Filed 12/20/13 P. v. Harwood CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055435
v. (Super.Ct.No. INF053801)
BRIAN SAUL HARWOOD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Richard A. Erwood,
Judge. Affirmed.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
Defendant Brian Saul Harwood appeals from his conviction of first degree murder.
(Pen. Code, § 187, subd. (a).) He contends (1) the evidence was insufficient to support
the jury’s finding that the murder was willful, deliberate, and premeditated, and (2) the
trial court erred in admitting prejudicial evidence of defendant’s prior crimes or, in the
alternative, his counsel provided ineffective assistance. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
On March 17, 2006, police officers received a report that a body had been
discovered in a vacant lot in Palm Springs where homeless people lived. The body was
identified as that of John Baird.
An autopsy revealed that Baird had died from blunt force trauma to his head and
torso with compression of the neck as a contributing cause. He had suffered eight
fractured ribs, a ruptured liver, and a contusion of his right lung. He had extensive blunt
force injuries to his face, head, and neck, including cuts that reached to the bone, a
broken nose, bruising of his mouth and tongue, a black eye, and abrasions and scrapes on
the top and back of his head. He had suffered a contusion on the right side of the brain
that could have been the result of a direct blow or of a blow to the opposite side of the
head that was so forceful it caused the brain to bounce against the right side. He had
neck compression injuries consistent with strangulation, including bruising and a fracture
to the hyoid bone, which had required significant force. In addition, he had hemorrhages
in his eyes indicative of strangling. To cause death, manual strangulation must be
2 sustained for a minimum of two to three minutes. Baird had a blood alcohol level of 0.21
percent at the time of his death.
On March 20, 2006, Detective Troy Castillo of the Palm Springs Police
Department spoke to Batiya Lane, a social worker at a resource center for homeless
people in Palm Springs. Lane told the detective that the center had recently assisted
defendant and Baird in obtaining California identification cards from the Department of
Motor Vehicles (DMV). Defendant had appeared to be high on drugs and had referred to
his mental health problems.
Steven Hayslip had known defendant for about a year. Hayslip testified that
defendant and Baird had been in a volatile relationship, and they frequently argued, often
over beer. Defendant had been aggressive with others in the homeless camp. On the
morning of Baird’s death, defendant was upset with Baird and told Hayslip he was going
to kill him. Hayslip did not take the threat seriously; he thought it was just part of an
ongoing argument.
Detective Castillo located defendant, who agreed to go to the police station to talk
about the investigation. Defendant later agreed to accompany detectives on a
walkthrough of the scene where an altercation with Baird had begun and ended. The
interview and walk through were videotaped, and the tape was played for the jury with an
accompanying transcript. At the end of the interview, the detective told defendant that
Baird was deceased. Defendant appeared sad and upset but not distraught.
During the interview, defendant stated he had lived with Baird but had broken up
with him on March 10, 2006, so he could get back on his feet, get a job, and enter a
3 rehabilitation program for his drinking problem. He initially denied being involved in
Baird’s death and said he had seen Baird only twice since March 10. Defendant told
Detective Castillo that he and Baird had split up after arguing “over finances, over
[defendant] wanting to go [his] direction. And be with other people.” Baird had “tr[ied]
to beg [him] to stay and try to work out. [Defendant] said I can’t do it no more John. I
don’t want to be here.”
Defendant said he recalled getting beer with Baird and walking back to their
campsite. He claimed he had been drinking to the point of blacking out and did not
remember much about that day. He later admitted he had grabbed Baird by the jacket
and thrown him into the bushes multiple times as they were walking back to the vacant
lot from a convenience store. Baird had pushed him and hit him with a backpack that
was filled with bottles of beer and had hit him in his newly-pierced ear with a cell phone.
Each time he knocked Baird down, he helped him back to his feet. When they arrived at
the camp, he threw Baird’s gear on the ground and started to leave, but Baird yelled for
him to come back. Defendant jumped over a fence and cut his hand on razor wire. Baird
grabbed him, bit him, and threw beer bottles at him while the men argued.
During the walkthrough, defendant told the detective he and Baird had been
talking about getting married. Defendant pointed out the locations where they had argued
and the three places where he had pushed Baird down into the bushes, each time after
Baird struck him first.
Detective Castillo noticed that defendant was wearing a gold hoop earring that
appeared similar to the one Baird had been wearing in his DMV identification
4 photograph taken on March 14, 2006. Baird was not wearing the earring when his body
was discovered. Defendant had not worn an earring when his own DMV identification
photograph had been taken on March 14. Defendant said Baird had pierced his ear on
Friday, March 10, 2006, and had given him a gold “French hoop” earring.
While defendant remained in local custody, audio recordings were made of calls
he made to his mother and stepfather. Recordings of 19 of those calls were played for the
jury. During the calls, defendant repeatedly said he was going to “beat” the case by
“going the insanity route” or made similar comments about raising an insanity defense.
The manager of a sober living facility in northern California testified that
defendant had resided at the facility for about a week in December 2004. Late one night,
defendant demanded his money back so he could leave. The money for defendant’s stay
had been deposited by defendant’s stepfather, and the manager asked defendant to wait
until morning to settle the finances. Defendant became angry and yelled. He retrieved an
ax and struck the manager’s bedroom door, threatening to kill him if he did not return the
money. Another resident of the facility called 911 and assisted in disarming defendant
before the police arrived. Defendant was charged with misdemeanor criminal threats and
brandishing a weapon.
A. Defense Evidence
Defendant’s stepfather, Gary Michael Shearn, testified that defendant had lived at
a “special school designed to help people . . . to learn skills and be out in society that
needed extra help” during his teen years. He moved home for a year after graduating and
was awarded Supplemental Security Income (SSI) benefits because of a mental disability
5 that had occurred at birth. Shearn became the payee on defendant’s benefits because
defendant was unable to handle money. Defendant abused alcohol and used
methamphetamines. He had been placed in numerous residential treatment facilities, but
he had never completed any of the programs. While he was incarcerated between 2006
and 2009, defendant called his parents more than 100 times. He was sometimes rational,
but other times he was unstable and would yell and threaten to kill himself. He took
multiple psychotropic medications.
Defendant’s mother, Patti Lee Harwood (Patti) testified that defendant was brain
damaged at birth. He was in special education classes throughout school. He had
behavioral problems in school and was on prescribed medications.
Dr. Morton Kurland, a psychiatrist, testified defendant had been psychotic on and
off during his lifetime. Some of the documents Dr. Kurland reviewed indicated that
defendant had “malingered” in the past to get what he wanted, but Dr. Kurland disputed
those records, stating that instead defendant had “distorted reality.” In his opinion,
defendant was not bright enough to have mimicked psychosis for so many years.
B. Rebuttal Evidence
Dr. Craig Rath, a forensic psychologist, stated his opinion that defendant had a
personality disorder, a psychotic disorder, and possibly a substance abuse problem. His
personality problems led him to seek instant gratification and to do what he wanted when
he wanted to do it. Defendant had admitted malingering in the past for secondary gain.
6 C. Verdict and Sentence
The jury found defendant guilty of first degree murder. (§ 187, subd. (a).)
Thereafter, a trial took place on defendant’s plea of not guilty by reason of insanity, and
the jury found defendant was sane at the time of the offense.1
The trial court sentenced defendant to 25 years to life in prison.
III. DISCUSSION
A. Sufficiency of Evidence of Premeditation and Deliberation
Defendant contends the evidence was insufficient to support the jury’s finding that
the murder was willful, deliberate, and premeditated.
1. Standard of Review
“‘On appeal we review the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citations.]’” (People v. Abilez (2007)
41 Cal.4th 472, 504.)
2. Analysis
“‘The process of premeditation and deliberation 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. Koontz
1 Because defendant does not raise any issue relating to the sanity phase of the trial, we will not discuss the evidence from that phase.
7 (2002) 27 Cal.4th 1041, 1080.) In People v. Anderson (1968) 70 Cal.2d 15 (Anderson),
the court identified three factors that may support a finding of deliberation and
premeditation: planning activity, motive, and manner of killing. (Id. at pp. 26-27.) The
three Anderson factors reflect a “‘framework’” for “‘assessing whether the evidence
supports an inference that the killing resulted from preexisting reflection and weighing of
considerations.’” (Koontz, supra, at p. 1081.)
As to planning activity, defendant told Hayslip on the morning of the day Baird
was murdered that he was going to kill Baird.
As to motive, the evidence indicated that defendant wanted to end the relationship
with Baird and was getting annoyed that Baird wanted to continue seeing him. The jury
could reasonably conclude that such evidence indicated a plausible motive for the killing.
As to the manner of the killing, defendant used two separate methods: beating and
strangling. In People v. Perez (1992) 2 Cal.4th 1117 (Perez), the defendant stabbed the
victim 38 times, using a second knife after the first broke. The court concluded the
manner of killing indicated premeditation and deliberation, explaining that using two
knives “b[ore] similarity to reloading a gun or using another gun when the first one has
run out of ammunition,” thus providing the perpetrator with an opportunity to reconsider
the deadly consequences of his actions. (Id. at p. 1127-1128.) Here, the jury could
reasonably determine that shifting from beating to strangling likewise gave defendant an
opportunity to reflect on the consequences of his actions. Moreover, the coroner testified
that death by strangulation requires the sustained application of compression for a
minimum of two to three minutes. (See People v. Stitely (2005) 35 Cal.4th 514, 544
8 [pathologist’s testimony that “lethal pressure had been applied to [the victim’s] neck for a
‘long’ time,” “suggest[ed] defendant had ample opportunity to consider the deadly
consequences of his actions”].)
In the instant case, in addition, the evidence indicated that defendant had stolen
Baird’s earring after the killing. In Perez, the defendant searched drawers and jewelry
boxes and changed a Band-Aid on his hand after killing the victim, which the court
characterized as “inconsistent with a state of mind that would have produced a rash,
impulsive killing.” (Perez, supra, 2 Cal.4th at p. 1128.) The court stated that although
those facts were “not sufficient in themselves to establish premeditation and deliberation,
these are facts which a jury could reasonably consider in relation to the manner of
killing.” (Ibid.) Here, likewise, the theft of Baird’s earring was additional evidence that
supported the jury’s verdict, even if not sufficient in and of itself to establish
premeditation and deliberation.
Defendant points to other evidence that suggested he did not act with
premeditation and deliberation, specifically, his statements to officers which showed he
had been unaware of Baird’s death when he left the vacant lot, and his statements to his
parents that he killed Baird in response to a sexual assault. The jury was free to reject
those self-serving statements. “[I]t is the jury, not the appellate court which must be
convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a contrary finding does not
warrant a reversal of the judgment.”’ [Citations.]” (People v. Bean (1988) 46 Cal.3d
9 919, 932-933.) We conclude sufficient evidence supports defendant’s conviction of first
degree murder.
B. Other Crimes Evidence
Defendant contends the trial court erred in admitting prejudicial evidence of his
prior crimes.
1. Additional Background
As recounted above, Shearn, defendant’s stepfather, testified that defendant had
resided at a school for the learning disabled as a teenager. Shearn stated that the school
was for students who “needed extra help,” and defendant was there “because of his
actions.” In a sidebar conference, the prosecutor pointed out that Shearn’s testimony had
left the impression that the school was a “mental-health-benefit kind of school,” when in
fact, the facility was a sex offender children’s group home, and defendant had been
placed there because he was a sex offender. The trial court ruled the prosecutor could not
bring the circumstances of defendant’s sexual conduct or the nature of the school before
the jury unless the next witness, defendant’s mother, “open[ed] the door further.”
During defense counsel’s direct examination of Patti, she testified that defendant
had been sent involuntarily to a special home, and following an “incident” there, he had
been taken to two other homes, the final one being the Excel Group Home (Excel).
Defense counsel later asked, “Okay. And later on, let’s say from grade ten onward, were
you aware of any behavior problems that [defendant] was suffering from?” Patti
responded that defendant had been repeatedly raped when he was younger.
10 Out of the presence of the jury, the prosecutor moved to revisit whether she could
question Patti about the nature of the Excel placement. The trial court found that the
impression had been left that Excel was “more just a trade school.” The court continued:
“But what your witness did—the burden is on each lawyer, when I make rulings, to make
sure the witnesses are not going to blurt out something that you know is not going to be
admissible. Sometimes they do it anyway; I’m not necessarily blaming you. But she’s
created the impression that [defendant] was the victim. He was victimized a few times, I
don’t know how many times altogether. [¶] And because they blurted out that
information, I think the prosecution has the right and duty to go into that reason he was in
that home and why he was in that home, what type of life skills that they were giving
him.” The prosecutor then questioned Patti about defendant’s sexual offenses and
predatory activities as a juvenile. Specifically, the prosecutor elicited evidence that
defendant had, at the age of 14, pleaded guilty to a sexual assault on an 11-year-old child;
engaged in oral copulation and masturbation with another resident at a group home; and
been asked to leave another group home because of “sexually acting out using a plunger
and scouring brush.”
The trial court instructed the jury with CALCRIM No. 303, that certain evidence
had been admitted for a limited purpose and could be considered “only for that purpose
and for no other.” The trial court further instructed the jury with CALCRIM No. 375 that
evidence of uncharged crimes could be considered only if proved by a preponderance of
the evidence, and then could be considered only for limited purposes of showing intent,
mistake, or accident, and for no other purpose.
11 2. Analysis
As a general rule, subject to certain exceptions, evidence of a defendant’s
uncharged crimes or bad acts is inadmissible in a criminal prosecution. (People v.
Schader (1969) 71 Cal.2d 761, 772.) To be admissible, such evidence must be relevant
to prove some fact other than the defendant’s criminal disposition. (Evid. Code, § 1101,
subd. (a).) Evidence of uncharged crimes always involves the risk of serious prejudice,
regardless of its probative value. (People v. Tran (2011) 51 Cal.4th 1040, 1047.) In
People v. Thompson (1980) 27 Cal.3d 303, disapproved on another ground in People v.
Rowland (1992) 4 Cal.4th 238, 260, the court held that “[a]s with other types of
circumstantial evidence . . . admissibility [of other-crimes evidence] depends upon three
principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the
tendency of the uncharged crime to prove or disprove the material fact; and (3) the
existence of any rule or policy requiring the exclusion of relevant evidence. [Citation.]”
(People v. Thompson, supra, at p. 315.) In addition, Evidence Code section 1101,
subdivision (c) allows the admissibility of other-crimes evidence “offered to support or
attack the credibility of a witness.”
Here, the trial court’s justification for admitting the evidence was that the defense
had “‘opened the door’” by creating a false impression of the nature of a residential
facility where defendant had lived as a teenager. However, “[t]he fact that a topic is
raised on direct examination and may therefore appropriately be tested on cross-
examination . . . does not amount to a license to introduce irrelevant and prejudicial
evidence merely because it can be tied to a phrase uttered on direct examination.”
12 (People v. Luparello (1986) 187 Cal.App.3d 410, 426.) In Luparello, the court held that
the prosecutor’s attempt to cast one of the defendants as a violent gang member after a
witness merely described certain headgear was flagrant misconduct but was nonetheless
nonprejudicial. (Id. at pp. 426-427.)
Defendant argues that the record does not show that the trial court applied the
three-step analysis as set forth in Thompson and its progeny. The trial court stated that
Patti’s testimony had left the impressions that defendant’s group home placement was
“more just a trade school” where defendant could “learn coping skills,” and that
defendant was the victim. The thrust of the defense in this case was that defendant had
been brain damaged and psychotic for most of his life and was thus unable to form the
intent to kill Baird or to premeditate and deliberate the killing. His parents’ testimonies
suggested that he had been placed in group homes at a young age to receive help for his
psychological problems and to learn living skills. Although the evidence that his
placement in group homes had resulted from his sex offenses was indeed prejudicial, it
was also highly probative and material to dispel the misimpression created by his parents’
testimony.
In addition, Patti’s testimony indicated that defendant had been the victim of sex
offenses, not a perpetrator. Evidence of defendant’s own sex offenses was properly
admissible to impeach Patti’s credibility. We conclude the trial court did not abuse its
discretion in admitting the challenged evidence.
13 C. Assistance of Counsel
Defendant argues that if we conclude the prior crimes evidence was properly
admitted because the defense opened the door, his trial counsel provided ineffective
assistance by allowing the door to be opened.
1. Analysis
To establish a claim of ineffective assistance, a defendant must establish both that
his counsel provided deficient representation and that a more favorable outcome was
reasonably probable in the absence of counsel’s shortcomings. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688.) We presume counsel’s conduct falls within the wide
range of professional reasonableness, and we give great deference to counsel’s tactical
decisions. (Id. at p. 688.) Thus, we do not reverse a conviction for ineffective assistance
of counsel unless the record discloses there was no rational tactical purpose for counsel’s
act or omission. (People v. Frye (1998) 18 Cal.4th 894, 979, 980, overruled on another
ground by People v. Doolin (2009) 45 Cal.4th 390, 421 fn. 22.)
Our Supreme Court has repeatedly rejected claims of ineffective assistance based
on counsel’s failure to anticipate nonresponsive testimony. (People v. Barnett (1998) 17
Cal.4th 1044, 1140; People v. Mayfield (1997) 14 Cal.4th 668, 787; People v. Jennings
(1991) 53 Cal.3d 334, 380.) Here, as the trial court pointed out, Patti’s response to
defense counsel’s questions was indeed nonresponsive and blurted out. Moreover, on
direct appeal, we do not assume on the basis of a silent record that defense counsel in fact
failed to admonish Patti to avoid testifying about the reasons for defendant’s placement at
the school. (See, e.g., People v. King (2010) 183 Cal.App.4th 1281, 1299.)
14 IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
KING J.
MILLER J.