeatedly but never found Bernice’s body. Of course, nearly 10 years had passed. According to Jim, Bernice had been buried shallowly, with one leg still exposed, and there were many coyotes in the area.
II
THE SUFFICIENCY OF THE EVIDENCE OF PREMEDITATION
Defendant contends that there was insufficient evidence of premeditation and deliberation.
“‘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.] “The process of premeditation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....’ [Citations.]”’ [Citation.]” (People v. Harris (2008) 43 Cal.4th 1269, 1286-1287.)
“‘“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citation.]” (People v. Romero (2008) 44 Cal.4th 386, 399.) “‘[W]e need not be convinced beyond a reasonable doubt that defendant premeditated the murder[]. The relevant inquiry on appeal is whether “‘any rational trier of fact’” could have been so persuaded.’ [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522, 546.)
“‘“Generally, there are three categories of evidence that are sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, ‘we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.’ [Citation.] But these categories of evidence... ‘are descriptive, not normative.’ [Citation.] They are 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.’ [Citation.]”’ [Citation.]” (People v. Prince (2007) 40 Cal.4th 1179, 1253.)
Here, there was considerable evidence of motive — indeed, of multiple alternative or even cumulative motives.
First, defendant was motivated to kill Bernice so that he and Charlene could continue to live in her house. From the note on the refrigerator, it appears that she was about to evict him. We need not assume that defendant first became aware of this from reading the note; it is fairly inferable that there had been some earlier conflict between them that led to Bernice’s decision, as well as to the note. Evidently he and Charlene could have gone to live with Charlene’s mother; however, Charlene did not want to do this, and she protested to defendant about it.
Second, defendant stood to benefit financially. After Bernice’s death, he used her money to pay bills. Defendant construes the record narrowly as meaning only that he was paying Bernice’s bills. He relies on the following questions (posed by defense counsel) and answers:
“Q.... [H]e was using checks from the checking account in order to continue paying bills?
“A. Yes, sir.
“Q. For the home there?
“A. Yes, sir.”
This does not establish that defendant was paying only Bernice’s bills. For example, he told police that he was using Bernice’s gas credit card, which could only have been for his own ongoing consumption. Moreover, paying such household bills as electricity, gas, and water no longer benefited Bernice.
Third, defendant was angry with Bernice for accusing him and his father of being in a homosexual relationship. Defendant himself told Jim that this was his motive. Admittedly, he also claimed that she made this accusation immediately before the killing, and as a result, he just “snapped.” In his statements to police, however, he admitted that she had first made this accusation months earlier, when his father was still alive. He believed it had “nearly killed his father[.]” Bernice was known to be “verbally abusive.” It is fairly inferable that defendant had been nursing a grudge for months over this remark; Bernice may have aggravated it by repeating the remark, or by other verbal abuse, as time went by.
In addition, there was some evidence of planning. John, Jr., testified that, when defendant borrowed his shotgun, he explained that “[h]e was going to be shooting over the weekend.” This was the one and only time that defendant ever borrowed it. Jim returned it about three days later. The killing occurred on the Monday after Easter. Thus, it appears that defendant borrowed the shotgun before (and Jim returned it after) Easter weekend. The jury could reasonably infer that defendant was already planning not only to kill Bernice, but also even to use the shotgun to prevent her from being identified, at least two or three days before he actually did the deed.
Significantly, the jury sent out two questions during its deliberations. First, it requested clarification on the differences between first degree murder, second degree murder, and voluntary manslaughter. Second, it requested a readback of John, Jr.’s testimony. Shortly after the readback, it reached a verdict.
Admittedly, there was other evidence from which it could be argued that defendant failed to plan. He did not ask Jim to help him dispose of the body until after Bernice was already dead. Also, he discussed with Jim the idea of using lye or lime to dissolve the body, but Jim did not know how to get any. The fact that defendant’s plan was ill-considered or incomplete, however, does not mean that he did not plan at all. For example, it appears that he got Jim involved only because he found the body unexpectedly heavy and hard to move.
Defendant points out that he told Charlene not to go to school because they were moving to her mother’s house; after the argument and the “thump,” he evidently changed his mind, and he took her to school. Once again, however, this does not conclusively disprove planning. Defendant may have originally planned to kill Bernice while Charlene was away at school, then changed his plan and killed her earlier.
We therefore conclude that there was sufficient evidence of both motive and planning to support the finding of premeditation and deliberation.
III
INSTRUCTION THAT VOLUNTARY MANSLAUGHTER REQUIRED THE INTENT TO KILL
Defendant contends that the trial court erred by instructing that voluntary manslaughter requires the intent to kill.
The challenged instruction stated: “Voluntary manslaughter is defined as follows: Every person who unlawfully kills another human being without malice aforethought is guilty of voluntary manslaughter. There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion.
“In order to prove this crime, each of the following elements must be proved: One, a human being was killed. Two, the killing was unlawful. Three, the perpetrator of the killing intended to kill the alleged victim. And four, the perpetrator’s conduct resulted in the unlawful killing.” (CALJIC No. 8.40, italics added.)
In People v. Lasko (2000) 23 Cal.4th 101, the Supreme Court held that voluntary manslaughter can be committed either with intent to kill or with conscious disregard for life. (Id. at pp. 108-110.) Thus, in the case before it, it held that the trial court erred by instructing that voluntary manslaughter requires the intent to kill. (Id. at p. 111.)
We may assume, without deciding, that in this case, there was substantial evidence of provocation, and hence the trial court was required to instruct on voluntary manslaughter. We may further assume, again without deciding, that there was substantial evidence that defendant acted with conscious disregard for life but without the intent to kill. Based on these assumptions, it follows that the trial court erred.
We turn to whether the error was prejudicial. “‘“[E]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.”’ [Citations.]” (People v. Beames (2007) 40 Cal.4th 907, 928.) The jury was told that it had four choices. It could find defendant guilty of first degree murder, which required both an intent to kill and premeditation; second degree murder, which required either an intent to kill or conscious disregard for life; or voluntary manslaughter, which (it was instructed) required an intent to kill; or, alternatively, it could acquit him. If it found both provocation and conscious disregard, but no intent to kill, arguably the challenged instruction would have caused it to err by returning a verdict of second degree murder rather than voluntary manslaughter. However, it chose to find him guilty of first degree murder. Thus, it necessarily found not only the intent to kill, but also premeditation. It follows that, even if it had been instructed that it could find defendant guilty of voluntary manslaughter without finding the intent to kill, it still would not have found him guilty of any lesser offense.
We therefore conclude that the asserted error was harmless.
IV
DENIAL OF PRESENTENCE CONDUCT CREDIT
Defendant contends that the trial court erred by denying him any presentence conduct credit pursuant to Penal Code sections 190, subdivision (e) and 2933.2, as these statutes were not in effect until after the crime was committed.
The People concede that this was error. We agree. (People v. Cooper (2002) 27 Cal.4th 38, 40, fn. 2; People v. Reyes (2008) 165 Cal.App.4th 426, 437; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1315-1317.)
Defendant asks us to modify the judgment so as to award him 208 days of credit (i.e., 15 percent of his 1,385 days of actual presentence custody; see Pen. Code, § 2933.1). The People’s position on this point is not clear. In one breath, they urge that the “calculation... should be made by the sentencing court on remand.” In the next, however, they ask that “the judgment and abstract of judgment be modified to give appellant conduct credits....”
In the absence of a stipulation by the People that defendant is actually entitled to 208 days of credit, we are reluctant to modify the judgment. The probation officer mistakenly assumed that defendant was categorically ineligible for presentence conduct credit; thus, he did not indicate whether defendant did, in fact, have the necessary good conduct. (See Pen. Code, § 4019, subds. (b), (c).) Instead, we will reverse the judgment, solely in this respect, and remand with directions to reconsider an award of presentence conduct credit. (See People v. Hutchins, supra, 90 Cal.App.4th at p. 1317; but see People v. Reyes, supra, 165 Cal.App.4th at p. 437.)
V
DISPOSITION
The judgment is reversed solely with respect to the refusal to award defendant any presentence custody credit; in all other respects, it is affirmed. The matter is remanded with directions to reconsider an award of presentence conduct credit.
We concur: McKINSTER, Acting P.J., KING, J.