P. v. Hudnall-Johnson

Filed 2/27/09 P. v. Hudnall-Johnson CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

Marilyn Hudnall-Johnson appeals from a conviction of voluntary manslaughter of her husband. She contends the conviction must be reversed due to the trial courts errors in refusing to instruct the jury on involuntary manslaughter and admitting evidence of the decedents extrajudicial statements regarding prior incidents of domestic violence. She further contends reversal is required because there was insufficient evidence to establish the corpus delicti of the crime and because Californias corpus delicti rule violates the Sixth and Fourteenth Amendments to the United States Constitution, as well as because of cumulative prejudice from the above errors. We affirm.

Statement of the Case

Appellant was charged by information filed on October 27, 2006, with the murder of her husband, Herdis Hudnall, on January 9, 2006. (Pen. Code,  187, subd. (a).)^[1] It was alleged that the offense was a serious felony ( 1192.7, subd. (c)), and a violent felony ( 667.5, subd. (c)); that appellant personally used a deadly weapon in the commission of the offense ( 12022, subd. (b)(1)); and that appellant had a prior conviction for aid by misrepresentation (Welf. & Inst. Code,  10980, subd. (c)(2)). Appellant entered a plea of not guilty and denied the allegations.

Presentation of the case to the jury began on July 23, 2007, and on August 1 the jury found appellant not guilty of murder but guilty of voluntary manslaughter. The jury found true the personal weapon use allegation. Outside the presence of the jury, appellant admitted the prior conviction allegation, trial of which the court previously had ordered bifurcated.

On August 29, the court sentenced appellant to a prison term of seven years, consisting of the middle term of six years for the manslaughter conviction plus one year for the weapon use enhancement.

Appellant filed a timely notice of appeal on September 5, 2007.

Statement of Facts

Shortly after 6:30 a.m. on May 1, 2001, Police Officer Jose Villalobos responded to 17th Street in Richmond upon receiving a dispatch concerning domestic violence. At the scene, Herdis Hudnall, calm but nervous, told the officer he had been stabbed by his wife. Hudnall reported that he awoke from sleeping on the couch to find his wife standing over him with an ice pick, stating, I been standing over you thinking of a reason not to kill you tonight. He started to get up from the couch and she said, I couldnt find any, and stabbed him twice. Hudnall showed Villalobos injuries on his left shoulder and left side of his waist. Villalobos talked to appellant, who was calm and talkative. She admitted stabbing Hudnall. She stated that she had been sleeping in her room, wearing her jewelryas she usually did because Hudnall was selling her jewelry to pay for his crack cocaine addictionwhen Hudnall came in and tried to take her jewelry off her person. She fended him off with an ice pick, stabbing him twice. Villalobos arrested appellant. Paramedics came to the scene but did not take Hudnall to the hospital.

Officer Felix Tan, who arrived to process the scene a few minutes after the incident, observed that the skin around Hudnalls wounds was slightly swollen and blood was oozing from them. The wounds were very small, about one-sixteenth of an inch or a little bigger than a pinhole.

Dennis Trujillo talked to Hudnall the following day. Hudnall said that before appellant stabbed him, she told him she was tired of him being a cocaine user and stealing her property. Hudnall did not want to pursue the case and wanted appellant released from jail. He said appellant was trying to help him with his cocaine addiction and he hoped he and appellant would attend couples counseling. Hudnall said that if appellant had wanted to kill him she would have done it. In response to Hudnalls statements, appellant was released and the case was closed.

Police Officer Lisa Ausmus was dispatched to 98th Avenue in Oakland at about 7:30 p.m. on December 29, 2005. She found Hudnall in front, being treated by paramedics. Hudnall said his wife had been upset about him calling another woman on his cell phone and threw a bottle that hit him in the eye and broke. He told the officer his wife had thrown the bottle in the air and he believed she was not trying to hurt him. He did not want to pursue the case.

Police Officer Eric Barangan was dispatched to the 98th Avenue address at about 8:30 p.m. and observed that Hudnall had a half-inch laceration above his eye. The paramedics who were treating him told Barangan that Hudnall had glass in his eye as well. Hudnall told the officer he had had an argument with his wife, who threw a bottle at him that struck him in the eye. Hudnall did not indicate this was an accident but rather said she threw the bottle at him because she was very upset with him. He did not want to press charges. Appellant was not at the scene; Hudnall said she left.

Emergency physician Robert Clements treated Hudnall for an eye laceration at Highland Hospital. Hudnall had a one-centimeter cut that completely split his lower eyelid and an abrasion to his cornea. The laceration was sutured in the opthamology clinic and Hudnall was given intravenous antibiotics and pain medication.

On January 9, 2006, appellant called 911 and reported that her husband had forced his way into her house and hit her in the head with a flower pot and his fist, she stuck him with a knife and he was lying in the hallway, peeing all over himself, and needed an ambulance. She said her husband had been banging on her patio door, about to break it, and when she opened it and told him to stop, he pushed her down, tore her clothes and pulled my stuff off of me. She told the operator she grabbed a knife and stuck him in the lower part of the stomach area as they were tussling. Appellant first said he might be dead, then said she could hear him breathing; his eyes were open but he was not responding to her. She said she had called her son for help.

Oakland Police Officers Michael Cardoza and John Festag responded to 98th Avenue after receiving a dispatch at about 12:55 a.m. on January 9, 2006. Cardoza testified that he made contact with appellant, who appeared calm and had some blood trickling down her forehead from a small cut at her hairline. Cardoza found a man lying face-down in the hallway, fully clothed and wearing a heavy black puffy jacket. The man was unresponsive. When officers turned him onto his back, Cardoza did not see any blood or sign of trauma, but when an officer unzipped his jacket Cardoza saw a stab wound on the lower left side of the mans stomach. The man had no pulse. Appellant directed Cardoza to a 10-inch kitchen knife on a bookshelf by the doorway. Paramedics arrived and took over the assessment of the victim.

Evidence technician Paul Yager arrived at the apartment about 1:05 a.m. He observed no signs of forced entry and the sliding glass door in the kitchen, which was open, was not damaged. He collected a knife from the bookshelf which measured to be 13 inches in length with an eight-inch blade, and, from the floor of the doorway to the back hallway, the wood base and pieces of glass from a broken plant pot that appeared to have been on a low table. A framed photograph was lying face down on the table. Near the sliding glass door in the kitchen, the rug was disheveled, the curtain rod had been pulled down over the sliding glass door and some items had been knocked onto the floor. On the back steps outside the sliding glass door, Yager found a flashlight and a cup containing a liquid. He collected a blood sample from the floor near appellants bedroom. He also collected a glass pipe from under the cover of a couch in the middle bedroom and some greeting cards and handwritten correspondence between appellant and Hudnall from the same room.

Oakland Police Officer James Morris responded to 98th Avenue at about 2:35 a.m. on January 9, 2006. After walking through the crime scene, he went to the police station, where he moved appellant, who had been transported there, to a more comfortable room. Morris ran checks on appellants and Hudnalls criminal histories, discovered a December 29, 2005, domestic violence incident involving appellant and reviewed the police report on the incident.

Morris and Sergeant Cruz began interviewing appellant at 6:47 a.m., after moving her back to her original room. Morris read appellant her Miranda rights, which she waived. Appellant told the officers she had gotten into a fight with her husband and defended herself. After a break from 7:45 to 8:38, the interview continued on tape. Appellant acknowledged that she had been informed of her rights and chose to speak with the officers.

In this portion of the interview, appellant said she met Hudnall in 1992, at a shelter where she was working and he was staying, and they married in 1995. They did not have children together but appellant had two children from a previous marriage. She lived with her daughter, and Hudnall had been staying with them for the past four months, sleeping in the middle room. Appellant said she did not let Hudnall spend the night in her room because he would steal from her and she had to barricade [her] door all the time. Appellant had taken away appellants key in December because he had not paid his rent. Appellant said Hudnall was 6 feet 7 inches tall and weighed about 197 pounds, while she was 5 feet 2 inches tall and weighed about 195 pounds.

Appellant explained that on the evening of January 8, 2006, she and Hudnall had an argument about money and she left him in San Leandro, telling him not to come back to the house. After she got home, Hudnall called her three times, the first calls saying he was lost and the last saying he was on his way home. She told him again not to come home. He began banging on her door, she refused to let him in and he went to sleep in the backyard, something he had done many times before.

When he woke up, he started banging on the door so hard she thought he would break the glass. She got a flashlight and told him she was going to bust [him] in [the] head if he did not get away, then opened the door and yelled at him; he tried to force his way in, she pushed him and he fell down two stairs. She opened the door to look and see if she had hurt him and he grabbed a chair, then put it down and grabbed her to force himself into the apartment. They tussled through the kitchen, fallin into the front a the patio door to the middle a the kitchen, to by the frigerator. She grabbed a butcher knife, yelling at Hudnall to stop, and stuck him really quick while they were in the kitchen, they continued to fight into the living room, he hit her with a flower vase on her head, and they both fell down in the hall. She called her son and asked him to come over, then called 911.

Appellant told the police that the knife belonged to Hudnall and was not part of her set of kitchen knives. After she stabbed Hudnall, she did not see blood on the blade, so thought she had just stabbed through the jacket and didnt touch him at all. Appellant said Hudnall was moaning when he first fell and she thought he might have hit his head. She called her son, then noticed Hudnall had urine on himself and realized she had to call 911. She said early in the interview that she called 911 about 15 or 20 minutes after the incident, then later clarified that she placed the call within a few minutes but it took about 15 to 20 minutes before anyone came in response.

Also during this interview, the police asked appellant about the December 2005 incident. Appellant said Hudnall had been with another woman for about three and a half months and came back to her in October. In December, he was telling her he loved and missed her because they were not sleeping in the same room, and she went into her room and barricaded the door. She heard him talking to someone on the phone and asked if he was talking to a woman; he said no and refused to let her see the phone, then gave it to her when she told him he would have to leave the house. She pushed talk and when a woman answered asked her why she was calling Hudnall. The woman said Hudnall was calling her and appellant told her not to call her husband, then told Hudnall to get out of the house. Seeing him using his cell phone as he walked down the walkway, she said, I know you aint callin that woman to come to my house, are you? He walked out, then came back for his clothes, which appellant had said she would keep until he found a place for them. She starting throwing his clothes at him on the porch, telling him the woman was not coming to the house, he put the clothes on the fence and walked outside, making a phone call and smiling. Appellant said that when he smiled, it was just dirty. She went into the house, grabbed the first thing she saw, which was a small crystal vase, threw the water and plant out and threw the vase at Hudnall. He ducked and it hit him on the eyelid; he went to the hospital and got stitches, spent the night at a friends house, and came back home the next morning.

The police also asked appellant about the 2001 incident in Richmond. She said Hudnall was tappin her while she was in bed and they were tussling. He was on top of her, she flipped him over and saw an ice pick on his side of the bed, grabbed it and stuck Hudnall with it. While he grabbed the phone and called the police, she straddled him, holding the ice pick and telling him she was going to kill him. The police arrived in a matter of minutes and took her away. She said he did not stick Hudnall very much, just a [l]ittle peck that didnt hurt him at all.

This portion of the interview ended at 9:10 a.m., then another off-tape session began at 10:05 and another interview was taped from 10:53 to 11:10 a.m. Appellant acknowledged that she had the option of calling 911 and not opening the door when Hudnall was banging on it. Hudnall had not broken into her house before; usually if she did not let him in he would sleep on the back porch or continue knocking until she gave up and let him in. She stated that if she had let him in on the night of the incident, he would have gone to his room and not bothered her. He was not a violent man and had never hit her before. He had stolen things from appellant. Appellant said she stabbed Hudnall only once, even though he continued trying to get to his room and hit her with the plant pot, because she was not trying to kill him, only to stop him. On the night of the incident, appellant had taken prescription Vicodin for back pain and a prescription sleeping pill.

Officer Morris testified that during the untaped portions of the interview, appellant never said she had been a victim of rape by her husband, been battered by him or was afraid of him, and never said she distrusted police officers, wanted a lawyer or wanted to stop the interview.

Forensic pathologist Thomas Rogers performed an autopsy on Hudnall on January 10, 2006. The cause of death was a single stab wound on the left side of the abdomen, one inch wide and nine or ten inches deep. This wound penetrated the abdominal cavity, small intestine, and two major blood vessels, and ended with a rib cut into two pieces with even edges. The injury to the rib was consistent with having been caused by a knife striking it. Rogers could not exclude the alternative possibility that the rib was broken by a separate blunt force, although he found no evidence of blunt force on the outside of the body. Rogers testified that most people would bleed to death within three to five minutes from a wound of this nature. He had no opinion as to whether the wound was inflicted in self-defense or in an aggressive manner. Rogers also observed superficial cuts on Hudnalls hands that were consistent with, but not necessarily, defensive wounds, scrapes on the left eyebrow and inside of the left elbow, a healing scrape on the front of the lower leg and a healing injury in the left eyelid area.

Defense

Appellant testified that her parents separated when she was young. Her father physically abused her mother and she witnessed many physical confrontations between them; her older siblings would try to help their mother but the police were never called because her mother said that family matters stays in the house. Appellants father moved to St. Louis when she was six years old but her parents remained married and years later she took care of her father when he suffered from Alzheimers disease.

Appellant married Albert Johnson when she was 19 years old. They had two children, the younger a developmentally disabled daughter. The relationship ended while appellant was pregnant with her daughter, and she became involved with Floyd Griffin. He took care of appellant but later became abusive. Griffin was an alcoholic with a hobby of collecting guns, and sometimes he would come in drunk and wake appellant up by pointing a gun at her and accusing her of something. She would try to leave him but he always found her and brought her back until one day, after he ate the dinner she made him, she told him, I could have put poison in there and killed you, see how easy it is? He let her go, and their relationship was better after they separated. Appellant testified that she did not actually intend to poison him but said this because she needed to get away.

Appellant met Hudnall in 1992, when she was working in a family shelter that was next to a mens shelter where appellant lived and received drug and alcohol treatment. Hudnall completed the program and got a job, and they started dating in 1994 and married in 1995. Problems started at the end of 1997, when a neighbor told appellant, who was working as a live-in nurse, that her daughter had been home alone for two days while Hudnall was supposed to be taking care of her. Jewelry and small electronics started disappearing from the house and money went missing from the bank account. Appellant learned that Hudnall was back on drugs because he stayed away from home for a few days, then returned dirty and smelly, looking like he had not slept for a few days. Appellant let him return, they went to counseling sessions with their pastor and things went well for six or seven months. In 1997, Hudnall became an ordained minister. The situation got bad again and Hudnall checked into a residential program in 1998. Over the years, he was in and out of rehabilitation programs and appellant encouraged and supported him. Things turned worse around 2005: Hudnall would relapse sooner after returning from rehabilitation, steal money, jewelry and household items, and became sexually demanding when he was high. He would remind appellant that she was supposed to be submissive to him because, according to the Bible, her body belonged to her husband. There were times she enjoyed having sex with him but there were also many times he would force himself on her, tearing her clothes off. She testified that she never called the police or told anyone because he was her husband and that she didnt blame him. Appellant testified that she would always love Hudnall.

With respect to the 2001 incident, appellant testified that at that point in time she was sleeping with her jewelry on and her purse at her side to keep Hudnall from stealing these things. Hudnall came home from work at 4 or 5 a.m. and woke appellant to ask her to loan him back some of the money he had given her for rent. When she refused, he climbed on top of her, hands on her shoulders as she lay on her back. He continued to press for the money and she continued to refuse, then he reached down as though to get her purse and she flipped him over real quick. She ended up on top of him and as they tussled she saw an ice pick on his nightstand and grabbed it. She poked him twice with the ice pick to make him leave her alone, without using a lot of force and without intending to kill him. Hudnall called the police, who came and arrested appellant. After spending the night in jail, she returned to find her newly purchased camping gear was gone, stolen and sold by Hudnall for drug money. Hudnall came back the following day and appellant fussed a little bit at him but let him in and told him to take a shower and go to bed. Hudnall went back into rehabilitation for nine months, then got a job and did well for six or seven months.

Things deteriorated, however, and Hudnall started stealing from appellant and staying away from home again. Appellant testified that she always took Hudnall back in because she loved him and [t]he Bible says in sickness and in health. Drugs is a sickness.

Late on the night of December 29, 2005, appellant and Hudnall had been talking, having a good conversation about working on their marriage. Deciding to go to bed, appellant went into her room and barricaded the door. She and Hudnall slept in separate rooms and she barricaded the door because she slept heavy as a result of sleeping pills and pain medication and wanted to prevent Hudnall from coming in and taking money from her purse or wanting to have sex or spend time with her when she needed to sleep because she was working three jobs.

Appellant heard Hudnall on his cell phone and came out to ask who he was talking to. He said [n]obody and resisted letting her see the phone. Eventually, he gave appellant the phone, she pushed talk and a woman answered the phone. Upset, appellant told Hudnall he had disrespected her and told him to leave the house. He went outside, making a call as he went. Appellant told him, You know you not calling this woman to come to my house and pick you up. Hudnall walked out, then returned and asked what she was going to do with his clothes. Appellant said she would keep them until he found a place to stay but he demanded them and she started to put them outside. Hudnall got back on his phone and appellant said, You know you not calling her to come to my house and pick you up. Hudnall started grinning at appellant. She said, You calling her to come to my house to pick you up? You just disrespect me completely. You just dont care, do you? She reached inside the door, took a vase and threw it at Hudnall; he ducked and it hit him. He walked away, holding his face, and she followed, calling him. A police car and ambulance reached Hudnall when he was about a half a block down the street and appellant watched from the parking area in front of her home. No one came to the house to talk to her. Hudnall returned the next morning and they apologized to each other, then rented a hotel room for the weekend to have quality time together.

On the evening of January 8, 2006, appellant left Hudnall in San Leandro, telling him she was fed up with him taking her money and was not going to let him back in the house again. She had previously taken away Hudnalls key because he had gotten paid but had not contributed to the rent or household expenses. Appellant got home about 9:30, took her sleeping pills and pain medication and went to bed. She was awakened by Hudnall banging on the windows but went back to sleep. She then heard loud banging on the patio glass door, took a flashlight and went to the kitchen. When she turned the light on and pulled the curtain back, she saw Hudnall outside hollering let me in. She refused and he picked up a stool as though to hit the window with it. She opened the patio door, he went to charge at her; she told him to get away or she would hit him in the head with the flashlight, pushed him down and dropped the flashlight; he got up and tackled her, pushing her back inside the door. Appellant testified that Hudnall was crazy, like he was out of his mind. He was just in a rage or something. The two tussled, knocking things down and moving further into the apartment, and Hudnall pulled appellants nightgown up over her head. She saw the knife on the table, grabbed it and stuck him real quick. As he pulled the nightgown off her, appellant was still holding the knife. They continued fighting and tussling, ran into the flower pot and both fell in the hallway. Appellant realized she had been hit on the head when she felt blood on her face. She did not know what she had been hit with but assumed it was the flower pot.

Appellant pushed Hudnalls legs off her, ran to her bedroom, yelling to Hudnall not to come in, and called her son, telling him Hudnall was jumping on her, her head and foot were bleeding and he should come over. At the same time, she grabbed a shirt to put on because she was naked. Looking into the hallway, she saw that Hudnall had urinated on himself and called 911, saying to Hudnall, Herdis, get up, babe. Get up. She told the 911 operator she and her husband had been fighting and she might have stabbed him; she was not sure because there was no blood on the knife. Appellant had initially thought Hudnall just fell and hit his head, but when she saw him urinate, she knew this was a bad sign.

Appellant testified she was not trying to hurt Hudnall when she stabbed him, just to protect herself. She just reacted and did it when we kept tussling and she didnt think to stab him again. After calling 911, she put the knife on the shelf by the door and she pointed it out to the police when they arrived. The police arrived before the ambulance and appellant was yelling, Where is the ambulance. When the paramedics arrived, turned Hudnall over and unzipped his jacket, appellant saw his blood. A police officer allowed appellant to put on pants and then had her stand outside and told another officer to get her shoes. The officer then had appellant sit in the police car alone. The officer returned, appellant saw her son crying and asked whether Hudnall was dead, the officer indicated he was and took appellant to the police department. At the police station, appellant was alone in a room for a while, crying hard. When the officers came to interview her, appellant was tired from crying and from her medication, but was cooperative and answered their questions to the best of her ability. She was given a break because she fell asleep, then the officers woke her up and resumed the interview. Appellant thought the police were just trying to find out what had happened; she did not realize she was under arrest until hours later, when she was taken from the interview room and put in jail.

Nancy Lemon, an expert in domestic violence and domestic violence law, interviewed appellant for two and a half hours and read the police reports concerning the parties and the transcript of appellants police interview. She opined that appellant was a victim of domestic abuse. Lemon felt it was significant that appellants father was abusive toward her mother. Lemon also believed that the fact appellants former husband stopped abusing her after she stood up to and threatened him affected her in her relationship with Hudnall. She believed that in the 2001 incident appellant was using the ice pick to fend Hudnall off when he attacked her as she lay in bed. That appellant resumed living with Hudnall right after this incident was very typical. In the 2005 incident, Lemon believed appellant threw the vase in frustration, while Hudnall was talking to another woman on the phone and smirking at appellant, and that she aimed at his midsection but hit his head because he ducked. As to taking him back after this incident, Lemon felt appellant loved her husband very much, hoped he would change despite his addiction and was trying to help him. Lemon testified that it is typical for a victim of domestic violence to not talk to anyone about the abuse, and that it is typical for victims to fight back in various ways. Lemon had not reviewed the pathologists report or crime scene photographs related to the stabbing.

Discussion

I.

As stated above, appellant was charged with murdering her husband. The trial court instructed the jury on first and second degree murder, self-defense, and the lesser included offense of voluntary manslaughter based on theories of sudden quarrel/heat of passion and imperfect self-defense. Appellant argues her conviction of voluntary manslaughter must be reversed because the trial court did not instruct the jury on involuntary manslaughter. The trial court denied appellants request for this instruction because it found there was no evidence to support it.

Murder is the unlawful killing of a human being with malice aforethought. (Pen. Code, 187, subd. (a).) Malice may be either express or implied. It is express when the defendant manifests a deliberate intention unlawfully to take away the life of a fellow creature. ( 188.) It is implied . . . when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life ([People v. Dellinger (1989) 49 Cal.3d 1212,] 1215). (People v. Lasko (2000) 23 Cal.4th 101, 107, fn. omitted.)

Manslaughter is the unlawful killing of a human being without malice. ( 192.) A defendant lacks malice and is guilty of voluntary manslaughter in limited, explicitly defined circumstances: either when the defendant acts in a sudden quarrel or heat of passion ( 192, subd. (a)), or when the defendant kills in unreasonable self-defensethe unreasonable but good faith belief in having to act in self-defense (see In re Christian S. (1994) 7 Cal.4th 768 . . . ; People v. Flannel [(1979)] 25 Cal.3d 668). (People v. Barton (1995) 12 Cal.4th 186, 199 . . . .) (People v. Lasko, supra, 23 Cal.4th at p. 108.)

A defendant commits involuntary manslaughter either by committing an unlawful act, not amounting to felony or by committing a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. ( 192, subd. (b).) (People v. Cook (2006) 39 Cal.4th 566, 596.)

An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.) The trial court is required to instruct the jury on all lesser included offenses supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149; People v. Barton, supra, 12 Cal.4th at p. 195, fn. 4.) Instructions on lesser included offenses are not required unless supported by evidence that a reasonable jury could find persuasive. (People v. Barton, supra, 12 Cal.4th at p. 201, fn. 8.) Involuntary manslaughter is generally treated as a lesser included offense of murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422; People v. Prettyman (1996) 14 Cal.4th 248, 274.) If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendants constitutional right to have the jury determine every material issue. (People v. Cook, supra, 39 Cal.4th at p. 596.)

Appellant contends there was substantial evidence of involuntary manslaughter in this case on the theory that she killed Hudnall, without malice, while committing an unlawful act not amounting to a felony, misdemeanor brandishing of a deadly weapon. This offense is committed when a person draws or exhibits . . . in a rude, angry, or threatening manner or unlawfully uses . . . in any fight or quarrel a deadly weapon other than a firearm, except in self-defense. ( 417, subd. (a)(1).) Alternatively, she argues there was substantial evidence to support a theory of involuntary manslaughter based on criminal negligence, either in poking Hudnall with the knife or in failing to timely summon medical aid for him.

Appellants reliance on People v. Lee (1999) 20 Cal.4th 47 to support her argument that there was substantial evidence of involuntary manslaughter committed while brandishing a deadly weapon is unavailing. In that case, during an argument in which a husband and wife were pushing each other, the husband got a gun from another room, the couple continued to push each other with the gun between them, and the wife was shot at close range. (Id.at p. 53.) Lee held the trial court erred in failing to instruct on the misdemeanor theory of involuntary manslaughter because the husbands use of the gun during the argument constituted brandishing the weapon. (Id.at p. 61.)

In People v. Lee, supra, there was no evidence concerning the actual firing of the shot, which presumably could have occurred accidentally during the scuffle. In the present case, by contrast, there is no reasonable way to view the evidence as demonstrating anything less than an assault with a deadly weapon, a felony. Assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur but only an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. (People v. Williams (2001) 26 Cal.4th 779, 790.) Appellants statements to the police and testimony at trial establish that she intentionally grabbed the knife and stuck or poked Hudnall with it, in order to protect herself. The wound she inflicted was some 10 inches deep, although the blade of the knife measured only eight inches. There can be no question that appellant committed an assault with a deadly weapon and not a mere brandishing of the knife. (See People v. Parras (2007) 152 Cal.App.4th 219, 228 [Infliction of these injuries did not involve a simple misdemeanor battery, as appellant seems to contend, but an aggravated felony assault with a deadly weapon or by means of force likely to produce great bodily injury.].)

Pointing to her testimony that she did not intend to kill Hudnall, appellant cites People v. Ray (1975) 14 Cal.3d 20, 28-29 (Ray) and People v. Webber (1991) 228 Cal.App.3d 1146, 1162 (Webber), for the proposition that an instruction on involuntary manslaughter is required whenever there is substantial evidence the defendant did not actually form the intent to kill. Webber and Ray were cases involving evidence that the defendant, due to intoxication, was unable to form an intent to kill. Thus, Webber stated, Ray is still good law in its holding that where there is substantial evidence that a defendant was unable to entertain, i.e., did not actually form, an intent to kill, the court has a sua sponte duty to instruct on involuntary manslaughter. (People v. Webber, supra, 228 Cal.App.3d at p. 1162.)^[2]People v. Rogers (2006) 39 Cal.4th 826, 884, which cited Webber and Ray in stating that an involuntary manslaughter instruction is required whenever there is substantial evidence indicating the defendant did not actually form the intent to kill, involved a defendant claiming his mental illness prevented him from forming the requisite intent.

Here, no contention was raised that appellant could not form the intent to kill; her argument was and is simply that she did not do so. Absence of a subjective intent to kill, however, does not necessarily make a homicide involuntary manslaughter. As set forth above, even in the absence of intent to kill, a defendant is guilty of murder or voluntary manslaughter if the evidence shows the defendant acted intentionally, with conscious disregard for life. (See People v. Lasko, supra, 23 Cal.4th at pp. 104, 110-111; People v. Blakeley (2000) 23 Cal.4th 82, 91.) As the court stated in People v. Williamson (1985) 172 Cal.App.3d 737, 754, rejecting the argument that instructions on involuntary manslaughter should have been given, Defendants testimony that he hit the victim [with a dowel] with the intent to knock him out rather than kill him does not establish the requisite commission of the underlying misdemeanor inherently dangerous to human life or the ordinarily lawful act involving a high degree of risk of death or great bodily harm. Assault with a deadly weapon is a felony. (Fn. omitted.)

Although appellants argument is focused on her claimed lack of intent to kill, it assumes the evidence at trial could support a conclusion that she acted without either express or implied malice. Thus, she argues that a defendant who commits an assault resulting in an unintended death, without malice, is guilty of involuntary manslaughter. In the cases appellant relies upon, the evidence supported a conclusion that the defendants acted without malice as well as without intent to kill (People v. Clark (1982) 130 Cal.App.3d 371, 376, 382 [pistol defendant was holding discharged as assailant reached into defendants car]; People v. Morgan (1969) 275 Cal.App.2d 603, 608 [defendant committed assault and battery, hitting and pushing victim, who subsequently suffered heart attack]; People v. McManis (1954) 122 Cal.App.2d 891, 898 [defendant and a companion hit and kicked victim in the head; People v. LeGrant (1946) 76 Cal.App.2d 148, 151-152 [defendant punched victim, who fell into glass window; second punch resulted in victim falling back through window onto piece of glass]; People v. Tophia (1959) 167 Cal.App.2d 39, 41, 47 [gun discharged when defendant used it to hit another man; bullet killed woman in church across the street]; People v. Miller (1931) 114 Cal.App. 293, 301 [defendant knocked victim unconscious and hit him repeatedly].)^[3]

Here, whatever appellants subjective intent, the evidence clearly established she acted intentionally and with conscious disregard of risk to life when she grabbed a knife with an eight-inch blade and stabbed it 10 inches into Hudnalls body. There was no evidence that appellants conduct was simply criminal negligence such as would support an instruction on involuntary manslaughter.

Finally, appellant urges the jury reasonably could have concluded she acted in self-defense (and therefore was not guilty of murder or voluntary manslaughter) but was criminally negligent in failing to timely summon medical assistance for Hudnall after she stabbed him. The evidence does not support this theory of involuntary manslaughter either. Although appellant stated in the early part of her police interview that she called 911 about 15 or 20 minutes after the stabbing, she subsequently clarified that she placed the call within a few minutes but it took about 15 to 20 minutes for emergency personnel to arrive. The forensic pathologist testified that most people would bleed to death within three to five minutes from a wound such as Hudnall suffered. There was no evidence of delay to support appellants theory of criminal negligence.

II.

Appellant next contends her constitutional right to confront witnesses against her was violated by the trial courts admission of evidence of Hudnalls extrajudicial statements regarding past domestic violence incidents. Prior to trial, the prosecution moved to admit evidence of the 2001 and 2005 domestic violence incidents under Evidence Code sections 1101^[4]and 1109^[5]and evidence of Hudnalls statements to the police concerning those incidents under Evidence Code sections 1370^[6]and 1240.^[7] The prosecution argued that under People v. Giles (2007) 40 Cal.4th 833, appellant forfeited her constitutional right to confront Hudnall by killing him. Appellant moved for exclusion of any mention of uncharged offenses under Evidence Code sections 1101 and 352 and argued against admission of Hudnalls statements under the relevant Evidence Code and statutory hearsay provisions. The trial court found the evidence admissible under People v. Giles, Evidence Code sections 1109 and 1101, subdivision (b) (for the purpose of showing intent and absence of mistake).

In People v. Giles, supra, at the defendants trial for murdering his ex-girlfriend, the trial court admitted statements the victim had made to police at the time of a prior incident of domestic violence. Giles rejected the defendants argument that his constitutional right to confront witnesses against him was violated, holding that the defendant forfeited this right by killing the victim and thereby causing her unavailability at trial. The court refused to limit this forfeiture by wrongdoing rule to situations where the defendant acted with intent to prevent the witness from testifying. (People v.Giles, supra, 40 Cal.4th at pp. 848-850.) This was the rule the trial court applied in the present case.

Subsequent to appellants trial, the United States Supreme Court vacated the Giles decision. In Giles v. California (2008) ___ U.S. ___ [128 S.Ct. 2678, 2688, 2693], the court held that the doctrine of forfeiture by wrongdoing permits admission of unconfronted statements only where the defendant caused the witnesss unavailability with the purpose of preventing the witnesss testimony. Here, this was clearly not the case. Accordingly, appellants rights under the confrontation clause must be determined with reference to the principles set forth in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

In Crawford, supra, 541 U.S. at page 68, the United States Supreme Court held that the confrontation clause of the federal Constitution bars admission of testimonial hearsay statements unless the declarant is available to testify or the defendant has had a previous opportunity to cross-examine the declarant. Admission of non-testimonial statements does not violate the confrontation clause. (Davis v. Washington (2006) 547 U.S. 813 (Davis).)

While Crawford declined to give a comprehensive definition of testimonial, holding only that it applie[d], at a minimum, to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations (Crawford, supra,541 U.S. at p. 68), subsequent cases have provided guidelines. Davis, supra, held that statements made during police questioning at the scene of a domestic violence incident that had just concluded were testimonial while statements made to a 9-1-1 operator concerning an ongoing emergency were not. (Davis, supra,547 U.S. 827-830.) The distinction was in the purpose of the questioningwhether it was to determine what happened  or what is happening.  (Id. at p. 830.) Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Id. at p. 822.)

Applying Davis, our Supreme Court found statements made by an assault victim to a police officer at the hospital more than an hour after assault were testimonial. (People v. Cage (2007) 40 Cal.4th 965, 984-985.) The officer was not involved in the victims medical treatment or in an ongoing emergency situation, but was questioning him to obtain a fresh account of past events involving defendant as part of an inquiry into possible criminal activity. (Id. at p. 985.) On the other hand, the victims statements to the physician treating his injuries, that his grandmother held him down while his mother cut him, were nontestimonial. (Id. at p. 986.) The primary purpose of the physicians general question, objectively considered, was not to obtain proof of a past criminal act, or the identity of the perpetrator, for possible use in court, but to deal with a contemporaneous medical situation that required immediate information about what had caused the victims wound. (See Davis, supra, 547 U.S. 813, 827.) The victims answer was given in that context. The circumstances imposed none of the solemn[ity] (id. at p. 824) that inheres in an interview by law enforcement officials, where false statements may constitute criminal offenses. (Id. at p. 830, fn. 5.) Hence, the victims statement lacked those attributes of testimony by a witness that are the concern of the confrontation clause. (People v. Cage, supra, 40 Cal.4th at pp. 970-971.)

Similarly, in People v. Romero (2008) 44 Cal.4th 386,422, statements by an assault victim to the officer who responded to an emergency call were not testimonial because they provided the police with information necessary for them to assess and deal with the situation, including taking steps to evaluate potential threats to others by the perpetrators, and to apprehend the perpetrators. The statements were not made primarily for the purpose of producing evidence for a later trial and thus were not testimonial. (Ibid.; see also People v. Osorio (2008) 165 Cal.App.4th 603, 614 [statements to paramedic by injured person at scene of burning building nontestimonial]; People v. Brenn (2007) 152 Cal.App.4th 166, 176-178 [statements by stabbing victim in 911 call at house next door immediately after stabbing, and to first responding police officer, nontestimonial].)

Here, when Hudnall made his statements to the police concerning the ice pick incident, he was calm but nervous and appellant was calm, talkative. No altercation was in progress; Hudnall and appellant each described what had happened and Hudnall showed the police his injuries, which they photographed. When Hudnall talked to the police the following day, he said that he did not want to pursue the case and wanted appellant released from jail.

When the police arrived at the scene of the December 29 incident, again, no altercation was in progress. Hudnall was being treated by paramedics and said he did not want to pursue a case against appellant. Appellant was no longer at the scene.

In both incidences, Hudnalls statements to the police were made after the violent incident was over. Hudnall was calm and did not want to pursue charges against appellant, and there was no reason to suspect appellant posed any risk to anyone other than Hudnall. The police were investigating what had happened, not facing an ongoing emergency situation. Although Hudnalls statements appear to have been made in response to general inquiries from the police rather than in a structured interview format, their purpose was clearly to establish or prove past events potentially relevant to later criminal prosecution rather than to enable police assistance to meet an ongoing emergency. (People v. Cage, supra, 40 Cal.4th at p. 982, quoting Davis, supra, 547 U.S. 813 at pp. ___ [126 S.Ct. 2266, 22732274].) As in Cage, Hudnall gave the police a considered and detailed narrative response. (Cage, at p. 986, fn. 16.)

We conclude Hudnalls statements were testimonial and, because not subjected to cross examination, should not have been admitted at trial. The error, however, was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684; Chapman v. California (1967) 386 U.S. 18, 24; People v. Cage, supra, 40 Cal.4th at pp. 991-992.) As discussed above, the evidence did not support a conclusion that appellant committed involuntary manslaughter. Since the jury found appellant guilty of voluntary manslaughter rather than murder, it necessarily determined that appellant acted in the heat of passion or in unreasonable self-defense; since it did not acquit appellant altogether, the jury necessarily determined that appellant did not act in justifiable self-defense. The relevant question, in evaluating the effect of erroneous admission of Hudnalls statements concerning the prior domestic violence incidents, is whether, absent evidence of those statements, jurors might have entertained a reasonable doubt as to whether appellant acted in justifiable self-defense and found her not guilty of any unlawful homicide.

We have no basis for determining which theory of voluntary manslaughter was the basis for the jurys verdict. Since appellants defense was self-defense rather than any claim to have acted in the heat of passion, however, it is more likely the jurys verdict was based on a conclusion that appellant believed she was acting in self-defense but went too far in stabbing Hudnall as she did. Considering that theory first, we conclude that nothing in Hudnalls statements to the police concerning the prior domestic violence incidents had any bearing on whether appellant acted in reasonable or unreasonable self-defense. While the statements might have made it less likely that the jury would believe appellant acted in self-defense at all, the jury decided this point in appellants favor. We see no manner in which Hudnalls description of appellants conduct in stabbing him with the ice pick and throwing the vase at him could have led a reasonable juror to conclude appellant, in the present case, used unreasonable rather than reasonable force to defend herself. Considering the alternative possibility that the jury relied upon a heat of passion theory of voluntary manslaughter, it is even more clear the evidence of Hudnalls statements could not have counted against appellant in the jurors minds. If anything, the evidence that appellant had previously inflicted violent injury upon Hudnall, and particularly Hudnalls portrayal of her as deliberating over whether to kill him with the ice pick, would have swayed the jury to reject a heat of passion theory. The necessary result of that conclusion, however, would be a conviction of murder, not an acquittal.^[8]

III.

Appellant contends her conviction must be reversed because the prosecutions evidence was insufficient to establish the corpus delicti for the crime independent of her extrajudicial statements.  The corpus delicti of a crime consists of two elements[:] the fact of the injury or loss or harm, and the existence of a criminal agency as its cause.    (People v. Jones (1998) 17 Cal.4th 279, 301, quoting People v. Zapien (1993) 4 Cal.4th 929, 985-986.) The corpus delicti rule requires some evidence that a crime occurred, independent of the defendants own statements. (People v. Ledesma (2006) 39 Cal.4th 641, 721.) The purpose of the rule is to assure that the accused is not admitting to a crime that never occurred. (People v. Jennings[ (1991)] 53 Cal.3d [334,] 368.) (People v. Jones, supra, 17 Cal.4th at pp. 301.)

In essence, [t]he corpus delicti . . . consists of at least slight evidence that somebody committed a crime. (People v. Ochoa[, supra,] 19 Cal.4th 353, 450 . . . .) (People v. Malfavon (2002) 102 Cal.App.4th 727, 734.) [T]he modicum of necessary independent evidence of the corpus delicti, and thus the jurys duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be a slight or prima facie showing permitting an inference of injury, loss, or harm from a criminal agency, after which the defendants statements may be considered to strengthen the case on all issues. (People v. Alvarez[ (2002)] 27 Cal.4th [1161,] 1181.) . . . [] . . . [] . . . The inference [that a crime has been committed] need not be the only, or even the most compelling, one [but need only be] a reasonable one.  (People v. Jones[, supra,] 17 Cal.4th 279, 301302, quoting People v. Jennings, supra, 53 Cal.3d 334, 367.) (People v. Ledesma, supra, 39 Cal.4th at pp. 721-722.)

In a homicide case, proof of death caused by a criminal agency constitutes the corpus delicti. (People v. Martinez (1994) 26 Cal.App.4th 1098, 1104 . . . .) (People v. Malfavon, supra, 102 Cal.App.4th at p. 734.) The foundation for the corpus delicti rule   may be laid by the introduction of evidence which creates a reasonable inference that the death could have been caused by a criminal agency [citation], even in the presence of an equally plausible noncriminal explanation of the event. [Citation.] (People v. Ochoa, supra, 19 Cal. 4th at p. 451.) (People v. Malfavon, supra, 102 Cal.App.4th at pp. 734-735.)

Appellant argues that without her extrajudicial statements, the prosecutions evidence did not support a reasonable inference of criminal agency because the medical evidence did not establish how Hudnalls injury was inflicted. Recognizing that a defendants voluntary trial testimony can establish the corpus delicti (People v. Redd (1969) 273 Cal.App.2d 345, 351), appellant argues her testimony did not do so because she described acting in self-defense.

Although the forensic pathologist testified that he did not have an opinion whether Hudnalls injury was inflicted defensively or aggressively, his description of the injuries together with appellants testimony clearly meet the low threshold required to establish the corpus delicti. The medical evidence was that the knife penetrated some 10 inches into Hudnalls abdominal area, causing a wound that would result in death within three to five minutes. Appellants testimony that she poked Hudnall with the knife during the struggle over his entering the house, combined with the evidence of the nature of the wound she inflicted, certainly supported an inference that appellant used greater force than was warranted under the circumstances. The evidence thus showed criminal agency even though it might also be viewed as demonstrating justifiable self defense.

IV.

Appellant additionally argues her conviction must be reversed because Californias requirement of only slight evidence to satisfy the corpus delicti rule violates the Sixth and Fourteenth Amendments to the United States Constitution. Appellant maintains that because the corpus delicti rule must be satisfied before a defendant may be convicted or punished, the facts it requires must be proven beyond a reasonable doubt under Apprendi v. New Jersey(2000) 530 U.S. 466, In re Winship (1970) 397 U.S. 358, and their progeny.

In re Winship, supra, 397 U.S. at page 364, established the fundamental rule that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Apprendi, supra, 530 U.S. at page 490, concerned with sentencing rather than the determination of guilt, held, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Accord, Cunningham v. California (2007) 549 U.S. 270, 288-289.)

[T]he corpus delicti rule is neither a rule of constitutional magnitude nor statutorily mandated. It is a common law rule of evidence the purpose of which is to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened.  (People v. Jablonski (2006) 37 Cal.4th 774, 826-827, quoting People v. Alvarez, supra, 27 Cal.4th at p. 1169.) There is no basis for appellants assertion that it is equivalent to an element of the offense. Appellants jury was properly instructed that it could not convict appellant on the basis of her out-of-court statements alone but only if other evidence established that someone committed the charged crime, that this other evidence could be slight, but that it could find appellant guilty only if the prosecution proved every element of the crime beyond a reasonable doubt.

V.

Appellants final contention is that her conviction must be reversed due to the cumulative prejudice from the errors at trial. As we have rejected all but one of appellants claims of error, which we found harmless beyond a reasonable doubt, there is no cumulative prejudice to consider.

Disposition

The judgment is affirmed.

_________________________

Kline, P. J.

We concur:

_________________________

Lambden, J.