P. v. Luis
Filed 8/13/13 P. v. Luis CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS LUIS,
Defendant and Appellant.
B240741
(Los Angeles
County
Super. Ct.
No. KA086030)
APPEAL from
a judgment of the Superior Court
of
County, Curtis Rappe, Judge.
Affirmed.
Stephen B.
Bedrick, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary
Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Carlos Luis was convicted, following a jury trial, of first
degree murder in violation of Penal Code
unborn child. The jury found true the
special circumstance allegation that appellant committed multiple murders within
the meaning of section 190.2, subdivision (a).
The trial court sentenced appellant to life without the possibility of
parole for the first degree murder plus 15 years to life for the fetal murder. Appellant contends there was
first degree murder conviction. He also
contends the trial court erred by admitting expert testimony on appellant’s
mental state, admitting hearsay that appellant threatened to kill Bertha’s
father, and instructing the jury that appellant could be convicted of second
degree murder on the theory that he failed to seek medical help. We affirm the
I. FACTS
A. Prosecution
1. The Police Discover the Body of Bertha
Ramirez Luis
On Monday, September 1, 2008, in the late
afternoon, paramedics were called to a residence on Stichman
Avenue in Baldwin Park. The house belonged to appellant’s mother
Guadalupe Arguijo. Appellant, his
pregnant wife Bertha and their two children, seventeen-year-old Anthony and
eleven-year-old Cassandra (“Cassieâ€), also lived there. At 4:54 p.m.,
Baldwin Park Police Officer Edwin Tapia went to the residence and learned from
paramedics that Bertha was dead. Officer
Tapia went into the bathroom and saw Bertha on the floor. Bertha was cold to the touch. She had a small cut on her lower lip and
there was blood on the side of her cheek and on the nearby floor. There were no other visible signs of
trauma.
Officer Tapia spoke with appellant,
who was “distraught.†Appellant said he
was in the garage at about 10:30 a.m.
when his son Anthony told him he had heard a “loud thump†in the bathroom. Appellant forced his way into the bathroom
and saw Bertha leaning against the wall.
He asked her if she was okay, and she replied that she was. Appellant believed Bertha was drunk, and
decided to leave her in the bathroom to “sleep it off.†He put underwear on her, placed a pillow
under her head and covered her with a blanket.
He left the bathroom, but returned every 15 minutes to check on
her. She appeared to be sleeping each
time he checked on her. Appellant last
checked on Bertha at 1:30 p.m. At 4:45 p.m.,
his mother asked him to check on Bertha.
He did, and discovered she was not breathing.
2. The Police Investigation Uncovers a History
of Abuse of Bertha
Police
detectives investigated Bertha’s death.
They learned that numerous members of Bertha’s family had observed many
instances of past physical
and mental abuse of Bertha by appellant.
The abuse began when Bertha was 15 or 16 and started dating
appellant. Bertha soon left home to live
with appellant. Family members
consistently observed appellant physically and emotionally abusing Bertha. Appellant often denied he hit Bertha, or
claimed that they were just “playing.â€
In 2001, however, while Bertha and appellant were estranged and living
apart, appellant admitted to Bertha’s mother that he hit Bertha, but claimed
that it was caused by his addiction to drugs and alcohol. Appellant also admitted to Bertha’s brother
Jorge that he hit Bertha, but claimed that it was due to his drug use.
Bertha
eventually moved back in with appellant.
In September, 2007, Bertha told her sister she wanted to leave appellant
but was afraid that, if she did, appellant would both tell the police that she
had kidnapped the children and would kill Bertha’s father.
According
to family and friends, Bertha was again planning to leave appellant before she
was killed. In May 2008, Bertha told her
sister Georgina that she was planning to move back in with her family. About three months before her death, Bertha
told her brother Rodolfo that she was going to leave appellant when Anthony
was18 years old. About a month before
her death, Bertha met Rodolfo for breakfast.
Bertha said she planned to move to Pasadena, close to where she worked. In August 2008, Bertha also spoke with her
sisters about leaving appellant. She
told her sister Jackie that appellant was “running around with hoes.â€
Jackie. Bertha also called her sister
Aracely from work, said that she was thinking of leaving appellant and asked if
she could stay with Aracely. Aracely agreed.
About a week and a half before her
death, Bertha spoke with family friend Cecilia Madrid on the telephone. Bertha said she knew appellant was having an
affair with Jeanette Mata. Bertha
mentioned that Aracely was coming over to get some of Bertha’s belongings.
Madrid went to Bertha’s house a few
days before Bertha’s death. Madrid saw
bruises on Bertha’s forearm and injuries to one side of Bertha’s face. Bertha showed Madrid a bruise in the shape of
fingers and said it was where appellant had grabbed her. Bertha said appellant had also broken her
phone.
Madrid saw appellant later that
day. According to Madrid, appellant was
a drug dealer and she regularly visited him to get methamphetamine. He sold the narcotics from his garage. Madrid told appellant that Bertha was angry
and was going to leave him. Appellant
said, “She ain’t going to leave.â€
3. Detectives Interview Appellant
Detectives
Real and Hendricks interviewed appellant on September 16, 2008. Appellant
acknowledged he and Bertha argued. He
denied he ever hit Bertha, but admitted he “pushed†or “smacked†her. Appellant acknowledged he was having an
affair with Jeanette Mata at the time of Bertha’s death. He told Bertha about this affair a couple of
weeks before her death. Appellant was
not planning on leaving Bertha. As far
as appellant knew, Bertha did not plan to leave him.
Appellant told the detectives
Bertha was pregnant at the time of her death, but it was an ectopic pregnancy
and she could not carry the baby to full term.
“It was either going to be the baby or her.†Appellant received a letter in the mail
saying that an insurance company had approved a procedure to terminate the
pregnancy. Bertha told appellant she had
an appointment for the procedure.
According to appellant, the night
before Bertha died, she complained she had a pain in her side, felt dizzy and
was thirsty. She had never made these
complaints before. Appellant stayed in
the garage the entire night. In the
morning, Anthony called him and said that something was wrong with Bertha, who
was in the bathroom. Anthony could not
open the bathroom door. Appellant went
to the bathroom, opened the door and found Bertha on the floor. Appellant leaned her against a wall, but she
slid off and hit the door. He asked
Bertha what was going on, and she replied that she was fine. Appellant believed Bertha was drunk. He left the bathroom to get Bertha some
clothes. When appellant returned to the
bathroom, Bertha was leaning over the bathtub.
He thought he would let her sleep.
She put her head on a pillow.
Appellant dressed her and covered her with a blanket. He told the children not to go into the
bathroom.
Thereafter, appellant checked on
her Bertha four times. At some point, he
poured water over her to try to get her to “snap out of it.†When appellant’s mother returned, around 1:00
or 1:30 p.m., appellant took a nap. When
he woke up, he checked on Bertha. She
was dead. He told his mother and she
called 911.
Detective Martin Rodriguez
interviewed appellant on February 17, 2009, the same day the sheriff’s
department executed a search warrant at appellant’s residence.
had hit Bertha in the past. He claimed
that he had “smacked†her with an open hand but had never beaten her. He “might have hit her once or twice†and
left bruises on her arm and a black eye.
Appellant had kicked Bertha and was “pretty sure†that he had “sockedâ€
her in the rib area. He may have hit her
hard enough to break a rib, but he was not sure because she never went to the
hospital. He could have been responsible
for the eight old rib fractures, but not for the fresh one. When one of the detectives said that “the
evidence shows that you hit her, that you hit your [w]ife throughout the course
of the marriage,†appellant said, “I am not denying it.â€
Appellant said that within 72 hours
before Bertha’s death, he had “pushed her away.†During an argument the day before her death,
appellant pushed Bertha away and threw a deodorant can at her. Appellant claimed Bertha did not want the
baby she was pregnant with because she was not sure appellant was the
father. At trial, however, the parties
stipulated that DNA test showed that appellant was included as the potential
father of the baby.
4. Cassie Hears the Commotion outside her
Bedroom
Cassie was interviewed three times
about her mother’s death.
name="_ftnref4" title="">[4] All three interviews were recorded, and the
recordings were played for the jury. At
trial, Cassie repudiated a substantial amount of the interviews.
During these interviews, Cassie
stated her mom was planning to leave her dad.
During her first and third interviews, Cassie stated her dad and mom
fought the night before her mom’s death, and the argument involved pushing and
yelling. The argument occurred because
appellant was stopped by police and given a ticket while Cassie was in the car.
Cassie said that on the day of her
mom’s death, she woke up at about 7:00 a.m., went into the room where her
mother was sleeping, and lay down on the bed with her mother for about five
minutes. Her mom woke up and smiled at
her, then went back to sleep. During the
first two interviews, Cassie indicated she went back to her room and stayed
there all day. The first time that she
noticed something had happened to her mother was when appellant entered her
room and told her that her mom had died.
In the third interview, Cassie
changed her account and said that after she returned to her bedroom, which was
next to the bathroom, she heard a bang or bump in the bathroom. She heard her dad and her brother
talking. They were saying, “Are you
okay?†Cassie thought her mom said,
“Yeah.†Thereafter, her brother told her
that her mother had fallen but was okay.
Cassie believed her mom was sleeping on the floor in the bathroom. Cassie said she did not check on her mother
because her dad or possibly her brother told her not to go into the
bathroom.
At trial, Cassie claimed that
around 11 a.m. to noon on September 1, she heard her mom fall, looked out of
her room, saw her dad trying to open the bathroom door, and heard her mom say
she was “fine.†Either Anthony or
appellant told her that her mother had fallen but was okay. From time to time in the afternoon, Cassie
looked under the bathroom door to check on her mother and heard her
snoring. That evening, her father came
into her room and told her that her mother had died.
5. Anthony Hears a “Thump†and Does not Think his Mother is Okay
Anthony
testified he was at a friend’s house the evening before his mother’s death,
called Cassie on the telephone and she told him that Bertha “wasn’t feeling
good.†Anthony went home. He found his mom in his grandmother’s bed. She said her sides hurt. Anthony explained his mother “didn’t look
that good†and appeared to be “really tired.â€
She asked for water, which Anthony brought. He placed the house telephone near her and
told her to call him on his cell phone if she needed anything. Anthony slept in the living room. His mother called him for water once during
the night.
During the
night, Anthony did not see any bottles of alcohol in the bedroom and did not
smell any alcohol on his mother’s breath.
He had never seen his mother fall down when she was drunk.
At about
10:00 a.m. the next day, Anthony looked in his grandmother’s bedroom, but his
mom was not there. He was about to check
other rooms when he heard the shower go on.
He opened the bathroom door a little and his mom said, “Oh, I’m in
here.†Anthony closed the door and
returned to his room. After a little
while, he heard a “loud thump†that sounded like Bertha hit the door and the
floor. Anthony tried to turn the
bathroom doorknob, but it was locked. He
heard moaning and asked his mom what was wrong, but she did not reply.
Appellant was able to get the door
open. Appellant went inside, partially
closing the door. Anthony heard Bertha
telling him that she was fine. She was
sounded like she was mumbling. Anthony
did not believe someone could be “fine†if the person was unable to open the
door. Anthony knew his mother would
never say she was not fine. According to
Anthony, “she could get hit by a truck and she would say she was fine.â€
Anthony was
“concerned†and “pretty scared and worried†about Bertha and thought she needed
medical attention. He suggested calling
a doctor or an ambulance, but appellant said that they should just call
appellant’s mother. Anthony and
appellant went to the bedroom and started looking for bottles of alcohol
because they suspected Bertha was just drunk.
Appellant found a bottle of tequila in Bertha’s bedroom. Anthony and appellant then searched for and
found more bottles. They did not call
for medical attention because they simply thought Bertha was drunk. Anthony called his grandmother, who said she
was coming home soon.
When
Anthony’s grandmother arrived, she said that she was going to the store to get
ingredients for a soup that Bertha really liked. Anthony left with her and was dropped off at
a barbeque. When Anthony left, appellant
was on the couch, preparing to take a nap.
Earlier, Anthony had seen appellant peek into the bathroom to check on
Bertha.
Anthony called home to check on his
mother. While he was speaking with his
grandmother, he heard appellant yelling and then the telephone was cut off. A friend’s father drove Anthony home. On the way, Anthony called again and was able
to speak with his grandmother. She said
she thought Bertha had died. When
Anthony arrived home, police and an ambulance were already there.
6. Guadalupe Arrives Home to Find Appellant
Asleep and Bertha Dead
Appellant’s
mother Guadalupe Arguijo testified at trial.
On September 1, 2008, she was at her sister’s home in Rialto when
Anthony called her around 10:30 or 11:00 a.m. and told her that Bertha had
fallen in the bathroom. Arguijo told
Anthony that Bertha should be taken to the doctor if she was not okay. She called Anthony around noon to see how
Bertha was doing. Anthony said that
Bertha was okay and was sleeping. When
Arguijo returned home, she asked appellant how Bertha was doing, and he said
she was okay and had fallen asleep in the bathroom. Arguijo looked into the bathroom and saw
Bertha on the floor. She was covered
with a blanket and appeared to be sleeping.
Arguijo
went to the store to buy ingredients for chicken soup. When she returned, appellant was asleep. After appellant woke up, he went into the
bathroom. Arguijo heard appellant
telling Bertha to “get up.†Appellant
then yelled for Arguijo to come to the bathroom. She did so and saw that Bertha had passed
away. She called the paramedics. They arrived at about 4:30 p.m. and
pronounced Bertha dead.
7. The Medical Experts Explain that Bertha’s
Death Was Not Caused by a Fall
At trial, psychologist Sandra Baca
testified as the People’s expert on spousal battery. Among other things, she described the cycle
of violence in domestic abuse situations.
The first part of the cycle involves tension in the relationship. Typically, the victim will try to do
everything possible to keep the tension from spilling over into psychological
abuse followed by physical violence. Ultimately, the tension evolves into
violence. Following the infliction of
violence, the abuser will typically show remorse to prevent consequences and
“hook†the victim back into the cycle.
Sometimes, the abuser will use threats to reach his or her goals. If a victim accepts the apology or agrees to
stay because of the threats, the cycle will began again. A victim’s pregnancy can be a stress factor
resulting in tension spilling over into violence, because the victim becomes
less available and attentive to the abuser.
A victim’s plan to leave her abuser is also a stress factor. In this case, the stress factors of the
victim’s pregnancy and her plan to leave her abuser were present.
Bertha’s
autopsy showed she died from a placental abruption with intrauterine bleeding
caused by abdominal blunt
force trauma. In essence, Bertha bled
to death. The autopsy was conducted by
Deputy Medical Examiner Vadims Poukens of the Los Angeles County Coroner’s
Department. Dr. Poukens was unable to
determine the time of death. He
discovered decomposition, which he opined could have started anywhere from a
few hours to a few days after her death.
The autopsy also showed that Bertha was about 25 weeks pregnant at the
time of her death. The fetus weighed
approximately six pounds. The fetus died
because Bertha died.
In addition to the injuries which
cause Bertha’s death, the coroner discovered older injuries to Bertha,
including eight fractured ribs, several with multiple fractures. Some, although not recent, were still
healing.
A toxicology report showed the
presence of methamphetamine in Bertha’s system.
Dr. Poukens opined that the methamphetamine was a contributing factor in
Bertha’s death, in that methamphetamine causes an increase in heart rate and
blood pressure, which could have increased Bertha’s bleeding rate and
accelerated her death. Dr. Poukens
concluded the cause of death was homicide.
Dr. Deirdre Anglin, Professor of
Emergency Medicine at U.S.C., was an expert in intimate partner violence and
emergency medicine. Dr. Anglin reviewed
various medical documents relating to Bertha, including the autopsy report, the
coroner’s investigator’s narrative, x-rays, medical and pharmacy records and
insurance documents. Based on this
review, Dr. Anglin concluded that Bertha’s “injuries were consistent with
intentional injury and consistent with intimate partner violence.â€
Bertha’s injuries were located on
both sides of her body, which was indicative of intentional injury. An accidental injury is typically on only one
side of the body. Dr. Anglin noted that
Bertha had several rib injuries, some recent, some healing and some older and
healed. This indicated significant
ongoing trauma, which was consistent with intentional injuries.
Bertha’s abdominal injuries were
caused by multiple episodes of force.
The injuries to Bertha’s liver, colon and pancreas, and the placental
abruption were caused by substantial force, equivalent to a pedestrian being
struck by a car. These injuries were far
beyond what would be sustained in a fall from a standing position. All of these injuries are very painful and
require narcotics to control the pain.
Dr. Anglin opined that the
likelihood of a woman dying from a placental abruption is quite small if she
receives prompt medical attention. In
the case of a placental injury as severe as Bertha’s, where most of the
placenta has pulled from the wall of the uterus, there is a very high mortality
rate for the fetus.
B. Defense
Dr. Earl
Fuller testified that when more than 50 percent of the placenta is abrupted,
the fetus will not survive. The most
frequent cause of abruption is hypertension.
Methamphetamine use can cause a sudden rise in blood pressure, which can
cause an abruption. Blunt force trauma
is the cause of only five percent of abruptions. Dr. Fuller opined that Bertha lost blood due
to the abruption, which in turn caused her to faint. When she fainted, she hit the edge of the
bathtub and the floor, and this caused her other internal injuries.
II. DISCUSSION
1. Murder by torture
Appellant
contends, and respondent agrees, that the jury convicted appellant of the first
degree murder of Bertha under a murder by torture theory. Appellant further contends that there was
insufficient evidence to support such a conviction. We do not agree.
“In reviewing a challenge to the
sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.
[Citations.] We presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases
in which the prosecution relies primarily on circumstantial evidence and to
special circumstance allegations.
[Citation.] [I]f the
circumstances reasonably justify the jury’s findings, the judgment may not be
reversed simply because the circumstances might also reasonably be reconciled
with a contrary finding.
[Citation.] We do not reweigh
evidence or reevaluate a witness’s credibility.
[Citations.]†(
Cal.4th 198, 210 [internal quotation marks omitted].)
Under Penal
Code section 189, murder by torture is murder in the first degree, provided
that (1) the acts causing death involve a high degree of probability of the
victim’s death and, (2) the torture is premeditated and deliberate, and is
inflicted for revenge, extortion, persuasion or any other sadistic reason. (People
v. Cook (2006) 39 Cal.4th 566, 602.)
The defendant need not have an intent to kill. (Ibid.)
Appellant
contends that there is no evidence that the acts causing death in this case
involved a high probability of death. He
specifically contends that the testimony of the prosecution’s expert Dr. Anglin
conclusively proved that the injuries inflicted on Bertha did not involve a
high probability of death. Dr. Anglin
testified that the likelihood of a woman dying from a placental abruption was
less than five percent if she received prompt medical attention.
Dr.
Anglin’s testimony as a whole, and the coroner’s testimony show that
appellant’s acts did involve a high probability of death. Bertha was hit and kicked so hard that her
pancreas, liver, colon and uterus were bruised.
Dr. Anglin testified that the force with which the victim was hit was
comparable to being hit by an automobile.
“[T]hat is something that takes a fair – a fairly significant amount of
force so we often will see this kind of thing in a pedestrian that has been
struck by a car or, you know, a bicyclist who gets hit by a car or somebody who
has sustained substantial force.†Dr. Poukens,
the deputy medical examiner, acknowledged that Bertha’s internal injuries
required “quite a bit of force.â€
Such a
severe beating does carry a high probability of death. (See, e.g., People v.
[defendant hit victim with force equivalent to victim being hit by a car and
ruptured her pancreas; force created a high risk of death of which defendant
must have been aware].) When such a
severe beating results in death, such a beating is sufficient to support a
murder by torture conviction. (
Cal.4th 174, 186, 188, 201 [victim died
of internal injuries including bruising and lacerations which were caused by
kicking with “very strong force, comparable to the injury a child would suffer from
forcibly hitting the dashboard of a car during a traffic accidentâ€; evidence
of victim’s injuries supported first
degree murder by torture conviction ]; see
also People v. Cook,
37, 38, 41 [severe beating which caused victim’s death constituted
torture-murder].)
In addition, “‘[t]he finding of
murder-by-torture encompasses the totality of the brutal acts and the
circumstances which led to the victim’s death.
[Citations.] The acts of torture
may not be segregated into their constituent elements in order to determine
whether any single act by itself caused the death; rather, it is the continuum
of sadistic violence that constitutes the torture.’ [Citation.]â€
(People v. Jennings (2010) 50
Cal.4th 616, 643.) Dr. Anglin’s five
percent figure applies only to victims who receive prompt medical
attention. Here, Bertha apparently was
unable to obtain medical assistance for herself. Appellant ignored his son’s request to call
for medical assistance or an ambulance and left Bertha on the bathroom floor
where she eventually bled to death. Dr.
Anglin testified that a person would be in severe pain after receiving a
beating like the one Bertha received.
Thus, at a minimum, appellant’s actions create a reasonable inference
that he wanted Bertha to continue to suffer, and his decision to prolong the
suffering turned a potentially survivable injury into a fatal injury, a fact
which supports the verdict of murder by torture.
2. Dr. Baca’s testimony
Appellant
contends his counsel was ineffective in failing to object to the following
question by the prosecutor and to Dr. Baca’s answer:
Prosecutor: “Dr. Baca, based on your review of the
documents that you read and your interviews with some of the witnesses were you
able to determine if there was any reason why the defendant may have wanted to
inflict pain on his wife on a Labor Day weekend of 2008?â€
Dr. Baca: “If I recall, there were two stressors going
on at the time. The pregnancy and his pushing
for an abortion and also because she had verbalized to her family that she had
wanted to leave.â€
Appellant
has the burden of proving ineffective assistance of counsel. (People
v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant
must show that his counsel’s performance fell below an objective standard of
reasonableness, and that, but for counsel’s error, a different result would
have been reasonably probable. (
U.S. 668, 687-688, 694; People
(1987) 43 Cal.3d 171, 216-218.) “A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.†(Strickland v.
“‘Because of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action ‘might be considered sound trial
strategy.’ [Citations.]’†(People
v. Thomas (1992) 2 Cal.4th 489, 530-531.)
When an
appellant makes an ineffective assistance claim on appeal, we look to see if
the record contains any explanation for the challenged aspects of the
representation. If the record is silent,
then the contention must be rejected “‘unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation [citation].’†(
Cal.3d 210, 248.)
We note that our Supreme
Court has repeatedly pointed out that “‘[a]n attorney may choose not to object
for many reasons, and the failure to object rarely establishes ineffectiveness
of counsel.’ [Citation.]†(People
(1996) 13 Cal.4th 394, 421.)
a. Form of the
question
Appellant
contends that the question was compound and assumed facts not in evidence. He specifically contends that the question
contains two sub-questions: (1) did
appellant want to inflict pain on his wife? and (2) what were the reasons
appellant wanted to do that? He next
contends that it assumed that appellant did in fact want to inflict pain. It is difficult to understand how the same
question could assume that appellant in fact wanted to inflict pain and at the
same time ask the witness to decide if
appellant wanted to inflict pain. In any
event, we do not agree that the question does either.
The
question uses the phrase “may have wanted†which uses the auxiliary verb “mayâ€
to express possibility.
(www.merriam-webster.com/dictionary/may)
Thus, the question as a whole does not imply that appellant in fact
wanted to inflict pain. Further, the
witness’s answer demonstrates that she did not understand the question as
asking for her opinion on whether appellant intended to inflict pain. She offered no opinion about whether
appellant wanted to inflict pain. She
simply identified stressors in appellant’s life.
Since the
question is not improper in form, counsel acted reasonably in refraining from
objecting to the question. “[A] defense
counsel is not required to advance unmeritorious arguments on [a] defendant’s
behalf.†(People v.
see also People v. Price
(1991) 1 Cal.4th 324, 386-387.)
b. Substance of the
question
Appellant
contends that the question improperly asked the expert to testify as to
appellant’s state of mind or intent in hitting Bertha. He points out that one element of torture
murder is that the defendant deliberately and with premeditation intended to
inflict extreme pain and suffering and a second element of the crime is that
the defendant intended to inflict such pain for an enumerated purpose. He concludes that since intent is an element
of torture murder and thus an ultimate issue in the case for the jury to
decide, expert testimony on this issue was admissible.
“Despite the circumstance that it
is the jury’s duty to determine whether the prosecution has carried its burden
of proof beyond a reasonable doubt, opinion testimony may encompass ‘ultimate
issues’ within a case. Evidence Code
section 805 provides that ‘[t]estimony in the form of an opinion that is
otherwise admissible is not objectionable because it embraces the ultimate
issue to be decided by the trier of fact.’
(See People
(1997) 58 Cal.App.4th 494, 507, 68 Cal.Rptr.2d 135 [a gang expert testified
that the defendant was a member of a particular gang and that his activities
were undertaken on behalf of the gang].)â€
(People v. Prince (2007) 40
Cal.4th 1179, 1227.)
Here, Dr. Baca did not directly
testify that appellant intended to hurt Bertha, premeditated the infliction of
pain on Bertha or inflicted pain for a particular purpose. Dr. Baca simply identified stressors in the
relationship between appellant and Bertha. Dr. Baca had previously testified about
various factors which can be precursors to violence in domestic abuse
situations. Two such factors are the
victim’s pregnancy and the victim’s plan to leave the abuser. Thus, Dr. Baca’s testimony simply informed the
jury that there were factors in this case which were known to lead to violence
in domestic abuse situations.
c. Prejudice
It took approximately three weeks
to present all of the evidence in this case; the record of the trial spans over
2000 pages of reporter’s transcripts.
Even if counsel should have objected, there is no reasonable probability
this isolated question and answer had any material impact on the verdict. Dr. Baca testified about the cycle of violence
in general and the jury had evidence that Bertha fit into that cycle because
she was pregnant and had spoken about leaving appellant in the days preceding
her death. This evidence, combined with
the previously discussed overwhelming evidence that appellant severely beat his
wife and left her to bleed to death rendered harmless any deficiency in
counsel’s professional duty. (See
3. Death threat
Appellant
contends the trial court abused its discretion in admitting testimony from
Bertha’s sister that appellant threatened to kill Bertha’s father. He claims the statement was hearsay and its
admission violated his constitutional
right to confrontation; was evidence of bad character and violated his
constitutional right to due process; and was more prejudicial than probative
and should have been excluded under Evidence Code section 352. He further contends the trial court erred in
failing to instruct the jury that the statements were admitted for a limited
purpose. Appellant contends counsel was
ineffective for failing to object to the evidence and request a limiting
instruction.
a. The statements
Bertha’s sister Jackie testified as follows about a 2007
telephone conversation with Bertha:
Prosecutor: “Was
there any time during that conversation that Bertha discussed her plans whether
she was going to stay at the home or not?â€
Jackie replied: “She told me she was going - - she wanted to
leave.â€
Prosecutor: “What did she say about that?â€
Jackie: “She started off by telling me that
[appellant] treated her like shit. . . I told her I would go pick her up and
she said that before she left she had to let the police know. And I asked her why and she said she needed
to tell them what she was going to do, that she was going to leave [appellant]
because [appellant] could go back and say that she kidnapped the kids.â€
Prosecutor: “Did she say what her other concerns
were?â€
Jackie: “That he would kill my dad.â€
Prosecutor: “So that’s what she was afraid of?â€
Jackie: “She was afraid of him doing - - getting mad
and going to the cops and telling them that she had kidnapped the kids and also
killing my dad. [¶] And I asked her why my dad and she said because
he knew that my dad was important to her.â€
As
appellant acknowledges, Bertha does not directly state in this conversation
that appellant threatened to kill her father.
Bertha made the statement about her father to explain why she was not
yet prepared to leave appellant. The
statement showed Bertha’s state of mind to explain her conduct, an exception to
the hearsay rule. (Evid. Code § 1250.) Appellant points out that section 1250
contains a relevancy requirement. He
contends that Bertha’s state of mind in 2007, a year before her death, was not
relevant to any issue involved in that death and should not have been
admitted.
Even if
Bertha’s state of mind in 2007 should have been excluded as irrelevant or under
Evidence Code section 352, appellant is not entitled to appellate relief
because he has failed to demonstrate the evidence was prejudicial to his
case. (People v.
Cal.2d 818, 837.)
Appellant’s
claims of prejudice from Bertha’s statements are based on his premise that the
statements imply appellant made explicit threats to kill Bertha’s father. But, Jackie’s testimony as a whole shows the
opposite. Jackie testified she asked
Bertha “why [our] dad†and Bertha replied “because he knew that [our] dad was
important to her.†Bertha did not say
“because appellant threatened to kill our dad if I left.†If Bertha’s fear was based on actual threats
by appellant, the natural response would have been to say so. She did not.
Bertha’s statement cannot reasonably be understood to imply that
appellant had made explicit threats to kill her father. The statement shows only Bertha’s own
beliefs.
Bertha’s
fear of appellant may have cast appellant in a negative light, but this fear
pales in comparison to the overwhelming evidence of the actual
Bertha over the course of the 18 years they were together. There is no probability that Bertha’s
statements contributed to the verdict against appellant, or that appellant
would have received a more favorable verdict if the evidence had been excluded.
4. Second degree murder
Appellant contends that the trial court erred
prejudicially in instructing the jury that he could be liable for second degree
murder for Bertha’s death based on his failure to seek medical care for
her.
Even if
second degree murder cannot be based on
a defendant’s failure to seek medical assistance, appellant suffered no
prejudice. (People v.
[misinstruction on elements of offense reviewed to determine whether error is
harmless beyond a reasonable doubt].)
The effect of such an error would have been to permit the jury to convict
appellant of second degree murder for acts which only amounted to
degree murder for Bertha’s death.
Appellant has not established that the alleged instructional error
defining a crime for which he was not convicted had any impact on the result of
his trial.
In a
supplemental opening brief, appellant contends the second degree murder
instruction erroneously failed to tell the jury that second degree murder can
only be based on an omission if the omission is accompanied by a conscious
disregard for human life. He claims that
this omission was prejudicial because it created a “great overlap†between the
second degree murder instruction and the involuntary manslaughter conviction,
which would cause the jury to believe that it could not convict him of
involuntary manslaughter without also convicting him of second degree
murder. We do not agree.
Appellant
describes the second degree murder instruction as being divided into two parts,
the first dealing with murder based on a defendant’s affirmative act and the
second being based on a defendant’s omission.
He acknowledges that the first part of the instruction tells the jury
that it must find that a defendant deliberately committed his act with
conscious disregard for human life.
Appellant points out, correctly, that this reference to conscious
disregard for human life is not repeated in the second part of the instruction
concerning failure to seek medical aid.
The instruction must be considered as a whole, and in context with other
instructions. (People v.
the entire charge to the jury, whether it is reasonably likely the jury
interpreted the instructions as excluding conscious disregard for human life as
an element of second degree murder. (
46, 74.)
The
instruction on murder provided that a murder conviction requires a finding of
express or implied malice. The
instruction explained that a defendant acted with implied malice if he
intentionally “committed an act†the natural and probable consequences of which
were dangerous to human life and “[a]t the time he acted, he knew his act was
dangerous to human life; AND . . . He
deliberately acted with conscious disregard for human . . . life.†The instruction indicated that if the jury
found appellant had a legal duty to Bertha and failed to perform it, the
failure to act was “the same as doing†an act.
Thus, a reasonable jury would have understood the instructions as
stating that a murder conviction required a finding that appellant knew that
his failure to act was dangerous to human life and acted with conscious
disregard for human life.
In
contrast, the instructions on involuntary manslaughter required a finding
appellant was criminally negligent. The
instruction defined criminal negligence, explaining that it “involves more than
ordinary carelessness, inattention, or mistakes in judgment. A person acts with criminal negligence when:
[¶] 1.
He acts in a reckless way that creates a high risk of death or great
bodily injury; [¶] AND
[¶] 2. A reasonable person would have known that acting in that way would create
such a risk.†Thus, we disagree with
appellant’s assertion that the two instructions “overlap.â€
Even
assuming, as appellant contends, the absence of clarifying language in the
second degree murder instruction gave the jury the impression that the mental
state for second degree murder and involuntary manslaughter were equivalent, we
emphasize that the jury rejected involuntary
manslaughter in favor of a first degree murder conviction. It stands to reason the inclusion of
clarifying language in the second degree murder instruction that emphasized the
prosecutor’s additional burden of showing conscious disregard for life would
have met the same fate as the second degree murder and involuntary manslaughter
instructions provided by the court—the jury would have rejected them in favor
of a first degree murder conviction.
Appellant has not shown otherwise.
(People v. Parson (2008) 44
Cal.4th. 332, 357 [appellant must show that, but for the alleged instructional
error, there was a reasonable probability the result of the trial would have
been more favorable to him].)
5. Cumulative error
Appellant
contends that even if the above described errors were not prejudicial
considered individually, their cumulative prejudice requires reversal. Appellant offers no argument to support this
contention and provides only general case law on cumulative error. He has failed to demonstrate cumulative
prejudice. (See People v.
[appellant has the burden to support argument with legal analysis].)
III. DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUMAR,
J.
We concur:
TURNER, P.J.
MOSK, J.
name="_ftn1" title="">[1] Further statutory references are to the Penal
Code unless otherwise noted.
name="_ftn2" title="">[2] Appellant had a girlfriend, Jeanette, while
still married to Bertha.
