People v. Cleaves

• Decision Date: 16 April 1991
• Docket Number: No. D010657,D010657
• Citation: 280 Cal.Rptr. 146,229 Cal.App.3d 367
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John CLEAVES, Defendant and Appellant.

Page 146

280 Cal.Rptr. 146

229 Cal.App.3d 367

The PEOPLE, Plaintiff and Respondent, v. John CLEAVES, Defendant and Appellant.

No. D010657.

Court of Appeal, Fourth District, Division 1, California.

April 16, 1991.

Review Denied July 17, 1991.

Stephen J. Perrello, Jr., San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Rudolf Corona, Jr., Supervising Deputy Atty. Gen. and Rhonda Cartwright, Deputy Atty. Gen., for plaintiff and respondent.

WORK, Associate Justice.

John Cleaves appeals a judgment convicting him of second degree murder (PEN.CODE, § 187)¹, primarily contending the court erred by failing to honor his request to instruct on a lesser related offense of aiding and abetting a suicide (§ 401). In addition, he argues we should fashion a lesser related offense of voluntary manslaughter for killings done at the request of the victim. Finally, he claims the trial court erred by omitting the phrase "high probability of death" when defining implied malice; failing to give involuntary manslaughter instructions; and failing to give proper instructions regarding the necessity of concurrence between mental state and act. For the following reasons, we find his contentions meritless and affirm the judgment.

I

A defendant's right to instructions does not turn on the court's assessment of credibility or the strength of the evidence. (People v. Geiger (1984) 35 Cal.3d 510, 531, 199 Cal.Rptr. 45, 674 P.2d 1303; People v. Lemus (1988) 203 Cal.App.3d 470, 477, 249 Cal.Rptr. 897.) The instruction should be given if the defense theory is supported by substantial evidence--which means evidence sufficient to deserve consideration by the jury, i.e., evidence from which a reasonable jury could find the existence of the facts underlying the instruction. (People v. Lemus, supra, 203 Cal.App.3d at p. 477, 249 Cal.Rptr. 897.) Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the defendant. (Id. at p. 476, 249 Cal.Rptr. 897.) Accordingly, to evaluate whether aiding and abetting suicide instructions were warranted on the facts presented to the trial court, we set forth Cleaves's version of the events in detail.

Cleaves was especially sensitive to the sufferings associated with AIDS. He was living with and helping a friend who was in an advanced stage of illness from AIDS. ² Another of Cleaves's friends had died of AIDS. Around 3 a.m., as Cleaves was walking down the street, Eaton drove alongside and invited Cleaves to his apartment. At Eaton's apartment they twice engaged in sex over a period of hours. After they had sex, Eaton told Cleaves he had AIDS. During the day Eaton and Cleaves talked seriously about AIDS and death; Eaton telling Cleaves he had once tried to kill himself in New Orleans, and wanted to die. Eaton asked Cleaves how he looked, and when Cleaves responded he looked fine, Eaton told him he did not feel that way. Cleaves stayed with Eaton because he was concerned and was trying to help him. Eaton talked about the suffering a person goes through in the final stages of the illness, which he wanted to avoid.

Eaton talked of a service called The Black Mask that killed people with AIDS for money. Eaton offered various items of his personal property to Cleaves which he placed in the living room. ³ When Eaton stated he wanted to kill himself by strangulation Cleaves agreed to help him "do it." Later they knelt and prayed, and Eaton repeated his resolve to commit suicide.

Eaton tied a sash from his bathrobe around his neck, laid down on the bed, and asked Cleaves to tie his hands with the sash from his neck and to his feet. Cleaves tied Eaton's wrists behind his back with a belt, and tied the sash tautly from his neck to his wrists. Eaton bent his knees up, and Cleaves tied Eaton's feet to his hands with a soft sash or belt. Thus trussed, Eaton's body was arched with his feet in the air, his thighs still on the bed, with some distance between his feet and his hands. Eaton's face was down in a pillow. Eaton "pulled down"; and, when requested, Cleaves put his hands on Eaton's back to steady him on the bed. Eaton did not roll over on his side and Cleaves did not try to prevent him from doing so. Cleaves did not have to exert pressure to hold him down; his role was to steady him as he rocked up and down to prevent him from falling off the bed which Eaton feared would prevent him from completing the act of suicide. Eaton proceeded to strangle himself by "just straightening up," with his face staying down in the pillow.

When the sash slipped from Eaton's neck, Cleaves rewrapped it at Eaton's request and retied it to his hands. Cleaves never pulled on the sash or attempted to strangle Eaton; he did not exert pressure on the sash or on any tie; he did nothing to directly strangle Eaton; and he did not hold Eaton's face in the pillow. Eaton did not start choking when Cleaves tied the sash from his neck to his hands; rather Eaton began choking when he (Eaton) started "pushing" back on the sash with his hands and feet. Eaton was in sole control of how tight the sash was around his neck by straightening out his body with his feet.

Cleaves told the police that after the tie around his neck broke, he had to "extra hold him down," and he "laid on him." When asked by the police if he was helping Eaton out by putting enough weight on his back to where it started to choke him, because Eaton was not doing "it" himself, Cleaves answered, "yes." When asked if he put his full weight on Eaton, Cleaves told the police no, variously describing his conduct as placing his hands and pushing him down on the bed; just holding him down without putting a lot of weight on him; just holding him to keep him from bucking; holding him while standing along side of the bed; and holding him without putting any pressure on him.

At trial, Cleaves acknowledged that during police questioning, he had said when the neck sash came loose, he had to "extra hold him down," he "laid on him," and Eaton was not choking himself. He explained he meant Eaton was not choking himself because "that's where his arms were"; and he did not have to hold him down extra hard or lay on him; but when he was talking to the police he was confused and scared.

Cleaves acknowledged at trial that he knew Eaton was going to die when he tied him up; he wanted to help him die; and he knew if he did not tie him up and hold him on the bed he was not going to die.

After Eaton's death, Cleaves fixed himself a drink, put on a pair of pants and shoes Eaton had given him, and as Eaton had requested, took the bindings off Eaton and threw them away. Eaton had told Cleaves his wallet containing his ATM card was in the glove compartment of his car, and had given Cleaves his ATM number. Cleaves took the wallet and withdrew money from the ATM machine over the next three days. Because he did not drive, Cleaves had a friend pick up Eaton's car.

When arrested, Cleaves at first denied involvement in Eaton's death, insisting he fell asleep and woke up to find Eaton dead. After continued interrogation, Cleaves finally admitted he tied Eaton up and held him down. On the back of one of Eaton's personal business cards, the police found the words: "A.I.D.S. and the Doctors of Death, Dr. Alan Cartwell."

The coroner found a type of cancer in Eaton's intestines which indicated infection with the AIDS virus, but the quantity and smallness of the infected cells suggested Eaton would not have known he had the cancer or suffered from any symptoms. Eaton tested positive for the AIDS virus, but the coroner did not find evidence of any other illnesses. The cause of Eaton's death was determined to be asphyxia by ligature strangulation, as evidenced by ligature marks on his neck and wrists, abrasions on his lips, chin and nose, and biting of the lower lip and tongue. There was no other evidence of trauma to his body. The coroner acknowledged the ligature marks could be consistent with Eaton attempting to pull on his neck or strangle himself, noting it does not take much pressure to cause asphyxiation, and it is possible for a person to strangle himself with a ligature tied from his neck to his wrists. On the other hand, the coroner stated a person lapses into unconsciousness prior to death during strangulation, and once unconscious it was doubtful the person could maintain the pressure necessary to cause the tension to a ligature from his neck to his wrists.

II

Failure to give aiding and abetting suicide instructions

A defendant is entitled to a lesser related offense instruction when there is some basis on which the jury could find the lesser offense, when the offense is closely related to the offense charged and shown by the evidence, and when the defendant is relying on a theory of defense consistent with the lesser offense. (People v. Geiger, supra, 35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.) Although the trial court allowed the defense to present evidence on its aiding and abetting suicide theory, it ultimately refused to instruct the jury on the lesser related offense. ⁴

The trial court also refused to give manslaughter instructions. ⁵ Accordingly, the jury was instructed as to first and second degree murder only, and convicted Cleaves of the latter. Further, the trial court fashioned an instruction addressing the evidence pertaining to suicide as follows:

"There has been evidence that the defendant killed the victim at the victim's request. You are the exclusive judges of whether or not this is true and, if true, what impact it will have on your verdict. However, if you find beyond a reasonable doubt that the offense of murder in the first or second degree was committed by the defendant as defined in these instructions, it is immaterial whether the acts of the defendant were committed...