People v. Beverly

• Decision Date: 25 July 2003
• Docket Number: B157489.
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CEDRIC LOMAR BEVERLY, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. CEDRIC LOMAR BEVERLY, Defendant and Appellant.

B157489.

Court of Appeals of California, Second Appellate District, Division Seven.

Filed July 25, 2003.

APPEAL from a judgment of the Superior Court for the County of Los Angeles, Kathryne A. Stoltz, Judge. Los Angeles County Super. Ct. No. MA022632.

Reversed and remanded.

John J. Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P. J.

Cedric Lomar Beverly appeals from the judgment entered following his conviction by a jury for residential burglary and driving under the influence of alcohol. Beverly contends his trial counsel provided constitutionally ineffective assistance by failing to move to exclude evidence of statements Beverly made to the police at the time of his arrest. Because we find no reasonable defense attorney would have failed to seek exclusion of this evidence and further conclude Beverly was prejudiced by his counsel's deficient representation, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Events of June 16, 2000

Beverly worked as a security guard at a senior citizens' complex in Palmdale. On Sunday morning, June 16, 2000, he was still "staggering drunk" after drinking beer and gin at an all-night party celebrating his wife's fortieth birthday. Nevertheless, he went to work as scheduled at 7:45 a.m.¹ He returned home about an hour later, drank more gin and beer and returned to work.

Anthony Douglas and his family lived in a house behind the senior citizens' complex. A wall separates their back yard from the complex. On the morning of June 16, 2000 members of the Douglas family heard a crash of breaking glass and saw Beverly standing in their dining room. After Douglas shouted for his gun, Beverly left the house through the dining room window and jumped over the back wall. Douglas ran outside and saw Beverly walking with a bicycle (later determined to have been taken from the back yard) on the opposite side of the wall. Douglas saw Beverly approach a parked car, lean toward the passenger window and engage in conversation with someone inside the car, although no other person was visible. Beverly then got in the car and drove away.

Deputy Sheriff John Christie responded to the Douglas family's 911 call. While Deputy Christie was talking to Anthony Douglas outside the house, Beverly drove his car back to the scene of the break-in. Douglas recognized Beverly as the intruder and shouted "that's him!"

Deputy Christie ordered Beverly out of the car and handcuffed him. Noticing bloodstains on Beverly's shirt and a cut on his hand, Christie asked how he had cut his hand. Beverly replied that he had cut it closing the hood of his car. Christie then told Beverly he was under arrest and advised him of his right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S. Ct. 1602, 16 L. Ed. 2d 694] (Miranda).) Beverly told Christie he would answer questions and denied he had done anything wrong. When Christie asked if Beverly had cut his hand while breaking the window at the Douglas home, Beverly refused to answer and asked for an attorney. Christie then asked Beverly to take a field sobriety test. Beverly admitted he had been drinking and driving, but refused to cooperate with the field sobriety test. Based on the results of a subsequent breath test at the sheriff's station, Beverly's blood alcohol was estimated to have been .24 to .25 percent at the time of the break-in.

2. Events at Trial

Beverly was charged with first degree residential burglary (Pen. Code, § 459),² driving under the influence of drugs and/or alcohol (Veh. Code, § 23152, subd. (a)) and driving with a blood alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subd. (b)). He pleaded not guilty and denied the special allegations.

Trial was by jury. Beverly admitted he entered the Douglas home; his sole defense was that he lacked the mental capacity necessary to form the specific intent required for burglary.

Before any testimony was taken, the trial court asked counsel on several different occasions whether any Miranda issues needed to be addressed. Neither the prosecutor nor Beverly's defense lawyer indicated any pretrial hearing was necessary.

During trial Deputy Christie testified, without objection, that Beverly initially said he had cut his hand on his car; that after being advised of his rights under Miranda he denied any wrongdoing but refused to answer further questions and asked to see a lawyer when asked if he had cut his hand on the window at the Douglas home; and that he had refused to cooperate with Christie's request that he perform field sobriety tests. This evidence was introduced, in part, to demonstrate consciousness of guilt and to establish that Beverly, even though highly intoxicated, was capable of thinking clearly about what he was doing and what was happening to him.

At the conclusion of the evidentiary portion of the trial, the court again raised, sua sponte, its serious concern about possible Miranda violations, particularly with respect to the evidence that Beverly had invoked his right to the presence of counsel before responding further to police questioning. After an extensive colloquy with counsel, during which the court criticized both the prosecutor and defense attorney for failing to alert it to the Miranda issues arising from Christie's testimony,³ the court ruled it would strike the post-Miranda question regarding how Beverly cut his hand and Beverly's request for counsel in response and would immediately instruct the jury to disregard that evidence.

When the jury returned, the court in its presence struck the question and answer and instructed the jury not to consider it for any purpose: "You are not to consider it to show a consciousness of guilt. You are not to consider it to show whether the defendant had a certain mental capacity at the time, because when somebody asks for an attorney or they invoke their rights, that is something the law really respects. You are not to use that against him in any way, shape or form."

In his closing argument, defense counsel conceded that Beverly had been driving under the influence of alcohol and that Beverly was the person who broke into the Douglas home. However, he argued, "Mr. Beverly was so intoxicated that he could not form the required specific intent to make a complete burglary."

Shortly after the

jury began to deliberate, the jurors sent a note asking for the testimony of Deputy Christie and the Douglas children to be read back. After conferring with both counsel, the trial court ordered Deputy Christie's testimony read without the references to Beverly's request for an attorney and without Deputy Christie's statement that he had "Mirandized" the suspect.

After six hours of deliberation, the jury found Beverly guilty on all charges and found the prior conviction allegations to be true. He was sentenced to a total of 35 years to life in state prison.

CONTENTIONS

Beverly contends his counsel provided constitutionally deficient representation by failing to object to the admission of the following three statements:

1. Beverly's pre-Miranda statement he had cut his hand while closing the hood of his car.

2. Beverly's post-Miranda request for counsel after being asked if he had cut his hand while breaking the window at the Douglas home.

3. Beverly's post-Miranda/post-request-for-counsel admission he had been drinking and driving in response to a request to perform field sobriety tests.

DISCUSSION

A criminal defendant has the right to counsel under the Sixth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteeenth Amendment, and also under the counsel clause of article I, section 15 of the California Constitution. This right entitles the defendant to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (Strickland); People v. Kipp (2001) 26 Cal.4th 1100, 1122.) An effective counsel is one who performs to the standard of a "'reasonably competent' attorney who acts as a 'diligent conscientious advocate.' [Citations.]" (People v. Soriano (1987) 194 Cal. App. 3d 1470, 1478-1479, 240 Cal. Rptr. 328.) There is a presumption that the challenged action "'might be considered sound trial strategy'" under the circumstances. (Strickland, at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541, 950 P.2d 1035.) On a direct appeal a conviction will be reversed for ineffective assistance of counsel only where, as here, the record demonstrates there could have been no rational tactical purpose for counsel's challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442, 907 P.2d 373.)

A defendant claiming ineffective assistance must also establish there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. (Strickland, supra, 466 U.S. at pp. 686-687; People v. Williams (1997) 16 Cal.4th 153, 215, 940 P.2d 710.) Such a reasonable probability plainly exists in this case. A timely motion to exclude would certainly have been granted as to Beverly's post-Miranda request for counsel and might well have been granted as to his false explanation of the cut on his hand made after he had been detained and handcuffed. There is a reasonably probability the jury would have reached a different verdict in that event.⁴

1. Failure to Object to the Use of Beverly's Statement That He Had Cut His Hand Closing the Hood of His Car Constituted Ineffective Assistance of Counsel

The People argue it would...