Filed 4/19/13 P. v. Saesee CA5
NOT
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ALBUNG SAESEE,
Defendant and
Appellant.
F062915
(Super.
Ct. No. VCF231609)
APPEAL
from a judgment of the Superior Court
of
David F.
Candelaria for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant
Albung Saesee was convicted by a jury of murder in the first degree (Pen. Code,
subd. (a)(1)), and criminal threats (§ 422). In addition the jury found true the special
allegations that appellant personally and intentionally discharged a firearm
causing great bodily injury
during the commission of the murder (§ 12022.53, subd. (d)), and used a
firearm within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5,
subdivision (a)(1). The trial court
subsequently sentenced appellant to a term of 50 years to life on the murder and
firearm counts consecutive to a term of 3 years 8 months on the remaining
counts.
On appeal,
appellant contends the trial court erred in failing to provide him with a
separate interpreter throughout the proceedings, in admitting certain
photographs, and in allowing the prosecution to use appellant’s statement made
to a nurse shortly after the killing. We
find appellant’s contentions without merit and affirm the judgment.
FACTS
On the
morning of January 4, 2010,
appellant and his friend Chai See
name="_ftnref2" title="">[2] went fishing.
While fishing, appellant drank two “Smirnoffs.†Afterwards, they went to Chai’s house where
appellant’s wife Emee, the victim in this case, and others joined them. According to Chai, appellant appeared drunk
by the time he and Emee left.
Appellant
and Emee arrived home sometime around 9:00 p.m.
and began arguing. The argument was in
English. During the argument, Emee
called the police. Visalia Police
Officers Robert Gilson, Daniel Roberts, and Steve Howerton were dispatched to
the disturbance call at 10:37 p.m.
and arrived shortly thereafter. Upon
arriving at the residence, the officers spoke to both appellant and Emee as
well as other family members and learned that the disturbance was verbal only. There was no allegation of violence between
the two.
Emee and
appellant continued to argue after the officers’ arrival. Officer Roberts testified that Emee was upset
because appellant had told her to leave their home and that she was no longer
welcome there. He spoke to Emee and
tried to diffuse the situation. He
explained that although she was not required to leave the home, she should
consider leaving for the evening and staying with a friend or family member in
the interest of preventing further argument.
Emee refused to leave and was upset with the officers for not requiring
appellant to leave. He explained that
they could not require either to leave the home, and there was nothing more the
officers could do.
As officers
were leaving, Emee mentioned that appellant had firearms in the residence,
however she denied that appellant threatened her with them in any way. Officer Roberts asked appellant if he indeed
had firearms in the home, and appellant advised he had shotguns for hunting. Appellant allowed the officers to inspect the
guns. Appellant led both Officers
Roberts and Gilson into a bedroom where he produced two shotguns from a closet,
both of which were contained in zippered cases.
Officer Gilson inspected the guns, noting they were both unloaded, legal
to possess, and that there was no ammunition in the gun cases. Because the guns were legal, both guns were
returned, in their cases, to appellant, who placed them back into the closet.
Before
leaving, the officers noticed that although it was apparent appellant had been
drinking, he did not appear extremely intoxicated. Appellant was able to communicate in English
with the officers. The officers left the
residence but remained outside for a few minutes in case the two continued
arguing. While outside, Emee again
contacted the officers, stating that appellant continued to tell her she had to
leave. The officers attempted one last
time to persuade Emee to leave the residence for the night to prevent any
further arguing, but she refused.
Officer Howerton again explained to appellant that he had no right to
prevent Emee from staying at the home.
Appellant stated he understood and said he just wanted to go to
bed. The officers left the residence and
did not return for approximately one hour when they received a second dispatch
to the home.
Appellant
and Emee continued to argue after officers left the home. At some point, appellant went into his room
and emerged with two 12 gauge shotguns and wearing a camouflage jacket. When appellant came out of the room,
appellant’s mother Naleh was in the living room watching television with her
husband Aimai, Emee, and her young grandson.
Naleh testified that when appellant came out of the room with the guns,
Aimai confronted appellant and told him “stop.â€
At that point, the two struggled over the guns and the gun went off
twice. When Naleh looked back, she saw
Emee was shot, lying next to the front door, and not moving.
house.
Aimai
testified that after the police left, he was sitting on the couch with his
family when appellant went into his room.
Appellant came out some time later and was carrying two shotguns on his
hips. Aimai told appellant “no, no,
don’t shoot, don’t shoot†and appellant responded “don’t come.†However, Aimai approached appellant and
grabbed the guns and one gun “went off.â€
According to Aimai, he grabbed the guns by the barrels, pushing them
together, and attempted to push them to the ground. As Aimai was pushing the guns down, he turned
to the side and the gun fired. While the
two continued to struggle, another shot was fired. After Aimai was able to get the guns from
appellant, Aimai and Aiyoy, appellant’s son, fought with appellant, attempting
to hold him while the police responded.
During this time, appellant made his way to the kitchen where he was
able to obtain a knife and attempted to stab himself. Aimai testified he grabbed the knife and in
the process of taking it away, he was cut.
He denied that appellant tried to stab him and claimed not to remember
his preliminary hearing testimony where he stated appellant tried to stab
him. Aimai also denied his preliminary
hearing testimony that the gun fired before he grabbed the gun.
Aiyoy
testified that after the police left, he saw appellant eating in the dining room. Aiyoy went to his room and about a half hour
later, appellant opened his bedroom door.
Appellant was holding his two shotguns and was wearing his hunting
clothes. Appellant told Aiyoy, “‘Don’t
come out. [¶] … [¶] Or I shoot
you.’†Appellant told Aimai to “‘move’â€
and Aimai responded “‘Don’t do it.’â€
Next Aiyoy heard two gunshots and then saw Aimai tackle appellant. While appellant and Aimai struggled, he heard
a third gunshot. Aiyoy came to his
grandfather’s aid and began fighting with appellant. During the struggle, both Aiyoy and Aimai
were able to recover the shotguns from appellant. After disarming appellant, Aiyoy went to call
the police. Appellant told him not to
call the police, but he did so anyway.
Subsequently, appellant went into the kitchen and Aiyoy went to check on
his mother Emee and noticed she was not breathing. While in the kitchen, appellant tried to stab
himself. Appellant then said that he was
going to leave and tried to run out of the front door. Aiyoy tackled appellant outside of the house
and held him until police arrived.
Naga,
appellant’s sister, testified that approximately 15 to 20 minutes after
appellant went to his room, she heard appellant say “move†and Aimai say “stop
it.†Naga admitted telling officers she
heard appellant say “‘Move out of the way.
Nobody come out. I’m gonna
shoot’†while he was in the hallway.
Naga remained in her bedroom and called the police when she heard a
gunshot. After she called the police,
she could hear appellant fighting with Aimai and Aiyoy.
Visalia
police officers were dispatched back to the house after the shooting, which
occurred approximately one hour after the initial call. Upon arrival, Officer Roberts observed two
people fighting as they came out of the house.
Inside the home, Officer Roberts observed Emee lying on the floor
adjacent to the front door with her head against the wall, unconscious. He determined she was not breathing and had
no pulse. On the wall next to the front
door where Emee was lying, he discovered a shotgun pattern that had not been
there when he responded to the residence an hour earlier. Shot pellets were later found in the
wall. There was also a large pool of blood
on the floor next to the front door where Emee was found.
Two
shotguns and numerous rounds of shotgun ammunition were located in the hallway,
along with blood. These items were not
there when the officers responded initially; however, the two shotguns in the
hallway were the same two shotguns the officers had inspected on the first
visit. Appellant was now wearing a
camouflage jacket, which he had not been wearing when officers contacted him an
hour earlier. Officers found live rounds
of ammunition in appellant’s jacket, as well as numerous live rounds on the
floor in the hallway and outside the front door where appellant and Aiyoy had
been fighting.
Dr. Burr
Hartman testified that he performed the autopsy on Emee and opined she died
from a single shotgun wound to the back which severed her spinal cord and her
left subclavian artery. Because the shot
severed her spinal cord, she would have been immediately incapacitated after
the injury and would not have been able to move. Dr. Hartman removed shotgun wadding and
numerous birdshot pellets from Emee’s body.
After
appellant was arrested, he was transported to the hospital for treatment of his
injuries. Nurse Carla Mena noted that
appellant had abrasions to his face and a laceration to his head that required
staples to repair. She noted that
appellant seemed intoxicated and that his blood was drawn during his
treatment. In the course of treating
appellant, Nurse Mena asked appellant how he was injured. She could not recall his exact response, but
noted he stated something to the effect of “‘I told her to leave. She didn’t want to leave and they were
hitting me, so I got my gun.’†She also
recalled him stating “‘I just shot.’â€
Officer O’Rafferty was also present while appellant was being treated. He testified that he took verbatim notes
while appellant was speaking and that appellant stated “that he told his wife
to go to bed, but she wouldn’t, and that he—she had called the cops three times
to have him arrested. And he said that
he told her if they come, I will shoot, and that he didn’t know who he had
shot, but he just shot.†Appellant also
asked the officer if he knew how much prison time appellant would get for
“this.†After appellant was taken to the
jail, he wrote “Son, I love you†in blood on his cell wall. The statement was written in English.
Aiyoy
testified appellant knew how to handle guns and was a hunter. He also noted, as did other family members,
that appellant and Emee did not argue often.
He stated appellant was not a violent person, although he recounted an
incident where appellant pointed a gun at his other son, Aisai.
Appellant’s
family members testified appellant was drunk on the night of the shooting and
that he drank often. Officer O’Rafferty
noted that when he contacted appellant at 12:25 a.m., he appeared intoxicated
and was unable to stand on his own.
Defense Case
Aiyoy
testified that when appellant had held a gun to Aisai in the prior incident, it
was not to threaten him, but rather to communicate to him that he should not go
out at night. He explained that Aisai
had previously been shot, and that another brother had been killed. He stated appellant was trying to educate
Aisai that someone could kill him. He
noted that the gun was unloaded during the incident.
Dr. Alan
Barbour, a forensic pathologist, testified that appellant’s blood-alcohol level
when tested at the hospital at approximately 1:00 a.m. was 0.23 percent. Another blood draw conducted at 2:34 a.m.
revealed a blood-alcohol level of 0.17 percent.
Based on these numbers, Dr. Barbour opined appellant’s
blood-alcohol level at the time of the offense would have been between 0.20 and
0.25 percent. He further opined that a
person with that level of blood alcohol would obviously appear intoxicated, and
that a normal person would have difficulty in walking, in shifting attention
between tasks, would likely have slurred speech, and may have difficulty in
forming short-term memories. However, he
noted that chronic alcoholics may still be able to function, even at very high
levels of intoxication.
DISCUSSION
I. The Lack of a Separate Court
Interpreter Did Not Constitute Reversible Error
Appellant
argues that his due process rights
were violated when the trial court failed to provide him with a separate
interpreter throughout the trial. He
claims such an error denied him a fair trial and requires a reversal. We find appellant waived the right to a
separate interpreter and find further that even if there were no valid waiver,
any error was harmless beyond a reasonable doubt.
Pursuant to
article I, section 14 of the California Constitution, a “person unable to
understand English who is charged with a crime has a right to an interpreter
throughout the proceedings.†Our Supreme
Court in People v. Aguilar (1984) 35
Cal.3d 785 explained that interpreters serve three separate yet important roles
in a criminal proceeding by (1) facilitating the questioning of
non-English-speaking witnesses (witness interpreters), (2) aiding
non-English-speaking defendants in understanding the discussions between the court,
the attorneys and the witnesses (proceedings interpreter), and (3) enabling
non-English-speaking defendants to communicate with their attorney (defense
interpreter). (Id. at p. 790.) In that
case, the court held that allowing the prosecution to “borrow†the defendant’s
interpreter to interpret for the prosecution’s witnesses, without a valid
waiver, violated the constitutional mandate.
(Id. at pp. 787-794.)
A. Appellant waived the right
to a separate interpreter
As the
right to an interpreter is based in the California Constitution, it requires a
personal, intelligent, and voluntary waiver from a defendant. (People
v. Aguilar, supra, 35 Cal.3d at p. 794; see People
v. Estrada (1986) 176 Cal.App.3d 410, 416-417 [defendant personally waived
right to interpreter during trial].) The
right to an interpreter, for someone who does not speak English, may also
implicate federal constitutional rights, such as the right to due process, the
rights to confront and cross-examine witnesses, the right to counsel, and the
right to be present during a criminal proceeding. (United
States ex rel. Negron v. State of New York (2d Cir. 1970) 434 F.2d 386, 389
(Negron).) Such rights are only waived if done so
knowingly and intelligently. (
intentional relinquishment or abandonment of a known right’â€].)
Here we
find that appellant was indeed informed of and waived his right to a personal
interpreter. At the preliminary hearing,
the trial court specifically informed appellant of his right to a separate
interpreter.
title="">[4] It is important to note that appellant was
being assisted by an interpreter at the time of this discussion. Not only was appellant specifically advised
of the right to have a separate interpreter, it was clear from the proceeding
that appellant discussed this right with his attorney prior to giving the
waiver. On the record before this court,
appellant can hardly contend that he was unaware of his right to a separate
interpreter. Appellant does not dispute
that he in fact waived the right to a separate interpreter at the preliminary
hearing but, rather, argues that the failure to obtain a renewed waiver at
trial was error. We disagree.
Initially,
we note that the waiver to a separate interpreter, when taken at the preliminary
hearing was not limited to that proceeding.
Under federal authority, once a valid waiver is given, “it continues
through the duration of the proceedings unless it is withdrawn or is limited to
a particular phase of the case.†(
362.) In Crayton, our Supreme Court explained that a court was not required
to readvise a defendant of his or her right to counsel and take a new waiver
after that right had been waived in a prior proceeding. (Id.
at pp. 362-363.) Indeed, courts have
held that waiver of other constitutional rights remain in effect unless validly
withdrawn or limited to a particular proceeding. (See People
v. Smith (2005) 132 Cal.App.4th 924, 932-936 [where defendant waives right
to jury trial, that waiver remains valid following mistrial when waiver was not
withdrawn].) Nothing in the present
exchange appeared to limit waiver of a shared interpreter solely to the
preliminary hearing. In fact, both
defense counsel and the trial court noted the interpreter would be used for
witnesses as they testify. The waiver
implied that the practice would be used for testimony of all witnesses who
spoke the same language. This is in contrast
to a stipulation as to evidence taken moments later and was noted by the court
to be for the purpose of preliminary hearing only.
Appellant
argues “there was no waiver by Appellant … to the right to an interpreter at
the trial itself. The court simply
instructed Appellant that he would be allowed to share the single interpreter
the Court was able to secure for trial with the prosecution and defense
witnesses.†This is not an entirely
accurate statement of the events as they occurred at trial. The issue of the shared interpreter was
raised not once but twice after the explicit waiver of the right at the
preliminary hearing. On
February 24, 2011, approximately a week before appellant’s trial began, a
brief pretrial hearing was held.
Appellant was present at the hearing and was being assisted by an
interpreter. The issue of the
interpreter was raised at the hearing, with the prosecutor noting that
appellant’s attorney had agreed to stipulate to using a single interpreter for
both appellant and the prosecution witnesses as appellant also spoke English.
procedure, and appellant did not object.
On March 7, 2011, during the in limine conference, the issue was
once again briefly raised, with the trial court noting that defense counsel had
agreed to the use of a shared interpreter at the prior hearing.
used at the preliminary hearing; namely, to have the interpreter interpret for
witnesses who also spoke Lahu, specifically instructing him to speak loudly
enough so that appellant could hear the interpretation. On this record it is clear that the waiver of
the shared interpreter was never revoked or limited by appellant.
This case
is not unlike People v. Estrada,
to have the defense interpreter only interpret words of the witness interpreter
when she disagreed with the translation provided by the witness
interpreter. The defendant was present
during that hearing. Later in the day,
the defendant expressly waived that right to have the interpreter interpret
every word. The court found a knowing
and intelligent waiver of the right to an interpreter under those
circumstances. (Id. at pp. 416-417.)
This is in
stark contrast to People v.
advised of his right to an interpreter nor did he ever personally waive that
right. Nothing in the record in
defendant even knew he had a right to a separate interpreter. Indeed, in that case, the only exchange regarding
the sharing of the interpreter with the prosecution witnesses was held between
the court, defense counsel and the interpreter, and was conducted entirely in
English. (People v. Aguilar, supra,
35 Cal.3d at p. 795.) There was no
indication in that case whether the defendant understood that conversation or
his rights. (Id. at pp. 794-795.) Unlike
in Aguilar, appellant was
specifically advised of his right to a separate interpreter in his native
language, he had an opportunity to fully discuss the issue with his counsel,
and he personally waived that right. He
never limited that right and his counsel expressly agreed to the same procedure
at trial in appellant’s presence. Based
on the entirety of the record, we find appellant validly waived his right to a
separate interpreter at trial.
B. Any error in failing to
provide an interpreter was harmless beyond a reasonable doubt
Even if
this court were to conclude there was not a valid waiver, the error would not
require reversal. In
1005, the California Supreme Court addressed the issue of the standard of
review for a violation of a defendant’s right to an interpreter. Due to the implications of various federal
constitutional rights, as discussed above, the court adopted a
unless the court finds the error is harmless beyond a reasonable doubt. (People
v. Rodriguez, at p. 1010; Chapman v.
California (1967) 386 U.S. 18.) The
error is harmless if the appellate record does not show there was an actual
interference with the defendant’s ability to understand the trial or consult
with counsel during a critical stage of the proceeding, as demonstrated by
remarks of counsel, the court, or the defendant. (People
v. Rodriguez,
6.)
The
analysis in Rodriguez is instructive
here. There two defendants, each
requiring the assistance of an interpreter, shared a single interpreter during
a portion of the trial while a second interpreter was used to translate witness
testimony. On appeal, the defendants
argued this situation could have hampered their rights to consult with their
attorneys. Due to the close proximity of
both defendants, the risk that the other would overhear communications with his
respective attorney was increased.
Additionally, if one defendant used the sole interpreter to speak with
counsel during testimony, the other would have been deprived of a
contemporaneous translation of the proceedings.
(People v. Rodriguez,
reasonable doubt, the court noted there was nothing in the record to support a
showing that the defendants suffered an interruption of their comprehension of
the proceedings or communication with their attorneys. (Id.
at pp. 1014-1015.) Indeed, the court
explained that the proper test was to determine “whether an actual material
interference with the defendant’s right has been shown or even asserted.†(Id.
at p. 1014, fn. 6.) An evaluation of the
record as a whole is required to determine if any error occurred. (Ibid.)
Using this
standard, on the entirety of the record, it is clear that any error was
harmless beyond a reasonable doubt.
Initially, we note that appellant points to nothing specific in the
record to support his blanket assertion that he was denied “the ability to
participate in his own defense.†Rather,
appellant relies on several cases finding the denial of a separate interpreter
reversible error. Appellant’s reliance
on these cases is misplaced for two reasons.
First, each of the cases upon which appellant relies was decided prior
to People v. Rodriguez, which settled
the issue of the proper standard of review on appeal. Second, these cases are factually inapposite
to the case at bar.
Appellant
relies on People v. Menchaca (1983)
146 Cal.App.3d 1019 to support his claim of error. This case is distinguishable from
and neither spoke nor understood any English.
(Id. at p. 1021.) Furthermore, the defendant specifically moved
that separate interpreters be provided for non-English-speaking witnesses and
objected to the use of a single interpreter for himself and the witness during
trial. (Id. at pp. 1021-1022.) The
court in Menchaca took judicial
notice of the fact that witness interpreters and witnesses often speak at close
range such that one cannot assume a defendant hears and understands the
exchange in his or her native language.
(Id. at p. 1024.) Furthermore, it appears that the defense
counsel in that case had reservations about the defendant’s ability to hear the
exchange. As the court in
did not understand English, once deprived of an interpreter, was essentially
removed from the proceedings as he could not understand the testimony, the
court’s rulings, nor did he have the ability to communicate with his
counsel. (Id. at pp. 1024-1025.)
Likewise in
Negron, another case upon which
appellant relies, the defendant neither spoke nor understood English, and his
counsel spoke no Spanish. (
The defendant received no contemporaneous translation of testimony
during the trial. An interpreter was
only used to translate Spanish into English for witness testimony. The defendant received only brief summaries
of the testimony at the end of the day, depriving him of the opportunity to be
present in his own trial. The court
explained, the trial was essentially a “babble of voices†for that
defendant. (Id. at p. 388.)
distinguishable. In that case there was
evidence that the defendant in fact spoke English, however, the trial court
appointed him an interpreter for the proceedings. (People
v. Aguilar, supra, 35 Cal.3d at
p. 787.) During trial, the defendant’s
interpreter was borrowed to interpret for two prosecution witnesses. Defense counsel, without ever consulting with
the defendant, agreed to the procedure.
(Id. at p. 789.) The court found this process violated the
defendant’s right to an interpreter, and reversed the conviction
of the rights specifically affected that defendant or any discussion as to the
proper standard of review. Indeed,
two years passed before the California Supreme Court took up the issue of the
proper standard of review in People v.
Rodriguez.
These cases
are in stark contrast to this case. The
conclusion that appellant was deprived of the ability to understand the
proceedings or to confer with counsel is not supported by the record. The record is replete with references to
appellant’s English-speaking ability.
Not only did witnesses note that appellant spoke English but appellant
communicated in English to officers on the date in question. He communicated in English to the nurse
regarding his injuries, and he wrote in English on his cell wall. Appellant’s counsel conceded on various
occasions that appellant could communicate in English.
between appellant and the victim occurred in English. Appellant can hardly compare himself to the
defendants in Menchaca and
defendants spoke no English. (
Cal.App.3d at p. 1021; Negron,
“babble of voices†as the defendants in those cases. This record does not support an assumption
that appellant could not communicate with counsel during trial.
Additionally,
appellant was not placed in a situation where he could not hear and understand
the interpretation of the questions and answers as in Menchaca. Here, the court
specifically instructed the interpreter to speak loudly enough so that
appellant could hear the entire exchange.
The situation is not unlike the situation in People v. Baez (1987) 195 Cal.App.3d 1431, where the defendant was
moved to a position in the courtroom so as to facilitate his hearing of the
questions and answers in his native tongue.
The court noted that under those circumstances, the record “stronglyâ€
indicated the defendant was able to understand the proceedings. (Id.
at p. 1436.) Although the
was reversible because the defendant was physically separated from his counsel,
thereby diminishing his ability to communicate with counsel, that did not occur
in this case. Rather, arrangements were
made for the interpreter to speak loudly enough for appellant to hear while
seated next to counsel. That this
procedure was followed was evident by the fact that the defense attorney asked
that the interpreter speak up when he was having difficulty hearing. Further, because appellant spoke English, he
was not separated from his counsel during testimony and would have been able to
consult with him as needed.
name="_ftnref8" title="">[8] Indeed, this conclusion is supported by the
fact that appellant’s counsel interrupted the proceedings to question an
interpretation given by the interpreter.
After
reviewing the testimony of witnesses who used the interpreter, we find that the
context of the testimony was not such as to deprive appellant of due
process. Much of the testimony was
either peripheral to the case or, in fact, favorable to the defense. Considering the record as a whole, we are
confident that any error in allowing the sharing of the interpreter during the
testimony of the Lahu-speaking witnesses was harmless beyond a reasonable
doubt.
II. The Trial Court’s Admission
of the Photographs Was Not an Abuse of Discretion
Appellant
contends the admission of photographs of the wound to the victim’s back as well
as various photographs of the crime scene and of the pellets removed from the
victim’s body was unduly prejudicial.
The
appropriate standard of review for determining whether admission of the
photographs was error is abuse of discretion.
Unless the prejudicial effect clearly outweighs the photos’ probative
value, a trial court’s ruling under Evidence Code section 352 will not be
disturbed on appeal. (
660; People v. Allen (1986) 42 Cal.3d
1222, 1255-1256.) Using this standard,
we will address each of the challenged photographs in turn.
A. People’s exhibit 30: The fatal wound to the victim’s back
People’s
exhibit 30 depicts a large shotgun wound to the victim’s back. In determining whether this photograph was
properly admitted, the threshold question is whether it was relevant to any
material issue. (People v. Hendricks (1987) 43 Cal.3d 584, 594.) The admission of relevant autopsy photographs
is within the sound discretion of the trial court, even where they are used
cumulatively to portray injuries already detailed by an expert. (People
v. Burney (2009) 47 Cal.4th 203, 243; People
v. Wilson (1992) 3 Cal.4th 926, 938; People
v. Marsh (1985) 175 Cal.App.3d 987, 998.) Here, although appellant claims otherwise, the
admitted photograph was relevant and was not unduly prejudicial.
Initially
we note that appellant never objected to this exhibit. While it is true that appellant did object to
“pictures of the blood†and “to showing [the victim’s] face†he never
specifically objected to the autopsy photograph that was ultimately admitted as
People’s exhibit 30.
name="_ftnref10" title="">[10] Indeed, when the exhibit was actually
proffered as evidence, defense counsel expressly stated “no objection.†Failure to object to the admission of
evidence forfeits the issue on appeal.
(Evid. Code, § 353; People v.
Farnam (2002) 28 Cal.4th 107, 185; People
v. Champion (1995) 9 Cal.4th 879, 918, overruled on other grounds in
the issue, it is clear that the admission of the photograph was not an abuse of
discretion.
Secondly,
we take issue with appellant’s claim that he offered to stipulate as to the
cause of death. Nowhere in the record
does appellant offer to stipulate to any facts regarding the cause of
death. While appellant states in his
argument that the victim is deceased and everyone is “going to testify how she
died†and that “she was shot,†this is a far cry from a stipulation to that
effect. In fact, the only stipulation
proffered in this case came well after testimony related to cause of
death. The stipulation related to the
identity of the victim as being the same person that was found at the scene and
autopsied by the doctor. As we shall
explain below, even if defense counsel’s statements could be taken as an offer
to stipulate to the cause of death, the photograph would still be relevant and
admissible on the issue of malice.
Appellant
relies on a line of cases beginning with People
v. Ramos (1982) 30 Cal.3d 553
name="_ftnref11" title="">[11] for the proposition that “when the defendant
offers to stipulate to the identity of the deceased and the fact that he or she
was alive, any photograph of the deceased was irrelevant and must be excluded.†Appellant misstates the holdings of these
cases.
It is true
that in Ramos, the California Supreme
Court held that introduction of a photograph of a murder victim,
stipulated that the victim was a human being and had been alive prior to the
offense. (People v. Ramos, supra,
30 Cal.3d at pp. 577-578.) This is
because admitting a photograph under such circumstances would serve no purpose
other than to prejudice the jury in favor of the victim. Simply put, it would not be relevant to any
contested issue in the case. (
However,
the challenged photograph here is not a photograph taken of the victim while
living. Rather, the photograph was taken
during the autopsy of the victim and depicted the fatal wound. Despite appellant’s claims to the contrary,
the photograph was relevant to a contested issue in the case, namely malice and
intent to kill.
title="">[12] (People
v. Booker (2011) 51 Cal.4th 141, 170-171 [autopsy photographs relevant to
demonstrate defendant committed murder]; People
v. Farnam, supra, 28 Cal.4th at
p. 185 [photographs regarding a victim’s wounds are relevant to issue of
malice].) Appellant was charged with first
degree murder, which requires an element of malice. (§ 187, subd. (a).) This was a hotly contested issue at trial,
with appellant claiming he had no intent to commit the crime and that the
shooting was accidental. Here the
photograph depicted the wound as high on the victim’s back between her shoulder
blades and could reasonably be used to demonstrate that the shooting was not
accidental. (People v. Booker, supra,
at pp. 170-171; People v. Carrera
(1989) 49 Cal.3d 291, 328-329 [admission of 25 photographs of homicide victim
and crime scene, including enlargements to life-size and larger than life-size,
was not abuse of discretion where photographs “helped to clarify the testimony
of the medical expertâ€].)
Further,
the photograph was taken during the autopsy and simply depicts the wound. While photographs of a murder victim can
certainly be repugnant and disturbing, there was nothing so gruesome about this
photograph to potentially evoke any prejudice against appellant. (People
v. Burney, supra, 47 Cal.4th at
p. 243.) No abuse of discretion in
admitting the photograph has been shown.
B. People’s exhibits 10, 18,
and 19: Crime scene photographs
depicting blood
Appellant
contends the photographs of the crime scene containing blood stains were also unduly
prejudicial and lacking in any probative value.
He again bases this contention on the erroneous presumption that he had
“stipulated to the manner the deceased was killed.†Even if appellant had entered into or offered
such a stipulation, it would not affect the relevance of these photographs.
Exhibit 10
depicted the front door of the residence, a blood pool indicating where the
victim was killed, and a hole in the wall from a shotgun blast. Exhibit 18 depicted much of the same scene
from a further distance, and also encompassed some of the sofa where the victim
and witnesses had been seated prior to the shooting. Exhibit 19 depicted a portion of the kitchen
and hallway, another blood pool, numerous live shotgun shells and one spent
shotgun shell, and the location of the two shotguns at issue. Each of these photographs provided relevant
evidence for the jury to consider.
Exhibits 10 and 18 provided the jury with the location of the victim
when she was shot. In addition, these
photographs showed the location of the shot pellets in the wall from one of the
shotgun blasts as well as the sofa where the victim had been sitting prior to
the shooting. Exhibit 19 showed the
kitchen area where appellant fought with his family members, the location of
the shotguns, and the numerous live rounds of ammunition that were found at the
scene.
issues in the case, their admission did not constitute an abuse of
discretion. Likewise, upon review of the
photographs, it is clear that they were not of a nature to evoke an emotional
response so as to impermissibly sway the jury.
(People v. Loker (2008) 44
Cal.4th 691, 705.) We find no error.
C. People’s exhibits 32 and
33: Photographs depicting the pellets
and wadding removed from the victim’s back
Lastly,
appellant seems to object to the photographs depicting the pellets and wadding
removed from the victim’s back. We
decline to reach this issue as there was never any objection to these
photographs at trial. (Evid. Code,
§ 353; People v. Farnam,
Appellant has not provided a citation to any objection to these on the
record. Nor has this court found any
objection to the photographs of the pellets and wadding that were removed from
the victim’s body. Indeed, when the
photographs were offered at trial, appellant affirmatively stated he had no
objection to their admission. Nor has
appellant proffered any argument why these innocuous pictures of pellets and
wadding were either irrelevant or overly prejudicial. We decline to consider the issue on appeal.
III. Appellant’s Statements Were
Properly Admitted
Appellant
contends his statement to Nurse Mena was improperly admitted because the
statement could not reasonably be understood as an admission that he intended
to shoot and kill the victim. We
disagree.
At trial,
Nurse Mena testified that she treated appellant for his injuries shortly after
the shooting. While assessing him, she
asked appellant how he received his injuries.
He responded that he had been beaten up by his family and that he had
told the victim to leave. He stated she
did not want to leave and he had retrieved his gun. Nurse Mena could not recall the exact words
appellant used to describe what happened but at one point recalled appellant
stating, “‘I just shot.’â€
Officer
O’Rafferty testified that he was present during the conversation between Nurse
Mena and appellant. O’Rafferty took
verbatim notes of appellant’s statements.
He testified he heard appellant say he told his wife to go to bed but
she refused and “she had called the cops three times to have him arrested. And he said that he told her if they come, I
will shoot, and that he didn’t know who he had shot, but he just shot.â€
Appellant
objected to the statements on hearsay grounds prior to their admission.
grounds in People v. Green (1980) 27
Cal.3d 1, 39, footnote 25, he now claims the statements were improperly
admitted as implied statements of guilt.
Allen has no application to
this case. In Allen, the defendant was charged with grand theft of certain items
of jewelry. During the trial, the
prosecution sought to introduce evidence that the defendant told the deputy
sheriff that he had some good “connections,†that he could find out where the
stolen jewelry was if one attempted to sell it, and that he would and did make
a phone call to inform others that if the stolen jewelry at issue in that case
was discovered, he wanted to be informed.
(People v. Allen,
In finding
the statement was inadmissible, the court explained the statement was not
relevant to any issue in the case. This
was because the statement was not being offered for its express meaning—that he
knew people who could find stolen property—but for an implied statement that he
had stolen the victim’s jewelry. (
The court held that an “implied statement may be inferred from an
express statement whenever it is reasonable to conclude: (1) that declarant in fact intended to make such implied statement, or (2) that a
recipient of declarant’s express statement would reasonably believe that declarant intended by his express statement
to make the implied statement.†(
court found that the inference sought by the prosecution was speculative at
best, thereby not meeting the threshold requirement of relevancy as it had no
“tendency in reason†to prove a fact of consequence.
v. Allen, at p. 434; see Evid. Code, § 210.)
There is no
issue of any implied statement in the case at bar. The statement which was introduced was used
for its express meaning; namely, that appellant had told the victim that if the
police came to the home, he would shoot.
The statement is not similar to the statement in Allen, which “involved a statement, clear on its face, to which the
prosecution sought to ascribe a different, inculpatory meaning not directly
inferable therefrom.†(
1035.) There was simply no other implied
meaning from the statement. Rather, the
inference sought was that appellant intended to shoot the victim. Appellant’s statement was used in this case
as circumstantial evidence of his intent to kill. Such an inference was eminently reasonable
from appellant’s express words and was undoubtedly relevant on the issue of
appellant’s intent at the time of the shooting.
(People v. Hovarter (2008) 44
Cal.4th 983, 1009-1010 [defendant’s statement to rape victim that he “knew what
he was doing†provided inference he had committed similar crimes and was
relevant to show state of mind].) We
conclude the statement was relevant and admissible in these proceedings.
DISPOSITION
The
judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
WISEMAN, Acting P.J.
________________________________
KANE, J.
name="_ftn1" title="">[1]All
further references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2]Due
to the large number of witnesses with the same last name, we will refer to
witnesses by their first names in this opinion.
No disrespect is intended.
