P. v. Afamasaga

Filed 1/28/10 P. v. Afamasaga CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury convicted defendant Aukusitino Jesus Afamasaga of second degree murder (Pen. Code,  187, subd. (a)) and assault by means likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)).[1] The jury also found true the allegation that defendant had suffered a prior serious felony conviction. ( 667, subds. (a)(1), (b)-(i)). The trial court sentenced defendant to an indeterminate term of 30 years to life for the second degree murder and imposed a consecutive, determinate term of eight years, comprised of three years for the assault and five years for the prior conviction enhancement.

Defendant raises numerous claims on appeal, including instructional and evidentiary errors, as well as prosecutorial misconduct, ineffective assistance of counsel and sentencing error. Defendant further claims that the trial court violated his due process right to a fair trial by authorizing a bailiff to stand near him during his testimony. Finding no reversible error, we affirm the judgment.

I. EVIDENCE AT TRIAL

A. Prosecutions Case

1. The Murder

Defendant had been in a tumultuous on-again, off-again relationship with the victim, 28-year-old Alicia Loza,[2] for several years. The relationship came to an end on the evening of July 24, 2004, when defendant killed Alicia. On the night in question, the couple had drinks at a bar and then went to visit Alicias cousin. They then went to the Vallejo Inn where Alicia had rented a room. On the way to the motel, defendant severely beat Alicia, splitting her lip. When defendant drove into the motel parking lot, Alicia jumped out of the car and sought help from a motel guest and the manager. Defendant grabbed Alicia and forced her back into the car, and then drove to another location. While parked in the car, defendant continued to beat Alicia and eventually put her into a headlock and choked her for more than a minute and a half, causing her death. Defendant then drove around with Alicias decomposing body in the front passenger seat for three days. Defendant was ultimately apprehended by the police and charged with first degree murder and assault likely to produce great bodily injury.

2. Defendants Relationship with Alicia

Alicias mother, Elisa Loza, testified that she had known defendant, nicknamed Tino, for about 27 years. Elisa testified that the relationship between Alicia and defendant was no good. Elisa knew they had an on-again, off-gain relationship. Although Elisa and Alicia lived together and they had a very close relationship, Elisa did not know that Alicia had been dating defendant in July 2004. Elisa testified that she did not approve of Alicias relationship with defendant.

Veronica Loza, Alicias cousin, knew that defendant and Alicia had been dating each other in July of 2004. Veronica thought Alicia had been defendants girlfriend for a couple of months. She also thought there were times when defendant and Alicia were together and other times when they were split up. Veronicas sister, Yvette Loza, also knew about Alicias on and off again relationship with defendant. A week before her disappearance, Alicia mentioned to Veronica that defendant told her that he was going to do a Lacy Peterson on her [Alicia] and none of her family would be able to find her. Alicia told Veronica that she was afraid.

3. Events of July 24, 2004

On Saturday July 24, 2004, Alicia and her family were preparing for Veronicas baby shower, which was set for the following day. That day Alicia picked up Yvette to do some shopping for the baby shower. Alicia brought Yvette home around 3:30 or 4:00 p.m.

Alicia returned home around 6:30 p.m. Elisa saw Alicia go upstairs, but she never heard her come back downstairs. Elisa called Alicias name three times. A visiting friend told Elisa that Alicia was not there and that defendant was outside in Alicias car. Elisa expected Alicia to return home that evening, but she never did.

At some point on July 24, 2004, Alicia checked into the Vallejo Inn. Then, around 11:30 p.m., Alicia and defendant went to Veronicas house. Veronicas boyfriend Daniel, her sister Mia Desyo, and Daniels friend Nacho were also at the house. Defendant and Alicia stayed at Veronicas house for about 30 minutes; they were drinking and talking about Veronicas baby shower. Mia testified that she did not hear any disagreement between Alicia and defendant. Alicia seemed happy and asked Veronica to take some pictures with a disposable camera. Although defendant and Alicia had been drinking, neither appeared to be drunk. Before they left, Alicia asked to borrow a radio and Veronica loaned one to her.

Later that evening, Christopher Mun, the manager at the Vallejo Inn, heard arguing at the motel and decided to go outside. He saw that several guests were standing near the building and looking at Alicia, who appeared to be arguing with her boyfriend. When Mun came out of the office, he heard the sound of a woman crying and then he saw Alicia, accompanied by another guest, walking toward him. Mun could see that Alicias lip was busted open, and he heard her say,  You are not going to hit me again. This is the last time.  Alicia was walking away from a white car, and she was yelling at someone inside the car. Alicia got within a couple of feet of Mun. Mun asked her approximately three times if she wanted him to call the police; Alicia declined each time. Then, defendant got out the car, walked behind Alicia and put his arms around her. Mun heard defendant say, in a commanding voice,  Lets go mommy.  Mun then saw defendant pick up Alicia and carry her toward the car. During this time, Alicia was crying and repeatedly saying,  You are not going to do it again. You are not going to hit me.  Alicia got back into the passenger seat, and defendant peeled out of the parking lot.

Geri Santiago was at the Vallejo Inn on July 24, 2004, when she heard a scream. She then saw Alicia jump out of a white Solara. Alicia grabbed onto Santiago, swung her around, and said,  Call the police.  As Santiago grabbed Alicia, defendant jumped out of the car and said,  Alicia.  Santiago asked defendant,  Why would you hit her?  He just looked at Santiago. Santiago turned around, grabbed Alicia and walked her to the office. Once at the office, Santiago told the manager to call the police for Alicia. Alicia would not let Santiago leave. Santiago told Alicia that she was going to her room and would be right back. Santiago put Alicias hand in the managers hands and told her,  You stay right here. I will be right back.  Santiago went to her room and quickly returned to the office. However, Alicia was no longer in the office. When Santiago asked where Alicia was, the manager replied that the defendant entered the office, grabbed her by the arms and walked her out and put her in the car.

James Rasmussen was at the Vallejo Inn on July 24, 2004, when he noticed that a man appeared to have hit a woman in the mouth and that she was crying and screaming for help as she got out of a white car. He saw blood on her mouth and he saw another woman taking her to the office to call the police. According to Rasmussen, the women were about halfway to the office when a man approached them. The man talked the injured woman out of calling the police, telling her not to call the police and saying that he loved her and he was sorry. The man then held onto the injured womans hand and walked her back to a white car. Rasmussen told the police that the man appeared to be pushing the injured woman toward the car. The man got in the drivers seat and the woman sat in the front passenger seat.

4. Alicias Disappearance

Santiago testified that two days after the incident at the Vallejo Inn, she saw defendant in a white Solara at a gas station across the street from the motel. Santiago was using the phone, when she noticed defendant staring at her. Defendant drove up to her, and she noticed that the passenger seat was down. Santiago saw white bloody clothes covering something, and she kept looking [until she] saw a piece of hip, that was purple and had stunk. She looked at defendant and saw two scratches coming down his face. She told him,  That is a dead body.  Defendant said,  Those are my clothes.  Santiago replied,  Okay. Well leave it at that. 

Alicias family became concerned when she failed to show up for the baby shower on Sunday, July 25, 2004. Elisa called Veronica and told her that Alicia had not shown up for work on Monday or Tuesday, and she had not been home since Saturday. It was unusual for Alicia to be gone all weekend without calling her mother. It was also very unusual for Alicia not to report for work, as she was extremely reliable and conscientious. Veronica knew that something was wrong because it wasnt like [Alicia] to not show up for work and fail to check in at home.

Veronica and Mia went out to search for Alicia on Tuesday, July 27, 2004. They drove to defendants halfway house, but he was not there. About five minutes later, defendant suddenly drove up in Alicias car. He looked over at the sisters and he appeared to be banging his head on the steering wheel. Mia noticed that defendant had scratches all over his face, and he was wearing the same clothes he had on Saturday night, which were now dirty.

Veronica walked up to the drivers side and said,  Where is my cousin? Shes been missing.  Defendant said that he had dropped Alicia off at her moms house; he also said that he had dropped her off with her friends. During this exchange, Veronica called Elisa, who confirmed that Alicia was not with her. As defendant spoke with Elisa on the phone, Veronica and Mia noticed that the passenger seat was completely reclined and covered with a pile of clothes. Veronica leaned into the car and saw Alicias hip and bruised arm. Veronica then said,  What did you do to her? You killed her.  Defendant denied killing Alicia and started freaking out, saying,  Oh, my gosh. Im going to take her to the hospital.  Defendant then reversed quickly and took off with Veronica still leaning into the car. Veronica, then nine months pregnant and due at any time, fell to her knees. Defendant drove to the top of the hill and stayed there for about 5 to 10 seconds, and he looked at Veronica and Mia in a real evil manner. Veronica and Mia tried to follow defendant in Veronicas van, but they lost him.

Later that afternoon, Yvette and Daniel drove around in Richmond, San Pablo, and Rodeo, looking for Alicias car. Around 5:30 p.m., Yvette saw defendant driving Alicias white Solara on Tank Farm Road in San Pablo. When defendant stopped at a red light, Daniel used a brick to break the Solaras back window in hopes of attracting the polices attention. As Yvettes van was almost next to the Solara at another red light, she asked defendant where Alicia was and what he had done with her. He replied,  Shes right here. Shes right here.  As defendant drove off, Yvette flagged down a sheriff, who activated his lights and sirens and followed the Solara. Defendant did not immediately pull over. When he finally stopped, defendant got out the car and was told to put his hands up. Defendant complied for a few seconds and then ran into an apartment building. As defendant took off running, Yvette ran to the car and opened the drivers door. She saw a pile of clothes on the passenger seat, which was fully reclined, and an arm hanging [out]. Yvette could see bruises on the sides of the arm. Yvette then pulled back some of the clothes and saw Alicias body. Yvette knew it was Alicia, but her face was unrecognizable.

5. Police Investigation

On the afternoon of July 27, 2004, Contra Costa County Sheriffs Deputy Robert Jimenez was on duty at the intersection of Richmond Parkway and San Pablo Avenue in Richmond, when he heard yelling and a horn honking. He saw two people in a blue minivan yelling and screaming and pointing at a white Toyota Solara in front of them. Jimenez followed the two vehicles and pulled up next to the minivan. The man in the passenger seat leaned out of the window, pointed to the white car and said,  Stop that car, stop that car.  Jimenez activated his patrol cars lights and sirens, but defendant did not pull over. When defendant did pull over he jumped out of the car and looked like he was going to surrender. At that point defendants eyes lit up, and Jimenez saw a woman running on the sidewalk. Defendant turned around and started to run away from Jimenez. Jimenez told defendant to stop, but he kept running. Jimenez then heard the woman scream,  Oh, my God. Oh, my God.  He went to the drivers side of the white car, looked in and saw a deceased female in the passenger seat.

Contra Costa County Sheriffs Deputy Tim Allen arrived at the scene and assisted Jimenez in the search for defendant. Allen found defendant hiding in a bush. Allen drew his gun and ordered defendant out of the bush several times. As Allen got closer to the bush, defendant stuck his hands out. Allen pulled defendant out the bush and attempted to handcuff defendant. Defendant resisted Allens efforts to handcuff him, prompting Allen to strike defendant several times with his fists. Even after being handcuffed, defendant continued to resist, kick, and flail around. Eventually, defendant was subdued after several officers assisted in placing him in a wrap.

Vallejo Police Officer Steven Cheatham showed Mun two photographic lineups during the police investigation. The first lineup included a photograph of Alicia in position number four. Mun identified Alicia as the victim he saw assaulted at the Vallejo Inn. The second lineup contained a photograph of defendant in position number six. Mun identified defendant as the person who assaulted Alicia.

As part of the investigation, Cheatham collected evidence from the white Solara. The evidence included a disposable camera; Cheatham arranged for the film on the camera to be developed. In August 2006, Cheatham reexamined the interior of the car and recovered a white, cylindrical object. Cheatham described it as an asthma inhaler that is used to disperse medication. Cheatham explained that the inhaler was not originally seized from the car in July 2004 because after speaking with all of the witnesses, including defendant, Cheatham had no reason to believe that it would become evidence in the case.

Alex Taflya, a criminalist with the Contra Costa County Sheriffs Department crime lab, testified as an expert in crime scene processing and blood spatter evidence. Around 6:00 p.m. on July 27, 2004, Taflya arrived at the 2000 block of Stanton Avenue in San Pablo to process the crime scene. He saw a badly decomposed body, partially covered with clothing, in the front passenger seat of the white Toyota Solara. He noticed medium velocity blood spatter on the ceiling on the passenger side, which was indicative of someone on the passenger side being stomped on or beaten. There were some blood contact transfers on the drivers side of the car, but no blood spatter on that side. The bloodstains on the victims shirt indicated that she was sitting upright at the time of the injuries.

6. Forensic Evidence

Arnold Josselson, M.D., a forensic pathologist, performed an autopsy on Alicia on the morning of July 28, 2004. Dr. Josselson explained that Alicia was in a moderate state of decomposition, which meant she had been dead three or four days before the autopsy. He observed numerous external injuries, including lacerations on Alicias chin, under her left eye, and under her left eyelid, which were indicative of blunt force trauma. There were also numerous red and purple bruises on Alicias hands and arms, which were consistent with defensive wounds.

An internal examination revealed a small fracture in Alicias larynx or voice box in the area of the thyroid cartilage. Dr. Josselson opined that the cause of death was asphyxia or lack of oxygen due to strangulation as a result of pressure on the neck. Dr. Josselson explained that the strangulation was done by the arm or yoking, which he opined was the underlying cause of death. He noted that the absence of petechial hemorrhages, which are small hemorrhages often visible in the whites of the eyes or on the face in asphyxial deaths, was not unusual in yoking deaths. Dr. Josselson explained that the absence or presence of petechial hemorrhages did nothing to prove or disprove an asphyxial death. Rather, petechial hemorrhages are non-specific for asphyxia strangulation deaths, and can be seen in natural deaths such as heart attacks. Dr. Josselson further stated that [i]ts just a fact that petechia are almost never found with yoking.

Dr. Josselson noted that Alicias hyoid bone, the small horseshoe bone above the voice box, was not fractured. He explained that this absence was not unusual because manual strangulations often do not involve a hyoid bone fracture. Indeed, such a fracture would be very unusual in cases where an arm, rather than the hands, is used for strangulation.

Dr. Josselson testified that generally it would take [10] to [15] seconds for someone to lose consciousness when they are being strangled. He estimated that if the pressure were released after 10 seconds, it would take about 20 to 30 seconds for a person to regain consciousness. A person would be dead if they were strangled for a minute or minute and a half. Dr. Josselson explained that death occurs because the major blood vessels on the sides of the neck, which supply blood to the brain, are occluded or blocked when there is pressure on the neck. It takes about 10 pounds of pressure on the neck to occlude those vessels after 10 seconds. Additionally, if the lack of oxygen continued for a minute or so, the brain would stop telling the heart to keep beating, which would result in death.

Dr. Josselson testified there was no evidence that Alicia choked on vomit. Also, he did not see any changes in her lungs indicating that she died from asthma. Indeed, there was no evidence to suggest anything other than strangulation as the cause of death.

B. Defense Case

1. Defendants Testimony

Defendant testified that he met Alicia in or about 1993. They began dating in 2001. Prior to that time, Alicia had dated a man named Ray for about three years. Between 2001 and 2004, defendant and Alicia had an on again, off again relationship.

On Friday, July 23, 2004, Alicia picked up defendant after she finished work. After doing various errands, they decided to get a room at the Vallejo Inn and they spent the night there. The next day, Alicia dropped defendant off at his cousin Joe Hernandezs house. Defendant and Hernandez went shopping in Richmond; they then went to Hernandezs church where they sort of fellowshipped for a while. They returned to Hernandezs house, where defendant consumed two to three mixed drinks. By the time Alicia had returned, defendant was feeling the alcohol. Alicia helped defendant finish the drink he had in his glass; defendant then made another drink for himself and one for Alicia. They finished their drinks and left when Hernandezs girlfriend arrived.

Defendant and Alicia then drove four or five miles to the Warehouse Caf, a bar in Port Costa. There, they each drank about three drinks. Before leaving the bar, they decided to stay at the motel for another night.

Around 9:00 p.m., defendant and Alicia stopped at Safeway, where they bought a fifth of Seagrams gin, club soda, punch and some snacks. They also stopped at Alicias house and she picked up some clothes. When they returned to the Vallejo Inn, they stayed in their room for about two hours, where they each drank three or four really small mixed drinks. At some point, Alicia decided she wanted to borrow a radio from Veronica, who lived near the motel.

Before going to Veronicas house, defendant decided to drive to Crystal Point, a romantic area overlooking the water and the Carquinez Strait. They took photographs of each other. There was a photograph of Alicia, holding a mixed drink in her hand. Defendant and Alicia both had been drinking and they were in a good mood.

After taking the photographs, defendant and Alicia went to Veronicas house, where they found Veronica, her boyfriend Daniel, her sister Mia, and a friend named Nacho. Someone took photographs in the apartment. Defendant and Alicia looked happy in the photographs. Defendant said that he believed he was pretty intoxicated at the time the photograph was taken.

The otherwise happy mood in the apartment changed when Alicia began talking with Nacho, who had been Rays best friend. Alicia had not seen Nacho since Rays funeral. Defendant explained that Alicia blamed him (defendant) for Rays suicide in 2001, and that was a big issue between them. During the conversation with Nacho, Alicia began yelling and pointing at defendant. Alicia said that she could not understand why Ray committed suicide and that it was all defendants fault. She believed that the suicide happened because she started dating defendant. Defendant, however, did not even know Ray and he believed he was not responsible for Rays death. After that, defendant remembered leaving with Alicia. There was tension between defendant and Alicia as they left Veronicas apartment.

During the drive back to the motel, Alicia was yelling and getting really upset. As they parked in the motel parking lot, Alicia continued to yell at defendant. Alicia hit defendant in the face, which took him by surprise. Defendant then hit Alicia in the head somewhere or possibly in the face with the back of his hand. Defendant said [i]t was pretty much a cat fight after that, with Alicia screaming and scratching him. After arguing with defendant for about 10 to 20 minutes, Alicia got out of the car. Defendant followed her, saying Come on babe, lets go. I mean this is unnecessary. We can talk about it  or  Come on babe, come on momma. 

Defendant initially testified that he did not recall seeing anyone in the parking lot. However, he later admitted that he hit Alicia hard at the Vallejo Inn in front of several people. Defendant did not recall seeing any blood on Alicias face when she left the car or when she returned to it. As defendant drove away from the motel, Alicia was really angry, yelling and screaming and hitting and slapping defendant. Defendant said that Alicia was really intoxicated. At one point, Alicia tried to get out of the car while it was moving. Defendant thought she was trying to commit suicide because she had once asked him if he would attend her funeral if she committed suicide. Defendant stopped the car in the middle of the freeway and pulled Alicia back inside.

Defendant then drove to his best friend Randy Brooks house in Rodeo. Brook had helped defendant when he had problems in other relationships. Defendant had planned to ask Brook if he could spend the night and to let [Alicia] go home. Instead, defendant and Alicia sat in the car, arguing and yelling at each other. Alicia hit him several times and he responded by slapping her. As defendant was pretty intoxicated, he could have hit Alicia with a closed fist. He explained that he did not normally hit her like that and it was something [he] wouldnt do to a woman. Alicia continued to slap, scratch, and do all different kinds of crazy things.

At some point, they stopped hitting each other. Defendant was leaning on the door when out of nowhere Alicia hit [him] in the head so hard, that he was kind of blinded, dizzy. He was not certain about what Alicia had used to hit him, but knew it was really something blunt and hard. Defendant then grabbed Alicia by her arms. He said she was kind of going crazy and swinging and stuff like that. Defendant raised his arms and ended up with [his] hands around her head [and] around her ears . . . . As he had her in a headlock, he told Alicia to calm down. Defendant was able to restrain Alicia and then he released her when he felt her body jerking. Alicia vomited as soon as defendant let her go. Her breathing was kind of [a] deep wheezing sound. Defendant thought Alicia was having an asthma attack. He believed he gave Alicia her asthma pump. He believed she grabbed the pump, but he did not see her use it. The asthma pump fell from Alicias hand as she held her throat and coughed. Alicia leaned back and stopped breathing. At this point, defendant believed that Alicia had already expired, and he did nothing further to assist her.

Defendant drove to the hospital several times, but each time he lost his nerve and did not stop. He also went to several relatives houses in Richmond and Vallejo, but he did not tell anyone what had happened. On Tuesday, he went to his home in Vallejo, where he found Veronica and Mia on the porch talking to his roommate. By that time, defendant had reclined the front, passenger seat and partially covered Alicias body with clothes. Defendant said that he drove away after Veronica looked in the car because he got scared.

Defendant got on the freeway and headed toward his brothers house in Richmond. When he was about four miles away from his brothers house, he crossed paths with Yvette and Daniel, who were in a van. He became aware that they were trying to get his attention when they broke the rear window of the Solara. When the van pulled up beside him, Yvette was in the passenger seat and she asked,  Where is my cousin?  Defendant pointed to the passenger seat and said,  Shes right here. Pull over.  Defendant wanted them to get out of the street so they could talk. Defendant became scared when they did not get out of the van, he feared for his life because he thought it was Mario in the van and defendant knew him to be a really violent person. Defendant then drove off, making a right on Richmond Parkway and continuing northbound on San Pablo Avenue. The van continued to drive beside him. After turning onto to Stanton Street, he parked the car; he got out, put his hands in the air and faced a police officer who had been following him. When defendant saw people get out of the van, he thought they had weapons. Fearing for his life, he ran away. He was eventually arrested by officer Allen, who had grabbed him, thrown him to the ground, straddled him and hit him a few times. Defendant explained that the scratches on his right cheek and nose were caused by Alicia, not the arresting officers. Defendant believed the discoloration on his cheeks occurred when Alicia hit him in his temple with what he thought was some type of hard object.

On cross-examination, defendant admitted he was convicted of the following felonies: (1) possession of methamphetamine for sale in 1992 ; (2) evading a police officer in 1993; (3) carjacking in 1999; (4) automobile theft in 1999, and (5) evading police in 1999.

Defendant admitted that he had slapped Alicia on a number of occasions. He also admitted that he hit Alicia before she got out of the car at the Vallejo Inn. He walked over to her and asked her to come on. He put his arms around her and walked her back to the car. Defendant admitted that he told the police that he kind of forced Alicia into the car. He forced her into the car because there was a bunch of people in the motel parking lot and he wanted some privacy. Defendant wanted to talk to Alicia and she eventually realized that. They then drove off together.

Defendant admitted telling the police that he had hit Alicia on 10 or more occasions. He told the police that he had smacked Alicia in December 2003. However, he explained that, to him, there was a difference between slapping and hitting, and he had only slapped Alicia. He admitted that on the night in question, he hit Alicia in the mouth and fractured her jaw. He also believed he was responsible for splitting the skin open under her eye and chin.

When he spoke to the police, defendant did not state that he and Alicia had fought about Ray. Rather, he told the police that he and Alicia fought because he was looking at some girls. He later told the police that they fought because he wanted to drive and Alicia did not want him to do so. He also told police that Alicia was going to leave him on the night in question. Defendant told police that she said,  I cant fucking stand you. And after today its over.  Alicia told defendant,  You are not going to hit me anymore,  and then said,  After today its over.  Defendant told police that Alicia told him three times that night that she did not want to be with him anymore. Defendant denied threatening Alicia by telling her that if she ever left him, he would pull an OJ Simpson or Scott Peterson on her.

Defendant admitted that he told the police that he had Alicia in a headlock for about a minute and a half. He told police that he grabbed her around the neck like you hold a football, and he leaned on her, putting his body weight on her as he restrained her. When he let her go, she was gasping and it looked like she was having a hard time breathing. She then stopped breathing. However, he told police that when he let her go, she was breathing and chilling, everything was cool, and they kicked it for a few minutes. When asked about an injury to his hand, defendant told the police it was an old injury; he denied telling the police that Alicia caused it three days earlier.

Defendant told police that after Alicia died, he ran and did not stay in the area because he did not want anyone to think that there was a murderer on the loose. He told the police that he ran from the deputies because he always ran from the police. He also told them that running was  better than handcuffing,  Defendant denied being combative at the time of his arrest, but admitted that the police put him in a wrap.

On redirect examination, defendant reiterated that Alicia was breathing when he released her and that she had vomited. He stated that he did not try to kill Alicia and felt it was  an unfortunate accident. 

On re-cross examination, defendant explained that he lied to police when he told them he had not been drinking because he had been in a residential treatment program and was not supposed to drink. Defendant did not think it was important to be truthful in a homicide investigation, but now realized that it play[ed] a big part in the trial.

2. Forensic Evidence

Paul Herrmann, M.D., a forensic pathologist, reviewed the autopsy report and photographs, along with other evidence in the case, and agreed with Dr. Josselson that the cause of death was compression of the neck by strangulation. He testified that the absence of bruising around the neck could mean that the thing compressing the neck was something large and relatively smooth, such as an arm. Dr. Herrmann, however, would not have used the term yoking because he did not believe the autopsy revealed what caused the strangulation. Rather, the autopsy merely established a small fracture to the larynx, which implied that there had been pressure on the neck. He explained that fractures of the larynx are painful and cause the larynx to go into spasm, which make it difficult to breathe.

Dr. Herrmann opined that squeezing the neck could occlude the jugular veins, causing the person to pass out or die if the pressure is applied long enough. If pressure was applied to the carotid arteries, a person would be expected to pass out in eight seconds and go into convulsions and die. However, if the pressure was applied toward the vagus nerve, which is along the carotid arteries, it could cause instantaneous cardiac arrest and sudden death. He opined that a person released from a headlock could still be breathing, but might not recover if they already have [a] reduced amount of oxygen and already perhaps have some irregular heart beat. Dr. Herrmann reiterated that the cause of death was strangulation by compression of the neck, but the mechanism of death was unknown.

On cross-examination, Dr. Herrmann agreed that yoking was consistent with defendants statement that he choked Alicia by putting his arm around her neck. He further agreed that the absence of petechial hemorrhaging and a hyoid fracture did not mean that Alicia was not strangled to death by defendant. He believed with reasonable medical certainty that strangulation was the cause of death. Indeed, the fractured larynx was consistent with defendant strangling Alicia until she stopped breathing. It would take a significant amount of force to fracture the larynx.

C. Rebuttal

On July 27, 2004, during an interview at the Vallejo Police Department, defendant made numerous conflicting statements to the investigating officers about his involvement in Alicias death. Although defendant was somewhat calm during the interview, it was difficult to get him to provide a clear answer. Defendant did not cry during the interview and actually even laughed a few times.

Defendant provided two different stories about how he choked Alicia. First, he said that he grabbed her by the neck, but later said he had her head under his arm, leaving her neck exposed. He initially said he pulled up her head and then stated that he rested his weight on her head while his arm was under her neck.

Defendant also provided two different stories about the origin of the argument with Alicia at the Vallejo Inn. He first said that they argued because he looked at another woman, and later said that they fought about who would drive the car. Defendant never mentioned that the argument started over Alicias former fiance, Ray. Defendant also said that he got the lump on his head when he was tackled by the police. He never said he got the lump from Alicia or mentioned that she hit him over the head with a blunt object.

Defendant told the investigating officers that he thought Alicia stopped breathing because her body blew up within a half an hour. He later told them he thought she stopped breathing because she was choking on alcohol. Defendant said that he did not try to help Alicia, but later said that he did try to help her; he never explained what he did to assist her.

Defendant told the officers that he and Alicia had not been drinking. He specifically said that they were both sober. However, at another point, he mentioned that he and Alicia went to Port Costa and had a couple of drinks.

Also, defendant never mentioned asthma or an asthma pump during the interview. Officer Cheatham first heard about the asthma theory, when he talked to the prosecutor in August 2006. At the prosecutors request, Cheatham went to Alicias car and seized an asthma pump, which had been on the floor.

Suzanne Howisey, an investigator for the district attorneys office, accompanied the prosecutor when she went to speak with defendant in the summer of 2006. At that time, defendant talked about his defense theories. He said that the defense originally had an NGI theory that he did not like, and that the defense was proceeding with the asthma theory.

II. DISCUSSION

A. Instructional Issues

We begin with the proper standard of review on a claim of instructional error.   In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]  [Citation.] Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. [Citation.] (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.) The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction, or from a particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Finally, it is the responsibility of the party desiring modification, clarification or expansion of a jury instruction he or she views as incomplete or ambiguous to so request. Failure to do so waives any claim of error. (People v. Jenkins (2000) 22 Cal.4th 900, 1020.)

1. CALJIC No. 8.51

Defendant contends the trial court erred by giving CALJIC No. 8.51, which, in distinguishing murder and manslaughter, refers to a death occurring during the commission of a felony. Defendant contends the error was prejudicial because it permitted the jury to convict him of murder without finding he acted with malice.

Although he did not object to the instruction, defendant now argues it improperly interjected the doctrine of felony murder into the case in violation of the merger doctrine articulated in People v. Ireland (1969) 70 Cal.2d 522, 539 (Ireland). The merger doctrine prohibits an assaultive crime from serving as the predicate felony in second degree felony-murder prosecutions; the assault merges into the homicide. (People v. Chun (2009) 45 Cal.4th 1172, 1178 (Chun).)

The jury was instructed on first and second degree murder, as well as assault with great bodily injury. The assault could not support a felony-murder instruction because of the merger doctrine, which precludes bootstrapping felonious assaults into murder. (Chun, supra, 45 Cal.4th at pp. 1200-1201; Ireland, supra, 70 Cal.2d at p. 539.) Since felony murder was not a theory in the case, the reference to murder in the commission of a felony in CALJIC No. 8.51 was not relevant and the instruction should have been modified to delete that reference. However, by failing to request such a modification, defendant waived the issue on appeal. (People v. Jenkins, supra, 22 Cal.4th at p. 1020.)

Even assuming the issue was not waived, the error in giving the unmodified instruction was harmless under the circumstances. This is because the instructions as a whole properly set out the elements the jury was required to find in order to convict defendant of murder. Specifically, the jury was instructed with CALJIC No. 8.30, which explained that [m]urder of the second degree is . . . the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation. Pursuant to CALJIC No. 8.11, the jury was instructed that malice is implied when the killing results from an intentional act the natural consequences of which are dangerous to human life. This concept was expanded on by CALJIC No. 8.31, which instructed that second degree murder is a killing that resulted from an intentional act, the natural and probable consequences of which are dangerous to human life, and which was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.

Significantly, the trial court did not instruct the jury on felony murder beyond the single sentence referenced in CALJIC No. 8.51. The trial court carefully redacted any reference to felony murder from CALJIC No. 8.10. Also, the jury was not given either CALJIC No. 8.21 [first degree felony murder] or CALJIC No. 8.32 [second degree felony murder]. No felony was identified as an allowable predicate for felony-murder liability. And, the verdict form did not ask the jury to identify a predicate offense underlying its finding of murder.

More importantly, the prosecutor in this case never argued the felony-murder rule. Rather, the prosecutions case was based on first degree premeditated murder. In her opening statement, the prosecutor made no reference to any predicate felony; instead she said the murder charge would be based on evidence that defendant acted with premeditation and deliberation when he strangled Alicia to death. In closing, she explained that murder required malice aforethought, and she made express malice the centerpiece of her closing argument. She argued that Alicias death was not manslaughter but was first degree murder because defendant acted with express malice when he strangled Alicia to death. She also devoted her entire rebuttal to the inconsistencies in the defense and defendants credibility. At no point did the prosecutor mention felony murder.

In our view, a single tangential reference in one instruction to an undefined felony did not impermissibly inform the jury that it could convict defendant of murder without a finding that he acted with malice. Several courts, including our Supreme Court, have held under comparable circumstances that erroneous felony-murder instructions were not so misleading as to require reversal. For example in People v. Barnett (1998) 17 Cal.4th 1044, 1154 (Barnett), the trial court gave CALJIC No. 8.10, stating in relevant part that  murder is the unlawful killing of a human being with malice aforethought or unlawful killing of a human being which occurs during the commission or attempted commission of a felony inherently dangerous to human life.  (Italics omitted.) The case, however, had not been prosecuted on a felony-murder theory. (Ibid.) Barnett argued that the unredacted instruction could have allowed the jury to convict him of murder based on felonies that were impermissible under the merger rule. (Ibid.) The Supreme Court held there was no reversible error because the other instructions clearly informed the jurors that there could be no conviction of first degree murder unless they found premeditation and deliberation. (Ibid.) Further, the record made it clear that the prosecutor was seeking a conviction based upon a theory of deliberate and premeditated murder. (Id. at pp. 1154-1155.) Accordingly, the court concluded, no reasonable juror could possibly have understood that guilt could be predicated upon a felony-murder theory. (Id. at p. 1155.)

Similarly, People v. Cisneros (1973) 34 Cal.App.3d 399 (Cisneros), disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 30, footnote 8, involved a case that had not been prosecuted on a felony-murder theory, but the instructions given nevertheless referred to a death occurring during the commission of a felony. (Cisneros, supra, at p. 432.) The defendant argued that an instruction referencing felony murder relieved the jury of the need to find malice before it returned a second degree murder conviction. (Id. at pp. 432-433.) Reviewing the instructions as a whole, the court found no reversible error, noting that the references to felony second degree murder were only tangential. There was no instruction directing the jurys attention to a particular felony . . . [And], the jurors were not relieved of the necessity of making a specified finding of malice aforethought before returning a verdict of second degree murder. (Id. at p. 433.)

Also, in People v. Roy (1971) 18 Cal.App.3d 537 (Roy), disapproved on other grounds in People v. Ray, supra, 14 Cal.3d at page 29, the trial court instructed that malice may be implied  when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life.  (Roy, supra, at p. 550.) The court held: The jury could not have been misled by the instruction . . . [D]efendant was not charged with felony murder, instructions on second degree felony murder identifying the felony as assault with a deadly weapon and defining its elements were not given, and the prosecutor did not argue a theory of felony murder. (Ibid.)

These cases demonstrate that an irrelevant felony-murder instruction is not reversible error if the instructions as a whole and the conduct of the prosecutor show the jury could not have been misled into convicting on a felony-murder theory. The jury was correctly instructed on the elements of murder, including express and implied malice, and the prosecution never argued felony murder.

Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664 (Suniga), upon which defendant relies, is distinguishable. In Suniga, the trial court gave a version of CALJIC No. 8.10 that offered felony murder as an alternative theory to implied malice, and specifically defined assault with a deadly weapon as a predicate felony that could support felony murder. (Id. at p. 666.) Because assault with a deadly weapon could not support felony murder, this was reversible error. (Id. at p. 667.) Thus, in Suniga, the jury could have reasonably believed that felony murder offered an alternative way to reach a murder verdict, without the need to find malice. Here, in contrast, the trial courts definitions of murder and the prosecutors arguments to the jury emphasized that malice was an essential prerequisite to a murder verdict. In other words, no reasonable juror could possibly have understood that guilt could be predicated upon a felony-murder theory. (Barnett, supra, 17 Cal.4th at p. 1155.)

For all of the foregoing reasons, we conclude that the erroneous, stray reference to felony murder in the instructions was harmless beyond a reasonable doubt. (Chun, supra, 45 Cal.4th at p. 1201.)

2. Voluntary Manslaughter

Defendant contends that his conviction for second degree murder must be reversed because the court defined the lesser included offense of voluntary manslaughter as requiring an intent to kill. We agree the instruction misstated the law, but conclude it was not prejudicial.

In California, criminal homicide is divided into two classes: murder and manslaughter. (People v. Rios (2000) 23 Cal.4th 450, 460.) The distinguishing feature is that murder includes the element of malice, while manslaughter does not. (Ibid.) Malice may be express or implied; it is express when the perpetrator manifests a deliberate intention to unlawfully take away the life of another and is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. ( 188.)

It has long been the rule in this state that an intentional killing which would otherwise be an express malice murder will be reduced to voluntary manslaughter when it is the product of adequate provocation and heat of passion. (People v. Rios, supra, 23 Cal.4th at pp. 460-461.) In People v. Lasko (2000) 23 Cal.4th 101 (Lasko), our Supreme Court held that this rule of mitigation also applies to implied malice murder, so that a defendant who kills with a conscious disregard for life as a result of provocation is guilty of voluntary manslaughter rather than second degree murder. (Id. at pp. 104, 108-110; see also People v. Blakely (2000) 23 Cal.4th 82, 85.)

Before Lasko, numerous decisions had stated in dicta that intent to kill was an essential element of voluntary manslaughter. (See Lasko, supra, 23 Cal.4th at p. 110.) That principle was incorporated in the version of CALJIC No. 8.40 that was given in this case. By defining voluntary manslaughter to require an intent to kill, CALJIC No. 8.40 erroneously suggested that implied malice murder could not be reduced to voluntary manslaughter by provocation and heat of passion. (See ibid.) Nevertheless, in Lasko, our Supreme Court found the erroneous instruction harmless under the state law standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 based on two factors. (Id. at pp. 111-112.)

First, the jury had also been given CALJIC No. 8.50, which correctly informed the jury that in order to convict defendant of murder and not manslaughter the People must prove that the act which caused the death was not done in the heat of passion or upon a sudden quarrel. (Lasko, supra, 23 Cal.4th at pp. 111-112.) The court reasoned that if the jury believed defendant had unintentionally killed [the victim] in the heat of passion, it would have concluded that it could not convict defendant of murder (because he killed in the heat of passion) and could not convict defendant of voluntary manslaughter (because he lacked the intent to kill). The jury most likely would have convicted defendant of involuntary manslaughter, a lesser offense included within the crime of murder, on which the jury was also instructed. Instead, the jury convicted defendant of second degree murder, showing that it did not believe the killing was committed in the heat of passion. (Id. at p. 112.) Second, the subject of voluntary manslaughter had not figured prominently in closing arguments and the evidence strongly suggested an intent to kill. (Ibid.) Therefore, [u]nder the circumstances, it is not reasonably probable that a properly instructed jury would have convicted defendant of the lesser [included] offense of voluntary manslaughter. [Citation.] (Id. at p. 113.)

The court also rejected Laskos assertion that the erroneous instruction had violated his federal constitutional rights to trial by jury and to due process of law. (Lasko, supra, 23 Cal.4th at p. 113.) It explained that when the jury charge is considered as a whole, it does not support the position that the erroneous instruction could have led the jury to conclude that if he lacked an intent to kill, it had to find him guilty of the more serious crime of murder. (Ibid.)

The People do not dispute that Lasko is controlling, and do not attempt to defend the former version of CALJIC No. 8.40 as an accurate statement of the law. Instead, they focus on the effect of the instruction, correctly observing that reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable outcome absent the error. (Lasko, supra, 23 Cal.4th at pp. 111-113.)[3]

In assessing prejudice, we first consider whether the defect in CALJIC No. 8.40 was cured by other instructions advising the jury that an implied malice killing is manslaughter when accompanied by adequate provocation. The Lasko decision noted that CALJIC No. 8.50, which also was given in the instant case, reduces the likelihood that a defendant will be convicted of second degree murder if the jury determines that he killed unintentionally and in the heat of passion. (Lasko, supra, 23 Cal.4th at pp. 111-112.) That instruction provides, To establish that a killing is murder . . . and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel . . . . (CALJIC No. 8.50.)

CALJIC No. 8.50 usually would be sufficient to apprise the jury that adequate provocation negates implied as well as express malice. This is especially so when, as here, the jury is instructed on involuntary manslaughter and has the option of returning a verdict on that lesser offense if it determines the killing is both provoked and unintentional. (See Lasko, supra, 23 Cal.4th at pp. 111-112.)

Granting that the jury might not have necessarily understood from the instructions that implied malice murder can be reduced to manslaughter by adequate provocation alone, other circumstances convince us the error was harmless. Most significant is the virtual absence of evidence that defendant was provoked to commit the killing.

Several witnesses testified that Alicia was bleeding and that she attempted to get police assistance before defendant brought her back to the car. No one saw Alicia hit defendant or otherwise act like the aggressor. After defendant peeled out of the parking lot, he drove to a secluded spot where the killing occurred.

Though defendant testified that when he and Alicia were in the car, she hit him in the head with a blunt object, the record belies this claim. When defendant initially spoke with the police, he did not mention that Alicia had hit him over the head with a blunt object. Indeed, he told the police that he got the bump on his head when he was tackled by the officers at the time of his arrest. Also, there was no blood spatter on the drivers side of the car, which would indicate that defendant did not sustain a blunt force injury.

The provocation necessary to reduce a murder to manslaughter must be caused by the victim and must be sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation or reflection. (People v. Ochoa (1998) 19 Cal.4th 353, 422-423; People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.) The instruction on voluntary manslaughter and provocation was supported by the evidence, but the evidence supporting that theory was weak compared to that supporting the judgment of second degree murder. There is no reasonable probability the instructional error complained of affected the result. (See People v. Breverman (1998) 19 Cal.4th 142, 177-178.)

Defendant claims that the erroneous instruction could have led the jury to conclude that once it acquitted him of first degree murder, the only choice for [the] jury was to convict [him] of second degree murder on an implied malice theory, regardless of its assessment of the provocation that precipitated the strangling. According to defendant, the jury was left with an unwarranted choice between a second degree murder verdict and outright acquittal . . . . We disagree. The courts misapplication of Lasko could not have affected the verdict in the manner that defendant suggests. Here, as in Lasko, the jury was given CALJIC No. 8.50 and, thus, knew it could not convict defendant of murder unless it found that the People had satisfied their burden of proving beyond a reasonable doubt that the death did not occur in the heat of passion or upon a sudden quarrel. Thus, just as in Lasko, if the jury believed defendant had acted in the heat of passion without an intent to kill, it most likely would have convicted [him] of involuntary manslaughter, a lesser offense included within the crime of murder, on which the jury was also instructed. Instead, the jury convicted defendant of second degree murder, showing that it did not believe the killing was committed in the heat of passion. (Lasko, supra, 23 Cal.4th at p. 112.)

Finally, neither side strongly argued for a voluntary manslaughter conviction. During closing arguments, the prosecutor only briefly mentioned voluntary manslaughter. Instead, the People focused on premeditated first degree murder and the malice requirement for first and second degree. The defense theory (that this was all just an unfortunate accident) was inconsistent with all verdicts, except an acquittal or involuntary manslaughter. Notably, neither the prosecution nor the defense suggested that defendant was guilty of murder if he intentionally killed [Alicia] in a sudden quarrel or the heat of passion. (Lasko, supra, 23 Cal.4th at p. 112.) For all these reasons, we find the erroneous instruction to be harmless under state law and also conclude that it did not result in infringement of defendants constitutional guarantees. (Id. at pp. 111-113.)

3. Unanimity

Defendant argues that the trial court prejudicially erred in failing to instruct the jury on the requirement of unanimity with regard to the assault charge in count two. Defendant claims there was evidence of two distinct factual theories . . . on which the jury could rely to convict [him] of assault by means likely to produce great bodily injurythe backhanding incident at the Vallejo Inn where defendant automatically reacted to Alicias blow[,] and the headlock incident in front of Brooks house where he intentionally grabbed Alicia to prevent her from hitting him.

In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] (People v. Russo (2001) 25 Cal.4th 1124, 1132.) This requirement of unanimity as to the criminal act is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. [Citation.] (Ibid.)

However, no unanimity instruction is required where the [arguably separate] acts proved constitute a continuous course of conduct. [Citation.] (People v. Napoles (2002) 104 Cal.App.4th 108, 11