P. v. Torres

Filed 12/7/07 P. v. Torres CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant and appellant Martin Luna Torres appeals his jury-trial conviction for the special circumstance murder of Hermelinda Lopez, a prostitute whom appellant strangled to death on January 14, 2002. Appellant contends that: (1) the evidence adduced by the prosecution was insufficient to sustain a conviction for sodomy felony murder and a true finding on the sodomy special circumstance, in violation of his federal constitutional right to due process; (2) the admission of the testimony of the victims former boyfriend, Theodore Mejia, concerning the victims sexual habits, was irrelevant, improper opinion testimony, and hearsay, thereby depriving him of a fair trial and violating his federal constitutional rights to due process and confrontation of the witnesses against him; (3) the trial court violated appellants federal constitutional rights to due process, to a complete defense, and to a fair trial by refusing to instruct with the CALJIC voluntary intoxication instruction as requested by appellant and instructing instead with the equivalent CALCRIM instruction. We affirm.

PROCEDURAL BACKGROUND

An amended information was filed on April 26, 2004, in which appellant was charged with murder (Pen. Code 187[1]). The information alleged the special circumstance of murder while engaged in rape ( 190.2, subd. (a)(17)(C)), and murder while engaged in sodomy ( 190.2, subd. (a)17(D)). Also, the information alleged use of a deadly weapon (a plastic bag) in the commission of the offense ( 12022, subd. (b)(1)).

The jury trial began on March 9, 2006. The People dismissed the rape special allegation at the close of their case-in-chief. On April 5, 2006, the jury found appellant guilty of first-degree murder and returned findings of true on the sodomy felony-murder special allegation and the use-of-deadly-weapon allegation. On July 21, 2006, the trial court denied appellants motion for a new trial and sentenced him to life without the possibility of parole, plus one year. Appellant filed a timely notice of appeal.

FACTS

The Peoples Case-in-Chief

Witnesses at the Scene

Amanda Jacobs testified that in January 2002, she was addicted to crack cocaine and to support her habit worked as a prostitute in San Francisco. She said she had kicked the habit and now held two jobs, at Taco Bell and McDonalds. Jacobs stated that in the early morning of January 14, 2002, a client picked her up on Capp Street and she directed him to 19th and Alabama. Jacobs stated that during the sexual transaction, she looked in the side rear view mirror and saw a small white car parked with someone in it on the opposite, more brightly-lit, side of the street. She noticed the car because she hadnt seen it when they first pulled up and she thought it strange that a car was behind her with someone in it at that hour of the morning. A man got out of the drivers side, went around to the passenger side, pulled a womans body out of the car, dragged her along the ground and threw her down together with her clothes. The man was acting schizy and moving his head around a lot. Jacobs asked her customer for a pen so she could write down the license plate number of the white car. She was going to call the police after she had finished with her customer but just then the police arrived. Jacobs told the officer there was a dead body behind them. She said she got a good look at the man who got out of the white car with the womans body and identified appellant in court. At the scene, Jacobs told the police she recognized the victim as a prostitute she knew as Sabrina. Jacobs also identified appellant at the scene as the man who dragged the body from the car. According to Jacobs, appellant did not appear drunk when he got out of his car and dumped the body.

Michael Youngtestified that on January 14, 2002, he picked up Jacobs on Capp Street and engaged her in a sexual transaction. After they concluded the transaction, Jacobs asked for a pen and wrote something on her hand. Just then, a police car pulled up and turned on his light. As the police officer asked him for identification, Jacobs began telling the officer someone had thrown a body out of a car.

San Francisco Police Officer John Leongtestified he was alone on uniformed patrol in a marked police car in the area of 19th and Alabama in the Mission District at about 4:40 a.m. on January 14, 2002, on the lookout for abandoned stolen vehicles. As Leong moved slowly down the street, a newer-looking vehicle attracted his attention. Approaching the vehicle from behind, he noticed there were two people in the car. Leong requested backup, then turned his spotlight on the vehicle. Knowing the area, Leong assumed a prostitute was involved with a customer. When Leong approached, the driver rolled down his window and Leong asked for identification. The female on the passenger side stated: Hey, officer, there is a dead body behind us. Within a minute backup arrived, at which point Leong felt it was safe to turn to see what the female passenger was talking about, and sure enough, there was a body lying on the ground behind me. As crime scene investigators and other personnel arrived, Leong taped off the crime scene. Leong stated that the body he noticed was lying next to a small white-colored car. Leong stated that the female passenger who pointed out the body was subsequently identified as Amanda Jacobs.

San Francisco Police Officer Albern Ciudadtestified that he responded to Officer Leongs call for backup. When he arrived, several units were already on the scene and Ciudad saw a female victim lying on the street. A plastic bag was wrapped around her neck. After seeing the victim lying on the ground, Ciudad stepped back and then noticed that there was a person (whom Ciudad identified in court as appellant) inside the white car parked next to the victims body. The person was reclined back in the drivers seat with his arms crossed on his chest and his eyes closed. Ciudad shone his light on appellant and saw some movement in his facial area. Ciudad informed Sergeant Rubino that the white car was occupied by one male. He then left the scene to assist other officers in identifying a possible witness. When Ciudad returned about ten minutes later, appellant had been removed from his vehicle and Ciudad assisted in handcuffing him. Ciudad placed appellant in the back seat of the patrol car and took him to the police station. According to Ciudad, appellant was not stumbling and did not appear to have any problems walking to the police car. Ciudad said appellant was very quiet and hardly moved. When placed in the holding cell, appellant fidgeted a bit and had a blank stare on his face. Ciudad said he did not appear to be drunk. On cross-examination, Ciudad said he did not agree with his partner Officer Richardsons statement in the police report that appellant had a strong odor of alcoholic beverage. Ciudad noticed no such smell in the police car.

San Francisco Police Officer Gian Tozziniwas on plain-clothes detail and also responded to Officer Leongs call for backup. When Tozzini arrived at the scene, he parked behind the other police cars in the middle of the street and got out of his car. Then he noticed a body lying on the ground across from Leongs vehicle. The body was mostly unclad, pretty much naked, and appeared lifeless. Tozzini described the body as female with black hair. Her jeans were around her feet and her shoes were off. There was a brownish and bloody condom by her feet, and there was a plastic bag around her neck. There was a white car next to the victim with the windows completely steamed up. Tozzini stated there was a person seated in the drivers seat with his eyes closed and his hands crossed in his lap. There was an opened condom wrapper on the dashboard. Tozzini watched as Officer Lawrence knocked on the window and summoned appellant from the car. Appellant got out and said, Que pasa. As Tozzini grabbed appellants arm, appellant looked over to his right, saw the body, and said in English, Oh, my God in a low voice. Appellant did not appear to be surprised at the body lying in the street. Tozzini stated that appellants breath did not smell of alcohol, that he understood [appellant] clearly and he understood me, and appellant walked normally to the police car even though he was in handcuffs. Appellant did not appear [to be] drunk or to have an unsteady gait or balance or anything.

Police Officer Marc Richardsonwas a rookie officer in training with Officer Ciudad. Richardson searched appellant and placed him in the police car after appellant had been removed from his own vehicle and handcuffed. Initially, Richardson did not notice a smell of alcohol on appellants breath. After he was in the police car with appellant and all the doors closed, Richardson noticed the smell of alcohol. Richardson said appellant got out of his vehicle easily without stumbling and walked steadily towards Tozzini.

San Francisco Police Inspector Pamela Fitzgerald-Wermes arrived on the scene about 6:00 a.m. as a crime scene investigator. She observed that the victims body was all but naked other than underpants down around the ankles. The knees were bent. There were abrasions about the body, on the neck, and chin. At the scene, Fitzgerald-Wermes collected a used white condom containing fecal matter. She observed bruising along the victims throat consistent with strangulation, and a checkered pattern on the victims chin consistent with the pattern of the fabric on the seat covers of appellants white vehicle. Fitzgerald-Wermes stated that when rigor mortis sets in the body picks up patterns of the surface it is lying on because the skin becomes flaccid. She arranged to have the car next to the body towed for processing. Reference swabs for DNA testing purposes were taken from appellants mouth, hands, and penis.

San Francisco Police Inspector Thomas Walsh testified he arrived at the scene sometime after 6:30 a.m. Upon taking a close look at the victim, Walsh noticed bruising on her neck and chest area. He also noticed checkered impression marks on her chin and diagonally across her stomach area. Walsh stated the impression marks on the victims body were similar to the fabric pattern of the seat in appellants white car. Walsh was present when penile swabs were taken from appellants body. Walsh did not have defendant tested for alcohol content in the blood stream because he did not appear to be under the influence of alcohol. Walsh interviewed appellant just before 11:00 a.m., about six hours after he was arrested. Inspector Casillas translated from English to Spanish and vice versa. The videotape of Walshs interview with appellant was played to the jury. On cross, Walsh stated that a receipt found in appellants clothing was for a bottle of tequila appellant purchased at Foodco on January 13, 2002.

Forensics & Physical Evidence

San Francisco Police Inspector Maryanne Lowmanprocessed the white Ford Escort after it was towed. In the vehicle she observed various items, including fecal matter and a condom wrapper. No alcohol beverage containers were found in the vehicle. Fecal matter was found on the side wall of the drivers side door. Fecal matter was also found on the passenger side front floor and on the passenger side front seat.

Bonnie Chengworks as a criminologist with the San Francisco Police Department assigned to the forensic biology unit, and is responsible for conducting genetic analysis on body-fluid samples. Cheng testified that in April 2002, the lab received swabs from appellant, a condom, an item of clothing and a sample of fecal matter. In June 2002, the lab also received a blood reference sample from the victim. Cheng testified that when she examined the condom it had a brown crusty material on both sides. She found both sperm cells and nucleated epithelial cells (cells containing DNA that line the soft tissue, such as the mouth or vagina) on each of three samples taken from different sides of the condom. The sperm cells of each of the condom samples were found to be consistent with appellants DNA profile. Another non-sperm sample from the condom contained both appellants and the victims DNA. The penile swab collected from appellant tested positive for semen.

San Francisco Police Inspector Pamela Hofsass is assigned to the DNA unit of the crime lab. On May 16, 2003, Hofsass tested two items collected by the Medical Examiner (ME) during the autopsy of the victim. One item consisted of ME swabs from the victims thigh areas. The other item consisted of ME swabs from the victims anal canal and outer area of the vaginal cavity, and these were tested for the presence of body fluids. The inner thigh swabs and the anal canal swabs both tested positive for blood and semen. DNA sources of the fluids were separated by differential extraction, which sorts the sperm fraction from the non-sperm fraction. Hofsass testified that appellants DNA was found in both the sperm and non-sperm fractions in the inner thigh swab samples. In the anal canal swab, appellants DNA was detected in the sperm fraction and the victims DNA was in the non-sperm fraction. Similarly, the vaginal swab held the victims DNA on the non-sperm fraction and appellants DNA on the sperm fraction.

Dr. Venus Azar is the assistant medical examiner with the San Francisco Medical Examiners office who performed the autopsy on the victim, Hermelinda Lopez. Azar stated she determined that Lopez died of asphyxiation due to strangulation. She had multiple areas of injury to the front and sides of her neck. Azar observed a pattern imprint on the victims chin. The victim had injuries to her lower lip, bruises on her right breast and right shoulder, abrasions on her left clavicle, bruises on the front of her right lower leg and an abrasion just below the left knee. The victim also sustained internal injuries to the neck area, including multiple intramuscular hemorrhages of the neck muscles, a fracture of the right hyoid bone which sits at the top of the neck just below the chin, and a vertical fracture of the thyroid cartridge, or Adams apple. Azar testified that some of these injuries, the bruising on the neck and the hemorrhages in the neck muscles, were consistent with both manual strangulation and ligation (tightening around the neck, such as with a rope). However, she opined that the fractures to the hyoid bone and thyroid cartridge show that quite a bit of force was used, which would be much more difficult to apply by ligature than by squeezing with the hands. She stated that she had only seen such injuries before in motor vehicle impacts or significant karate chops to the neck. The plastic bag that came with the victim was torn and certain marks on the victims neck suggested the bag had been used as a ligature. There were also curvilinear, semi-lunar, half-moon shaped scratches on the skin of the victims neck. To Azar, this indicated the victim was trying to remove her attackers hands and scratched her own skin with her fingers. Azar also noticed an area of white blanching on the victims nose surrounded by red marks, suggesting that her nose was pressed up against something. Also, she noticed a basket weave-like pressure mark on her chin. The contusion and abrasion on the victims lip and the pressure mark on her chin were consistent with having force applied to the back of her head pushing her chin into the seat. Azar stated that in death by strangulation the victim will lose consciousness ten or twelve seconds after the blood flow to the brain is cut off but pressure must be maintained for another few minutes for brain death to occur. The autopsy revealed the presence of morphine in the victims blood at 0.11 micrograms per milliliter, or about double the level at which the therapeutic effect of the drug begins. The body tested negative for alcohol. Dr. Azar stated that morphine is a central nervous system depressant, which may have lessened the victims ability to struggle with her attacker, and in that regard hastened her death. Azar stated that spontaneous defecation may occur when a person dies. Azar examined samples from the victims anal canal and vaginal area under a microscope and noticed sperm heads present. Azar said there was no way to tell when the sexual acts engaged in by the victim happened in relation to her death. Also, she was unable to reach an opinion on the time of death because the body was already cold when it was discovered. All she could say was that vaginal and anal intercourse occurred before the time of death. On cross, Azar stated she saw no visible evidence of skin or hair under the victims fingernails. Also she stated she found no evidence of trauma or force in the vaginal or anal areas of the victim. The injuries to the shoulder, breast and neck all appeared to be fresh injuries. The scarring on the victims buttocks were consistent with someone injecting a needle into that area.

Victims Ex-Boyfriend

Theodore Mejia testified he first met the victim Hermelinda Lopez around 1991. Subsequently, he struck up a relationship with Lopez which lasted about three or four years, and they split up around 1998 or 1999. During his relationship with Lopez, they never had anal intercourse. On redirect, Mejia stated Lopez would never be desperate enough to do . . . anything . . . [] . . . [] like getting beat on or having anal sex and tied up and choked [or] whatever. Stuff like that. She would rather be sick and throw up and whatever. But she wouldnt do―she wouldnt go that far. On recross, defense counsel confirmed Mejia had seen the victim only two or three times in the last four or five years of her life, and that there was no conversation between them in that period about what she was doing for a living.

Defense Case-in-Chief

Character Witnesses

Plutarco Luis Cardoza testified he lives in San Francisco, is 51 years old, married with four children, and met appellant when they worked together at Aliotos Restaurant from 2000-2001. Cardoza stated appellant is honest, hard-working, punctual, non-violent, and truthful. On cross, Cardoza said he never socialized with appellant outside work, never saw appellant drunk at work or knew him to miss a shift because he was drunk.

Ignacio Oropeza Lopez was appellants boss when appellant worked at Aliotos as a broiler man, and he said appellant was a very good employee. Lopez said he took appellant as a peaceful person, a hard worker, and an honest person. On cross, Lopez said appellant was never drunk at work, had never called in sick because hed been drinking the night before, and had never complained about having a drinking problem.

Mario Nevaresalso worked with appellant at Aliotos and described appellant as a good person, a hard worker, punctual, and a person who wouldnt get into trouble with anybody. Nevares opined appellant was honest, truthful, and non-violent as a person.

Other Witnesses

Ofelia Chico Peres testified that she married appellant in Mexico and came with him to the United States in April 1998. They have a seven year old daughter, M. During their time together, appellant slapped her one time after he came home drunk and they quarreled. Another time they argued and appellant tried to hit her, but she took a broomstick to defend herself and hit him with it. Other than these two incidents there has been no violence between them. Peres said that in Mexico appellant drank beer and tequila four or five times a week and would get drunk every time. Appellant continued to drink frequently after they moved to San Francisco. There were times appellant did not come home, and Peres believed he was out drinking. Some days appellant did not drink. Appellant was always employed.

Peres said that on January 13, 2002, she and appellant left their home in Daly City at about 6:00 p.m. with their daughter and Peress friend, Delmia, to go to her Uncle Hilarios birthday party. They stopped at Foodcos store on 14th Street and Folsom to buy a bottle of Cazadores tequila. They arrived at Hilarios house at about 7:00 p.m. Hilario and his wife Maribel were there, as well as two other men. Only the four men present drank from the bottle of tequila, and they also drank cans of beer. Peres left the party with her daughter and friend Delmia at around 10:00 p.m. to go home by BART. Appellant was really drunk when Peres left. There was food at the party and appellant ate a little. The next day, she talked to the police at length after she learned her husband had been arrested for murder. She testified that she told the police appellant had drunk a little at the party and did not tell the truth because she thought she was helping her husband. She also did not tell the police the truth about appellants history of drinking. Peres testified appellant tried to stop drinking three or four times. On those occasions, he would go without drinking two or three months, but always returned to drinking.

Hilario Chico testified that he had met appellant on three or four occasions since they were first introduced through his niece (appellants wife, Ofelia) in 2000. At Chicos birthday party the four men present shared a bottle of tequila and a 12-pack of Tecate. Appellant ate a little at the party, and left alone about 10:30 or 11:00 p.m. Chico stated appellant was drunk when he left. On two other occasions Chico observed appellant drink too much and fall asleep. On cross, Chico said he remembered talking with detectives less than a week after the birthday party. He admitted telling detectives appellant had three shots of tequila and only one beer at the party. He lied to the police because he did not want to tell the police appellant was drunk. He admitted that protecting himself and his nephew was more important than telling the truth to the police. Chico stated appellant did not fall asleep at the party and if he had been drunk, he would have fallen asleep right there.

Maribel Chicotestified appellant left the party along with the others around 11:00 p.m. Maribel saw appellant drinking tequila and beer at the party, and he appeared to be drunk when he left. Appellant ate little at the party. She admitted she lied to the police and told them appellant had only drunk a little beer. On cross, Maribel said she had only seen appellant three times, each time at a party, and each time he was drunk. She said when hes drunk, he passes out, but on January 13, he did not pass out. Rather, he left with his car keys and a CD from Maribels CD player. Appellant was in a good enough condition to drive when he left the party.

Gerardo Luna Torres, appellants younger brother, testified they grew up together in Mexico. Gerardo stated that when he first came to San Francisco in 2001 he and his wife stayed with appellant for about six months. During that time, Gerardo and appellant drank two or three times a week together. Appellant would drink ten to fifteen beers and always get drunk. Gerardo described one incident in December 2001, when he and appellant had been out drinking. On the drive home, appellant first hit a parked car and then he hit a barrier on the freeway entrance, which knocked off the cars bumper. Gerardo spoke to appellant about this the next morning, but appellant did not appear to remember. Another time Gerardo and appellant bought a 30-pack of Tecate beer and drank from midnight till 5:00 a.m., then went to bed. Gerardo woke up and was late for work, so he woke appellant to ask for a ride to work. Appellant gave Gerardo a ride to work but later appellant did not appear to remember doing so. Gerardo admitted lying to the police about his brothers drinking habits when he told them appellant hardly drank. Gerardo thought he would be helping appellant by downplaying his drinking to the police. On cross, Gerardo also stated appellant never missed a day of work because of drinking, even while working two jobs for fifteen to sixteen hours a day, five days a week.

Juan Pacheco Guillen testified he first met appellant in 1998. During the 18-months or so they worked together at a restaurant called Neptunes Palace, they drank together two or three times per week. Guillen described three occasions where appellant got drunk but did not remember what had happened when Guillen asked him about it the next day. On cross, Guillen stated he spoke to defense investigators in February 2002, and they asked him about appellants drinking habits and told him they were trying to present an intoxication defense.

Alvino Castillo Mesa testified he met appellant in New York in 1995, lived with him for about a year and worked in the same restaurant for about three to four months. At times they socialized together and on some of those occasions appellant drank alcohol. Mesa only saw appellant drink beer. One time appellant was drunk and fell asleep in a restaurant. When Mesa woke him, appellant jumped up and ran out of the restaurant, straight across a busy street with traffic going in both directions. Cars honked their horns at appellant. Next day, appellant did not appear to remember this incident. Mesa also lived with appellant in San Francisco in 2000 for a period of about 8 months. During this time, appellant sometimes drank and Mesa saw him drunk on one occasion when he came into Mesas room by mistake. Next day, appellant did not appear to remember what had happened the night before. In 2001, appellant visited Mesa at the apartment Mesa shared with appellants brother Benjamin. Appellant was drunk, fell asleep in the flat, then went to his car and fell asleep again. Mesa woke appellant the next morning but appellant did not appear to remember how he ended up in the car.

Benjamin Luna Torres, appellants older brother, left Mexico in 1993 when appellant was 14 years old. Appellant eventually joined Benjamin in New York. Benjamin observed appellant drinking beer and tequila almost daily, and saw him drunk frequently. Benjamin described various incidents which occurred when appellant was drunk, including one where appellant urinated in Benjamins bedroom thinking it was the bathroom, but next day appellant did not appear to remember what had happened.

Appellants Testimony

Appellant testified in his own defense. Appellant testified he did not remember if he killed the victim and had tried to remember during these whole four years. Appellant stated he started drinking beer about three or four days a week when he was 13 years old. At 14 years old, he started to drink hard liquor. He drank beer and hard liquor four or five times a week, and sometimes he got drunk. Appellant continued to drink when he moved to New York in January 1995, aged 15 years old. He drank throughout the almost three year period he spent in New York. In December 1997, he went back to his parents house in Mexico for about four months before returning to San Francisco with his wife, where they lived from April 1998 until January 13, 2002. During the first 18 months after appellant first got to San Francisco, he drank about three or four times a week. Sometimes he got drunk and sometimes he did not. When drunk, he sometimes did not remember how he got home. He tried to stop drinking in the beginning of 1999, but was unable to stop. Similarly, from 2000 until his arrest, appellant continued to drink and when he got drunk did not remember things. His drinking caused problems, like when he tried to fight with his brother and when he hit his wife. Another time he insulted his wifes family. Appellant could not remember these things happening.

Appellant described going to the party on the evening of January 13, 2002, and how the four men shared the bottle of tequila. After they drank the tequila, Ofelias uncle got a 12-pack of beer from the fridge and the men shared it between them. Appellant thought perhaps he snacked on something but did not remember very well. Appellant stated the men started drinking the tequila about 7:30 p.m. and finished it when his wife Orfelia left about 9:30 p.m. Then the men drank the beer. Appellant and the other two men left together close to 11:00 p.m. The two men got in appellants car and they all went to another bar called Los Coronitas. In the bar, appellant ordered a beer and a shot of tequila for each of them but when appellant took the drinks to the table, the two men never came back because they started dancing. Appellant then drank the three shots and the three beers. He stayed in the bar for about two hours and had another two beers, but no more tequila. Appellant stated that he was already drunk and dizzy when he left the party and felt more so at Los Coronitas after drinking more tequila and beer. Appellant testified that he remembers nothing after he left Los Coronitas and the next thing he remembers is when he woke up in the car and saw a womans body on the passenger seat. He said he was confused and scared and didnt know what to do. He took the body out of the car, got back in the car, and laid back down to try to remember what had happened. Then the police arrived about ten minutes later and rapped on the window. Appellant said that when he interviewed with police at about 11:00 a.m. he was scared and confused. He told the police a mixture of truth and lies. He did not tell the police about the party because he did not want to get his family in trouble. He asked the police what would happen to him if he killed the woman because he was scared and trying to remember what had happened. On cross, appellant denied his plan was to dump the body and drive away. He denied he had to change his plan when he saw a marked police car driving down the street and that his only chance at that point was to get back in the car, recline the seat and hope no one noticed him.

Expert Testimony

Dr. Michael Slade was the Chief Forensic Toxicologist for the City and County of San Francisco for 14 years. Dr. Slade testified as a defense witness on the effect of alcohol and other drugs on the brain and its resulting effects on behavior. Dr. Slade testified that alcohol suppresses levels of thiamine pyrophosphate in the brain, which affects the cognitive senses and the ability to form and retain memories. The more alcohol a person drinks, the greater the irreversible amnesiac affect on the brain. Slade explained that amnesia falls into two categories, retrograde amnesiawhich means you dont remember something in the pastand anterograde amnesiawhich means you dont remember events as they happen, which is commonly referred to as having a blackout. He further explained that a person can drink to the point where that person is in a sense unconsciousor not remembering anythingbut would not pass out and would still be able to function. Moreover, although over time the body may develop biochemical and physiological tolerance to alcohol, the body does not become tolerant to thiamine deficiency, so a person cannot become tolerant to blacking out. In a hypothetical posed by defense counsel, Slade stated that if a man of appellants size drank seven ounces of tequila and three cans of beer, followed by three more shots of tequila and three more beers, then the persons blood alcohol level (BAL) would peak at .26 if the person started drinking at 7:30 p.m. and stopped about 1:30 a.m. Slade opined it is more likely than not that with such an amount of alcohol the persons thiamine levels would be depressed to the stage of blackout level. If such a person had a ten-year history of drinking and a history of blackouts, then he would almost certainly be unconscious and unable to remember what was happening. On cross, Slade testified that a blackout means you dont remember what you did, but it has nothing to do with your actual state of mind when youre doing it. Slade stated that on the information provided by defense counsel, his opinion is that appellants BAL would have peaked at .26 at between 2:15 and 3:15 a.m. Slade conceded his opinion on appellants BAL would change if appellant was lying about how much he had to drink.

Dr. Francisco Gomez is a forensic clinical psychologist with expertise in culturally competent evaluations, particularly as to Latin American cultures. Gomez evaluated appellants psychological and cognitive functioning, which involved three clinical interviews with appellant and a battery of psychological tests. On the I.Q. tests, appellant scored in the borderline intelligence range and other tests showed he was not neurologically impaired. Testing showed appellant was not malingering. After completing his testing, Gomez diagnosed appellant with post-traumatic stress disorder (PTSD), alcohol abuse, and borderline intellectual functioning. Gomez opined that because appellants PTSD had gone untreated as a child it just became part of who he was, and he learned to self-medicate with alcohol, since there was a lot of alcohol abuse within his family. Over time, appellant developed alcohol abuse disorder. Having evaluated appellant, Gomez concluded he was not psychopathic, did not have a history of violence, and suffered from PTSD due to events in his childhood that went untreated. As a result, Gomez opined appellant was stimulus boundhe is not a person who thinks things through but responds to things at the moment. On cross, Gomez agreed he reported appellant as being very self-centered, and others may view him as odd, indecisive, hostile, restless, hyperactive, compulsive, emotionally labile and uncooperative. Gomez also stated in his report that appellant demands a high level of attention and expresses resentment and hostility when his perceived needs are not met.

The Peoples Rebuttal Case

Dr. Nikolas Lemos, Chief Forensic Toxicologist in the Office of the Chief ME, testified that if a man of appellants size had a BAL of between 0.25 and 0.27 at 2:00 a.m., then there is a good chance that person would be in the upper level of excitement and not in the low level of stupor. Assuming the male stopped drinking at 2:00 a.m., Lemos opined that the expected range of BAL at 4:30 a.m. would be between 0.16 (if he was a chronic alcoholic) and 0.24 (if he was an average drinker). A further hypothetical involved a man of appellants size who began drinking about 7:30 p.m., consumed three shots of tequila and three beers, ate a little meat and potatoes, stopped drinking at 11:00 p.m., resumed drinking at 11:30 p.m., consumed another three beers and three tequilas, and stopped drinking at 1:00 a.m. Lemos opined such an individual would have a BAL of 0.30 at 2:00 a.m. In addition, Lemos examined appellants DUI arrest report from July 24, 2001, which showed appellant exhibited physical signs of intoxication at BAL of 0.115 and 0.117. Lemos opined it would be inconsistent only five months later for appellant to reach a BAL of .30 and not show signs of intoxication. Also, he stated high levels of alcohol cause an inability to achieve penile erection. Lemos opined that it was very unlikely that appellant could have had a 0.30 BAL at 2:00 a.m. and be observably sober at 4:30 a.m. when he had exhibited signs of intoxication at a BAL of 0.115 only five months before.

DISCUSSION

A. Sufficiency of the Evidence

Appellant contends the evidence was insufficient to support the jury verdict for the felony-murder special allegation of sodomy or the verdict for first degree murder. We disagree.

1. Standard of Review

In reviewing a challenge to the sufficiency of the evidence, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Staten (2000) 24 Cal.4th 434, 460; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime or the special allegation present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (Bolin, supra,18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

Moreover, in this context, substantial evidence means evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord People v. Hill (1998) 17 Cal.4th 800, 848-849 [ When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidencei.e., evidence that is credible and of solid valuefrom which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.]].) Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. (People v. Millwee (1998) 18 Cal.4th 96, 132.)[2]

2. Analysis

(a)

Appellant asserts there was insufficient evidence to support the felony-murder special allegation of sodomy. Essentially, appellant bases this assertion on the fact that there was no evidence of physical trauma to the victims anal or genital regions, and also on the fact that the victim was a prostitute, suggesting that [the] sexual acts were in fact consensual. Of course, this is one conclusion that may be drawn from the evidence at trial, but it is one that the jury was entitled to reject as unreasonable.

For first-degree felony murder, the Supreme Court has stated that the jury [must] find [that] the perpetrator had the specific intent to commit one of the enumerated felonies [in section 189] . . . . [Citation.] [Citation.] It also is established that the killing need not occur in the midst of the commission of the felony, so long as that felony is not merely incidental to, or an afterthought to, the killing. [Citation.] In addition, a homicide occurs in the perpetration of an enumerated felony for the purpose of the felony-murder rule if both offenses were parts of  one continuous transaction.  [Citation.] There is no requirement of a strict causal [citation] or temporal [citation] relationship between the felony and the murder. [Citation.] In addition, [c]ircumstantial evidence may provide sufficient support for a felony murder conviction. [Citation.] (People v. Prince (2007) 40 Cal.4th 1179, 1259.)

In accordance with the law governing felony-murder, the jury was instructed that to find true the special circumstance of murder committed while engaged in the commission of sodomy, it had to find beyond a reasonable doubt that defendant committed an act of sodomy with another person; the other person did not consent to the act; and, the defendant accomplished the act by force, violence, duress, menace or fear of immediate or unlawful bodily injury to anyone. In addition, the jury had to find that the act causing death (strangulation) and the sodomy were part of one continuous transaction.

The DNA evidence established that appellant sodomized the victim. The ME observed live sperm in the victims anal tract and took swabs from that area for examination. Subsequent DNA testing established that appellants DNA was present in the sperm fraction of the swab sample taken from the victims anal tract. In addition, the fact that the victim was a prostitute suggests only that in early hours of the fateful morning she may have agreed to accompany appellant for the purpose of engaging in and consenting to some act of sexual intercourse in return for money. However, the jury obviously concluded that an encounter which may have begun as consensual turned violent and ended in an act of non-consensual sodomy and murder. And substantial evidence supports the finding that appellant forced himself on his victim and accomplished the act of sodomy by force, violence, and unlawful bodily injury.

The jury heard appellants own forensic psychologist state that appellant demands a high level of attention and expresses resentment and hostility when his perceived needs are not met. And the physical injuries inflicted on the victim support a finding that she was sodomized against her will by force and violence. The contusion on the victims inner lip, the checkered impression marks on areas of her chin, nose, and stomach are all consistent with her face and body being forced into the seat of the vehicle while appellant sodomized her. Her other injuriesthe bruises on her right breast and right shoulder, the abrasions on her left clavicle, the bruises on the front of her right lower leg and an abrasion just below the left kneeare all injuries to the front of her body consistent with her being held down by force. Moreover, substantial evidence supports a finding that the strangulation and the sodomy were part of one continuous transaction. The evidence shows that in the early hours of January 14, 2002, appellant solicited Lopez, who was working as a prostitute at that time; that after she was in his car, appellant had sex with her; that at some point, the victim resisted his demands, whereupon appellant forcibly sodomized her and strangled her; that appellant then dumped her near naked body in the street and threw her clothes at her feet; and that all this happened in the early hours of the morning after appellant left his wifes uncles birthday party. Although an exact time of death could not be established, the ME testified that all the injuries sustained by the victim, and consistent with an act of forcible sodomy, were fresh injuries, suggesting they occurred around the time of death. In sum, the evidence we have adduced constitutes legally-sufficient, substantial evidence to support the jurys finding of true as to the sodomy special circumstance allegation.[3]

(b)

Appellant also appears to challenge the sufficiency of the evidence as to the prosecutions alternate theory of premeditated first degree murder, on which the jury returned a verdict of guilty. We conclude substantial evidence supports the jurys finding of guilty on the charge of premeditated first-degree murder.

In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the Supreme Court identified three categories of evidence relevant to determining premeditation and deliberation: (1) planning activity; (2) motive, including facts about the defendants prior relationship and/or conduct with the victim; and (3) manner of killing. (Id. at pp. 26-27.) The Anderson factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. (People v. Stitely (2005) 35 Cal.4th 514, 543; see also People v. Perez (1992) 2 Cal.4th 1117, 1125 [The goal of Anderson was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse].)

The pertinent Anderson factors here are appellants conduct with the victim and the manner of the killing. The victim was a street prostitute whom appellant picked up in the early hours of January 14, 2002. Once inside appellants vehicle, the victim was vulnerable and appellant expected her to submit to his sexual demands. When she refused, appellant forcibly sodomized her as he pushed her face-down into the seat of his vehicle. At or around the same time, he used a plastic bag as a ligature to strangle the victim. The ME testified that the marks on the victims neck were consistent with injuries caused by the plastic-bag ligature. The ME stated that the victim would lose consciousness after ten to twelve seconds because blood flow to the brain from the arteries on the side of the neck would be restricted. However, the ME stated that brain death from strangulation does not result in seconds, but over a period of minutes. During this time, appellant also manually strangled his victim using significant force. The victim sustained internal injuries to the neck area, including multiple intramuscular hemorrhages of the neck muscles, a fracture of the right hyoid bone which sits at the top of the neck just below the chin, and a vertical fracture of the thyroid cartridge, or Adams apple. The ME stated that the fractures to the hyoid bone and thyroid cartridge show that quite a bit of force was used, and she had only seen such injuries before in motor vehicle impacts or significant karate chops to the neck. In sum, appellants use of dual methods of strangulation, and his use of significant force in killing his victim over a sustained period of time in an enclosed space, provide substantial evidence that appellant deliberated before deciding to end his victims life. Thus, a rational trier of fact readily could have determined beyond a reasonable doubt that appellant acted with premeditation and deliberation in intentionally killing Lopez.

B. Mejias Testimony

Appellant contends that the admission of the opinion testimony of Theodore Mejia, an ex-boyfriend of the victim, concerning the victims sexual preferences, was irrelevant, improper opinion testimony, and hearsay, which deprived him of a fair trial, and violated his federal constitutional rights to due process and confrontation of the witness against him. As we explain below, this claim fails for various reasons.

1. Background

On January 27, 2006, the People filed a motion to admit evidence, through the testimony of Mejia, that the victims habit and custom was not to engage in anal intercourse. The People argued this evidence was relevant and admissible to the sodomy charge. At a pre-trial hearing on March 7, 2006, the trial court ruled that Mejia could not testify to habit or custom. The trial court ruled Mejia could testify as to his particular actions or observations during the time period when he and the alleged victim were together, and overruled defense counsels objection to any such testimony under Evidence Code section 352.

At trial, the prosecutors direct examination stayed within the bounds of the trial courts ruling. Mejia testified he first met the victim Hermelinda Lopez around 1991. Subsequently, he struck up a relationship with Lopez which lasted about three or four years, and they split up around 1998 or 1999 (Lopez was murdered in January 2002). Mejia testified that during his relationship with Lopez they never had anal intercourse. However, on cross-examination, defense counsel asked Mejia about a tape recorded statement he gave to the police in January 2006. Mejia stated he spoke to police about Lopezs drug habit. He told police that her drug habit made her sick, so that she would throw up and go to the bathroom on herself. Lopez was working as a prostitute when Mejia first met her, and continued to do so while they were together. Mejia said Lopez stopped working as a prostitute around the time they broke up and was drug-free for a time, but began prostituting herself again after she went back to using drugs. After they broke up Mejia only saw her two or three times before she died, and she did not talk to him about her prostitution activities. The following colloquy then ensued:

Q [by defense counsel]: And during that four-, five-year period [after they split up], did you understand or know her to be working in the Capp Street area?

A: Yes.

Q: Do you remember talking to the inspectors and telling them that you thought that was a sign of her being desperate?

A: No.

Q: Do you recall the inspectors asking you if she would be the kind of person or hookers on Capp Street were desperate and desperate people do desperate things? . . .

A: Yes.

Q: And did you agree with their description of prostitutes that were―

A: No.

Q. ―working on Capp Street?

A. I didnt.

Q: No?

A. No.

Q: The last time that you were intimate with [victim] Linda Lopez would have been . . . 97 or 98?

A. Yeah.

On redirect examination, the following colloquy ensued between the prosecutor

and Mejia, as the prosecutor followed up on defense counsels suggestion that Lopez must have been desperate to be working as a prostitute on Capp Street:

Q: Mr. Mejia, you were asked on cross whether you agreed with how the inspectors characterized prostitutes who worked on Capp Street, and you said, No, I dont agree. Do you remember that answer?

A: Yes

Q: Why not?

A: Because I told them that she never be des - - - desperate enough to do just like anything. She would rather be sick than to do something that she didnt do.

Q: When you said she didnt do crazy stuff, what did you mean by that?

A: Like getting beat on or having anal sex and tied up and choked and whatever. Stuff like that. She would rather be sick and throw up and whatever. But she wouldnt do―she wouldnt go that far.

On recross, defense counsel confirmed Mejia had seen the victim only two or three years in the last four or five years of her life, and that there was no conversation between them in that period about what she was doing for a living.

2. Analysis

(a)

Appellant first contends that the trial court abused its discretion in ruling Mejia could testify as to his own sexual practices with the victim. We review a trial courts ruling under Evidence Code section 352 (section 352) for an abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.) A court abuses its discretion when it rules in an arbitrary, capricious, or patently absurd manner, resulting in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

The evidence that Mejia and Lopez did not engage in anal sex over the course of their three or four year relationship was relevant to show that Lopez was not inclined to engage in anal intercourse. The trial court acted reasonably in determining that the probative value of this evidence was not substantially outweighed by its prejudicial impact by limiting Mejias testimony to his own experience with Lopez while they were together, and ruling that Mejia could not testify that Lopez had a habit of not engaging in oral sex. In light of the courts limiting ruling, this evidence in and of itself carried little weight given that Mejia had not been intimate with Lopez for several years prior to her death and he had only seen her two or three times during that period. Accordingly, the trial courts section 352 ruling was not an abuse of discretion.

(b)

Appellant also contends that Mejias testimony, elicited on redirect examination, as to what Lopez would or would not do as a prostitute was improper lay opinion testimony and hearsay. We reject this contention.

In the first place, appellant has failed to preserve this issue for review. As a general rule, defendant may not contend on appeal that the trial court committed error unless the defendant has tendered an objection to the trial court on the ground later asserted on appeal. [Citation.] As a rule, it would be wholly inappropriate to reverse a superior courts judgment for error it did not commit and that was never called to its attention. [Citation.] (People v. Newlun (1991) 227 Cal.App.3d 1590, 1604; People v. Valdez, supra, 32 Cal.4th at p.108 [ questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citation.] ].) Here, having failed to raise an objection to the prosecutors line of questioning of Mejia on redirect, appellant has waived objection to the testimony thereby adduced.

Moreover, the prosecutor only elicited the testimony objected to in follow-up to defense counsels attempt to establish that the victim was desperate because she prostituted herself on Capp Street. In pursuing that line of questioning, defense counsel went beyond the scope of the trial courts in limine ruling that Mejia could testify only to his own experience with Lopez, and not about her sexual habits as a prostitute. Defense counsel thereby opened the very door which the trial court had closed to the prosecution in its in limine ruling. Thus, there are no grounds for error in the admission of Mejias testimony on redirect examination. (People v. Hart (1999) 20 Cal.4th 546, 653 [The determination whether one partys introduction of evidence opened the door to rebuttal evidence is reviewed for an abuse of discretion and will not be disturbed on appeal in the absence of palpable abuse].)

(c)

Nor was the failure of trial counsel to object to the prosecutors line of questioning ineffective assistance of counsel, as asserted by appellant. To establish a claim of ineffective assistance of counsel, appellant first must show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, [appellant] must show that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) In this regard, [j]udicial scrutiny of counsels performance must be highly deferential[,] . . . [and] a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  (Strickland, supra, 466 U.S. at p. 689.) Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsels challenged conduct on the facts of the particular case, viewed as of the time of counsels conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsels function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. (Id. at p. 690.)

Appellant does not come close to meeting these exacting standards for an ineffective assistance of counsel claim. Here, trial counsel opposed the peoples motion to introduce evidence of the victims sexual habit of not engaging in anal intercourse by way of Mejias testimony. Counsel successfully opposed that motion to the extent the trial court ruled Mejia could only testify as to his own experiences with Lopez, and could not testify about her sexual preferences or habits. Mejias testimony on direct examination was within the parameters of the trial courts ruling. However, on cross-examination, counsel made the calculated decision to question Mejia about a statement he gave to the police in an effort to establish that the victim had to be desperate in order to prostitute herself on Capp Street. Such evidence, if established without rebuttal, would have assisted appellants defense by suggesting that the victim was so desperate that she might engage in anal intercourse for money to support her drug habit. Defense counsels calculated tactical decision to attempt to elicit testimony which was potentially damaging to the Peoples case and potentially helpful to appellants defense, does not translate into ineffective assistance merely because the prosecutor sought to rebut such testimony on redirect. Indeed, that is precisely the sort of second guessing with the benefit of hindsight which Strickland prohibits. (Strickland, supra, 466 U.S. at p. 689 [It is all too tempting for a defendant to second-guess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsels defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.].) Moreover, even if we were inclined to conclude (and we are not) that counsels failure to object to a line of questioning which he himself had instigated for his own tactical advantage was deficient performance, appellant cannot establish prejudice. In view of the overwhelming evidence of guilt adduced above (see ante at Section A.), counsels single alleged error was not so egregious that it resulted in a trial whose result is reliable. . . . [or a ] conviction [which] . . . resulted from a breakdown in the adversary p