P. v. Cunningham

Filed 12/9/09 P. v. Cunningham CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

----

Defendant Charles Kevin Cunningham killed John Finley Scott after Scott confronted him about forging checks on Scotts accounts. At the time of trial, Scotts body was still missing. A jury found defendant guilty of first degree murder, grand theft, two counts of felon in possession of a firearm, and possession of ammunition. It also found he had served two prior prison terms. The court sentenced him to an indeterminate prison term of 25 years to life and a determinate prison term of six years four months.

Defendant appeals, raising the following five contentions: (1) the court erred in failing to conduct a hearing on the admissibility of testimony of two bank employees, and counsel was ineffective; (2) the court erred in admitting evidence of his parolee status; (3) there was insufficient evidence of first degree murder; (4) the court erred in failing to instruct on voluntary manslaughter; and (5) the court erred in failing to stay one of his sentences for felon in possession of a firearm. Finding no merit in these contentions, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, Scott was a 72-year-old retired professor living alone in a house on a rural county road in Davis. Defendant, a parolee, was his handyman, who trimmed his trees, maintained his yard, and fixed his cars.

On May 30,[1] defendant cashed a $300 check at the Wells Fargo bank in Woodland purportedly from Scott for tree work.

On June 1, Scott came into the bank and told employee Taherah Thornton his balance didnt appear to be right. They examined a questionable check dated May 30 made out to CK Cunningham. Scott said the signature on the check was not his, and he was pretty sure he knew who did it. Thornton told him she could file a fraud investigation, but Scott said he was going to confront the individual [who] he thought it was, and he would come back and let [her] know. This was the last time Thornton saw Scott.

Within days, Scott went to the Dixon branch of Wells Fargo to report fraudulent activity on his account. Although the bank did fraud reports, Scott said he th[ought] he kn[e]w[] who did it, so he wanted to handle it on his own.

Saturday, June 3, was the last time anybody had contact with Scott. It was in the form of an e-mail Scott sent in the morning to his long-time traveling buddy, Wendy Palmer. Later in the day, Palmer telephoned Scott, but his line was busy. She followed up with an e-mail, asking him to contact her. He never did. She called several times after that and left messages on his answering machine that went unanswered. Palmer was confused because Scott was very good at returning phone calls and e-mails. After checking Scotts property multiple times and finding no sign of him, Palmer filed a missing persons report with the Yolo County Sheriffs Department on June 11.

In the meantime, on June 6, 12, and 13, defendant had cashed fraudulent checks on Scotts accounts for $550, $325, and $880, respectively.

On June 14 and 15, Yolo County sheriff deputies searched Scotts property. In the hallway was dried blood spatter. In one of the bedrooms off the hallway was what appeared to be an arterial spurt blood stain pattern on a slotted door entry into that bedroom. The blood stain was at neck or shoulder height and matched Scotts DNA. There was a similar blood stain that went through the spaces between the slotted bedroom door to the other side of the wall. Defendants left palm print was found inside the door frame. On the dresser in the bedroom was a spent .22 caliber shell casing. A big portion of the carpet in the hallway had been cut out and was stained with blood. It was covered with a throw rug. In a backyard garbage can was a piece of rolled up carpet with blood on it. Missing from Scotts dishwasher were three firearms he stored inside: a .22 caliber revolver, a .357, and a 9 mm.[2] Missing from his property was his Casita travel trailer.

On June 15, the Yolo County Sheriffs Department found the trailer in Winters, on the property of one of Cunninghams acquaintances. Cunningham had dropped off the trailer a few days before. Inside the trailer were boxes of .22 ammunition.

Defendant stole various items belonging to Scott, including his firearms, birth certificate, passport, vaccination record, and checkbook. As to the firearms, he took two of them (the 357 Magnum and the nine-millimeter Ruger or clip-feed) to the house of William Hennagin, a felon Cunningham had met in jail. Defendant said he wanted to get rid of the 357 and left it with Hennagin, who in turn traded it for drugs. Defendant took two firearms (the .22 pistol and the nine millimeter revolver) to his girlfriends house and hid them there.

Defendant was interviewed by police starting on June 14 and was then taken into custody. He claimed Scott had given him a check on June 8 and told him he was leaving for a trip [o]ver by the coast. Defendant denied forging any checks, being inside Scotts house, touching or stealing any of Scotts firearms, or doing anything to Scott.

DISCUSSION

I

The Court Did Not Err In Failing To Conduct A Hearing On The Admissibility Of Bank Employees Testimony,

And Counsel Was Not Ineffective

Defendant contends the court violated his right to due process by failing to hold an Evidence Code section 402 hearing (402 hearing) prior to admitting the testimony of two bank employees regarding statements Scott made to them. He further contends counsel was ineffective for failing to object to the lack of a 402 hearing and to Scotts statements to the bank employees because they violated the confrontation clause and were more prejudicial than probative. We find no error.

A

Factual And Procedural Background

Defense counsel objected in limine to the prosecutors use of statements Scott made to bank employees based on hearsay[,] Evidence Code [section] 352 and the Sixth, Fifth and Fourteenth Amendments of the United States Constitution.

The court responded as follows: [W]hile [the statements] cannot be used as proof that the defendant forged a check or committed any criminal offense, [they] can be used to show [Scott]s state of mind as to his future intended conduct, that he was going to confront the defendant.

Defense counsel then ask[ed] for a 402 hearing on the bank teller . . . [b]ecause if the statement isnt exactly what it is intended to be, it could go off into impermissible hearsay. The court responded, Thats fine. If we have time, I dont have a problem doing that. Defense counsel never reraised his request for a 402 hearing.

Thereafter, bank employee Thornton testified that Scott came into the Woodland branch, inquired about a questionable check, said he was pretty sure he knew who did it, and stated he was going to confront the individual [who] he thought it was.

Four witnesses later, another bank employee testified Scott came into the Dixon branch, reported fraudulent activity on his account, and stated he th[ought] he kn[e]w[] who did it, so he wanted to handle it on his own.

B

The Issue Was Forfeited, And Counsel Was Not Ineffective

By failing to reraise his request for a 402 hearing before the bank employees testified, defense counsel forfeited his request. The court was not obligated to hold a 402 hearing simply because it said it would if time permitted. (See People v. Williams (1997) 16 Cal.4th 153, 196 [[T]he trial court was not bound to provide, unprompted, additional hearings under Evidence Code section 402 merely because it had earlier suggested it would do so at the appropriate time].)

In any event, counsel was not ineffective for failing to reraise the 402 hearing issue and for not objecting when the employees testified as to Scotts statements. The purpose of a 402 hearing is to decide preliminary questions of fact upon which the admissibility of evidence depends. (People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 209, fn. 6.) The court correctly determined the statements were admissible to prove Scotts state of mind, which was allowed under Evidence Code section 1250,[3] and to prove Scott did indeed confront the person he believed forged the checks, i.e., defendant. (People v. Alcalde (1944) 24 Cal.2d 177, 185 [From the declared intent to do a particular thing an inference that the thing was done may fairly be drawn]; People v. Jones (1996) 13 Cal.4th 535, 548 [evidence of a murder victims statement regarding her intent to accompany the defendant is not inadmissible under the hearsay rule when offered to prove conduct of the declarant in conformity with that state of mind).][4]

Defendants Sixth Amendment claim fares no better. The confrontation clause bars admission of out-of-court testimonial statements, unless the declarant is unavailable and the defendant had a previous opportunity to cross-examine the declarant. (Crawford v. Washington (2004) 541 U.S. 36, 68 [158 L.Ed.2d 177, 203].) Crawford did not define testimonial, but gave the following examples: (1) ex parte testimony at a preliminary hearing; (2) [s]tatements taken by police officers in the course of interrogations; (3) grand jury testimony; and (4) prior trial testimony. (Id. at pp. 51-52, 68 [158 L.Ed.2d at pp. 193, 203].) Scotts statements to bank employees did not qualify as testimonial. Although there was a chance the statements would be used in a criminal trial, the purpose of Scotts statements was to alert the bank employees to problems with his accounts and to let them know he intended to take care of the problem by confronting the person he believed was responsible for the forged checks. As these nontestimonial statements did not implicate Crawford, counsel was not ineffective for failing to reraise the Sixth Amendment objection.

Finally, the court did not abuse its discretion in admitting the statements under Evidence Code section 352.

The probative value of the evidence was high -- it tended to show Scott confronted defendant and in response defendant murdered him to avoid returning to prison. (See People v. Griffin (2004) 33 Cal.4th 536, 577 [evidence the victim said she was going to confront the defendant about molesting her and report the molest if he did not quit was admissible to show that a confrontation occurred and in response defendant murdered her to avoid apprehension].) In contrast, the prejudicial value was low. Although the statements were damaging to the defense, that is not synonymous with the undue prejudice that necessitates exclusion of evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.)

On this record, defendants arguments regarding the failure to hold a 402 hearing, the admissibility of Scotts statements, and counsels deficient performance fail.

II

The Court Did Not Err In Admitting Evidence

Of Defendants Parolee Status

Defendant contends the court abused its discretion and violated his due process right to a fair trial when it admitted evidence he was on parole. We disagree.

The court admitted the evidence because it tended to show a motive for murder, i.e., defendant killed Scott to avoid returning to prison for a parole violation based on checks he had forged. It was not an abuse of discretion to have done so. (People v. Powell (1974) 40 Cal.App.3d 107, 155, disapproved on other grounds in People v. Harris (1984) 36 Cal.3d 36, 53 [no abuse of discretion when evidence of parolee status could reasonably tend to prove [the defendant] killed [a police officer] to avoid revocation of his parole and return to prison].) Moreover, defense counsel never articulated the undue prejudice that would flow from this highly probative evidence. Defendant now argues the prosecutor could have advanced the equally valid theory he killed Scott to avoid being charged with the forgery that would not have necessitated presenting evidence of [his] parole status. While this could have been another theory of why defendant murdered Scott, the prosecutor was under no duty to select a theory of the case that would have circumvented the introduction of highly probative and not unduly prejudicial evidence regarding defendants parolee status.

Defendants due process argument similarly fails. Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) As we have just explained, the permissible inference from the evidence was that defendants parolee status gave him a motive to commit murder.

In summary, then, the court did not err, constitutionally or otherwise, in admitting the evidence.

III

There Was Substantial Evidence To Support

Defendants First Degree Murder Conviction

Defendant contends there was insufficient evidence to support his conviction for first degree murder. We disagree.

A killing that is willful, deliberate, and premeditated is first degree murder. (Pen. Code, 189.) The California Supreme Court has articulated three categories of evidence relevant to determining the existence of premeditation and deliberation (which separates first degree murder from second degree murder): (1) planning activity; (2) motive; and (3) manner of killing. (People v. Perez (1992) 2 Cal.4th 1117, 1125, citing People v. Anderson (1968) 70 Cal.2d 15, 25-27.) While these factors are helpful for purposes of review, they are not a sine qua non to finding first degree premeditated murder, nor are they exclusive. (Perez, at p. 1125.)

Viewed most favorably to the judgment, there was strong evidence of motive and manner of killing to support the first degree murder conviction. Defendant, a parolee who risked returning to prison, had just been implicated in writing forged checks on Scotts bank account. Scott confronted defendant about it. The aftermath of that confrontation was written in Scotts blood. From the pattern of blood spatter left in the hallway and bedroom and from the .22-caliber bullet casing remaining in the bedroom, it appeared defendant fired one shot at Scott, striking an artery located near Scotts neck or shoulder area. The blood came out in such force it went through the spaces between the slotted bedroom door off the hallway to the other side of the wall. The amount of blood lost was enough to soak through a big portion of the carpet in the center of hallway. The manner of killing, i.e., a shot near the neck or shoulder, puncturing an artery, and the loss of a substantial amount of blood supports an inference that the killing was a result of a preconceived design to take Scotts life in a particular way rather than a mere unconsidered or rash impulse hastily executed. (People v. Anderson, supra, 70 Cal.2d at p. 27.)

Then there was defendants conduct after the killing. He disposed of Scotts body so it was not discovered by the time of trial. He stole Scotts trailer, firearms, birth certificate, passport, vaccination record, and checkbook. And he cashed forged checks for $880, $550, and $325 on Scotts account. Such conduct would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing. (See People v. Perez, supra, 2 Cal.4th 1117, 1128 [evaluating conduct of defendant after the stabbing as inconsistent with a state of mind that would have produced a rash, impulsive killing].)

On this record, defendants argument fails.

IV

The Court Correctly Refused

To Instruct On Voluntary Manslaughter

Defendant contends the court violated his constitutional rights by failing to instruct on voluntary manslaughter as a lesser included offense to murder. We disagree because there is insufficient evidence he was guilty of that crime. (See People v. Breverman (1998) 19 Cal.4th 142, 162.)

Voluntary manslaughter consists of an unlawful killing in either: (1) a sudden quarrel or heat of passion; or (2) an actual, but unreasonable, belief in the need to defend against imminent death or great bodily injury. (Pen. Code, 192, subd. (a); In re Christian S. (1994) 7 Cal.4th 768, 783.) While there was evidence Scott confronted defendant about the forged checks, there was no evidence Scotts actions in confronting defendant would either: (1) have cause[d] an ordinary person of average disposition to act rashly or without due deliberation and reflection, which was necessary for a killing done following a sudden quarrel or in the heat of passion (People v. Lee (1999) 20 Cal.4th 47, 59); or (2) would have caused this defendant to actually but unreasonably believe he had to defend against imminent death or great bodily injury. While there were firearms belonging to Scott on the property and evidence that one was used in the shooting (which came in the form of the .22-caliber casing near Scotts arterial blood), the evidence implicated defendant, not Scott. The blood found at crime scene (that was tested) was Scotts, one of his arteries was damaged and bleeding, and Scotts firearms ended up in defendants possession. Although defendant presume[s] Scott confronted him by having three handguns and a rifle at hand and visible, there is no evidence to support his presumption. Speculation does not constitute the requisite substantial evidence to support giving a lesser included offense instruction. (People v. Waidla (2000) 22 Cal.4th 690, 735.)

We note one final point. Defendant argues the courts decision to instruct pursuant to CALCRIM No. 522 that provocation would reduce first degree murder to second degree murder invalidated the courts reason for failing to instruct on voluntary manslaughter, i.e., the absence of provocation on Scotts part. Defendants argument gets him nowhere. The jury necessarily rejected the defenses argument that Scott provoked defendant by finding him guilty of first degree murder. On this record, defendant could not have proved prejudice even if he could have proved error.

V

The Court Did Not Err In Failing To Stay One Of Defendants Two Sentences For Felon In Possession Of A Firearm

Defendant contends the court erred in failing to stay one of his two sentences for felon in possession of a firearm.[5] We find no error, as defendant had different objectives in possessing the firearms. (See People v. Perez (1979) 23 Cal.3d 545, 552 [under Pen. Code 654, a defendant may be punished only once for all his offenses if they were incident to one objective].)

Defendant possessed four different firearms that belonged to Scott: a .22-caliber revolver, a nine-millimeter handgun, a 357 Magnum, and a .22-caliber pistol. He gave the 357 Magnum to a convicted felon who in turn traded it for drugs. And he kept two others at his girlfriends house. By arming a convicted felon who in turned traded it to another person, defendant increased the danger to the public. And by keeping different types of firearms for himself, he had access to a variety of weapons that could serve different purposes and could be used to commit multiple crimes. Under these facts, the court did not err in failing to stay one of defendants sentences for felon in possession of a firearm.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

NICHOLSON , Acting P. J.

RAYE , J.

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[1] All references to dates are to the year 2006.

[2] Scott also had a .22 rifle he stored elsewhere.

[3] Evidence Code section 1250 provides in part: (a) Subject to section 1252, evidence of a statement of the declarants then existing state of mind . . . (including a statement of intent . . . ) is not made inadmissible by the hearsay rule when: [] (1) The evidence is offered to prove the declarants state of mind . . .; or [] (2) The evidence is offered to prove or explain acts or conduct of the declarant.

Evidence Code section 1252 provides: [e]vidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.

[4] At one point in his argument, defendant contends the court failed to protect against the misuse of this evidence. Defendants contention is based on the assumption the jury erroneously was allowed to conclude that Scott did, in fact, confront [defendant] about the forged check. As we have just explained, this was a permissible inference, so no limiting instruction was necessary.

[5] The issue of whether a defendant was properly sentenced on multiple counts of being a felon in possession of a firearm where he was discovered in a closet with a cache of weapons is pending before the California Supreme Court in a case that originated in our court, People v. Correa (2008) 161 Cal.App.4th 980, review granted July 9, 2008, S163273. There, we held that multiple sentences were not prohibited by Penal Code section 654.