People v. Belyew

THE PEOPLE, Plaintiff and Respondent, v. LISA MARIE BELYEW, Defendant and Appellant.

C088250

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Colusa)

June 17, 2020

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Colusa County Super. Ct. No. CR57771; Butte County Super. Ct. No. 16CF06270)

Following an argument in a Colusa County motel, defendant Lisa Marie Belyew stabbed her husband in the arm with a knife through the bathroom door; he was injured and escaped out the bathroom window. She represented herself at trial, and was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),¹ corporal injury on a spouse (§ 273.5, subd. (a)), and vandalism (§ 594, subd. (b)(1)) withallegations of personal infliction of great bodily injury (§ 12022.7, subd. (e)) and use of a deadly weapon (§ 12022, subd. (b)(1)) also found true. She was sentenced to an aggregate term of 13 years in state prison, which included a sentence for a previous domestic violence conviction for stabbing the same victim in Butte County.

Appointed counsel for defendant filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant then filed an oversized supplemental brief raising numerous issues on appeal.

Defendant contends the trial court prejudicially erred by: (1) denying her motion to dismiss for violation of her rights to a speedy trial and for delay in prosecution; (2) denying her discovery motions before her preliminary hearing as well as her motion for exculpatory blood and DNA evidence that law enforcement failed to preserve from the crime scene; (3) denying her Pitchess² motion; and (4) denying her motion for a new trial based on alleged judicial and prosecutorial misconduct.

Defendant also argues (5) insufficient evidence supports her convictions; (6) the trial court erroneously admitted evidence of the domestic violence incident with her husband in Butte County under Evidence Code section 1109 because the prosecutor failed to timely disclose the information; (7) the court misinstructed the jury by lightening the prosecutor's burden of proof, unnecessarily emphasizing certain instructions, incorrectly stating the law, and giving instructions that the evidence did not support; and (8) the court improperly denied her appointment of an expert psychologist to examine the victim for mental illness related issues to support her defense.

She further contends (9) the imposed fees, fines, and assessments must be stayed or otherwise vacated pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)and the prohibition against excessive fines; (10) her presentence custody credits were improperly calculated; (11) section 1170.1 and section 654 barred punishing her for the great bodily injury and use of a weapon enhancements; (12) the court erred in imposing the upper term on her corporal injury conviction; (13) that she was denied the effective assistance of standby counsel and denied her constitutional right to testify; and, finally, (14) that reversal is required due to the cumulative effect of the alleged errors.

Finding no merit to her contentions, we shall affirm her convictions with slight modifications as described herein. We shall impose mandatory assessments on one of the counts that the trial court failed to impose, and we shall impose the low term on the assault counts that it stayed pursuant to section 654, as the one-third-the-midterm rule does not apply to counts stayed under section 654. As so modified, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Colusa County Stabbing

On February 2, 2016, defendant and her husband were staying at the Colusa Motel. During the day they argued, and the victim left the motel to go fishing. Upon returning, defendant would not let him back into the motel room.

At some point, defendant called 911 to report that her husband would not stop knocking on the window to the room, and said that she was "about ready to stab the mother fucker for real."³ During the call, defendant stated that she was in room 109 at the Colusa Motel and she identified herself as "Storm."

Defendant eventually let the victim in, and he went to the bathroom; he did not see anyone else besides defendant in the room at that time. While in the bathroom, someone began stabbing a knife through the bathroom door. The victim grabbed the door handleand tried to keep the door closed. During the struggle, the victim's arm was slashed, causing it to bleed.

The victim escaped the bathroom by jumping out the window; he injured his leg from the fall. He sought help in the motel manager's office, and the motel manager called police. The victim hid inside the motel carport until police arrived.

City of Colusa Police Officer Larry Lorman first responded to room 109 at the Colusa Motel around 6:00 p.m. after receiving a report of a woman threatening to stab her husband. Lorman spoke with defendant through the motel room window; the officer observed a hunting knife tucked into defendant's waistband. Defendant said that she and her husband had a disagreement over ownership of a pickup truck. At the time, Lorman did not notice any injuries on defendant. He did not see the victim, and left the motel.

Officer Lorman returned to the Colusa Motel approximately 40 minutes later in response to a report of a wounded man. Lorman located the victim outside the motel manager's office underneath a carport. Lorman saw that the victim's right arm was injured. When he asked the victim if someone stabbed him, the victim initially responded "yeah," and identified the person who stabbed him as "Storm." When Lorman asked him again who stabbed him, he said he did not know.

After interviewing the victim, Officer Lorman returned to room 109 and loudly knocked on the door, announcing his presence. No one answered. Lorman then obtained the manager's key to enter the room. After knocking and announcing again without any response, Lorman opened the door and saw defendant lying on one of the motel beds feigning sleep. The room had been destroyed; mirrors and lamps were broken, the bathroom door and room walls were damaged, and there was blood everywhere. Defendant had blood on her face and clothing, and there was a blood stain on the bed where she lay.

Officer Lorman asked defendant whether she was injured; she did not report any injuries. He noticed that defendant no longer had the hunting knife he had seen earlier,although she was still wearing the sheath around her waist. The knife blade was eventually located on the bathroom floor; the handle had been broken off and was found under the nightstand. The broken knife matched the sheath found on defendant.

Because Officer Lorman had already contacted the victim, who was bleeding from his injury, and defendant did not appear to be injured, Lorman did not collect any blood or DNA samples from the scene. He arrested defendant. During the arrest, defendant was very hostile and physically combative. She told Lorman that she did not do anything, and said that "[s]omebody else was involved in this shit," although she never identified the alleged third person.

The victim was admitted to the emergency room for his injuries. The emergency physician listed his "chief complaint" as "Patient stabbed by a knife his wife was using to cut him. He suffered a positive for right forearm laceration and positive for left-knee pain after jumping out a window." Nothing in the medical records indicated the physician obtained the complaint information from anyone other than the victim. The victim's arm wound took five stitches to close.

Nurse Cheryl Bird escorted the victim from the hospital upon discharge. In response to her statement that "[i]t look[ed] like [he had] had a rough night," the victim responded, "Yeah, I got stabbed by my wife, and now I'm getting kicked out of the hospital."

Procedural Background

We offer a general overview of the procedural history of this matter. Additional background information relevant to the issues on appeal is discussed more fully below.

Arrest and Initial Charges

Defendant was arrested the day of the stabbing and was released on her own recognizance three days later with a promise to appear on March 1, 2016. On February 26, defendant was charged in Colusa County case No. CR57771 (Colusa County case) with assault with a deadly weapon (§ 245, subd. (a)(1)), and vandalism (§ 594, subd.(b)(1).) She was arraigned on March 1, and the court appointed Colusa County Public Defender Albert Smith to represent her.

On March 23, 2016, the prosecutor filed a first amended complaint alleging assault with a deadly weapon (§ 245, subd. (a)(1)), corporal injury to a spouse (§ 273.5), and vandalism (§ 594, subd. (b)(1)). That same day, defendant appeared with Smith and waived a further reading and advisement of rights, entered pleas of not guilty on the amended complaint, and waived further arraignment. She did not waive time for the preliminary hearing, which was set for April 6.

Preliminary Hearing and Pretrial Motions

On the date of the preliminary hearing, Smith declared a conflict and asked to be relieved because defendant had secretly taped their confidential conversations, posted the conversations on the Internet, and provided the court with a transcribed copy of the communications as part of a Marsden⁴ motion she filed herself. After relieving Smith as counsel, the court granted defendant's request to represent herself.

Defendant requested a continuance and personally waived time for the preliminary hearing. The court continued the preliminary hearing...