P. v. Hartman

Filed 6/28/06 P. v. Hartman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Martin Thomas Hartman appeals from the judgment entered after a jury convicted him of first degree felony-murder with the special circumstance finding that the murder occurred during the commission of an arson. (Pen. Code, §§ 187, subd. (a); 189, 190.2, subd. (a)(17).)^[1] Appellant was sentenced to life without the possibility of parole and ordered to pay a $10,000 restitution fine (§ 1202.4, subd. (b)), a $10,000 parole revocation fine (§ 1202.45), and $4,820.88 victim restitution (§ 1202.4, subd. (f)). We strike the $10,000 parole revocation fine and affirm the judgment as modified. (See People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183 [defendant sentenced to life without possibility of parole not subject to parole revocation fine].)

Facts and Procedural History

The Fire

On February 24, 2002, at 3:20 p.m., the Santa Barbara Fire Department responded to an apartment fire at 222 West Micheltorena Street. Apartment 8 was engulfed in flames. Clint Risetter, who lived in the apartment, was discovered lying face down, dead in the patio area. Risetter's lower extremities had extensive burns but his face, neck and arms were not burned.

Santa Barbara Fire Department Investigator Joseph Poire spent 13 hours that day inspecting the fire scene and interviewing witnesses. Poire determined that the fire started on the victim's bed at the rear of the apartment and quickly spread, creating a "flashover" that ignited combustible materials. The fire was unusually hot, melting an aluminum window. Based on the burn patterns and the heat and speed of the fire, Poire concluded that the fire was deliberately set and that some kind of accelerant was used to start the fire.

Appellant's Confession

On the morning of February 26, 2002, appellant walked into the Santa Barbara Police Department lobby and stated that he had started a fire "that had killed the man." Waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]) appellant told Detective Dan McGrew that he killed Risetter because Risetter was a homosexual. Appellant drew a diagram of the apartment and said he started the fire with gasoline and a lighter.

Appellant was interviewed from 7:00 a.m. until 10:00 p.m. and was provided meals, rest breaks, and bathroom breaks. During the interview, he disclosed details not reported to the media. Appellant said that he started the fire at the foot of the victim's bed, that the victim was asleep, and that the fire was fast moving.

Appellant told Detective McGrew, "I killed him. He deserved to die." Minutes later, appellant recanted and claimed that he was never in the victim's apartment. Upon further questioning, appellant said that Risetter was gay, that he hated gays, and that he decided to "do society a favor by getting rid of homosexuals . . . ."

The jury saw a videotape of appellant's confession. Appellant told the police that he filled a milk carton with gasoline, sealed it with tape, and carried it to Risetter's apartment in a Budweiser beer box. Appellant threw gasoline on the corner of the bed and lit it while Risetter was sleeping. Appellant said that the fire burned "very rapidly" and that he ran out the back door and hopped over the patio fence. On the way home, he threw the milk carton and lighter in a trash bin near the victim's apartment. Appellant stashed the beer box under his house when he got home.

After appellant confessed, fire department investigators found a milk carton wrapped in masking tape and a lighter in a dumpster near the victim's apartment. Appellant's residence was also searched. Investigators found a gasoline can and a bottle of isopropyl alcohol in the garage, and a Budweiser beer box under the house crawl space.

Prosecution's Case

Appellant lived at 1329 Garden Street, about seven blocks from the victim's apartment. In the early morning hours of February 24, 2002, neighbors heard appellant yell and scream, "Say that to my face."

At 2:00 a.m., the fire department responded to a 911 call. Appellant said that he smelled smoke in some bushes at the front of his house. Santa Barbara Fire Department Captain Scott Johnson inspected the area and saw no fire or smoke. As Captain Johnson drove back to the fire station, he saw appellant walking down Sola Street towards State Street where Risetter lived. Appellant was in a hurry.

Later that day, Cory Spencer saw appellant walking in the same direction towards State Street. Appellant was carrying a glass filled with a dark brown liquid but did not drink it. The liquid looked like Coca Cola without bubbles.

About three hours before the fire, Celia Olivas saw appellant in the victim's apartment driveway. Olivas was on her balcony porch. Appellant looked up and smirked at her.

Shortly after 3:00 p.m., another neighbor, Rosemary Flores smelled wood burning and saw smoke coming out of Risetter's apartment. Flores screamed "Fire" and called 911.

Neighbors described the smoke as "dark" and "very thick." Kevin Conway, who lived above Risetter, heard popping sounds and saw flames rising above the deck. When firefighters arrived, it was a "solid wall" of fire.

Fire Department Investigator Joseph Poire opined that the fire originated at the foot of the victim's bed, that a small amount of accelerant was used to start the fire, and that the fire was deliberately set. Poire did not believe the fire was caused by a cigarette even though Risetter smoked. Cigarette fires are slow smoldering fires and create a lot of smoke before combusting. The neighbors heard the smoke detector alarm go off at about the same time smoke and flames shot out the apartment, indicating that the fire started very rapidly.

Medical Evidence

Doctor George Sterbenz performed the autopsy and reported that Risetter suffered extreme burns to the back of the head and ears. Risetter's carbon monoxide blood level was low, indicating that he took only a few breaths before dying. The lack of soot in Risetter's nose, mouth, and lungs was inconsistent with a smoldering fire. Risetter had a .27 percent blood alcohol level, which would have impaired him and made it difficult to get out of the apartment. The position of Risetter's body indicated that he crawled to the patio and collapsed, suffering extreme burns to his back and feet.

Doctor Robert Anthony, a forensic pathologist, testified that three different mechanisms could have caused Risetter's death: death by flame injury, obstruction of the airway due to inhalation of heat or fumes, or a heart arrhythmia. Doctor Anthony opined that the first two mechanisms were the most reasonable and consistent with the theory that someone set the fire while Risetter was asleep. The back of Risetter's throat was red and swollen, indicating that he inhaled extremely hot gases for a brief time.

Doctor Anthony testified that the autopsy findings were inconsistent with a smoldering fire, self-immolation, or an accidental fire. The doctor opined that the most reasonable scenario, which took into account all the available evidence was that "Mr. Risetter was asleep in his bed. Someone else came in and set the fire. Once [Risetter] became aware of the fire, he took a breath of hot fumes, which damaged his throat, making it impossible to breathe but not impossible to move. He then ran out the back [door] and died because of the fire."

The Defense

Appellant claimed that the victim's death was a suicide. Between September 1991 and May 2001, Risetter sought hospital treatment 17 times because he was depressed. Doctor Mace Beckson, a suicide expert, opined that Risetter exhibited many factors associated with suicide including alcohol dependency, depression, prior suicide attempts, social isolation, unemployment, and sexual identity conflicts.

Appellant also claimed that the confession was false and the police used suggestive interrogation techniques. Evidence was received that appellant had a low IQ and would do and say odd things to get attention.

Sick Juror

On March 23, 2004, the third day of deliberations, juror number six told the bailiff she felt ill and had scheduled a doctor's appointment. The jury asked if it could reconvene the next day rather than start over with a substitute juror.

The trial court and counsel discussed possible options.^[2] It was agreed that "the jurors could adjourn to continue deliberating on March 24, 2004."

The clerk's minutes state that "Court adjourned" at 11:00 a.m. and that appellant was remanded to custody. The jury, however, continued deliberations and reached a verdict at 11:40 a.m. It reconvened the next morning, March 24, 2004, to read the verdict. Appellant argues that the trial court erred in allowing the deliberations to continue without advising counsel. The record, however, indicates that the jurors were given the option to leave for the day or continue deliberating. The court trial said they could "work through lunch" the next day if they wished. Counsel agreed to the procedure.

Although the clerk's minutes state that "Court adjourned," this refers to the court not the jury, otherwise the jury would have been admonished not to discuss the case. (§ 1128; People v. Chain (1971) 22 Cal.App.3d 493, 497-498; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment § 1, p. 13.) Where the jury is absent from the court room and deliberating, the court may "adjourn" from time to time and conduct other business. (§ 1142.) The trial court is not required to summon counsel unless the jury has further questions. (§ 1138.)

Appellant argues that juror number six was too sick to continue deliberating. The decision not to discharge a juror is reviewed for abuse of discretion. (People v. Hart (1999) 20 Cal.4th 546, 596; People v. Beeler (1995) 9 Cal.4th 953, 989.) "The [trial] court's observation of the juror's appearance is a sufficient basis to determine if the juror is too ill to continue. [Citation.]" (People v. Dell (1991) 232 Cal.App.3d 248, 256.)

Juror number six advised the bailiff that she felt ill and had made an appointment to see a doctor later that day. Appellant did not inquire about the nature of the illness or whether the jury could continue deliberating before the noon hour. (See e.g., People v. Williams (1997) 16 Cal.4th 153, 231-232 [juror reported she might be physically unable to continue serving but remained on jury].) The trial court was in the best position to observe the juror and determine whether she could continue serving. (E.g., People v. Beeler, supra, 9 Cal.4th at p. 989.) "[N]othing in the record indicates [that the juror] experienced any further problems, let alone that her ability to function competently as a juror was impaired." (People v. Williams, supra, 16 Cal.4th at p. 232.)

Appellant's assertion that he was convicted by 11 rather than 12 competent jurors is without merit. Whatever the nature of the juror's illness, it did not impair her ability to deliberate or appear the next day. If juror number six was too ill to deliberate, it is reasonable to assume that the bailiff, fellow jurors, the court clerk, or counsel would have said something. (See People v. Hayes (1999) 21 Cal.4th 1211, 1256, fn. 6 [unsworn statement may be sufficient to question juror].) Appellant could "not sit back and acquiesce in the procedure used, await a jury verdict," and assert error for the first time on appeal. (People v. Rhoades (2001) 93 Cal.App.4th 1122, 1126.) A juror's inability to perform his or her functions as a juror must be established as a " 'demonstrable reality' and will not be presumed. [Citations.]" (People v. Lucas (1995) 12 Cal.4th 415, 489; People v. Cleveland (2001) 25 Cal.4th 466, 474.) A silent record is not enough.

Confession

Appellant contends that the trial court erred in not granting a new trial on the ground that his confession was unreliable. We reject the argument because the motion for new trial was limited to the in-court identification and whether the expert testimony on cause of death violated appellant's right of confrontation. Appellant may not expand the basis for the new trial motion on appeal.^[3]

Appellant asserts that the confession is so unreliable that it violated his due process right to a fair trial. The reliability of a confession is governed by state evidentiary law and presents no due process issue. (Colorado v. Connelly (1986) 479 U.S. 157, 167 [93 L.Ed.2d 473, 484].) The due process clause is not implicated unless the confession is involuntary, "without regard for the truth or falsity of the confession [citations]." (Lego v. Twomey (1972) 404 U.S. 477, 483 [30 L.Ed.2d 618, 624]; Crane v. Kentucky (1986) 476 U.S. 683, 688 [90 L.Ed.2d 636, 643]; see People v. Cahill (1993) 5 Cal.4th 478, 520 [due process question of whether confession was coerced does not at depend on considerations of reliability].)

Before trial, appellant moved to exclude the confession on the ground that it was coerced. Substantial evidence supported the trial court's finding that the confession was free and voluntary. (Colorado v. Connelly, supra, 479 U.S. at pp. 169-170 [93 L.Ed.2d at pp. 486-487].) It was uncontroverted that appellant walked into the police station and announced that he set the fire that killed Risetter. Appellant waived his Miranda rights and gave a detailed account of the murder that included information not disclosed to the media or public. Appellant knew the name of the victim, described the victim's apartment and bed, and explained how he started the fire and ran out the back door.

Sufficiency of Evidence

Appellant argues that his confession has too many inconsistencies to support the conviction. On review, we do not reweigh the evidence or determine credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Although appellant attempted to recant, his statement in the police station lobby and videotaped statements to Detective McGrew and Poire were highly incriminating. Appellant sketched a layout of the apartment and provided details that only the perpetrator could know.

Appellant, in his opening brief, asserts that the confession is "worthless," the ramblings of "a psychotic, near-mentally retarded pleaser," and the product of a coercive police interrogation. Similar arguments were made at trial. They were discredited by the jury.^[4]

Appellant gave contradictory accounts of the fire, "but those things presented problems for the jury to solve by drawing the more reasonable inferences. 'The prosecution is not bound by the exculpatory statements or self-serving declarations in a confession when shown by direct or circumstantial evidence to be untrue. . . . Moreover, confessions stand upon the same footing as other evidence and are to be weighed by the jury in the same manner. All parts are not necessarily entitled to the same credit, and the jury may believe a part and reject the remainder of a confession [citation].' [Citation.]" (People v. Williams (1957) 151 Cal.App.2d 173, 185. )

The record shows that the confession was reliable, included details not disclosed to the public or media, and was independently corroborated. Appellant said that he carried gasoline to the apartment in a taped milk carton, that he threw gasoline on the bed while the victim was asleep, that he used a lighter to start the fire, and that he tossed the milk carton and lighter in a dumpster. The confession was corroborated by the arson investigation, the autopsy findings, appellant's sketch of the apartment, the taped milk carton and lighter, by the Budweiser beer box under appellant's house, and by Celia Olivas who saw appellant in the victim's driveway.

On review, all conflicts in the evidence must be resolved in favor of the judgment. (People v. Osband (1996) 13 Cal.4th 622, 690.) Reversal "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard is the same in cases where the evidence is primarily circumstantial. (People v. Stanley (1995) 10 Cal.4th 764, 792.) Here the evidence is overwhelming.

Witness Identification

Appellant claims that Celia Olivas's in-court identification violated his due process right to a fair trial. "Admission of the identification evidence is error only if the identification procedure was unduly suggestive and unnecessary and it is unreliable under the totality of the circumstances. [Citation.]" (People v. Kennedy (2005) 36 Cal.4th 595, 610.)

Four days after the fire, Olivas saw appellant's picture on the news and recognized appellant as the man in the victim's driveway. The news broadcast stated that appellant had confessed to setting the fire.

After Olivas spoke to a fire department investigator, Poire showed her a six-pack photo lineup. Olivas identified appellant's photo. Olivas was interviewed eight months later, shown a new photo lineup with the same photo of appellant, and identified appellant. In both photo lineups, appellant was the only person smiling.

Appellant moved to exclude the identification evidence. The trial court found that the photo lineups were unduly suggestive but ruled that Olivas could make an in-court identification.^[5] At trial, Olivas testified that appellant was the man she saw in the driveway the day of the fire.

Appellant's assertion that the identification violated his due process rights is without merit. Where a witness sees news coverage of a defendant's arrest and recognizes the defendant as the suspect, due process concerns about the identification process are not implicated. (See e.g., United States v. Kimberlin (7th Cir. 1986) 805 F.2d 210, 233; State v. Daughtery (L.A.App. 1990) 563 So.2d 1171, 1173-1174 [viewing television news coverage of defendant's arrest is not an identification procedure]; State v. Reid (Tenn. 2002) 91 S.W.3d 247, 271-273 [same].) "[F]or a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness -- i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure. Due process does not forbid the state to provide useful further information in response to a witness's request, for the state is not suggesting anything." (People v. Ocho, supra, 19 Cal.4th at p. 413.)

Appellant argues that the in-court identification lacks evidentiary value because Olivas could not describe the race, the clothing, or specific height of the man she saw in the driveway. "Confusion or lack of clarity and positiveness in a witness' identification testimony goes to the weight, not the admissibility of the testimony. [Citations.]" (People v. Rist (1976) 16 Cal.3d 211, 216.) The admission of an in-court identification which has a source or origin independent of a suggestive pretrial identification is not error. (People v. Martin (1970) 2 Cal.3d 822, 831; see Neil v. Biggers (1972) 409 U.S. 188, 199 [34 L.Ed.2d 401, 411].)

Olivas stated that the in-court identification was based on her independent recollection, not the photo lineups. She was positive that appellant was the man she saw in the driveway and explained why. Olivas observed appellant from her balcony and paid close attention to him for two or three minutes. Appellant was 15 to 20 feet from her, looked up, and smiled at her. Olivas said it was "a little smirky smile." She remembered the smile because "[m]y son has that same smile when he does something wrong . . . ."

The trial court instructed that an eyewitness identification should be viewed with caution and that the jury should consider whether "the witness' memory was or was not affected by the intervening time and events . . . ." (CALJIC 2.92.) The jury was cautioned: "If, after considering the circumstances of the identification and any other evidence in this case, you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty." (CALJIC 2.91.) We presume the jury understood and followed the instructions.

The argument that the in-court identification was not based on Olivas's independent recollection "flies in the face of the unequivocal contrary testimony of [Olivas] at the hearing of appellant's motion to exclude the in-court identification." (People v. Ingle (1986) 178 Cal.App.3d 505, 512.) Appellant makes no showing that the photo lineups were so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. (Simmons v. United States (1968) 390 U.S. 377, 384 [19 L.Ed.2d 1247, 1253]; People v. Hunt (1977) 19 Cal.3d 888, 894.) Olivas's identification testimony rested on a basis independent of, and untainted by the photo lineup. (People v. Boyer (2006) 38 Cal.4th 412, 479 & fn. 54.)

People v. Pedercine

Appellant claims that he was put "on the horns of a dilemma" about leaving the in-court identification unchallenged or cross-examining Olivas about the photo lineups. (People v. Pedercine (1967) 256 Cal.App.2d 328, 336-337.) Citing Pedercine, appellant moved to strike the in-court identification and moved for new trial. The trial court found that appellant waived the issue by not objecting when Olivas made the in-court identification. It did not err. (Evid. Code, § 353; People v. Holt (1997) 15 Cal.4th 619, 666-667.) Pedercine was raised as an afterthought, several days after Olivas testified.

Recasting the Pedercine issue as a due process violation, appellant claims that the in-court identification denied him a fair trial. (See e.g., People v. Partida (2005) 37 Cal.4th 428, 439.) Based on the totality of the circumstances, we cannot say that the identification was so tainted or unreliable that it rendered the trial fundamentally unfair. (People v. Bauer (1969) 1 Cal.3d 368, 374; Simmons v. United States, supra, 390 U.S. at pp. 384-385 [19 L.Ed.2d at pp. 1253-1254].)

In the alternative, appellant argues that he was denied effective assistance of trial counsel. (Strickland v. Washington (1984) 466 U.S. 668, 697 [80 L.Ed.2d 674, 699].) To prevail on the claim, appellant "must prove prejudice that is a ' "demonstrable reality," not simply speculation.' [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Prejudice is lacking here.

Had a Pedercine objection been timely made, the trial court would have probably excluded the in-court identification but not the news photo identification.^[6] Olivas saw appellant in the driveway and was positive about her identification. It was more than a glimpse. Appellant looked up and gave her an odd smirk. Olivas recognized appellant "right away" when she saw his picture on the news.

The trial court denied a motion to strike Olivas's testimony but ruled that appellant could question Poire about the photo lineups. Appellant was warned that no restraints would be placed on the prosecution's cross-examination. Appellant declined to ask about the photo lineups. We assume it was for tactical reasons because it would have opened the door to even more damaging evidence. Appellant claims that the in-court identification was critical to the People's case because Olivas was the only person who could corroborate that appellant knew where Risetter lived. We disagree. Kimberly Tollstrup told Poire that appellant knew Risetter and may have followed him home after Risetter visited her. This was consistent with appellant's confession. Appellant told the police that Risetter visited him three or four times and that they talked in front of Risetter's house a few months before the fire. Appellant not only knew where Risetter lived but provided the police a sketched diagram of the apartment.

Crawford v. Washington

Appellant next argues that the expert testimony on cause of death violated his right of confrontation as interpreted by Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford). The trial court found that Crawford did not apply. It did not err.

"Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion. Crawford itself states that the Confrontation Clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' [Citations.]" (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)

After Poire completed his arson investigation, he consulted John DeHaan (an arson expert) and Doctor Marc Krouse (a forensic pathologist). Doctor Krouse prepared a report stating that many aspects of the fire scene were inconsistent with self-immolation.

Appellant complains that Poire read from the report at trial. This occurred after appellant cross-examined Poire about the consultation with DeHaan and DeHaan's report. Poire admitted that DeHaan could not tell, based on the fire scene, whether it was a homicide or a suicide. On redirect, Poire explained, "if you look at the evidence that the fire scene alone presents without any other information about the fire, and the burn patterns and the area of origin and all of that, it's impossible to tell who set the fire." Poire referred to a portion of DeHaan's report which stated that the burn patterns on the victim, "the absence of an identifiable container for ignitable liquid at the scene, and negative laboratory findings on the relevant debris were all indications that the fire was not deliberately ignited by Mr. Risetter as a means of suicide." Poire stated that his investigation findings were consistent with DeHaan's report and Doctor Krouse's report.

We conclude that there was no Crawford violation. (People v. Thomas, supra, 130 Cal.App.4th at p. 1210.) The testimony was not admitted for the truth of the matter stated but to show that Poire consulted others to review his investigation. Poire stated that the consultation was "sort of a peer review, which is common in our business." As an expert, Poire was free to explain the basis for his opinion and state what information and sources were relied on in forming his opinion. (Evid. Code, § 802; People v. Gardeley (1996) 14 Cal.4th 605, 618; In re Fields (1990) 51 Cal.3d 1063, 1070 [expert witness can base "opinion on reliable hearsay, including out-of-court declarations of other persons"].)

Appellant argues that the prosecution used Poire as a "mouthpiece" to read Doctor Krause's report.^[7] "An expert witness may not, on direct examination, reveal the content of reports prepared or opinions expressed by nontestifying experts." (People v. Campos (1995) 32 Cal.App.4th 304, 308, emphasis added.) This rule, however, does not preclude the cross-examination of an expert witness on the content of such reports. (Ibid.)

Here, the report came out on cross-examination and redirect. Our courts "have traditionally given both parties wide latitude in the cross-examination of experts in order to test their credibility. [Citations.]" (People v. Coleman (1985) 38 Cal.3d 69, 92.) Experts may testify as to their opinions and, if questioned, relate the information and sources on which they relied in forming their opinions. (See People v. Gardeley, supra, 14 Cal.4th at pp. 618-619; Evid. Code, § 801, subd. (b) [expert's opinion may be based on matter "whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . ."].) The trial court, in denying the motion for new trial, correctly found that the references to consultant reports did not violate appellant's right of confrontation as interpreted by Crawford.

Appellant's assertion that the autopsy report is testimonial hearsay is equally without merit. Doctor Robert Anthony, a forensic pathologist, referred to the report and opined that the burn patterns on the victim were inconsistent with self-immolation or an accidental fire. The autopsy report was an official record and, like a business record, not testimonial hearsay. (See e.g., People v. Johnson (2004) 121 Cal.App.4th 1409, 1412-1413 [lab report not subject to Crawford]; People v. Taulton (2005) 129 Cal.App.4th 1218, 1224-1225.)^[8]

Under appellant's construction of the law, Crawford bars a prosecution expert from relying on an autopsy report in forming an expert opinion. No California court has so held. Courts in other states have found that autopsy reports are not testimonial hearsay. (Smith v. Alabama (Ala.Crim.App. 2004) 898 So.2d 907, 916; People v. Durio (N.Y.Sup. 2005) 794 N.Y.S.2d 863, 868-869; Moreno Denoso v. State (Tex.App. 2005) 156 S.W.3d 166, 182.) "Based on our review, the autopsy report in this case does not fall within the categories of testimonial evidence described in Crawford. It is not prior testimony at a preliminary hearing, before a grand jury, or at a former trial. [Citation.] It is not a statement given in response to police interrogations. [Citation.] Because the autopsy report was non-testimonial in nature, the new rule articulated in Crawford is not applicable in this case." (Moreno Denoso v. State, supra, 156 S.W.3d at p. 182.)

Assuming for the sake of argument that the references to Doctor Krouse's report and the autopsy report were improper, the alleged error was harmless. Poire conducted an independent investigation and concluded that the fire was a homicide. Poire's investigation and findings were corroborated by the burn patterns on the victim, the fire scene and the neighbors' description of the fire, appellant's confession, the milk carton and lighter in the dumpster, and Olivas's observation of appellant in the driveway the day of the fire. The alleged error, if any, in questioning Poire about his consultation with other experts and their reports was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225.)

Bad Character Evidence

Appellant next argues that the trial court erred in admitting bad character evidence to show a propensity for violence. (Evid. Code, § 1101, subd. (a).)

Before trial, Kimberly Tollstrup testified at a conditional examination as a defense witness. A redacted version of Tollstrup's testimony was read to the jury that included the following. On direct examination, Tollstrup stated that she met appellant in 1990 and that appellant would do odd things for attention such as call the police on himself.

On cross-examination, Tollstrup said that she and appellant were friends and that "certain things set [appellant] off." Tollstrup said that appellant was "obsessed with her" and recalled a 1997 incident in which the police were called because appellant was throwing rocks at her windows.

The prosecutor asked: "You once thought that [appellant] was incapable of being violent but you know better now, isn't that true?" Tollstrup did not know how to answer the question. Rephrasing the question, the prosecutor asked: "Didn't you once tell Investigator Poire that you thought he was incapable of being violent but that you know better now?" Tollstrup replied, "That sounds about right."

On redirect, Tollstrup testified about appellant's odd speech patterns and odd conduct. On recross, Tollstrup was asked whether appellant's violent outbursts were part of his odd behavior. Tollstrup said that she never really saw appellant "get violent violent."

Poire was called a rebuttal witness and said that he interviewed Tollstrup in 1997. Tollstrup told him that appellant threw rocks at her window and that she thought appellant "was incapable of being violent but now she knows better."

Appellant argues that the testimony is inadmissible character evidence. (Evid. Code, § 1101, subd. (a); People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Appellant, however, did not object on that ground and waived the issue. (Evid. Code, § 353, subd. (a); People v. Welch (1972) 8 Cal.3d 106, 114-115.) "A general objection to the admission . . . of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal." (People v. Marks (2003) 31 Cal.4th 197, 228.) The waiver rule applies even where evidence is challenged on constitutional grounds. (People v. Ramos (1997) 15 Cal.4th 1133, 1170.)

Poire's testimony was properly received to challenge Tollstrup's credibility as a defense witness. Tollstrup stated that appellant was non-violent and did and said odd things to get attention. On cross-examination, she was asked about her relationship with appellant, whether appellant had stalked her, and whether he was violent. The evidence was properly admitted to determine Tollstrup's credibility. (Evid. Code, § 1101, subd. (c).) We conclude that there was no violation of appellant's due process rights and that the alleged error, if any, was harmless. (People v. Yeoman (2003) 31 Cal.4th 93, 122-123; People v. Malone (1988) 47 Cal.3d 1, 22.) Appellant's guilt was clearly established by his confession, the eyewitness identification, the medical and forensic evidence concerning cause of death and the fire.

Witness Vouching

Appellant argues that the trial court erred in permitting Poire to testify that Tollstrup appeared to be honest and direct when he interviewed her in 1997. Appellant objected on the ground that "[i]t's outside the scope of the . . . . " The objection was overruled before appellant finished making the objection. Appellant did not argue that Poire was vouching for Tollstrup and is precluded from raising the issue on appeal. (See e.g., People v. Hardy (1992) 2 Cal.4th 86, 171 [failure to object to witness vouching by prosecutor].)

Waiver aside, the alleged error was harmless. The trial took 38 days and included more than 30 witnesses. Poire's testimony that Tollstrup appeared to be honest in an interview five years before the fire was an insignificant part of the trial. (See e.g., People v. Melton (1988) 44 Cal.3d 713, 745 [no miscarriage of justice].) The jury was instructed that only it could determine the credibility of a witness (CALJIC 2.20). It is presumed the jurors understood and followed the instruction. (People v. Morales (2001) 25 Cal.4th 34, 47.)

"Evidence introduced by the prosecution will often raise more than one inference, some permissible, some not; we must rely on the jury to sort them out in light of the court's instructions. Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must 'be of such quality as necessarily prevents a fair trial.' [Citation.]" (Jammal v. Van De Kamp (9th Cir. 1991) 926 F.2d 918, 920, fn. omitted.)

Second Degree Felony-Murder

The second degree felony-murder doctrine provides that a homicide is second degree murder if committed in the perpetration or attempted perpetration of a felony not enumerated in section 189 and the felony is inherently dangerous to human life. (See, People v. Hansen (1994) 9 Cal.4th 300, 308.) Appellant argues that the trial court erred in not instructing on second-degree felony murder as a lesser included offense. Citing People v. Nichols (1970) 3 Cal.3d 150, appellant contends that the homicide was second-degree murder because he only intended to burn personal property (i.e., the victim's bed), not the apartment.

In People v. Nichols, supra, the defendant set fire to a vehicle that spread to a house and killed two children. Defendant was convicted of first degree felony-murder based on the finding that he violated section 449a which made it a felony to burn property worth more than $25. The court noted that the word " 'arson' " did not appear in section 449a and that some of the acts described in the statute did " 'not involv[e] special danger to persons.' [Citations.] Thus, even if it were reasonable to believe the Legislature intended the burning of a motor vehicle, vessel, or other conveyance of human beings to be 'arson,' it is unreasonable to conclude that the Legislature intended the death penalty to apply to accidental killings . . . ." (Id., at p. 162.)

The court in People v. Nichols, supra, limited its holding to whether the burnings proscribed in section 449a constituted "arson" as that word is used in the first degree felony murder provisions of section 189. (See People v. Henderson (1977) 19 Cal.3d 86, 95-96.) In 1979, section 449a was repealed and section 451 was added to the Penal Code as the new arson statute. (See People v. Atkins (2001) 25 Cal.4th 76, 87.) Unlike People v. Nichols, supra, appellant was charged with first degree felony-murder with the special circumstance allegation that the murder occurred during the commission of a specific type of arson: "Arson that causes an inhabited structure or inhabited property to burn . . . ." (§ 451, subd. (b), emphasis added.)

Appellant argues that if a defendant intends to burn a bed, and the fire happens to burn the room in which the bed is located, it is not arson. We disagree. Arson does not require that the defendant harbor a specific intent to burn a particular object. (People v. Morse (2004) 116 Cal.App.4th 1160, 1163.) What controls is whether the defendant caused a structure to be burned. (People v. Atkins, supra, 25 Cal.4th at p. 86.) One who sets a fire that causes a structure to burn, sets fire to the structure. (People v. Frye (1993) 19 Cal.App.4th 1334, 1339.) Appellant threw gasoline on the bed and lit it. It was a malicious and intentional "act from which it could be inferred that the bed was intended to be used as a torch to set the building on fire." (People v. Tanner (1979) 95 Cal.App.3d 948, 956.)

Appellant claims that the trial court had a sua sponte duty to instruct on second degree felony-murder based on the theory that he only intended to scare Risetter. Appellant, however, told the police that he threw gasoline on the bed and lit it so Risetter would burn and die. He said that the bed "was intentionally lit" and that "it was arson, it was murder."

At trial, appellant defended on the theory that he was never in the apartment.

Even if we assumed that recklessly setting fire to an inhabited structure is a lesser included offense of arson, and further assume that recklessly setting a fire is an inherently dangerous felony subject to the second degree felony-murder rule, the evidence was insufficient to require the trial court to instruct on such an offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218-1219; see also People v. Mendoza (2000) 24 Cal.4th 130, 174-175 [evidence did not merit instruction that defendant recklessly set fire to the bed without intending to also burn the house].) "[I]n many prosecutions for arson, objective evidence that the fire was intentionally started (such as the residue of a flammable liquid or the remains of an incendiary device) will be presented to the jury, and the only defense will be that the defendant was not the one who did it. Under such circumstances, the court has no sua sponte duty to instruct on the lesser included offense of unlawfully causing a fire and might well reject a request for that instruction as inconsistent with the defense and unwarranted by the evidence. [Citation.]" (People v. Hooper (1986) 181 Cal.App.3d 1174, 1183-1184.)

The record further shows that appellant made a tactical decision not to instruct the jury on second-degree felony murder. Appellant defended on the theory that the death was a suicide. The trial court asked defense counsel whether appellant was waiving instructions on lesser included offenses. Counsel stated, "We're not requesting any lesser includeds." When the prosecution asked if this was a matter of trial tactics, defense counsel replied: "[W]e've indicated to the jury what our position of the defense is in this case. We've -- we're not requesting lesser included instructions. That's all I've got to say on this issue."

The invited error doctrine bars appellant from arguing that the trial court had a sua sponte duty to instruct on second-degree felony murder. (People v. Horning (2004) 34 Cal.4th 871, 905.) Appellant "did not want the [lesser included] instructions because they were inconsistent with his defense that he did not commit the crime at all. [Citation.]" (Ibid.)

Assuming, arguendo, that the error was not waived, the failure to instruct on second degree felony-murder was harmless. (People v. Lewis (2001) 25 Cal.4th 610, 646.) The jury was instructed that it could not return a true finding on the felony-murder special circumstance unless the prosecution proved appellant had the specific intent to kill, that appellant "willfully and maliciously" set fire to a structure, and the fire caused an inhabited structure to burn. (CALJIC 8.81.17.1.) It was instructed "[t]hat the word 'willfully' means intentionally" (CALJIC 18.40) and that specific intent to commit arson must be proved beyond a reasonable doubt. (CALJIC 8.21.)

The jury's special circumstance finding that appellant willfully and maliciously set fire to an inhabited structure (§ 451, subd. (b)) rules out the possibility that the fire was accidental or recklessly caused (§ 452, subd. (b)). "'Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.' [Citation.]" (People v. Horning, supra, 34 Cal.4th at p. 906.)

Second Degree Implied Malice Murder

Appellant also asserts that the trial court erred in not instructing on second degree implied malice murder. We reject the argument for the reasons previously stated: second degree murder is not a lesser included offense to first degree felony-murder, appellant made a tactical decision not to instruct the jury on lesser included offenses, there was no substantial evidence to warrant an instruction on second degree implied malice murder, and the alleged instructional error was harmless. (E.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 97 [failure to instruct on second degree implied malice murder as lesser included offense harmless error].) "The factual question posed by the omitted instruction necessarily was resolved unfavorably to [appellant] under the instructions on the special circumstance allegations, which required a finding of intent to kill. [Citation.]" (Ibid.)

Appellant, in his reply brief, argues that the premeditated setting of a fire is not premeditated murder, which is what distinguishes first degree murder from second degree murder. (§ 189.) The evidence, however, shows that appellant made a stealth-like entry into the apartment while the victim was asleep, and used gasoline and a lighter to burn the apartment and kill the victim. If the fire was premeditated, the jury would have to find that the arson was intentional and the homicide was a first degree felony-murder. Appellant advances no theory consistent with the evidence that would have allowed the jury to convict him of second degree murder. (People v. Valdez (2004) 32 Cal.4th 73, 116.) "Where the evidence points indisputably to a killing committed in the perpetration of one of the felonies section 189 lists, the only guilty verdict a jury may return is first degree murder. [Citations.]" (People v. Mendoza (2000) 23 Cal.4th 896, 908.)

Cumulative Error

Appellant's remaining arguments have been considered and merit no further discussion. The alleged errors, whether considered singularly or cumulatively, are harmless under any standard of review. (People v. Miranda (1987) 44 Cal.3d 57, 123.) Appellant was entitled to a fair trial, not a perfect one. (Ibid.) Viewing the evidence in the light most favorable to the judgment, we conclude that any rational trier of fact could have found appellant guilty beyond a reasonable doubt. (People v. Staten (2000) 24 Cal.4th 434, 460, citing Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [16 L.Ed.2d 560, 573].)

Substantial evidence supports the conviction and sentence of life without possibility of parole. We strike the $10,000 parole revocation fine and affirm the judgment as modified. (People v. Oganesyan, supra, 70 Cal.App.4th at p. 1183.) The clerk of the superior court is ordered to prepare and forward an amended abstract of judgment to the Department of Corrections.

As modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Thomas R. Adams, Judge

Superior Court County of Santa Barbara

______________________________

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jamie L. Fuster, Supervising Deputy Attorney General, G. Tracey Letteau and William Shin, Deputy Attorneys General, for Plaintiff and Respondent.

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Analysis and review provided by La Mesa Real Estate Attorney.

^[1] Unless otherwise stated, all statutory references are to the Penal Code.

^[2] The trial court stated: "[M]y bailiff has had a conversation with [Juror No. 6] who is feeling extremely ill today and who has asked to be excused for the day, and apparently the other jurors are aware of it, of her illness, and [Juror No. 6] has made arrangements to speak with a physician. I guess her physician is on vacation. She has a second physician available, and that the other jurors are hoping, then, that rather than start all over with a substitute juror, we would give them the day off and they would see how things were tomorrow. That is my very strong inclination. I think it would be terrible to have to start with a new juror, and I was kind of assuming we would do this just by agreement."

^[3] The motion for new trial also specified insufficiency of the evidence. The reliability of the confession was not argued at the hearing on the motion.

^[4] The jury was instructed that the confession should be viewed with caution and that "[y]ou are the exclusive judges as to whether [the] defendant made a confession or an admission, and if so, whether that statement is true in whole or in part." (CALJIC 2.70.)

^[5] The trial court found that the photo arrays were unduly suggestive because "the only distinctive feature that Ms. Olivas recalled was seeing the defendant smiling, and she was shown . . . lineups of straight-faced men, and then one person, just so happened it was the defendant, smiling."

^[6] The trial court stated: "Had the defense raised an objection at the time of the requested in-court identification, if they had raised a Pedercine horns-of-the-dilemma objection, I probably would have said, I agree. I'm going to disallow the in-court identification. I think it could be highly tainted as a result of -- or the possibility that it could be tainted as a result of the overly suggestive photographic lineups that Ms. Olivas has seen, and I probably would not have allowed it. [¶] However, that's not what happened. And that is before the trier of fact. It would do no good at all to try to unring that bell and strike that in-court identification . . . . [A]nd so I believe that I am left with suggesting to the defense that, if they wish to explore the area, I will allow them to do that. However, I will not place any restraints upon the prosecution to cross-examine."

^[7] Appellant complains that the prosecutor read portions of Doctor Krouse's report to the jury in final argument. Appellant did not object or request a jury admonishment, waiving the alleged error. (People v. Berryman (1993) 6 Cal.4th 1048, 1072.)

^[8] In Crawford, the United States Supreme Court cited examples of testimonial and nontestimonial statements, noting that business records are not testimonial. (Crawford, supra, 541 U.S. at p. 56 [124 S.Ct. at p. 1367].) In his concurring opinion, Chief Justice Rehnquist added "official records" to the list of nontestimonial hearsay. (Id., at p. at 76 [124 S.Ct. at p. 1378.)