People v. Bell CA4/1

Filed 12/17/20 P. v. Bell CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D074669
Plaintiff and Respondent,
v. (Super. Ct. No. SCN357154)
ASIATAE ROBINETTE BELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Harry M. Elias, Judge. Affirmed.
Christine Vento, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Julie L.
Garland, Assistant Attorneys General, Arlene A. Sevidal and Randall D.
Einhorn, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Asiatae Robinette Bell of second degree murder (Pen.
Code,1 § 187, subd. (a)) and found true allegations that she personally used a
1 Undesignated statutory references are to the Penal Code.
deadly and dangerous weapon, to wit, a knife (§ 12022, subd. (b)(1)). The
court sentenced her to 15 years to life in prison on the murder conviction plus
one year on the weapon use enhancement. The court imposed a $10,000
restitution fine (§ 1202.4, subd. (b)), a stayed $10,000 parole revocation fine
(§ 1202.45); a $40 court security fee (§ 1465.8), a $30 court facilities
assessment (Gov. Code, § 70373) and a $154 criminal justice administration
fee (Gov. Code, § 29550).
Bell contends: (1) The court prejudicially erred by instructing the jury
with the pattern version of CALCRIM No. 3428 on imperfect self-defense or
alternatively, her trial counsel provided ineffective assistance by failing to
object to that instruction or request a pinpoint instruction; (2) we should
remand this matter for the court to ascertain her eligibility for the section
1001.36 diversionary program based on her mental illness; and (3) the court
erred by imposing certain fees, fines, and assessments without ascertaining
her ability to pay them under People v. Dueñas (2019) 30 Cal.App.5th 1157.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
Bell does not challenge the sufficiency of the evidence to support her
conviction; therefore, we present an abbreviated version of the underlying
facts. On November 20, 2013, Bell lived in Escondido, California with her
father and his wife, M.B., who was not Bell’s mother. M.B. was not very
mobile or physically active. M.B.’s cousin, R.E., testified that he visited M.B.
at her apartment that morning. Bell was not there when he arrived.
Surveillance video evidence from that morning showed Bell went to
three different stores inquiring about cellphone prices.
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M.B. had told R.E. she was afraid of Bell because several times when
M.B. awoke from naps, Bell was staring at her. Upon leaving the apartment
close to 1:00 p.m., R.E. saw Bell outside.
At 1:20 p.m., Bell telephoned her father and said M.B. appeared to be
bleeding. He asked if M.B. was fine, and Bell said, “yes,” claiming M.B. was
sleeping. Bell did not mention anything about M.B. attacking her or having a
knife. Bell’s father did not realize M.B.’s condition was urgent; therefore, he
left work at 2:00 p.m. for his regular lunch break. When he reached the
apartment shortly afterwards, M.B. was covered in blood and unresponsive,
and a knife was sticking out of her neck. He immediately called 911.
Paramedics responded to the apartment and pronounced M.B. dead.
Investigating police officers saw the apartment’s blood-splattered walls. A
knife blade broken from its handle was stuck in M.B.’s neck, and a second
broken knife blade was found near her. A police officer testified that upon
learning M.B. had died, Bell had “a flat emotional response. She was static
when we arrived, and I did not see any obvious change of emotion after the
paramedics had made the statement that the victim was deceased.” Bell
never told the police anything about M.B attacking her with a knife or Bell
having to defend herself from M.B.
Collected blood samples from Bell’s hair and clothing matched M.B.’s
blood. Bell’s right knuckle was injured, and dried blood was found under one
of her left fingernails.
The next day, a police detective asked Bell to write down what had
happened to M.B. Bell wrote a note without indicating that she was involved
in M.B.’s death or that M.B. had attacked her.
The medical examiner who performed the autopsy testified M.B.’s
cause of death was multiple sharp force injuries (a total of 59) from two
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different knives. M.B. received 22 stab wounds and 31 incised wounds to her
head, neck and chest. She also had one stab wound on her left arm and five
incised wounds on her left arm and hand that were consistent with defensive
wounds. M.B.’s internal and external jugular vein and vertebral artery were
severed, leading to excessive bleeding.
Defense Case
Bell’s Testimony
Bell testified that she and M.B. had no arguments in the days leading
up to M.B.’s murder. Bell stated that on the day of the murder, R.E. entered
her bedroom and stared at her “with this cold stare.” She heard M.B. yell,
“Rape[ he]r.” R.E. replied, “What about [Bell’s father]?” M.B. replied, “Kill
him.” Defense counsel asked Bell, “What did you do when you heard that?”
Bell replied, “I was upset because I didn't know what to do at the time. My
dad was at work . . . so I was freaking out because I didn't even have a phone
to call him.” She went to several stores looking for an affordable phone but
never bought one. She admitted she did not ask any of the shop attendants
to contact 911.
Bell testified that when she returned to the apartment, R.E. was gone.
M.B. asked her if she had overheard the earlier conversation about Bell’s
father, but Bell denied knowledge of it. M.B. tried to stab Bell, who pushed
her into a chair, and grabbed the knife from M.B. Bell became scared and
remembered stabbing M.B. “like maybe a couple of times,” before Bell
“blacked out.”
In an interview with a detective on the day of the murder, Bell
repeatedly denied that M.B. had attacked her.
A forensic neuropsychologist evaluated Bell in June 2017, and without
making a formal diagnosis, concluded based on a test that Bell showed
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symptoms consistent with post-traumatic stress disorder. Bell’s test score
indicated she possibly exaggerated some of her symptoms. Bell reported
taking antipsychotic medications for “auditory and visual hallucinations and
she had been prescribed antidepressants.” However, Bell had not been
taking her medications in the month before the murder.
Bell’s Youth and History of Mental Illness
Bell testified that she was raped when she was 11 years old, she
became pregnant, and had an abortion. Bell was 16 years old when her first
child was born. Bell was again raped when she was 18 years old. At age 22,
after giving birth to twins, she required reconstructive surgery. Her mental
health subsequently deteriorated. She started seeing spirits and hearing
voices saying they were going to harm her. Bell was diagnosed with
grandiose schizophrenia, and she began taking medication to control the
symptoms. She said that over the years she was hospitalized for having
suicidal and homicidal thoughts.
Bell stated that in the days before the murder, she did not hear voices
or see visions; rather, she was “fine.” After the murder, Bell underwent
psychiatric evaluation at Patton State Hospital for approximately 16 months
and was treated with medication.
DISCUSSION
I. CALCRIM NO. 3428 on Mental Impairment as a Defense to a Specific
Intent or Mental State for Murder
Bell contends the trial court instructed the jury with an incomplete
version of CALCRIM No. 3428 as follows: “You have heard evidence that the
defendant may have suffered from a mental disease, defect or disorder. You
may consider this evidence only for the limited purpose of deciding whether,
at the time of the charged crime, the defendant acted with the intent or
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mental state required for that crime. [¶] The People have the burden of
proving beyond a reasonable doubt that the defendant acted with the
required intent or mental state, which specifically is malice aforethought. [¶]
If the People have not met this burden, you must find the defendant not
guilty of murder.” (Italics added.)2
Bell contends the court should have followed the CALCRIM No. 3428
use note and inserted the specific “mental state or intent required for each
count.” Accordingly, she argues that the correct jury instruction should have
included the following: “The People have the burden of proving beyond a
reasonable doubt that the defendant acted with the required intent or mental
state, specifically: express malice aforethought and willful, deliberate, and
with premeditation [sic]. If the People have not met this burden, you must
find the defendant not guilty of first degree murder. [¶] The People have the
burden of proving . . . specifically implied malice aforethought, that
[defendant] knows her conduct endangers the life of another and acts with a
conscious disregard for that life or express malice aforethought or an intent to
kill. If the People have not met this burden, you must find the defendant not
guilty of second degree murder. [¶] The People have the burden of proving
. . . specifically malice aforethought (express or implied malice) that was not
negated by [defendant’s] unreasonable self[-]defense. If the People have not
2 This instruction is based on section 28, subdivision (a), which states:
“Evidence of mental disease, mental defect, or mental disorder shall not be
admitted to show or negate the capacity to form any mental state, including,
but not limited to, purpose, intent, knowledge, premeditation, deliberation, or
malice aforethought, with which the accused committed the act. Evidence of
mental disease, mental defect, or mental disorder is admissible solely on the
issue of whether or not the accused actually formed a required specific intent,
premeditated, deliberated, or harbored malice aforethought, when a specific
intent crime is charged.” (Italics added.)
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met this burden, you must find the defendant not guilty of voluntary
manslaughter.” (Italics added, some capitalization omitted.) She contends
that “[a]n itemized list requires the jury to individually examine how mental
illness affects the elements of each crime. That is why the instruction
requires such a list and why it was error not to provide it.”
Defense counsel did not object to the pattern instruction at trial;
however, Bell contends this court must review her claim because the alleged
instructional error affected her substantial rights. She further argues her
trial counsel provided ineffective assistance by failing to object to the
instruction or offer a pinpoint instruction.
We do not need to decide whether Bell forfeited review because we
address the claim on the merits to forestall the ineffective assistance of
counsel claim. “The independent or de novo standard of review is applicable
in assessing whether instructions correctly state the law [citations] and also
whether instructions effectively direct a finding adverse to a defendant by
removing an issue from the jury's consideration.” (People v. Posey (2004) 32
Cal.4th 193, 218.) “In assessing a claim of instructional error or ambiguity,
we consider the instructions as a whole to determine whether there is a
reasonable likelihood the jury was misled.” (People v. Tate (2010) 49 Cal.4th
635, 696.)
Here, the court accurately instructed the jury with the pattern version
of CALCRIM No. 3428 that the evidence of Bell's mental disorder could be
considered “for the limited purpose of deciding whether, at the time of the
charged crime, the defendant acted with the intent or mental state required
for that crime.” Moreover, the court separately instructed the jury regarding
the specific mental state required with CALCRIM No. 520 on “first or second
degree murder with malice aforethought.” (Capitalization omitted, italics
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added.) The court also instructed the jury with CALCRIM No. 570 on
voluntary manslaughter, where malice is presumptively absent when a
defendant kills upon a sudden quarrel or heat of passion (§ 192, subd. (a)),
provided that the provocation is sufficient to cause an ordinarily reasonable
person to act rashly and without deliberation, and from passion rather than
judgment. “ ‘[T]he fact that the necessary elements of a jury charge are to be
found in two instructions rather than in one instruction does not, in itself,
make the charge prejudicial.’ [Citation.] ‘The absence of an essential
element in one instruction may be supplied by another or cured in light of the
instructions as a whole.’ ” (People v. Burgener (1986) 41 Cal.3d 505, 538-539,
disapproved on other grounds by People v. Reyes (1998) 19 Cal.4th 743, 756.)
The court instructed the jury with CALCRIM No. 522 regarding
provocation that may reduce a murder from first degree to second degree, and
imperfect self-defense. It also instructed the jurors with CALCRIM No. 627
on “Hallucination: Effect on Premeditation” as follows: “A hallucination is a
perception not based on objective reality. In other words, a person has a
hallucination when the person believes that he or she is seeing or hearing or
otherwise perceiving something that is not actually present or happening.
You may consider evidence of hallucinations, if any, in deciding whether the
defendant acted with deliberation and premeditation. Again, the People have
the burden of proving beyond a reasonable doubt that the defendant acted
with deliberation and premeditation, and if the People have not met this
burden, you must find the defendant not guilty of first degree murder.”
In sum, the trial court correctly instructed the jury with CALCRIM No.
3428 and based on the other instructions given, if the jury had found Bell did
not act with malice aforethought, and found she acted in imperfect self-
defense, it would have found her guilty of manslaughter. [CALCRIM No. 571
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(Voluntary Manslaughter: Imperfect Self-Defense).] Additionally, if the jury
found she acted in perfect self-defense, it would have acquitted her.
[CALCRIM No. 505 (Justifiable Homicide: Self-Defense or Defense of
Another).]
We therefore reject Bell’s argument that “the trial court effectively
instructed the jury not to consider [her] mental disabilities” in deciding
whether she had the state of mind “required for second degree murder and
imperfect self-defense.” Moreover, her contention is belied by defense
counsel’s comment on the instruction in closing argument: “And you can
consider the mental disorder, her mental disorder, in determining whether
she acted with intent or the required mental state. [¶] And that's
[CALCRIM No.] 3428, and you'll have that. And it will explain how you can
use her mental state, how you can use her mental disorder. [¶] Now there
may be some of you right now who start saying, you know: Self-defense.
Yeah, maybe she did have a knife. Maybe she reasonably believed it. And
yeah, maybe she was in imminent danger and felt the need to use the force,
use deadly force. [¶] But amongst you, there may be some who are just not
sure, who may have thought: You know what? That was unreasonable. [¶]
And if one of you or two of you or somebody is thinking I'm not sure if that's
reasonable, there's a jury instruction that tells you what you can do and it's
called imperfect self-defense. And a killing that would otherwise be murder
is reduced to voluntary manslaughter if the defendant killed the person
because she acted in imperfect self-defense. [¶] So what does that mean? It
means she acted in imperfect self-defense if Bell actually believed that she
was in imminent danger of being killed or suffering great bodily injury.”
In light of the above, it is not reasonably probable the jury would have
reached an outcome more favorable to Bell if the jury had been specifically
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instructed with the modified version of the CALCRIM No. 3428 that Bell
proposes.
Bell’s reliance on People v. Townsel (2016) 63 Cal.4th 25 and People v.
Ocegueda (2016) 247 Cal.App.4th 1393 is unavailing. Townsel involved a
modified instruction with CALJIC No. 3.32 regarding intellectual disability
evidence with respect to the required intent. The court concluded the
instruction erroneously directed the jury to consider such evidence solely to
determine whether the defendant formed the intent to kill, or express malice,
for the charged murders; however, it precluded the jury from considering
such evidence as to the mental state required for the other charged offense of
dissuading a witness, and a true finding on a witness-killing special
circumstance allegation. (Townsel, supra, at pp. 57-58, 63-64.) The court
explained that the defendant was entitled to have that evidence considered
on any other charge or allegation besides the murder charges. (Id. at pp. 63-
64.) Here, there was only one charge—murder; thus, this case is
distinguishable from Townsel.
In Ocegueda, the defendant was charged with attempted murder. The
court found the jury was erroneously instructed with CALCRIM No. 3428
that it could consider evidence of the defendant’s mental disabilities “only for
the limited purpose” of deciding whether defendant harbored the “intent to
kill,” thereby disallowing consideration of whether he harbored express
malice. (People v. Ocegueda, supra, 247 Cal.App.4th at p. 1407.) The
appellate court concluded the trial court improperly “substituted the phrase
‘intent to kill’ in place of the phrase ‘malice aforethought,’ the latter of which
appears expressly in the pattern instruction. As noted above, these two
phrases are not always equivalent.” (Id. at p. 1408.) Here, the court in its
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instruction with CALCRIM No. 3428 properly stated that the mental state
required was “malice aforethought.”
Because there was no instructional error, Bell’s ineffective assistance of
counsel claim based on that ground fails.
II. Section 1001.36 Claim
Bell contends she is entitled to a diversion hearing under section
1001.36 because although she was sentenced before that statute went into
effect, the Legislature intended the statute to apply to cases pending on
appeal. However, she contends that the statute’s amendment eliminating
diversion for defendants charged with specified crimes, including murder,
should not be applied retroactively to her case. We disagree with the latter
contention.
The People argue section 1001.36’s language demonstrates the
Legislature intended the law to operate prospectively, and not to a case like
this one that was already adjudicated. The People contend that even
assuming section 1001.36’s amendments are retroactive, a remand is futile
because Bell was convicted of murder and therefore is ineligible for mental
health diversion.
Effective June 27, 2018, the Legislature created a pretrial diversion
program for defendants suffering from a qualifying mental disorder.
(§ 1001.36, subds. (a) & (b)(1).) One of the purposes of the legislation is to
promote “[i]ncreased diversion of individuals with mental disorders . . . while
protecting public safety.” (§ 1001.35, subd. (a).)
Under the statute, a trial court may grant pretrial diversion if all the
following eligibility criteria are satisfied: (1) a qualified mental health expert
has recently diagnosed the defendant with a qualifying mental disorder; (2)
the “mental disorder was a significant factor in the commission of the
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charged offense”; (3) the defendant’s symptoms will respond to treatment; (4)
the defendant consents to diversion and waives his or her speedy trial rights;
(5) the defendant agrees to comply with treatment; and (6) the defendant will
not pose an unreasonable risk of danger to public safety if treated in the
community. (§ 1001.36, subd. (b)(1)(A)-(F).)
In September 2018, the Legislature amended section 1001.36, effective
January 1, 2019, to eliminate a defendant’s eligibility for diversion if the
defendant is currently charged with certain offenses, including murder.
(§ 1001.36, subd. (b)(2)(A).)
During the pendency of this appeal, the California Supreme Court in
People v. Frahs (2020) 9 Cal.5th 618 held that section 1001.36 applies
retroactively to judgments that are not final and that conditional remand is
appropriate to conduct a mental health diversion eligibility hearing. (Frahs,
supra, at pp. 635, 640.) However, the court declined to address the separate
issue of whether the 2019 amendment, which made certain defendants
ineligible for the diversion program, also was retroactive. (Id at p. 640 [“Nor
are we here addressing the separate question of whether the 2019
amendments, which rendered defendants charged with certain crimes
categorically ineligible for diversion, apply retroactively.”].)
Bell was convicted of second degree murder; therefore, she is statutorily
ineligible for mental health diversion under section 1001.36, subd. (b)(2)(A).
Bell contends that applying amended section 1001.36 here violates ex post
facto and due process protections under the federal and state Constitutions.
We disagree. The federal and state ex post facto clauses (U.S. Const., art. I, §
10, cl. 1; Cal. Const., art. I, § 9) prohibit legislation “ ‘which makes more
burdensome the punishment for a crime, after its commission.’ ” (Collins v.
Youngblood (1990) 497 U.S. 37, 42; People v. McVickers (1992) 4 Cal.4th 81,
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84.) The ex post facto prohibition is intended to ensure that individuals have
“ ‘fair warning’ about the effect of criminal statutes [and] ‘restricts
governmental power by restraining arbitrary and potentially vindictive
legislation.’ ” (Landgraf v. USI Film Products (1994) 511 U.S. 244, 267.) We
point out that notwithstanding the amendment, the court under the original
version of the statute had discretion not to permit diversion if the defendant
posed an unreasonable risk of danger to public safety; therefore, as Bell was
charged with and convicted of murder, she had no reasonable expectation of
diversion even under the unamended statute.
Here, ex post facto concerns do not apply because when Bell committed
murder in 2013, she could not have relied on the possibility of receiving
pretrial mental health diversion because the law was not yet passed.
Moreover, the Legislature’s amendment of section 1001.36 to eliminate
eligibility for defendants charged with murder did not make an act unlawful
that was not formerly unlawful, nor did it increase the punishment for that
offense. (See People v. White (2017) 2 Cal.5th 349, 360.) Bell was subject to
the same punishment when she committed her offense as she was after the
Legislature narrowed the scope of defendants eligible for diversion. Thus,
amended section 1001.36 does not violate the ex post facto clauses of the state
or federal Constitutions. (Accord, People v. Cawkwell (2019) 34 Cal.App.5th
1048, 1054, review granted Aug. 14, 2019, No. S256113; app. dism.; People v.
McShane, supra, 36 Cal.App.5th at p. 260, rev. gr., app. dism.)
III. Fees, Fines, and Assessments
Bell contends the trial court violated her constitutional right to due
process by imposing fees, fines and assessments without ascertaining her
ability to pay them. She also specifically argues the $10,000 restitution fine
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imposed under section 1202.4 subdivision (b) is unconstitutionally excessive,
and it must be stayed until a hearing is held on her ability to pay.
Bell concedes that defense counsel at the sentencing hearing did not
object to the trial court’s imposition of the $10,000 restitution fine (§ 1202.4,
subd. (b)), a $40 court security fee (§ 1465.8), a $30 court facilities assessment
fee (Gov. Code, § 70373), and a $154 criminal justice administration fee (Gov.
Code, § 29550), but she contends she did not forfeit this claim because, after
her sentencing, the court in People v. Dueñas, supra, 30 Cal.App.5th 1157introduced a new constitutional principle. Bell alternatively contends her
trial counsel provided ineffective assistance by failing to object to the
challenged fees, fines and assessments.
The People contend this claim is forfeited because Bell did not object at
the sentencing hearing, and the restitution fine should not be analyzed under
due process principles and Dueñas but under the Constitution’s “Excessive
Fines” clause. The People further argue that any error was harmless beyond
a reasonable doubt as Bell was 39 years old when the court sentenced her to
16 years in prison and “there is no indication that she has any physical issues
precluding her ability to work in prison.” They point out that “the only error
[the People] concede[ ] with respect to a due process violation in the context of
an ability to pay determination is in the imposition of the three non-punitive
fees totaling $224.”
We conclude Bell forfeited her due process argument by failing to object
to imposition of the fines, fees and assessments in the trial court. (See, e.g.,
People v. Smith (2020) 46 Cal.App.5th 375, 395 [“It is well established that a
defendant forfeits a challenge to the trial court’s imposition of a restitution
fine above the statutory minimum for failing to consider his or her ability to
pay if the defendant did not object in the trial court”]; People v. Keene (2019)
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43 Cal.App.5th 861, 863-864; People v. Gutierrez (2019) 35 Cal.App.5th 1027,
1033; People v. Baker (2018) 20 Cal.App.5th 711, 720 [claims requiring a fact-
specific inquiry are forfeited if not raised below].)
Bell’s ineffective assistance claim fails because Dueñas did not support
an objection to victim restitution, as courts have since held. (See People v.
Evans (2019) 39 Cal.App.5th 771, 777 [“Based on the significant differences
in purpose and effect between victim restitution and the moneys at issue in
Dueñas, we decline to extend the rule of Dueñas to victim restitution”];
accord, People v. Allen (2019) 41 Cal.App.5th 312, 326.) Moreover, Bell has
not cited any evidence in the record indicating that during her incarceration
she will be unable to pay at least some of the $224 imposed as nonpunitive
fees. She therefore has not shown that her counsel deficiently overlooked a
meritorious challenge. (See People v. Ochoa (1998) 19 Cal.4th 353, 432
[“Counsel did not perform deficiently for failing to make what would have
been a meritless request”].)
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DISPOSITION
The judgment is affirmed.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.
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