P. v. Delsie

 

 

 

 

 

 

 

 

 

Filed 5/23/13  P. v. Delsie CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

THIRD APPELLATE DISTRICT

(San Joaquin>)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   RUDOLPH DELSIE,                           Defendant and Appellant.

C071280   (Super. Ct. No. SF116725A)

 

 

 

 

            A jury
found defendant Rudolph Delsie guilty of first
degree murder, during the commission of which he personally used a deadly
weapon.  The trial court then sustained
recidivist allegations.  It sentenced him
to state prison.  

            To
reorder defendant’s arguments on appeal, he contends the trial court erred in
denying a motion for mistrial based on stricken testimony about an excluded
subject area; there is insufficient evidence of his identity as the killer of
the victim; there is insufficient evidence to support an instruction on aiding
and abetting;href="#_ftn1" name="_ftnref1"
title="">[1]
and the prosecutor committed misconduct in asserting the truth of href="http://www.mcmillanlaw.com/">hearsay evidence.  We reject defendant’s various claims of error
and shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

            The
victim was 42 at the time of his death in October 2009.  He received about $700 each month in
disability payments, for which he used a debit card to access cash.  He lived in a studio apartment in the rear of
a converted Victorian on North Commerce Street
in Stockton. 

            Exceedingly
concerned with security, the victim kept the entry door locked at all times and
did not want to open it for anyone.  He
also kept two aluminum baseball bats for protection, one by the front door and
the other near the bathroom door.  One of
these was a “Bombat” brand bat, and on the other the victim had written “hello
fucker” in pink nail polish.  He was a
heavy methamphetamine user (the coroner noting he had a “huge amount” in his
blood at the time of death).  He ran his
air conditioner incessantly, even if only on the fan setting. 

            The
victim had been separated from his wife for two years, but visited with her and
his children weekly (although the relationship apparently was not without
conflict, as defendant had carved a crude epithet directed at her into the wall
next to the front door at some point before May 2009).  The victim’s wife and the victim’s mother
both saw him last on October 1. 

            The
victim was a continual sender of text messages who kept his mobile phone
constantly at hand.  His last outgoing
phone call was in the early morning hours of October 2.  When an upstairs neighbor was in the back
yard looking for her cat on the night of October 2, she did not notice anything
amiss.href="#_ftn2" name="_ftnref2" title="">[2] 

            Unable to
reach the victim by phone, the victim’s wife went to his apartment on the
morning of October 3.  The air
conditioner was off, and the door was locked. 
Her efforts to open the door caught the attention of the upstairs neighbor,
who got on top of the garbage bin, climbed through the closed but unlocked
window next to the front door, and unlocked the deadbolt.  She did not want to look into the main room
from where she stood, and simply walked out the door.  The wife found the victim lying face down
next to the bed in a fetal position.  The
condition of the body indicated that he had been dead “for quite some
time.”  The coroner could not specify the
time of death, but the cold skin indicated he had been dead for more than six
to eight hours. 

            There was
$70 in cash in the victim’s front pants pocket, and his wallet (with his debit
card) was in the desk.  The apartment had
not been ransacked; a television and DVD player, computer equipment, and
“medicinal” marijuana were still there. 
The victim’s wife did not notice anything missing other than the victim’s
cell phone and keys. 

            The
victim had been struck in the head at least three times, at first on the bed
(where he had lain for a period of time, because there was a large pool of
blood) and then on the floor.  The
blows were on the front, middle, and back of his head (the latter appearing to
have been the hardest blow, which would have caused immediate unconsciousness
and was the cause of death) and were consistent with a blunt object such as a
baseball bat.  There was bruising on his
back from four other blows of lesser force. 
There was also a gaping slash wound on the right side of his neck.  The skin on the knuckle of his right thumb
was shaved off, indicating it was a defensive wound from a knife attack.  The coroner could not determine the order in
which the various injuries were inflicted. 


            A
criminalist found latent prints on the deadbolt plate, but they did not match
either the victim or defendant.  He could
not retrieve any latent prints from the baseball bats.  After examining the rest of the apartment,
the criminalist identified only one palm print as the victim’s, and did not
otherwise match prints to any subject. 

            The
Bombat bat had dents and white paint transfers on it.  The walls in the apartment were white, and
there were dents in a door frame. 

            A DNA
criminalist from the Ripon crime lab took swabs from the handle of the Bombat
bat and a stain on the handle that tested presumptively for blood (samples 1A
and 1B).  From the other bat, she took
swabs of the handle (sample 2A) and from a bloodstain on the end of the bat
(sample 2D).href="#_ftn3" name="_ftnref3"
title="">[3] 

            Sample 1A
had a mixture of DNA from three contributors: 
the victim and two minor contributors, neither of whom could have been
defendant.href="#_ftn4" name="_ftnref4" title="">[4]  The bloodstain in sample 2D matched a sample
of the victim’s DNA.  There was a mixture
of DNA from two contributors in sample 2A from the bat’s handle.  The victim was the major contributor, and the
minor contributor was a partial match with a sample from defendant’s DNA, which
the criminalist described as “strong evidence” that defendant was the
source.  There was also a very low level
of short fragmented DNA foreign to both the victim and defendant, which she
assumed was an artifact of the replication process and was not from another
contributor, and therefore she did not account for it in her calculations.  The criminalist’s supervisor and the
assistant lab director agreed with her conclusions. 

            A
criminalist who worked at a different crime lab with a kit five times more
sensitive—designed to catch degraded or broken DNA (although it focuses on only
half of the locations of the kit used at the Ripon lab)—believed there was DNA
in sample 2A from three contributors. 
The mix of DNA and the low levels involved made it too complex to
compare it meaningfully with defendant’s DNA. 


            A
forensic scientist from a third lab, also using the more sensitive kit, tested
sample 2A and new swabs from various locations on the same bat (combined into a
single sample).  He believed there were a
minimum of three contributors in the samples. 
These included the victim as a major donor and DNA consistent with
defendant, as well as DNA indicators that did not match either one of
them.  His lab thus could not conclude
with 100 percent certainty that the samples matched defendant.  He believed defendant could be excluded as a
donor in the new sample, but not in sample 2A. 


            In
rebuttal, the original criminalist and the assistant director (Ripon lab)
testified that their opinions regarding sample 2A were not changed after
hearing the defense experts.  The
criminalist believed many people could have touched the bat over time, and the
more sensitive kit would pick up all this background DNA that she
disregarded.  She further explained there
was a fundamental difference of opinion in procedure between the approach of
the defense experts and her lab’s approach, which considered it proper to
subtract the DNA of the victim from the results because it was a given that it
would be present on the victim’s property. 


            When a
detective interviewed defendant in November 2010 in connection with obtaining a
DNA sample, defendant told him he had been living in a ditch near Interstate 5
in October 2009 and using a bicycle for transportation.  He claimed not to recognize anyone (except
possibly a woman) in a group of pictures that included the victim.  Asked if he had ever been in the area of
North Commerce Street, defendant said he had lived there for a couple of months
with his sister in 2005 or 2006. 
Defendant said a picture of the victim’s house looked familiar, probably
because he would pass by it when he lived in that area.  When directed to the picture of the victim,
defendant denied knowing him or ever being in a fight with him.  The detective asked if defendant would change
his story if his fingerprints connected him with the victim’s apartment;
defendant replied, “We’ll see.”  In an
interview after his January 2011 arrest, police told defendant they had found
his DNA on a bat that killed the victim. 
Defendant said they should “double check” their results.  He refused to look at pictures of the victim
from the crime scene. 

            A witness
who had been dating defendant’s sister related a conversation between the
siblings that took place while he was in the sister’s apartment, probably in
2006.  The sister told defendant not to
do something because the victim was a good guy. 
(The boyfriend was familiar with the victim, who lived near a friend of
his.)  The boyfriend eventually testified,
somewhat reluctantly,href="#_ftn5"
name="_ftnref5" title="">[5]
that he had told a police detectivehref="#_ftn6"
name="_ftnref6" title="">[6]
in an interview that defendant had expressed his anger at the victim to his
sister for cheating him, and the sister wanted to deter defendant from
retaliating against the victim. 

DISCUSSION

I.  Mistrial
Motion

            Before
trial, the prosecutor sought to introduce a warning defendant had given to the
boyfriend to the effect that if the boyfriend made his sister cry, defendant
was not afraid to take a life because he had done so before.  The trial court tentatively ruled it inadmissible
as irrelevant character evidence and unduly prejudicial even if relevant, but
there would need to be a foundational hearing in any event before it could make
a final ruling. 

            Before
the boyfriend testified at trial, the prosecutor expressly conceded the issue
and asserted that he would not question the boyfriend about it.  In the course of attempting to get the
boyfriend to confirm his statement to the detective, the boyfriend responded
(apropos of nothing), “He—I talked about it to [the detective] just
a little bit ago, but there’s some stuff on there I don’t remember saying,
he said I said, but when I said it, I think I was a little bit like mad at
[defendant] for trying to intimidate me and, you know, things come out like
when you say, ‘I’m going to kill you,’ that don’t mean they are going to kill
you.  That means they are going to beat
your ass or punch you down, beat you up or whatever.”  The court struck the testimony as
nonresponsive.  Defense counsel requested
a recess, at which he moved for a mistrial. 


            The
prosecutor pointed out that the testimony was entirely unanticipated; in a
haste to get the previously unavailable witness on the stand it had not
occurred to him to specifically advise the boyfriend against mentioning the
threat.  The trial court stated, “I don’t
think this rises to the level of a mistrial. 
Jury was told to disregard the statement.”  The court admonished the witness to avoid
this subject.  Defense counsel did not
request any further admonition to the jury about the stricken testimony. 

            On
appeal, defendant asserts the trial court abused its discretion because this
snippet of excluded testimony was incurably prejudicial and thus the admonition
to disregard it was ineffective.  He
contends the error amounted to a deprivation of due process that was not harmless
beyond a reasonable doubt. 

            A trial
court should grant a motion for mistrial
only where an admonition or instruction cannot cure any prejudice.  The court’s ruling is reviewed for an abuse
of discretion.  (People
v. Gonzales and Soliz (2011) 52 Cal.4th 254, 291-292 (>Gonzales).) 

            The
effectiveness of admonitions and instructions generally is a
pragmatic presumption essential to the system of trial by jury, without
which we court judicial anarchy because there would not be any point either in
instructing a jury or reversing for improper instructions.  The presumption is overcome only in >extraordinary situations where it would
fly in the face of human nature, such as where an involuntary confession or the
inculpatory extrajudicial statements of a codefendant are involved.  (Richardson
v. Marsh (1987) 481 U.S. 200, 211 [95 L.Ed.2d 176, 188]; >Francis v. Franklin (1985) 471 U.S.
307, 324, fn. 9 [85 L.Ed.2d 344, 359]; Parker
v. Randolph (1979) 442 U.S. 62, 74-75 & fn. 7 [60 L.Ed.2d
713, 724, fn. 7] (plur. opn. of Rehnquist, J.); Gonzales, supra,
52 Cal.4th at pp. 291-292; People
v. Anderson (1987) 43 Cal.3d 1104, 1120-1121.)  Here, all the jury heard was an
unspecific reference to defendant’s attempt to intimidate the witness with what
the witness took as a threat to beat him up, which resulted only in making the
witness angry.  Unlike the statement that
the court excluded before trial, this did not include any admission that defendant
had killed before.  Even the witness
minimized the nature of the threat against him, not giving any indication that
it actually made him fearful.  This does
not reach the “extraordinary” threshold that warrants a conclusion of incurable
prejudice.  We thus conclude the trial
court did not abuse its discretion in denying the motion for mistrial. 

II.  Substantial
Evidence of Identity

            In
reviewing a judgment for substantial evidence, we resolve all conflicts in
direct evidence and reasonable inferences in favor of the judgment, then determine
if the record thus marshaled contains more than a scintilla of evidence such
that a reasonable trier of fact could have found in favor of the prosecution in
light of the whole record.  (>Kuhn v. Department of General Services
(1994) 22 Cal.App.4th 1627, 1632-1633.) 


            Defendant
correctly points out that there is an absence of any evidence of motive on his
part, other than the dispute with the victim some three years earlier, and
despite the defendant’s homelessness at the time of the murder, nothing was
missing from the victim other than keys and a cell phone.  Further, nothing but the prosecution DNA
evidence even connected him with the crime. 
Where defendant goes awry, however, is in urging us to disregard this
DNA evidence.  He at best is arguing the >weight we should accord the prosecution
experts, asserting the defense experts were more persuasive.  This is beyond the scope of our review.  Absent evidence that establishes the invalidity
of the opinions of the prosecution experts as a matter of law, it was for the
jury to decide whom to believe.  (Cf. People v.
Mayberry (1975) 15 Cal.3d 143, 150.) 
We therefore reject this argument. 


III.  Instruction
on Accomplice Liability

            The
prosecutor was concerned that the evidence of multiple DNA contributors on the
murder weapon (and the use of more than one type of weapon) would suggest that
there were multiple perpetrators, and thus wanted instructions on accomplice
liability.  The trial court agreed and
instructed the jury accordingly.  The
prosecutor (as we noted above) also addressed this theory in closing argument,
asserting that even if the presence of two types of weapons led the jury to
believe that two assailants were present this would not make defendant any less
culpable for the victim’s death. 

            Defendant
points out the absence of any evidence that he knew of the purpose of the
hypothetical accomplice, who could have seized the bat after defendant
assaulted the victim with nonlethal blows and administered the coup de grâce without defendant’s intent to aid
in an escalation to a lethal beating.  He
contends this was prejudicial error that the prosecution’s argument aggravated
(a cognizable claim even if his independent assertion of misconduct is outside
the scope of his argument and thus foreclosed (fn. 1, ante)).  Contrary to his
view, we assess prejudice under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, because federal
constitutional error is not implicated where an instruction is erroneous merely
because it does not have any application to the facts of the case.  (Guiton,
supra, 4 Cal.4th at
pp. 1129-1130.)  We also note the
People are incorrect in asserting defendant has forfeited this claim; defense
counsel had unsuccessfully objected to instructions on accomplice liability and
therefore did not need to object again when the prosecutor argued the
theory. 

            The flaw
in defendant’s argument is in labeling his claim to be one of instructing on a >legally erroneous theory, in which case
we would be compelled to reverse the conviction in the absence of an
affirmative indication that the jury did not rely on it.  (Guiton,
supra, 4 Cal.4th at
pp. 1128-1129.)  But defendant does
not identify any flaw in the pattern accomplice instructions themselves.  His claim is rather one of >evidentiary insufficiency to establish a
necessary element of liability as an
accomplice, i.e., the required mens rea. 
As a result, the presumption is switched:  Defendant must affirmatively establish that
the jury in fact relied on this factually unwarranted theory.  (Id.
at p. 1129.)  He has not satisfied
this burden.  The prosecutor did not
stress only accomplice liability;
presentation of the theory in fact consisted of only three pages of the
extensive closing arguments.  Defendant
also does not identify any jury communications or findings that might
demonstrate a focus on accomplice liability. 
We therefore find that even if a theory of accomplice liability was not
warranted, defendant has failed to demonstrate prejudice.  (Id.
at pp. 1129-1130.) 

IV.  The Claim of
Misconduct Is Forfeited

            Over
defense objections of relevance and hearsay, the trial court ruled the
criminalist could testify that she initially submitted the samples of unknown
DNA to the computer database (called “CODIS”), which made a partial match with
the DNA profile of defendant included in the database, for the nonhearsay
purpose of explaining why the police had focused on defendant.  As a result of the adverse ruling, defense
counsel assented to a stipulation to this effect included in the charge to the
jury, which also explained the database was a broad cross-section of over 1.6
million profiles from employment applicants (without making any reference to
the inclusion of profiles from criminal defendants) and that the fact of the
CODIS match was not admitted as proof of any matter. 

            Defendant
cites four instances in closing argument
where he contends the prosecutor relied on the fact of the CODIS match to
bolster the accuracy of the criminalist’s identification of him as the DNA
contributor on the bat.  He then contends
(at some length) that reliance on this hearsay for the truth of the matter
asserted violated his right to confrontation. 
In perfunctory manner, he admits that he did not raise a contemporaneous
objection to this use of the evidence in closing argument, or request an
admonition, but contends this should not foreclose the issue on appeal. 

            The
failure to object and request an
admonition forfeits the issue on appeal. 
(People v. Panah (2005)
35 Cal.4th 395, 462.) 
Although defendant notes his original objection to the introduction of
the evidence for a nonhearsay purpose with a limiting stipulation, this does
not excuse his failure to object to the prosecution’s misuse of the evidence for the truth of the matter asserted.  Defendant’s “ritual incantation” that the
misconduct was incurable (and thus comes within that exception to forfeiture)
is insufficient.  (Ibid.)  His equally
abbreviated assertion that trial counsel committed reversible error for failing
to object is also insufficient to establish for purposes of direct appeal
that the inherently tactical choice of whether to object to closing argument
fell below prevailing professional norms.  (People v. Lopez (2008)
42 Cal.4th 960, 966, 972; People v.
Mitchell (2008) 164 Cal.App.4th 442, 466-467.)  Accordingly, we do not reach the merits of
defendant’s claim. 
clear=all >


DISPOSITION

            The
judgment is affirmed.

 

 

                                                                                                        BUTZ                              , J.

 

 

 

We concur:

 

 

 

               NICHOLSON                     , Acting P. J.

 

 

 

               MAURO                              , J.