P. v. Shute

Filed 10/9/08 P. v. Shute CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed with directions.

Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, Deputy Attorney General, and Jennifer A. Jadovitz, Deputy Attorney General, for Plaintiff and Respondent

A jury convicted defendant Kim Shute of the murder of his boyfriend, Stephan Mihalko, and also found true an allegation that he had sustained a prior strike conviction for residential burglary. (Pen. Code, 187, subd. (a), 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) In a bifurcated proceeding, the trial court denied defendants motion to dismiss the prior strike and imposed a prison sentence of 50 years to life.

Defendant contends there is insufficient evidence of premeditation and deliberation to support the first degree murder conviction.^[1] Further, he contends the court erred by (1) admitting evidence to establish his propensity for domestic violence; (2) refusing to limit the repetitive and cumulative nature of the proffered domestic violence testimony; (3) excluding certain evidence and thereby depriving him of his right to present a defense; (4) instructing the jury that requests for readbacks of testimony would be viewed with disfavor; (5) refusing to instruct the jury on causation; and (6) denying his motion to dismiss the prior strike conviction. None of these contentions have merit. Defendant is correct, however, and the People concede, that the abstract of judgment and sentencing minute order reflect an incorrect sentence and that modification is required to reflect the actual sentence pronounced.

FACTUAL AND PROCEDURAL BACKGROUND

At the time Mihalko was killed, he and defendant had been involved in an on-again-off-again dating relationship for approximately 18 months. The two lived together in a rental house located on Laurel Circle in Palm Springs. Mihalko was employed as a flight attendant and defendant worked as a server in a restaurant.

On July 4, 2001, defendant and Mihalko dined at a Rancho Mirage restaurant; defendant consumed two alcoholic beverages, Mihalko consumed one. At approximately 11:00 p.m., they went to a neighborhood establishment known as Street Bar, where they engaged in an argument. They attended this bar once or twice a week, either together or apart, and on at least one prior occasion had been seen arguing with each other. At one point, defendant walked outside to smoke a cigarette, while Mihalko remained inside. After approximately an hour, they left together. They each had consumed two or three drinks, but neither appeared to be intoxicated.

Late the following morning, Ron Hall went to the Laurel Circle home to deliver Mihalkos mail.^[2] After ringing the bell twice and getting no answer, Hall was just about ready to leave when defendant came to the door. Defendant appeared to be Hung-over and Tired looking, but had no noticeable injuries.

Hall had lived with defendant for about six months in 1996, and during that time defendant introduced him to Mihalko. Later, defendant moved in with Mihalko, and Hall spent time with both of them. Several months before his death, Mihalko called Hall to say that his belongings had been moved out of the Laurel Circle house onto the driveway. Hall helped Mihalko gather his belongings and took him to his house. By the following day, Mihalko had moved back in with defendant. On a later occasion, Mihalko moved in with Hall for a few months, after which he again went back to defendant.

On July 5, 2001, about 5:30 p.m., Gary Mattson received a phone call from defendant, with whom he had not spoken in five or six months. Defendant told Mattson that he and Mihalko had fought the previous day; Mihalko wanted to buy a car, while defendant wanted to pay bills. They fought until approximately 1:00 a.m., after which Mihalko left the house. According to defendant, Mihalko could not have gone far as his overnight bags were still at the front door. Defendant was breathing heavily while he spoke and sounded upset, complaining that Mihalko had taken the truck and that he (defendant) therefore would have to ride his bicycle to work. Before then, defendant had never told Mattson of any fights or disagreements with Mihalko.

On July 6, 2001, defendant telephoned John Schutz, a coworker. Crying and hysterical, defendant told Schutz he had just learned that Mihalko was dead and that the police thought he (defendant) had killed him. Defendant said that he and Mihalko had had a fight the night of July 4th, that he had gone to sleep, and that when he awoke Mihalko was gone. Defendant had previously told Schutz that he and Mihalko had an argument and were breaking up. Another time, defendant said they had broken up, and although he did not want to get back with Mihalko, Mihalko would not leave him alone and would not take no for an answer.

Early in the afternoon on July 5, 2001, Mihalkos body was found inside a truck^[3]parked at Whitewater Canyon, a locale reputed to be a cruising area for Gay men. Around noon that day, an anonymous telephone call was made to the Palm Springs Police Department, which then contacted the appropriate agency covering that area. Shortly thereafter, several officers went to the designated location, where they discovered Mihalkos body. Mihalkos cell phone was found inside the truck. A key to the truck was later found at the Laurel Circle house.

About 2:30 p.m., Sergeant Curtis James, a deputy coroner, responded to the Whitewater Canyon scene. Mihalko was face down in the rear of the truck. He was not wearing his right shoe; his shirt was pulled up exposing his rib cage; three or four linear type abrasions or lacerations appeared on his rib cage area, just under his right armpit; a bruise and possibly an abrasion were located on his left elbow; an injury appeared on his back; two abrasions or puncture wounds appeared on his right arm; deep bruising appeared on his right wrist; and he had blood on his hands. A bruise on his forehead was consistent with blunt force trauma. There was also blood on his face, and one of his eyes and his nose were bruised and swollen; these injuries were consistent with having been hit in the face.

Upon his arrival, Sergeant James saw blood dripping from the back of the truck. About 10:00 p.m., when James first gained access to the truck, the body was still oozing blood. There was a significant amount of blood along the bed liner and within the rails of the truck . . . . [] . . . [] It appeared to come from . . . the nose and the mouth. When they rolled him over, there was still some oozing blood from his nose and mouth. The trail of blood in the bed of the truck led to his face. Sergeant James was unable to determine the time of death at that time; however, it was not his job to determine the cause or the time of death. In response to an inquiry as to whether an individual who is bleeding at the time of death stops bleeding thereafter, Sergeant James said: Well, there is still some residual blood flow that can be a result of gravitational pull. . . . [] Also, after death there is some postmortem oozing that can occur . . . as well as purging of liquids, like blood and those kinds of things, from the mouth or the nose.

On cross-examination, Sergeant James said it was possible that Mihalko was injured before he was dressed, based on the location of the blood stains on his clothing, and that he continued to bleed while he got dressed; however, Sergeant James would have expected to see much more blood on Mihalkos skin than what was there. He acknowledged that an individual eventually stops bleeding after death. Based on the amount of blood in the truck, he opined that Mihalko was still bleeding when [he was] in the bed of the truck. The oozing is a more gradual, slower process that occurs. The blood in the truck was more consistent with active bleeding prior to death.

Dr. Mark Fajardo, the pathologist who conducted Mihalkos autopsy, testified that he had noticed extensive large bruising to the chest area, and contusions on his biceps, some of which looked like hand prints. He said this was common when someone has manipulated anothers arms. Mihalko also had an injury to his abdomen caused by physical contact with a person or an object, as well as abrasions on his right and left elbows and left shoulder. Dr. Fajardo described other abrasions and contusions and hemorrhages to both eyes, injuries which he said are common in cases of manual strangulation. Based upon these injuries, the pathologist concluded Mihalko died from asphyxia due to compression of the neckthat he was strangled to death. The force applied to the neck was not necessarily with the hand; the compression could also have been caused by a palm of a hand, a forearm, a foot, or a knee.

In his opinion, Mihalko died while in the back of the truck. He explained that in light of the extensive amount of blood in that part of the truck, which could only have been produced by a beating heart, Mihalko had to have been alive for some period of time before he was strangled. It was Dr. Fajardos opinion that given the amount of blood that we have here, the death would have had to have occurred in the truck, primarily because this is too much blood for one to expect to incur just as a result of one little tiny cut to the forehead and then little cuts to the lips. Hes got lots of bruising, but you dont really bleed externally from a bruise. So we have a little tiny cut to the forehead and some cuts to the lips. There is a lot of blood there. To me, thats saying that there had to be a beating heart to produce this particular amount of blood. So ultimately he is alive for some period of time while he is in the back of the truck. He explained that a beating heart allows the blood to flow faster and escape the body, whether it be through the head, the mouth, or the nose. Mihalko would have had to be alive while in the back of the truck for a period of time, although Dr. Fajardo was unable to estimate the length of time. Nor could he say whether or not Mihalko was conscious. He opined that if Mihalko had been bleeding from the face, placed into the truck, and traveled approximately 20 miles to the location where he was strangled, that would have been enough time, i.e., approximately 20 minutes, to develop this amount of blood in the truck.

Dr. Fajardo further testified that Mihalko had a blood alcohol level of .34 percent at the time of collection on July 10. He agreed that after a person dies, the bodys bacterias develop certain alcohol. He concluded that Mihalko would have had an elevated alcohol content if he were to have died on July 4 or 5.

According to Dr. Fajardo, Mihalko had gamma hydroxybutyrate (GHB) in his system; his urine contained 14 milligrams per liter and his blood contained 88 milligrams per liter. According to Dr. Fajardo, these findings are low enough not to have contributed to the cause of death. He added that the body produces GHB after death, but he was unable to say how that occurs. He was not a toxicologist and thus did not know the significance of that level in a dead body, just that it did not contribute to Mihalkos cause of death.

Toxicologist Maureen Black testified that alcohol levels can increase after death because of postmortem changes that occur. Sometimes this is due to decomposition, sometimes due to trauma. She had also tested for GHB, which is a central nervous system depressant found naturally in human tissue. These levels can also change after death. Testing urine is more reliable than blood. Finding GHB in the blood of a deceased person after five days is of no use in determining if it was taken orally or if the body produced it. Here, the amount of GHB was significantly less in the urine. Based upon her test results, she had determined that the presence of GHB in Mihalkos blood and urine were insignificant and did not contribute to his death. Noting that GHB is naturally stored in body tissue and released into the bloodstream after death, she concluded there was no evidence that he had ingested GHB prior to death.

Pursuant to a warrant executed about 10:00 p.m. on July 6, 2001, the Laurel Circle house was searched. Blood was found in numerous areas and on numerous items inside the house, including: A Persian rug; a door handle leading into the main entryway; the handle bar of a bicycle; the floor next to a couch in the master bedroom; an area next to some closet doors; the door inside a bathroom; a bedspread and sheets; a pair of underwear; towels from the master bedroom and master bathroom; the master bedroom door; a couch; a door handle in the master bedroom; a white polo shirt; a doormat; a metal threshold plate; and a piece of off-white carpeting.

Blood found on the bedspread, towel, polo shirt, doormat, metal threshold plate, off-white carpeting, and rug sample matched Mihalkos DNA profile. Stains found on the drivers side of the truck and the gas tank matched defendants DNA profile. In the opinion of criminalist Mey Tann, the blood spatter on the polo shirt found on the couch in the master bedroom was not consistent with someone walking by with a bloody nose,^[4]but rather, was consistent with an individual having his or her face beaten in, whether its the person wearing the shirt or [the shirt] is sitting on the couch.

During the search, several persons detected the odor of bleach. An area of carpet was discolored and emitted the strong smell of bleach, and it appeared as if the area had been cleaned with something that would have whitened it. Other areas of the carpet were darkened, indicating the possible presence of blood. Two empty bleach bottles were found inside a trash can outside the house and in the kitchen was a container that was a quarter full.

Testifying on behalf of the defense were Carmin Shute (defendants mother), and Marlon Chevoya, an acquaintance of both defendant and Mihalko. While cleaning the Laurel Circle house, Carmen Shute located within a medicine cabinet nosebleed medication belonging to Mihalko,^[5]which she then discarded. She had never seen Mihalko with a nosebleed. After Mihalkos death, defendant told her that Mihalko suffered from nosebleeds.

Chevoya testified that at approximately 2:00 a.m. on July 5, 2001, he was at Whitewater Canyon when he saw Mihalko drive up in a small pickup truck. They exchanged a few words, after which Mihalko went back into the canyon area. Chevoya testified that he told Hall and Don Kane that he had seen Mihalko at Whitewater Canyon. Hall denied that Chevoya ever told him he had seen Mihalko the night he was murdered. Kane denied even knowing Chevoya.

Defendants motion for new trial, alleging insufficient evidence to support a first degree murder conviction and prejudice stemming from the courts exclusion of certain proposed defense witnesses, was denied. At sentencing, the court denied defendants motion to dismiss his prior strike conviction and imposed a prison sentence of 50 years to life.

DISCUSSION

A. Defendants first degree murder conviction was supported by substantial evidence.

Defendant maintains there was insufficient evidence of premeditation and deliberation to support his conviction for first degree murder. A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. [Citations.] The process of premeditation . . . does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . [Citations.] [Citation.] (People v. Halvorsen (2007) 42 Cal.4th 379, 419 (Halvorsen).)

In reviewing a criminal conviction challenged as lacking evidentiary support, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] [Citation.] [Citations.] An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citation.] [Citation.] (Halvorsen, supra, 42 Cal.4th at p. 419.)

In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our high court developed guidelines to aid reviewing courts in assessing the sufficiency of evidence to sustain findings of premeditation and deliberation. Describing three categories of evidence, i.e., planning, motive, and manner of killing, the Anderson court stated: Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of [planning] or evidence of [motive] in conjunction with [evidence of] either [planning] or [manner of killing]. (Id. at p. 27.) Since Anderson, [the Supreme Court has] emphasized that its guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight. [Citations.] (Halvorsen, supra, 42 Cal.4th at p. 420.)

Where, as here, the People rely primarily on circumstantial evidence, the standard of review is the same. (People v. Thomas (1992) 2 Cal.4th 489, 514.) Circumstantial evidence has been defined as that which is applied to the principal fact, indirectly, or through the medium of other facts, from which the principal fact is inferred. The characteristics of circumstantial evidence, as distinguished from that which is direct, are, first, the existence and presentation of one or more evidentiary facts; and, second, a process of inference, by which these facts are so connected with the fact sought, as to tend to produce a persuasion of its truth. [Citation.] (People v. Goldstein (1956) 139 Cal.App.2d 146, 152-153.)^[6] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] [Citation.] Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. [Citations.] (People v. Thomas, supra, 2 Cal.4th at p. 514.)

In the instant case, the jury was instructed, in accordance with CALCRIM No. 521: Defendant is guilty of first-degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice, and knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused the death. [] The length of time that a person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. Or on the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of reflection, not the length of time. [] All other murders are murders of the second degree. [] The People have the burden of proving beyond a reasonable doubt that the killing was first-degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first-degree murder.

Applying the foregoing principles, we reject defendants contention that Mihalko was killed in the heat of passion, after which an attempt was made to conceal the crime, with no indication of the careful thought and weighing of considerations that constitutes premeditation and deliberation. Although proof that a killing occurred suddenly in the course of an argument and struggle does not translate to a deliberate and premeditated murder (People v. Velasquez (1980) 26 Cal.3d 425, 435-436), defendants theory is simply not viable, as we shall explain, in light of the substantial evidence that Mihalko was killed while inside the truck.

Defendant first contends the facts related to his behavior before the incident do not show planning. He acknowledges the existence of evidence of attempts to clean up blood at the Laurel Circle house, but maintains that this is indicative of behavior after the incident and does not establish the element of planning. Had Mihalko been killed inside the Laurel Circle house, perhaps defendants argument would have merit. His position regarding lack of planning ignores the evidence, as discussed below, that defendant, after dragging a bruised and injured Mihalko into the truck, transported him to the Whitewater Canyon site, where he then strangled him. As the prosecutor asserted during closing argument, defendant and Mihalko may have been arguing. That may have been the source of the initiation of the beating. But it went beyond that. And it went way beyond that. It went to [defendant] deciding, Im going to clean up the bloody mess I now have made not only on the body of Stephan Mihalko but throughout the master bedroom. How am I going to save myself? Now Im going to have [to] kill him, and Im going to have to dump the body and make it look like somebody else did it. Accordingly, the evidence suggests that the planning took place after the beating inside the house.

As for Andersons second factor, defendant makes much of the fact the prosecution relied upon his relationship with Mihalko, from which a motive could be inferred. He contends this purported pattern of one-sided domestic violence presented and argued by the prosecution appears more gossamer than substantive. Challenging the sufficiency of the evidence to support a history of domestic violence with defendant as the abuser and Mihalko as the abused, defendant attempts to demonstrate that, because the domestic violence was not necessarily one-sided, he did not necessarily have a motive to kill Mihalko. In other words, even if there was domestic violence, it was sometimes initiated by Mihalko, and in any event, testimony from various witnesses as to injuries sustained by Mihalko was repetitive and likely described the same injury. Further, in an effort to minimize the violent nature of their relationship, he maintains there is only one documented incident of domestic violence, and in that situation he was the one who called the police.

Notwithstanding the existence of an ongoing abusive relationship between defendant and Mihalko, there is ample evidence upon which a reasonable trier of fact could conclude that defendant, having severely beaten Mihalko following their return home after their night out, took decisive steps to take Mihalko to Whitewater Canyon with the intention of making it look as if someone else had done the deed. In this regard, the jury could reasonably have found a plausible motive for the murder in defendants need to cover up the beating.^[7] Accordingly, as we shall discuss later in this opinion, even if the court erred in refusing to limit the admission of domestic violence evidence, the error was harmless.

Finally, we disagree with defendants contention the manner of killingbeating followed by asphyxiationsupports its spontaneous nature. To the contrary, this manner of killing evidences a calculated plan of moving Mihalko from the house to the truck and taking him to Whitewater Canyon, where defendant strangled him to make it look as if someone else had killed him. Substantial evidence supports this theory.

Defendant challenges the conclusion that Mihalko was still alive while inside the truck. He maintains that because blood was still oozing from Mihalkos body 16 hours after the truck was first seen (and thus more than 16 hours after death), it is possible that Mihalko was beaten to death inside the house before being placed in the truck. He infers thatthe evidence could establish that the dispute which started at Street Bar continued at home, after which defendant strangled Mihalko and then drove the body to Whitewater Canyon. In taking this position, defendant overlooks the standard we apply in reviewing this matter. There is substantial evidence that the amount of blood in the truck indicated that Mihalko was still alive when placed inside the truck; that blood was still oozing as many as 16 hours after death does not alter that fact. Moreover, evidence was presented that oozing is much, much slower, inferring that it is unlikely that the amount of blood could have come from oozing after death. Although it is certainly possible, our review is limited to a determination of whether there is substantial evidence to support the jurys verdict. We conclude that there is.

In light of the foregoing, we are satisfied that the evidence reasonably justified the jurys conclusion that defendant killed Mihalko as a result of preexisting reflection rather than rash impulse. Indeed, even if Mihalkos beating while inside the couples residence was an impulsive act, it simply cannot be ignored that what defendant did after the beating takes the case out of that category.

B The trial court properly instructed the jury that it had the right to have testimony read back during their deliberations.

Pursuant to [Penal Code] section 1138, the jury has a right to rehear testimony and instructions on request during its deliberations. [Citations.] Although the primary concern of [Penal Code] section 1138 is the jurys right to be apprised of the evidence, a violation of the statutory mandate implicates a defendants right to a fair trial conducted substantially [in] accord[ance with] law. [Citations.] (People v. Frye (1998) 18 Cal.4th 894, 1007.)

In the instant case, shortly after the jury panel was sworn, the court imparted to the jurors the importance of taking notes, particularly in a lengthy case. Said the court: We have all learned from being students and just going about our everyday lives that if we were to jot something down, we would remember it much easier. Or some kind of notation would refresh our memory as to what the topic was that we wanted to remember. . . . [] So note-taking is an important matter for a juror, particularly in a more lengthy case than not, obviously. Information coming to you early on, you may have a hazy memory of it later on when you come to the conclusion of the case. [] So note-taking is a very good thing for jurors to do. Youre absolutely not obligated, though, as a juror to take any notes at all. You do not have to. But it is a good thing.

The court then went on to say that the role of a court reporter is to create a verbatim record of everything that is said during the proceedings and that the jurors, during deliberations, have a right to have that testimony read back if they run into any difficulty as to what may have been said. The court further stated that, although the jurors have that rightI frown on that request from jurors. The court explained that asking for a readback creates an interruption in the proceedings in which the court may otherwise be engaged at that time. In other words, everyone stops what they are doing and a procedure must be followed whereby the reporter transcribes his or her notes to read back to the jury, which takes some time. So were here to help. And you have that right. But if I tell you now the importance of you taking your own notes in the notebook as you hear the evidence come forward, maybe we can avoid this reading of testimony later.

Pointing to the foregoing discourse, defendant contends the jurors were discouraged from asking to have testimony read back. He argues the courts remarks coerced the jury, preventing it from exercising its right to readback by showing judicial disapproval of any such desire on the part of jurors, thereby impacting his right to a unanimous verdict based on each jurors individual assessment of the evidence. He further argues, The court made it crystal clear that it did not approve of readback requests and would not take kindly to any such requests disrupting the important work of the court and its staff. As we shall explain, the contention lacks merit.

At the outset, defendant acknowledges that defense counsel did not object to the trial courts remarks at the time they were made, but maintains that no objection is required to preserve the issue for appeal. Defendant is correct. As our high court stated in People v. Hillhouse (2002) 27 Cal.4th 469 (Hillhouse), Even without an objection, a defendant may challenge on appeal an instruction that affects the substantial rights of the defendant . . . . [Citation.] Although the readback of testimony is primarily for the jurys benefit, it also implicates the defendants (and prosecutions) rights. [Citation.] (Id. at pp. 505-506.) Accordingly, defendant may raise this issue despite his failure to object below.

Turning to the merits, the jurors were expressly instructed that at the conclusion of trial they could, if necessary, ask for a readback.^[8] For this reason, it seems to us that the courts reason for making its remarks was to motivate the jurors to take notes, not to dissuade them from requesting a readback. Indeed, the court expressly informed the jury about readbacks on the heels of its communication regarding the taking of notes.

And while the court suggested that taking notes might help the jurors to refresh their memories later as to what they wanted to remember, and that taking notes might obviate the need to ask for readback, the fact remains that it made clear to the jury that if it needed a readback, the request would be accommodated. Indeed, just before the jurors began their deliberations, the court clearly informed them that, in case of a disagreement, they should ask for readbacks and rely on the testimony rather than their notes. We would be hard pressed to find that the courts words had the effect of discouraging jurors from requesting readbacks. The courts opening remarks about taking notes appear to be derived in part from CALCRIM No. 202, which states: You have been given notebooks and may have taken notes during the trial. Please do not remove your notes from the jury room. You may use your notes during deliberations only to remind yourself of what happened during the trial. But remember, your notes may be inaccurate or incomplete. If there is a disagreement about what actually happened at trial, you may ask the court reporter to read back the relevant parts of the testimony to assist you. It is the testimony that must guide your deliberations, not your notes.

We reject defendants contention the court told the jury in stern terms that it disapproved of, and did not want, the jury asking to re-hear testimony. The court did not disapprove of such a request; it merely stated the obviousthat readbacks involved delay and could disrupt other court proceedings. And while the court did say that it frowned on such requests because of the time involved, it never indicated that such requests would not be honored. Indeed, as stated in Hillhouse, supra, 27 Cal.4th at page 506, the court made clear it would provide any requested rereading of material testimony. Merely informing the jury of the time it may take for rehearing testimony is not impermissible jury coercion. There was no error.

C. Evidence of defendants prior acts of domestic violence was admissible to show intent and motive; to the extent the evidence was cumulative and thus should not have been admitted on that basis, the error was harmless.

At trial, over a defense objection, the prosecution introduced evidence of the relationship between defendant and Mihalko, including incidents of domestic violence. The prosecution also presented testimony from licensed forensic psychologist Jody Ward with regard to the concept of battered persons syndrome in same-sex relationships. The court had agreed with defense counsel that the evidence might well be cumulative, but instructed counsel to make an objection whenever she deemed one was appropriate, and in turn, the prosecution would be required to make an election as to which witnesses to call. After further discussion, the court ruled that the prosecution could present evidence as to observations made of Mihalkos injuries under Evidence Code^[9]section 1101, subdivision (b), and section 1109, but that any statements made by Mihalko were hearsay. Thereafter, the following testimony was adduced: Mattson testified that he recalled he once saw Mihalko with a black eye covered by makeup. Herman Skip Sahota testified that after Mihalko and defendant began dating, he saw injuries on Mihalko, including marks on his neck, cuts on his lips, a black eye, and scrapes and bruises on his arm. In April 2001 he again saw injuries on Mihalko, including a black eye and bruised neck. He had not seen any injuries on Mihalko before Mihalko and defendant began dating. Three or four months before Mihalkos death, Hall noticed that Mihalko had a black eye. Another witness, James Dillon, had known Mihalko for about six years, and two or three weeks before Mihalkos death, he saw Mihalko had a large bruise on his right upper arm and slight discoloration to his right eye, which he described as a fading bruise. At that time, he knew Mihalko and defendant to be a couple. Joann Lynch, Mihalkos coworker, testified that in late 1999 or early 2000, she had observed Mihalko with a black eye and bruises on his chest. Mihalko told her that he had been mugged while in New York.

Finally, evidence was presented that in January 2001 defendant placed a 911 call and then hung up. When two officers responded to his home, defendant told them he had made a mistake. However, one of the officers noticed a scratch on defendants back, as if he had been involved in a struggle. While the officer was talking to defendant, Mihalko ran out the front door with a bloody nose, stating that defendant had punched him in the nose. Defendant admitted that he hit Mihalko because Mihalko had scratched him. Although neither man wished to press charges, both were arrested for domestic violence.

Defendant challenges the admission of this evidence on two grounds. His first contention, that use of domestic violence evidence violated his right to due process in that it permitted the jury to find he was likely to commit the murder because he had a propensity for domestic violence, has been rejected time and time again by numerous appellate courts, including this one. In People v. Hoover (2000) 77 Cal.App.4th 1020 (Hoover), we adopted the California Supreme Courts reasoning in People v. Falsetta(1999) 21 Cal.4th 903 (Falsetta ), which addressed the constitutionality of a similar statutory provision, section 1108, concerning evidence of prior sex offenses. (Hoover, at pp. 1026-1027.) We held thatdespite the general rule against the use of evidence of a defendants propensity to commit crimesthe Legislatures intent to permit such evidence in certain limited and compelling circumstances, and a trial courts application of section 352 to safeguard a defendants right to a fair trial, supported the conclusion that section 1109 did not violate the due process clause. (Hoover, at pp. 1027-1028.) Other appellate courts have arrived at the same conclusion. (See People v. Cabrera (2007) 152 Cal.App.4th 695 (Cabrera), and cases cited therein.) We decline defendants invitation to reconsider Hoover. We agree with Hoover and Falsetta and with their progeny. Historical and contemporary precedents do not lead us to conclude that the jurys consideration of any prior instances of domestic violence violated defendants fundamental constitutional rights on the issue of his guilt. Like the other courts which have considered the issue, we too reject [defendants] due process argument. As the court in Falsetta held, admission of propensity evidence is not unfair so long as the trial court is required to balance the probative value of the evidence against its prejudicial impact under Evidence Code section 352. (Cabrera, at p. 704.)

Next, pointing to the testimony described above, defendant contends the evidence was unduly prejudicial under section 352 as it was cumulative and confusing to the jury, particularly as to the actual number of domestic violence incidents, based on the actual number of individual injuries. In essence, he argues that in the absence of a clear time frame as to when Mihalkos injuries were actually observed by the witnesses, it is possible that the testimony was, to some extent, duplicative. He argues: Once the existence of an injury, for example, a black eye, was established, the probative value of the next friend or acquaintances testimony about observing the same black eye was lessened, and the prejudice increased. Thus the evidence of each ensuing witness became less and less probative as it became more and more repetitive of the same event.

A trial court has discretion to admit evidence of crimes committed by a defendant other than the ones charged, if such evidence is relevant to prove some fact at issue, and if the probative value of the evidence outweighs its prejudicial effect. ( 352, 1101, subd. (b).) The uncharged acts of domestic violence were admissible under section 1109. (Hoover, supra, 77 Cal.App.4th at pp. 1028-1029.) Section 1109, subdivision (a), provides that in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1011 if the evidence is not inadmissible pursuant to Section 352. A trial courts ruling on admissibility is reviewed for abuse of discretion. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1103.) The trial courts ruling must not be disturbed on appeal except on a showing it exercised its discretion in an arbitrary, capricious or patently absurd manner, resulting in a miscarriage of justice. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)

Even before the enactment of section 1109, case law held that an uncharged act of domestic violence committed by the same perpetrator against the same victim was admissible. (People v. Zack (1986) 184 Cal.App.3d 409, 415.) Thus, it was permissible for the People to present evidence of prior acts of domestic violence between defendant and Mihalko.

In this regard, the jury was instructed that, if the People had proved that defendant did in fact commit the uncharged offenses, it could consider that evidence for the limited purpose of determining whether he acted with the requisite intent to kill Mihalko. The jury was also instructed that, if it decided defendant had committed the uncharged domestic violence, it could conclude from that evidence that defendant was disposed or inclined to commit domestic violence and that he was likely to commit murder or a lesser crime as charged here; however, that conclusion would be insufficient by itself to prove that defendant was guilty of murder or a lesser offense, as the People would still be required to prove each element of every charge beyond a reasonable doubt.

Defendant contends he was prejudiced by the admission of this evidence in that it is reasonably probable the error affected the outcome, citing People v. Watson (1956) 46 Cal.2d 818 (Watson). He argues the jury may have punished him now, unfairly, for the uncharged conduct for which he was never before prosecuted; or for an escalating series of events, when in fact the evidence was only of one or two incidents. The jury may also have viewed him as a serial abuser whose abuse was escalating. Defendant maintains that the court should have sorted this out, but failed to do so. Thus, because the domestic violence was central to the prosecutions case and the prosecution substantially utilized it in closing argument, including an assertion that it was in fact the domestic violence that led to Mihalkos death, he argues the jury no doubt considered the evidence as being very important.

While defendant fairly depicts the prosecutions use of domestic violence evidence at trial, we need not belabor the issue. To the extent the testimony was cumulative and perhaps confusing, it is not reasonably probable that the outcome would have been different had the evidence been excluded. Indeed, there was ample evidence upon which the jury could determine that defendant intended to and did kill Mihalko.

That Mihalko was brutally beaten inside the Laurel Circle residence he shared with defendant is evident from the blood matching his DNA profile, which was found throughout the house. Evidence that bleach had been used shortly before the house was searched, as indicated by its strong odor, demonstrated that efforts had been made to eradicate the blood stains. Outside in the trash can were empty bottles of bleach, while a partially filled bottle was located in the kitchen. Defense counsels efforts to establish that nosebleeds suffered by Mihalko were the source of blood stains inside the home were unavailing, as there was no credible evidence that Mihalko was known to have a problem of that nature. In any event, evidence was presented that blood found on a polo shirt in the Laurel Circle bedroom was not likely caused by blood dripping from a nosebleed.

Perhaps the most damaging evidence against defendant is the testimony supporting the premise that Mihalko was not killed inside the house. Testimony from two witnesses established that Mihalko died while in the back of the truck. In light of the extensive amount of blood, which only a beating heart could have produced, Dr. Fajardo opined that Mihalko had been alive for some time before he was strangled. Similarly, it was the opinion of Sergeant James that, in light of the amount of blood in the truck, Mihalko was active[ly] bleeding prior to death.

Furthermore, the jury was expressly told that it could not use the evidence of domestic violence to establish defendants guilt for the crime charged. We presume the jury adhered to the courts instructions. (People v. Valdez (2004) 32 Cal.4th 73, 114, fn. 14.)

We therefore conclude that, in light of the overwhelming evidence that defendant killed Mihalko, it is highly unlikely the outcome would have been more favorable to him had the evidence of domestic violence been limited or excluded. (Watson, supra, 46 Cal.2d at pp. 836-837.)

D. Any error in admitting evidence of Mihalkos statement to Lynch that defendant threatened him with a gun was harmless.

Over defense counsels hearsay objection, Lynch was permitted to testify regarding a telephone call she received from Mihalko in March 2000. During that conversation, Mihalko said he was locked in his bedroom, scared, because defendant was threatening him with a gun pointed to his head. Lynch said that Mihalko sounded upset and anxious, explaining that she [did not] want to really use the word excited, but more anxious, just frustrated and sort of lost . . . .

Defendant contends that, because the statement was not made under the stress of excitement, it was not a spontaneous declaration and should not have been allowed. ( 1240.)^[10] He argues the error in allowing this testimony was prejudicial under Watson, supra, 46 Cal.2d at page 837, as it is reasonably probable the effort affected the outcome.

Reiterating his position regarding the domestic violence testimony, as set forth in the preceding section, he maintains that this evidence coupled with that evidence was unduly prejudicial. Moreover, he asserts that in addressing this incident during closing argument, the prosecutor erroneously stated that it occurred in 2001, only a few months before Mihalko was killed, rather than 2000, when it actually did occur; thus, the mistake gave it more probative value than the more remote occurrence it actually was.

Notwithstanding Lynchs reluctance to use the word excited to describe Mihalko at the time he told her about the threat, she did say he was scared, and that he sounded upset and anxious. In addition, as the People point out, the record does not indicate that Mihalko took any time to reflect on his thoughts or regain any composure prior to making the statements to Lynch such that they could not be considered spontaneous.

In any event, we have already concluded that any error in permitting evidence of domestic violence between defendant and Mihalko was harmless. The same rationale applies with regard to this testimony. In light of the overwhelming evidence that defendant killed Mihalko, any error in allowing this testimony was harmless under the Watson standard.

E. The trial court properly excluded evidence.

Before trial began, defense counsel indicated she wished to introduce statements made by Mihalkos former boyfriend, Robert Sabo, to the effect that Mihalko was violent with him, liked violent sex, and had frequent nosebleeds. Noting that Sabo had died in April 2006, counsel indicated that [t]hose three factual issues are going to be somewhat important in this case. She informed the court that she had an audio recording made by defendants prior counsel, who recorded an interview with Sabo about the nosebleeds, about the violent sex, those sorts of things. She also informed the court that Sabo had spoken to the police in a previous domestic violence incident with Mihalko, which statement would have . . . some potential evidentiary exceptions to the hearsay rule, which would involve me calling San Francisco police officers here in this case as to his spontaneous or excited utterance statements.

Defense counsel made it clear that this evidence would be crucial if the prosecution was able to introduce evidence of the relationship between defendant and Mihalko. In other words, if the prosecution wants to show that defendant is the aggressor, this evidence would show that Mihalko could also have been the aggressor. The court aptly remarked, But this is not self-defense. This is third-party culpability, if anything. The court then said that because there had not been compliance with section 1350,^[11]the taped statement is not coming in under 1350. Later, defense counsel indicated she wanted to be able to balance the picture of defendant as the aggressor with Mihalkos past conduct. The prosecutor responded by questioning the relevance of Sabos statement in that defendant was not claiming self-defense. Shortly thereafter, the court ruled that neither Sabos statements to the police officer nor the officers observations were admissible.

Defendant contends the statements to the police officer were admissible under sections 1240 (spontaneous declaration exception)^[12]and 1370 (hearsay exception for out-of-court statements describing the infliction of physical injury on the declarant when the declarant is unavailable to testify at trial and the statements are trustworthy).^[13] He argues the statements qualify because Sabo was unavailable, his statements described physical injury inflicted upon himself by Mihalko, the statements were trustworthy, and were made to a law enforcement officer.

Acknowledging that he did not rely on section 1370 below, defendant argues, citing People v. Vera (1998) 15 Cal.4th 269, 277, that he can nonetheless raise the issue on appeal because it is a claim asserting the deprivation of a right to present a defense. He further contends that doing so will preclude him from filing a habeas petition alleging ineffective assistance of counsel for failing to raise the issue below. Citing People v. DePriest (2007) 42 Cal.4th 1, 39, the People maintain the issue has been forfeited for failure to raise it below and thus have opted not to respond, adding that a response would be forthcoming should one be requested.

Notwithstanding any forfeiture, the courts rulings were correct. Because defendant was not claiming self-defense, the proffered statements were not relevant evidence and thus were properly excluded. ( 350, 403, subd. (a).)^[14]

Similarly, near the conclusion of trial, defense counsel renewed a request made on the first day of trial to introduce evidence that Mihalko had been seen, sometime in 1992 or 1993, at another Gay cruising area located near Palm Springs. Quoting from defense counsels motion, the court stated, The defense is attempting to establish [Mihalko] drove there willingly in conformity with his character for going to such places. The court rejected that argument, again finding Mihalkos prior conduct is not relevant. Doesnt conform to any type of conduct. Doesnt mean he does this sort of conduct.

Defendant argues Mihalkos prior conduct should have been admitted because he was entitled to contradict the prosecutions attempt to present [Mihalko] as someone who would have not gone to Whitewater Canyon, when there was evidence to the contrary, that is, evidence that he visited at least one local cruising spot. Viewing Mihalkos conduct in visiting the Gay cruising area as a character trait, he argues evidence of that conduct is not inadmissible under section 1101 if it is offered to prove conduct of the victim in conformity with the character trait. ( 1103, subd. (a)(1).) Thus, according to defendant, Mihalkos attendance at another popular local cruising spot certainly had a tendency in reason to prove a disputed fact, that is, how Mihalko got to Whitewater Canyon. The prosecution was permitted to introduce evidence to support its theory about how Mihalko got to Whitewater Canyon. In the absence of some provision excluding such evidence under the Evidence Code, [defendant] was entitled to introduce evidence both disproving the prosecutions theory [defendant] had put Mihalko in the back of the truck and driven him there and proving [defendants] own theory, that Mihalko went there voluntarily, after which something happened to him

We agree with the trial court that the proffered evidence did not conform to any type of character evidence offered to prove conduct in accordance with section 1103. All that this evidence would have shown is that Mihalko was present at a Gay cruising area on a date eight or nine years before he was killed. We fail to see the relevance. There was no error in excluding it.^[15]

F. An instruction on causation was not warranted.

Defense counsel asked the court to instruct the jury with causation instructions in accordance with CALCRIM No. 240^[16]and/or CALCRIM No. 520.^[17] She asserted, I think there is an issue based upon the toxicology results. And I think thats something the jurors should have the option to consider. The court disagreed, referencing the testimony that any GHB found in Mihalkos system was a natural process of death, dying and decay, and the blood alcohol level had risen higher as a result of death and beginning of decomposition. Though its obvious through the testimony as well as the level, he had ingested quite a bit of alcohol. But to say this is a causation or one of the causations of death is not substantiated by the evidence. So I am not going to give that.

Defendant maintains the court erred in refusing the instruction, contending [t]here was evidence of multiple potential causes such that the instruction should have been given, and the failure to give the instruction was prejudicial. He argues the medical evidence was sufficient to warrant the jurys consideration as to whether Mihalkos blood alcohol level and GHB level were a substantial factor in causing death, such that [defendants] conduct was not the legal or proximate cause of death. While acknowledging the toxicologists testimony to the effect that both alcohol and GHB levels can rise after death, he argues the amounts testified to were still at the top of, or above, the cut-off levels where such amounts might be written off as post-mortem changes rather than ingestion by Mihalko while still alive. This, combined with the facts alcohol and GHB can both kill by depressing respiration and that the two combined have an enhanced synergistic effect, means both that the jury, not the judge, should have made the factual decisions at issue here and that a properly instructed jury could have found another, substantial factor caused Mihalkos death. Not so.

Where there is substantial evidence to support an instructi