P. v. Scharf, part 1

P. v. Scharf

Filed 4/24/06 P. v. Scharf CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977 .

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

THE PEOPLE, Plaintiff and Respondent, v. GLYN WOLFGANG SCHARF, Defendant and Appellant.

C048480 (Super. Ct. No. P03CRF0248)

A jury found defendant Glyn Wolfgang Scharf guilty of first degree murder of his soon-to-be ex-wife, Jan Scharf,^[1] who disappeared without a trace in May 2002. On appeal, defendant raises numerous claims of trial court error and prosecutorial and judicial misconduct, as well as contending the evidence was insufficient to support his conviction. Because we find no basis for reversal, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Jan, an emergency room nurse, and defendant, a paramedic, were married in December 1988. In October 2001, Jan initiated divorce proceedings, but she and defendant continued to share a house in Cameron Park as the divorce proceeded. Sometime before Christmas 2001, defendant called Jan’s daughter, Aimee Bautista, crying because he still loved Jan and did not want the divorce. He also told Jan that he wanted to work it out and that if he could not have her, no one could.

Around May 8, 2002, Jan’s divorce attorney sent a letter to defendant with a proposed marital settlement agreement, which, if signed by the parties, would have been incorporated into a judgment for divorce, thus ending the Scharfs’ marriage. Less than a week later, shortly before 8:00 p.m. on Tuesday, May 14, Jan spoke with Terrance Koch, a man she was dating, on her cellular phone as she drove home from work. Around 8:00 p.m., Leni Pink, who lived next door to the Scharfs, heard a woman’s loud scream coming from the Scharfs’ driveway, followed by the woman saying loudly, “No, no, don’t, don’t,” then more screaming. Right after the screaming ended, she heard a car, possibly two, drive off quickly. When Pink’s roommate, Barbara Slater, went outside at Pink’s request to see if she could see anything, Slater noticed that defendant’s truck, which had been in the driveway earlier, was gone.

Jan was never seen or heard from again. Jan’s mother and daughter reported her missing on Saturday, May 18. The next day, her car was found in the parking lot of the health club she frequented in Folsom.

Defendant was arrested in May 2003, following a lengthy investigation and charged with Jan’s murder. After a 17-day trial in September and October 2004, during which 76 witnesses testified, a jury found defendant guilty of first degree murder. The trial court sentenced him to 25 years to life in prison. Defendant filed a timely notice of appeal.

DISCUSSION

I

Sufficiency Of The Evidence

Defendant first contends “[t]he record is devoid of the requisite substantial evidence to support a murder conviction.” We conclude that defendant has failed to demonstrate the evidence was insufficient to support his conviction.

“The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below 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.] ‘“[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.”’ [Citation.] ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.”’” (People v. Snow (2003) 30 Cal.4th 43, 66.)

“An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

Although the usual formulation of the standard of review, set forth above, could be read to suggest that we will review the record to determine if it contains substantial evidence to support the jury’s verdict even if the defendant does nothing more than baldly assert that the evidence is insufficient, that is not the case. Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. (See People v. $497,590 United States Currency (1997) 58 Cal.App.4th 145, 152-153.) Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, “without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[] of conviction.” (People v. Daniels (1948) 85 Cal.App.2d 182, 185.) Rather, he must affirmatively demonstrate that the evidence is insufficient.

How does a defendant make such a showing? Perhaps the best way to understand that point is to understand how a defendant does not make such a showing. He does not show the evidence is insufficient by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself. It has long been understood in the context of civil appeals, where the burden is likewise on the appellant to demonstrate that the evidence is insufficient, that “[a] recitation of only [the appellant’s] own evidence or a general unsupported denial that any evidence sustains the findings is not the ‘demonstration’ contemplated under the rule.” (Green v. Green (1963) 215 Cal.App.2d 31, 35.) It has also long been understood in civil appeals that an appellate court is “not required to search the record to ascertain whether it contains evidence that will sustain [the appellant’s] contentions.” (Ibid.) There is no reason in law or logic that these same principles should not apply in an appeal in a criminal case. These principles are fundamental to the very nature of appellate review, and they must be respected by the criminal defendant who seeks review of his conviction as much as by the appellant in a civil case.

Thus, to prevail on a sufficiency of the evidence argument, the defendant must present his case to us consistent with the substantial evidence standard of review. That is, the defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jury’s verdict. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) If the defendant fails to present us with all the relevant evidence, or fails to present that evidence in the light most favorable to the People, then he cannot carry his burden of showing the evidence was insufficient because support for the jury’s verdict may lie in the evidence he ignores.

Such is often the case in criminal appeals, and such is the case here. Neither in his statement of facts, nor in his argument on the insufficiency of the evidence, does defendant set forth all of the material evidence on the issue of whether he murdered Jan, nor does he present what evidence he does set forth in the light most favorable to the People. From the testimony of 76 witnesses over the course of more than three weeks, defendant presents a statement of facts of little more than 14 pages, which vastly understates the prosecution’s case and tends to focus on facts and testimony favorable to him - including testimony the jury could have simply disbelieved, such as claims by witnesses that they saw Jan after 8:00 p.m. on May 14, 2002. In contrast, the People (in a much smaller font) offer a statement of facts consisting of 39 pages devoted to the evidence presented in their case-in-chief, five pages to the defense evidence, and a final page to the evidence presented in rebuttal.

Just as lacking, if not more so, is defendant’s argument regarding the sufficiency of the evidence. Rather than arguing about why all the material evidence presented in the light most favorable to the People is still not enough to prove Jan was murdered, let alone that he was the one who did it, defendant’s argument focuses almost exclusively on what is not in the record, which he apparently contends precludes his conviction for murdering Jan.^[2]

In a case such as this - with no body and no physical evidence of a crime - it can still be proved that the defendant committed murder, but it must be proved circumstantially, which means that all of the circumstances must be viewed as a whole to determine whether, taken together, they are sufficient to prove beyond a reasonable doubt that the missing victim is dead and that the defendant intentionally caused the victim’s death. (See, e.g., People v. Scott (1959) 176 Cal.App.2d 458.) This means that, to properly raise a challenge to the sufficiency of the evidence in a case like this, the defendant must present us with all of the circumstances shown by the evidence and persuade us that even in light of all those circumstances there is inadequate proof the victim is dead or that he intentionally killed her. Defendant has simply failed to meet that burden here.

We could end our analysis there, but if only to forestall a later claim of ineffective assistance of appellate counsel, we instead pause to note that the evidence the People cite in their argument on the sufficiency of the evidence is enough to support defendant’s conviction. When taken as a whole and viewed in the light most favorable to the People, the evidence showed that Jan did not voluntarily disappear. Among other things, she was doing most of the planning for her daughter’s wedding, which was set for December 2002; she had just applied for a promotion at work; and she was dating someone new and had plans to see him on May 16, two days after she disappeared. Moreover, people who knew her testified it was not in her nature to take off and not tell anyone, and her clothes, luggage, and makeup were left behind. In light of this (and other) evidence, the jury reasonably could have found that Jan met with foul play, resulting in her death. (See, e.g., People v. Ruiz (1988) 44 Cal.3d 589, 610-611 [“ample circumstantial evidence of [victim’s] death by foul play [found in] her abrupt disappearance, her failure to contact friends, relatives, her physician and her pastor, her failure to seek resumption of Medi-Cal and Social Security payments, and her abandonment of several personal effects”].)

The jury also reasonably could have found that defendant was responsible for Jan’s disappearance. Viewed in the light most favorable to the People, the evidence showed that the last contact anyone had with her was shortly before her neighbor heard screams that the jury could have found occurred during a violent attack defendant committed on her just as she returned home from work on May 14. At that time, the divorce defendant did not want was moving toward its conclusion, and he had previously told a girlfriend that he was never going to allow another woman to do to him what his first wife had done, which was she had received the house in their divorce. Jan’s car was found several days later in the parking lot of the health club she frequented, suggesting defendant planned her murder and tried to make it look like she was abducted while visiting the health club.

On the night of Jan’s disappearance, defendant had had plans to spend the night at his girlfriend’s house, but he canceled those plans that afternoon, telling her he had laundry to do. Two days later, however, he laundered his clothes at his girlfriend’s house, which he had never done before. Sometime later, after defendant was arrested for Jan’s murder, a necklace and ring that belonged to Jan were found in a film canister hidden in some ivy in front of that house.

This is only a brief summary of the evidence presented in this case, but when that evidence is considered as a whole, we are persuaded it is sufficient to support defendant’s murder conviction and defendant has failed to demonstrate otherwise.

II

Change Of Venue

On July 20, 2004, defendant filed a motion for change of venue, contending he could not receive a fair trial in El Dorado County due to “widespread and prejudicial pretrial publicity.” In support of his motion, defendant submitted three packets of material: one containing newspaper articles about the case, a second containing printouts from the Internet about the case, and a third containing a list of television news broadcasts about the case.

On August 25, the court denied the motion without prejudice to its renewal following jury voir dire. In denying the motion, the court agreed there had been “significant attention paid to this case [in] the media,” which was not unusual in the case of a murder charge with a missing victim, “[b]ut the media coverage in this case was clustered in certain points of time.” In particular, the court found it “significant that it’s been 10 months since there’s been any, as far as I can tell from your evidence, significant or otherwise media attention to this case. [¶] So that certainly serves to diminish by passage of time what perceptions or impressions or feelings there might be in the community about this case.”

On September 14, a jury was selected. Defense counsel exercised only 9 of the 20 peremptory challenges available to him. (See Code Civ. Proc., § 231, subd. (a).)

On September 21, just before opening statement, defendant renewed his change of venue motion. The court noted that it had received responses to the juror questionnaire from about 77 prospective jurors. Thirty-two of the jurors said they had never heard of the case; the other 45 had. Of those 45, only 2 said they could not set aside what they had heard, so they were excused. Concluding “there isn’t a reasonable possibility . . . based on the answers to those questionnaires that because of pretrial publicity that Mr. Scharf cannot get a fair trial,” the court denied the change of venue motion.

On appeal, defendant contends the trial court erred in denying his change of venue motion because “[t]he extensive and inflammatory pretrial publicity rendered it reasonably likely that [he] could not receive a fair trial in El Dorado County.” We find no error.

In a criminal case, when the defendant moves for a change of venue, the trial court must grant that motion “when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” (Pen. Code, § 1033, subd. (a).) “In reviewing the trial court’s decision [denying a change of venue], we independently examine the record to determine whether in light of the failure to change venue, it is reasonably likely that defendant in fact received a fair trial. [Citations.] The de novo standard of review applies to our consideration of the five relevant factors: (1) nature and gravity of the offense; (2) nature and extent of the media coverage; (3) size of the community; (4) community status of the defendant; and (5) prominence of the victim.” (People v. Sully (1991) 53 Cal.3d 1195, 1236-1237.) “On appeal the appellant must demonstrate that the ruling was error because it was reasonably likely that a fair trial could not be had and that the error was prejudicial because a fair trial was in fact denied.” (People v. Hayes (1999) 21 Cal.4th 1211, 1250.)

A

Nature And Gravity Of The Offense

“The peculiar facts or aspects of a crime which make it sensational, or otherwise bring it to the consciousness of the community, define its ‘nature’; the term ‘gravity’ of a crime refers to its seriousness in the law and to the possible consequences to an accused in the event of a guilty verdict.” (Martinez v. Superior Court (1981) 29 Cal.3d 574, 582.)

Defendant contends the nature and gravity of the offense here - defendant’s alleged murder of his estranged wife, after which the victim’s body was never found - “favored venue change.” The People do not disagree; however, they do argue that the nature and gravity of the crime did not “‘weigh compellingly in favor of a venue change.’” (Italics added.) (See People v. Hamilton (1989) 48 Cal.3d 1142, 1159 [husband’s murder of his pregnant wife for profit with a shotgun fired at close range did not weigh compellingly in favor of a venue change].) We agree.

B

Size Of The Community

“In a small town, in contrast to a large metropolitan area, a major crime is likely to be embedded in the public consciousness with greater effect and for a longer time. [Citation.] Thus, . . . when trial is scheduled in a small rural community, even though the publicity is not inflammatory and not hostile toward the defendant, the courts have granted” a change of venue. (Martinez v. Superior Court, supra, 29 Cal.3d at p. 581.)

The estimated population of El Dorado County in 2004 was 168,100, and the trial court characterized the county as “more in a suburban/rural-type nature.” Defendant contends “[t]he small size of [this] relevant community favors a venue change.” Again, the People do not disagree, but instead argue that “this factor does not weigh heavily in favor of a change of venue.” (Italics added.) (See People v. Proctor (1992) 4 Cal.4th 499, 525-526 [population of Shasta County (approximately 122,100) weighed “somewhat in favor of a change of venue”].) Again, we agree.

C

Community Status Of The Defendant

The status of the defendant as a stranger or undesirable person in the community may weigh in favor of a change of venue. (See Martinez v. Superior Court, supra, 29 Cal.3d at pp. 584-585.) The trial court here noted that defendant was a “prominent person” in the community, having lived in the county for 15 years and having served on the board of the community services district for Cameron Park. Defendant contends, however, that press coverage of the case portrayed him in “unfavorable terms,” and therefore his community status favored a change of venue.

We will address the nature and extent of the media coverage below. In the absence of that coverage, there was nothing about defendant’s status in the community that suggested a change of venue was necessary. Thus, this factor did not support a venue change.

D

Prominence Of The Victim

The victim’s status in the community as “well known or well liked, or both,” may weigh in favor of a change of venue. (Martinez v. Superior Court, supra, 29 Cal.3d at p. 584.) Here, defendant points to nothing to show Jan was prominent in the community before her disappearance. To the extent media coverage gave Jan a certain amount of prominence after she disappeared, we consider that as part of the nature and extent of the media coverage. Otherwise, this factor did not support a change of venue.

E

Nature And Extent Of The Media Coverage

As the trial court recognized, the most important factor here was the nature and extent of the media coverage. Defendant contends, “[t]he jury pool was exposed to a flood of publicity about this case” because “[t]here were more than 500 local television news stories about this case between July 2002 and November of 2003.” He also argues, “[t]he news media coverage was inflammatory and sensational,” depicting him “as an immoral outlaw,” and depicting Jan “as a highly valued nurse and beloved member of the community.”

The possibility of an unfair trial may arise from news coverage that is inflammatory or productive of overt hostility or from widespread publicity that describes facts, statements, and circumstances which tend to create a belief in the guilt of someone charged with a crime. (Martinez v. Superior Court, supra, 29 Cal.3d at p. 580.) Of course, “the impact of the publicity may be mitigated due to the lapse of time between publication or issuance of news reports and commencement of jury selection.” (People v. Proctor, supra, 4 Cal.4th at p. 525.)

The evidence defendant produced in support of his change of venue motion showed that local television news in Sacramento reported on Jan’s disappearance almost daily for a month between May 19, 2002 - five days after she was last seen - and June 18, 2002. Additional reports were made around July 15, 2002, relating to a celebration of her birthday, and then again around July 23, 2002, relating to the discovery of a body in Folsom (which turned out to be someone else). A few reports about the use of a psychic to locate her appeared in August, then nothing appeared until January 2003, when Jan’s disappearance returned to the news briefly, fueled by the disappearance of Laci Peterson.

News reports appeared again in May 2003, around the one-year anniversary of Jan’s disappearance. Then, beginning on May 16, 2003, reports appeared for five straight days reporting on defendant’s arrest and arraignment for Jan’s murder. There was a cluster of reports in early June on defendant’s plea to the charge, then reports again at the end of June and beginning of July on his bail hearing. There was then a three-month gap in reports on the case, until the preliminary hearing at the end of October 2003. The final television news on the case appearing in the record occurred near the end of November 2003, when defendant again entered a not guilty plea.

The initial reports in the month after Jan’s disappearance portrayed her in a favorable light, with friends commenting that she was a nurse who was responsible, reliable, well-liked, and very nice. But contrary to defendant’s argument, nothing on the television news portrayed him as “an immoral outlaw.” In the first month of coverage, there was a mention that defendant refused to take a lie detector test, and also mention of Jan’s belief that defendant was poisoning her. At the same time, however, reports included assertions that defendant would not “do anything like that,” and it was reported that authorities were considering whether Jan might have been abducted by a stranger or someone she met over the Internet or disappeared voluntarily. Other reports indicated there was no physical evidence of foul play, and no clues or suspects in the case. Both individually, and as a whole, the television coverage was neither inflammatory nor overtly hostile to defendant, nor did it include facts, statements, and circumstances which would have tended to create a belief in defendant’s guilt.

The record also contains two articles from the Sacramento Bee reporting on the preliminary hearing in November 2003, and 16 articles from the Mountain Democrat published between July 25, 2002, and January 16, 2004. Although these articles contained more facts than the television news reports, they were again neither inflammatory nor overtly hostile to defendant. Similar are the printouts of approximately 28 articles posted on media Internet websites between May 2002, and November 2003.

There is also evidence Jan’s name appeared in a broadcast of Good Morning America on June 5, 2002, although the substance of that broadcast is not contained in the record.

In summary, while the local news coverage of Jan’s disappearance and defendant’s subsequent arrest for her murder was extensive at times, there was little about that coverage that tended to suggest defendant could not be fairly tried in El Dorado County. It must be emphasized that most of the news coverage appears to have ceased in November 2003, following the preliminary hearing, which was 10 months before the jury was selected in September 2004. “The passage of time weighs heavily against a change of venue.” (People v. Sanders (1995) 11 Cal.4th 475, 506.)

Defendant points out that a majority of the potential jurors, as well as a majority of the actual jurors, admitted having been exposed to pretrial publicity about the case. However, “It is not necessary that jurors be entirely ignorant of the facts and issues involved in the case; it is sufficient that they can lay aside their opinions and impressions and render a verdict based on the evidence presented at trial.” (People v. Sanders, supra, 11 Cal.4th at p. 506.) Here, only 2 out of approximately 77 potential jurors said they could not set aside what they had heard, and they were dismissed for cause. In Sanders, our Supreme Court found it significant that only 1 out of about 100 potential jurors stated “she would be unable to decide the case fairly because of the publicity to which she had been exposed.” (Id. at pp. 505, 506.)

Finally, we find it critical that defense counsel used less than half of the peremptory challenges available to him before accepting the jury panel and the alternate jurors. “The failure to exhaust peremptories is a strong indication ‘that the jurors were fair, and that the defense itself so concluded.’” (People v. Price (1991) 1 Cal.4th 324, 393, quoting People v. Balderas (1985) 41 Cal.3d 144, 180.) Indeed, in People v. Daniels (1991) 52 Cal.3d 815, the Supreme Court found defense counsel’s failure to exhaust his peremptory challenges “decisive” in rejecting the defendant’s challenge to the denial of his motion for change of venue after jury selection, stating: “In the absence of some explanation for counsel’s failure to utilize his remaining peremptory challenges, or any objection to the jury as finally composed, we conclude that counsel’s inaction signifies his recognition that the jury as selected was fair and impartial.” (Id. at p. 854.)

Viewing all of the relevant factors together, this passage from our Supreme Court’s opinion in Sanders best expresses our conclusion regarding defendant’s change of venue motion: “We cannot discern a reasonable likelihood that the jurors chosen for defendant’s trial had formed such fixed opinions as a result of pretrial publicity that they could not make the determinations required of them with impartiality.” (People v. Sanders, supra, 11 Cal.4th at pp. 506-507.) Accordingly, we find no error in the denial of a change of venue from El Dorado County.

III

Evidentiary Issues

A

Jan’s Statements To Law Enforcement Officers

Before trial, the prosecution sought permission to offer into evidence various statements Jan made to people before her disappearance. The statements the prosecution sought to offer into evidence included the following two statements to law enforcement officers:

1) On May 7, 2002, Jan reported to Detective Greg Brown of the El Dorado County Sheriff’s Department that she believed defendant was poisoning her.

2) On April 17, 2002, Jan reported to Deputy Kevin Pebley of the El Dorado County Sheriff’s Department that her .38 caliber Smith & Wesson gun was missing from her closet and defendant had it.

The prosecution argued Jan’s statements to the officers were admissible under Evidence Code section 1350 (statement by a witness who was made unavailable to testify by the party against whom the statement is offered). In making that argument, the prosecution asserted that Jan’s statement to Detective Brown was “highly relevant to show that the defendant was in fact poisoning [Jan] and that he was acting in a hostile manner toward [Jan].” The prosecution offered a similar assertion regarding Jan’s statement to Deputy Pebley. The prosecution further argued that although Jan’s statements to the officers were “testimonial” in nature, they were not subject to a confrontation clause objection under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] because even under Crawford, the rule of “forfeiture by wrongdoing” prohibits a defendant from asserting a confrontation clause objection to hearsay statements made by an unavailable declarant when the defendant “himself, is responsible for the fact that [the declarant] is unavailable as a witness.”

Defendant opposed the prosecution’s motion, essentially asserting that the rule of forfeiture by wrongdoing cannot be applied to a criminal defendant when the wrongdoing that allegedly resulted in the witness’s unavailability is the offense for which the defendant is on trial. Defendant did not address the applicability of Evidence Code section 1350 because he believed the confrontation clause objection under Crawford was sufficient to bar admission of the statements.

At a hearing on the motion, the prosecution argued that if a hearsay statement meets the requirements of Evidence Code section 1350, then it is also admissible over a confrontation clause objection under the rule of forfeiture by wrongdoing. The trial court agreed and scheduled an Evidence Code section 402 hearing to determine whether there was clear and convincing evidence that defendant was responsible for Jan’s unavailability. (See Evid. Code, § 1350, subd. (a)(1).)

Before the Evidence Code section 402 hearing, the prosecution determined there was no evidence of a particular substance (digoxin) in Jan or her coffee, as the prosecution had previously thought. Nevertheless, the prosecution continued to assert that the evidence Jan believed defendant was poisoning her - including her statements to Detective Brown - should be admitted “to show [Jan’s] state of mind as well as the fact that the defendant was poisoning her.”

At the Evidence Code section 402 hearing, Deputy Pebley testified about Jan’s report of the missing gun. According to Deputy Pebley, Jan told him her gun was missing and she suspected defendant took it because defendant told her he did. She also told Deputy Pebley she was making the report because “she wanted to get it on record that she was no longer in possession of the gun in case it was used in a crime,” and she did not want a theft report pursued because she was afraid of retaliation from defendant. More specifically, Jan told Deputy Pebley she thought defendant’s poisoning of her might continue if he was contacted about the theft of the gun.

Because Deputy Pebley’s testimony established that Jan’s statement was not tape-recorded or included in a notarized written statement signed by Jan, it was not admissible under Evidence Code section 1350.^[3] (See Evid. Code, § 1350, subd. (a)(3).) Accordingly, the prosecution now argued that Jan’s statement to Deputy Pebley either did not contain any hearsay at all or was admissible over a hearsay objection under Evidence Code section 1241 (statement to explain conduct) or section 1250 (statement of then-existing state of mind).

In response, defendant contended Jan’s statement to Deputy Pebley was irrelevant, whether offered for a hearsay or nonhearsay purpose, and was not trustworthy.

The trial court ultimately concluded that Jan’s statement to Deputy Pebley was a “testimonial statement[] made to a police officer,” but was nonetheless admissible over a confrontation clause objection under the rule of forfeiture by wrongdoing. The court further concluded the statement was admissible over a hearsay objection “under [Evidence Code section] 1241 to explain her conduct in making the report” and admissible “under [Evidence Code section] 1250, [because] her state of mind that she was in fear of Mr. Scharf is relevant to explain the ultimate question here as to whether or not Mr. Scharf is responsible for her death.”

As for Jan’s statement to Detective Brown, the trial court concluded it was admissible under Evidence Code section 1350. In explaining the relevance of that statement, the court stated, “It goes to her state of mind, not admissible to show that Mr. Scharf may have poisoned her, but that, number one, she still remained in the house. In fact, she offers the explanation for the reason they stayed there is he was only trying to make her sick, to make her dependent on him, not to kill her. And that explains why she continues to stay. [¶] And despite the normal rationalization of this to everyone else, why would you stay if you thought someone was poisoning you? Well, she offers that explanation and makes more understandable her state of mind and her subsequent conduct in remaining despite all that.”

At trial, Deputy Pebley testified that on April 17, 2002, Jan reported that a handgun was missing from her closet and that defendant had told her he had it. She further told him she just wanted the incident documented to protect herself, and she did not want him to pursue any kind of theft investigation.^[4]

After Deputy Pebley testified, the prosecution called Deputy Jason Bloxsom. Deputy Bloxsom testified that on May 4, 2002, Jan reported to him that she felt she was being poisoned by defendant.^[5]

Later during the trial, Detective Brown testified and authenticated a tape recording of a telephone interview he had with Jan on May 7, 2002, and the tape was played for the jury.^[6] In that interview, Jan explained her suspicion that defendant was putting something in her morning coffee to make her sick.

On appeal, defendant contends the admission of Jan’s statements to Deputies Pebley and Bloxsom and to Detective Brown violated the confrontation clause because the rule of forfeiture by wrongdoing does not apply. Defendant also contends the trial court erred in admitting Jan’s statements to Detective Brown under Evidence Code section 1350.

1. Forfeiture By Wrongdoing

We begin with defendant’s constitutional argument, since that argument is addressed to the testimony of all three law enforcement officers.

In Crawford v. Washington, the United States Supreme Court held that “admission of testimonial evidence from a witness who does not testify violates the confrontation clause, unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination.” (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1221.) The Crawford court noted, however, that there are “exceptions to the Confrontation Clause,” one of which is “the rule of forfeiture by wrongdoing,” which “extinguishes confrontation claims on essentially equitable grounds.” (Crawford v. Washington, supra, 541 U.S. at p. 62 [158 L.Ed.2d at p. 199].)

In mentioning the rule of forfeiture by wrongdoing, the Supreme Court cited Reynolds v. United States (1878) 98 U.S. 145 [25 L.Ed. 244]. In Reynolds, the court stated, “The Constitution gives the accused the right to a trial, at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.” (Id. at p. 158 [25 L.Ed. at p. 247].)

Assuming for the sake of argument that Jan’s statements to the three law enforcement officers were “testimonial” within the meaning of Crawford,^[7] the question defendant poses is whether the doctrine of forfeiture by wrongdoing applies when the alleged wrongdoing that made the witness unavailable is the crime for which the defendant is on trial.^[8] According to defendant, “[t]he forfeiture principle is designed to prevent a defendant from thwarting the normal operation of the criminal justice system by eliminating a witness to a pending prosecution.” Defendant further contends that “[t]he majority of federal court decisions apply the doctrine to situations in which the accused has allegedly procured the unavailability of a witness to the offense for which the defendant is on trial, not to the situation in which the alleged wrongdoing is the very same offense for which the defendant is on trial.” (Italics omitted.)

The federal court decisions defendant cites in support of his argument are not particularly helpful because for the most part they do not directly address whether forfeiture by wrongdoing applies when the alleged wrongdoing and the crime for which the defendant is on trial are one and the same. Nevertheless, there is language in at least one of those opinions that tends to support defendant’s position. In U.S. v. Houlihan (1st Cir. 1996) 92 F.3d 1271, the court stated that “a defendant who wrongfully procures a witness’s absence for the purpose of denying the government that witness’s testimony waives his right under the Confrontation Clause to object to the admission of the absent witness’s hearsay statements.” (Id. at p. 1279, italics added.) That language tends to support defendant’s position here because, logically, a defendant who kills a person and is then put on trial for murder cannot be deemed to have killed that person with the intent to deny the government that person’s testimony in the very murder case in which that person is the victim.

The issue in Houlihan, however, was whether forfeiture by wrongdoing applies to wrongdoing that occurs before formal charges are filed - that is, when the defendant kills a potential witness, rather than an actual witness. (U.S. v. Houlihan, supra, 92 F.3d at pp. 1279-1280.) Since the Houlihan court was not confronted with the exact question we confront, the formulation of the forfeiture by wrongdoing rule in that case does not carry any particular force here.

The People, on the other hand, cite a number of federal and state cases in which the forfeiture by wrongdoing rule was expressly applied where the wrongdoing was the same as the crime for which the defendant was on trial. (See, e.g., U.S. v. Emery (8th Cir. 1999) 186 F.3d 921, 926.) In one of those cases - U.S. v. Garcia-Meza (6th Cir. 2005) 403 F.3d 364 - the appellate court specifically rejected the argument that forfeiture by wrongdoing does not apply unless the defendant “killed or otherwise prevented the witness from testifying with the specific intent to prevent her from testifying” (id. at p. 370) - i.e., the argument that could be derived from the formulation of the rule in Houlihan. According to the Garcia-Meza court, “There is no requirement that a defendant who prevents a witness from testifying against him through his own wrongdoing only forfeits his right to confront the witness where, in procuring the witness’s unavailability, he intended to prevent the witness from testifying. Though the Federal Rules of Evidence may contain such a requirement,^[[9]] [citation], the right secured by the Sixth Amendment does not depend on, in the recent words of the Supreme Court, ‘the vagaries of the Rules of Evidence.’ [Citation.] The Supreme Court’s recent affirmation [in Crawford] of the ‘essentially equitable grounds’ for the rule of forfeiture strongly suggests that the rule’s applicability does not hinge on the wrongdoer’s motive. The Defendant, regardless of whether he intended to prevent the witness from testifying against him or not, would benefit through his own wrongdoing if such a witness’s statements could not be used against him, which the rule of forfeiture, based on principles of equity, does not permit.” (U.S. v. Garcia-Meza, supra, 403 F.3d at pp. 370-371.)

We are persuaded by the reasoning in Garcia-Meza. In essence, the rule of forfeiture by wrongdoing is rooted in the equitable principle that a person should not be allowed to benefit from his own misconduct. (See Civ. Code, § 3517 [“No one can take advantage of his own wrong”].) A murderer who is able to exclude his victim’s statements from evidence because his victim is dead benefits from his wrongdoing, regardless of whether he specifically intended to prevent the victim/witness from testifying when he committed the murder.

Defendant contends “[i]t is blatant bootstrapping to base the use of a decedent’s hearsay accusations on a presumption of guilt of the charged offense.” But there is no presumption of guilt in a case such as this. On the contrary, the presumption is that the defendant did not make the victim unavailable to testify, and the People - who seek to offer into evidence the victim’s hearsay statements - bear the burden of convincing the court otherwise, as a preliminary fact, before the statements can be admitted. Furthermore, the court’s determination, as a matter of preliminary fact, that the defendant killed the victim does not intrude on the role of the jury in determining whether the defendant committed the murder, or the presumption of innocence the jury must apply in making that determination. As one federal court recently explained, “the jury will never learn of the judge’s preliminary finding. [Citation.] Moreover, the jury will use different information and a different standard of proof to decide the defendant’s guilt. [Citation.] [Also], analogous evidentiary situations permit a judge to determine preliminary facts even though the exact same facts may be necessary to the jury’s final verdict. For example, statements offered against a defendant to prove his participation in a charged conspiracy are admissible if the court first finds, by a preponderance of the evidence, that the conspiracy for which defendant is on trial existed.” (U.S. v. Mayhew (S.D. Ohio 2005) 380 F.Supp.2d 961, 968, fn. omitted.)

In summary, we conclude the trial court did not err in applying the rule of forfeiture by wrongdoing in this case.

2. Jan’s Statement To Detective Brown

Defendant next contends the trial court erred in admitting Jan’s statement to Detective Brown under Evidence Code section 1350.

The People concede that, contrary to the trial court’s ruling, the statement to Detective Brown was not admissible under Evidence Code section 1350 because “there is no evidence that [defendant] killed Jan ‘for the purpose of preventing [his] arrest or prosecution.’” (Evid. Code, § 1350, subd. (a)(1).) The People contend, however, that Jan’s statement to Detective Brown was admissible under Evidence Code section 1250, and therefore there was no error in its admission. (See People v. Martinez (2003) 113 Cal.App.4th 400, 408 [“When a trial court erroneously relies on one hearsay exception to admit evidence that otherwise would have been admissible under a different exception, it cannot be said that the evidence was admitted in error”].)

Subdivision (a) of Evidence Code section 1250 provides in relevant part that, “Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind . . . is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind . . . at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.”^[10]

The People contend Jan’s statement to Detective Brown - essentially, that she suspected defendant was poisoning her coffee to make her sick - was a statement of her state of mind offered to prove her state of mind or to explain her conduct. The People further contend that “[e]vidence that Jan was interested in initiating an investigation into whether she was being poisoned tended to show that she had no intention of leaving the area and her disappearance was the result of foul play.”

According to defendant, the People “fail[] to explain how Jan’s state of mind or conduct was in issue in this case,” and these arguments “boil[] down to an assertion that Jan’s initiation of a police investigation and expressed suspicion that [defendant] was poisoning her were relevant as back-door evidence . . . that [defendant] killed her,” which is impermissible.

Contrary to defendant’s argument, Jan’s state of mind and conduct were at issue in this case, and the evidence of her report to Detective Brown was relevant to prove her state of mind and explain her conduct. As in other missing-body homicide cases where there is no direct or physical evidence the victim was killed, to prove the crime of murder the prosecution had to convince the jury that Jan would not have disappeared voluntarily. (See, e.g., People v. Scott, supra, 176 Cal.App.2d at pp. 464, 465, 489.) Thus, Jan’s state of mind and conduct shortly before her disappearance - more particularly, whether she was thinking of leaving or acting like she was going to leave - were important issues in the case.

In her statement to Detective Brown, a week before she disappeared, Jan expressed her belief that defendant was poisoning her coffee, not to kill her, but “to make [her] sick so that [she would] have to take him back to take care of [her].” Despite this suspicion, Jan told Detective Brown she was not in fear for her safety. She also made arrangements to get a sample of her coffee to Detective Brown, who planned to submit it for testing to the Department of Justice. She asked Detective Brown how long such testing usually takes, and he told her he did not know but would try to find out. Jan also told Detective Brown she would try to find out defendant’s schedule and would let Detective Brown know, so Detective Brown could contact defendant.

Taken as a whole, Jan’s statement to Detective Brown tended to show that despite her suspicion defendant was poisoning her coffee to make her sick, she had no plans to flee or get away from defendant. On the contrary, she intended to remain in the house and gather samples of her coffee and submit them for testing, which would take an unknown amount of time. In essence, Jan’s statement to Detective Brown tended to show she was not thinking of leaving or acting like she was going to leave a week before her disappearance, and thus the evidence tended to prove she did not disappear voluntarily - an issue of critical importance to the prosecution’s case. Under these circumstances, the trial court did not err in admitting Jan’s statement to Detective Brown.^[11]

B

Jan’s Statements To Others

In addition to the arguments addressed above, defendant asserts error in the admission of testimony by 13 different witnesses about statements Jan made to them. To understand our resolution of this issue, it is necessary to understand the extensive pretrial proceedings addressing the admissibility of Jan’s statements to others.

As we have noted, before trial the prosecution sought an order allowing into evidence various statements Jan made to people before her disappearance. In addition to Jan’s statements to Detective Brown and Deputy Pebley, the prosecution sought to offer into evidence certain statements Jan made to her friend and coworker, Marcie Flores; to a man she was dating, Terrance Koch; to a post office clerk, Mary Luebbert; and to her daughter, Aimee Bautista (among others).

Defendant filed a written response to that motion, asserting specific objections to each of the specific statements the prosecution wanted to offer.

The trial court first considered the prosecution’s motion at a hearing on June 28, 2004. The court and counsel discussed the various statements at length, and the court eventually concluded that an Evidence Code section 402 hearing would be necessary to determine the admissibility of the statements made to Flores, Koch, Luebbert, and Bautista.

On August 27, 2004, the prosecution filed a brief in advance of the Evidence Code section 402 hearing. That brief included a lengthy offer of proof detailing the anticipated testimony of 66 witnesses, which the prosecution contended would prove defendant murdered Jan and thus was responsible for her unavailability.

The Evidence Code section 402 hearing began on September 7, with the testimony of Deputy Pebley. Before the hearing, the prosecution had filed an addendum to its brief adding the anticipated testimony of three more witnesses to the offer of proof. These witnesses included two of Jan’s coworkers, Louis Small and Liz Andrade. When the court finished with the issue of Deputy Pebley’s testimony, the court raised the three new witnesses listed in the prosecution’s addendum. Because Andrade’s anticipated testimony included statements Jan made to her, the court and counsel began discussing the admissibility of those statements. The court ultimately determined that Andrade should testify at the Evidence Code section 402 hearing to determine the admissibility of the statements Jan made to her. The court also determined that Small should testify at the Evidence Code section 402 hearing, even though his anticipated testimony (as identified by the prosecution) did not involve any statements Jan made to him.

On September 8, the Evidence Code section 402 hearing continued with Small’s testimony. During his direct examination, Small testified (beyond the offer of proof) about various statements Jan had made to him, including that she owned a gun because she was afraid of defendant.

Flores testified next. The court and counsel then addressed the admissibility of Small’s testimony, with defense counsel offering specific objections to Small’s proposed testimony about the gun and the trial court’s ruling on those objections. The court and counsel then addressed the admissibility of Flores’s testimony at some length, and the court made its rulings.

Later that day, Koch testified at the Evidence Code section 402 hearing. The court and counsel then addressed the admissibility of Koch’s testimony, and the court made its rulings.

After discussion of an unrelated issue, Andrade testified. The court and counsel then addressed the admissibility of her testimony, and the court made its rulings.

The next day, after another witness (not at issue here), Luebbert testified. The court and counsel then addressed the admissibility of her testimony, and the court made its rulings.

Later that afternoon, Bautista testified. The court and counsel then addressed the admissibility of her testimony, and the court made its rulings.

On appeal, defendant seeks to challenge the trial court’s admission of the testimony of 13 different witnesses about statements Jan made to them. Rather than addressing each witness’s testimony separately, however, along with the trial court’s rulings on any objections he made to that testimony, defendant simply identifies two broad categories of statements Jan made, one of which he characterizes as “Jan’s hearsay accusations” and the other of which he characterizes as “Jan’s statements of fear.” Under the first category, he lists accusations Jan made against him on 10 different topics, and for each topic he lists the witnesses (ranging from one to seven) to whom Jan made an accusation on that topic. Under the second category, he identifies three incidents involving three different witnesses to whom Jan made statements that she feared him. Without differentiating between the different witnesses, and the trial court’s specific rulings on their testimony, defendant then simply argues across the board that “Jan’s hearsay accusations were inadmissible” and “Jan’s hearsay statements expressing fear . . . were inadmissible,” and that admission of this hearsay violated his rights under the Fifth, Sixth, and Fourteenth Amendments.

This shotgun approach to appellate advocacy is unacceptable. Even in a criminal case, a judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. (People v. $497,590 United States Currency, supra, 58 Cal.App.4th at pp. 152-153.) “It is elementary that an appellate court will not search for error in order to reverse a judgment of a trial court, and that, unless the appellant shows prejudicial error, the judgment must be affirmed.” (People v. Schenk (1937) 19 Cal.App.2d 503, 505.) Furthermore, when a claim of error is predicated on the admission of evidence at trial, we generally cannot reverse a judgment based on the alleged error unless “[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” (Evid. Code, § 353, subd. (a).) This means a defendant who claims the trial court admitted evidence against him in error must identify, with appropriate citations to the record on appeal: (1) exactly what evidence he contends was admitted in error; (2) exactly what objections he made to the evidence; and (3) exactly what rulings the trial court made on those objections.

Defendant has not done that here. For example, he contends that after the prosecution moved in limine to admit testimony about various statements Jan made to various witnesses, his written opposition to that motion “objected that all Jan’s hearsay accusations violated the Confrontation Clause, lacked probative value, were untrustworthy, and were unduly prejudicial under Evidence Code section 352.” As we have noted, however, defendant’s written response to the prosecution’s motion asserted specific objections to each of the specific statements the prosecution wanted to offer from the specific witnesses identified in that motion. On appeal, defendant does not separately address the objections he made to each witness’s proposed testimony, choosing instead to address all of the proposed testimony as though he made the same objections to every statement to be offered by every witness, which he did not do.

Similarly, as we have explained, throughout the course of an Evidence Code section 402 hearing that extended over several days, the court and counsel separately addressed the admissibility of the testimony of each of the witnesses who testified at the Evidence Code section 402 hearing, including Small, Flores, Andrade, Koch, Luebbert, and Bautista. Rather than separately discussing the objections he made to the proffered testimony of each of these witnesses, and separately addressing the court’s rulings with regard to each witness, on appeal defendant simply contends, “In hearings, defense counsel objected that the proffered hearsay was speculation, unreliable, inadmissible to prove the stated accusations, irrelevant, and multiple hearsay,” and “[t]he Court overruled the defense objections.” Plainly,