P. v. Fructuosco
Filed 4/8/13 P. v. Fructuosco CA2/4
TO BE PUBLISHED IN THE 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
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE FRUCTUOSO,
Defendant and Appellant.
B239199
(Los Angeles
County
Super. Ct.
No. BA355534)
APPEAL from
a judgment of the Superior Court
of
County, Dennis Landin, Judge. Affirmed.
Deborah L.
Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
Jose Fructuoso appeals from his conviction by jury
verdict of second degree murder. He contends the trial court erred in
requiring his testimony as a foundation for expert psychiatric testimony that
he suffered from post
traumatic stress disorder. He claims
the prosecutor committed numerous incidents of prejudicial misconduct. Appellant argues that the trial court erred
in admitting DNA testimony in violation of his right to confrontation
guaranteed by the Sixth Amendment to the United States Constitution. He asserts that the admission of a statement
he made to a transporting police officer without readvisement of his
was error. He contends the trial court’s
response to a jury question about the difference between first and second degree
murder was inadequate. Finally,
appellant challenges the sufficiency of the evidence of second degree murder,
arguing that it instead supports a verdict of voluntary manslaughter committed
in the heat of passion.
We find no
basis for reversal. The order that
appellant lay a foundation for expert testimony about post traumatic stress
disorder was not error. We find no
reversible prosecutorial error. The
admission of an expert witness’s testimony regarding DNA testing did not
violate the right to confrontation because the raw data on which she based her
opinions was not prepared with the requisite formality to constitute
testimonial statements. Appellant’s
statement to the officer who transported him for booking was sufficiently
contemporaneous to his original advisement of rights that no readvisement was
required. The trial court adequately
responded to the jury’s question, and in any event, any error was
harmless. We find substantial evidence
to support the jury’s verdict.
FACTUAL AND PROCEDURAL SUMMARY
On the
afternoon of January 1, 2010,
Bennett Bradley’s downstairs neighbor saw him outside, watering his garden
while talking on a cordless telephone.
At 5:00 p.m. the same day, the
neighbor heard footsteps upstairs in Bradley’s apartment and the sound of
someone moving furniture. When Bradley,
a theatrical director, did not appear for a meeting at work on January 2, a
coworker went to his apartment. Bradley
was dead on the floor of the living room with his throat slashed and his pants
twisted and down around his legs. The
outside doors to his apartment were open.
His wallet was found near his body, with the cash missing. His bedroom had been ransacked, and there was
blood in the living room and bathroom.
Bradley, who was openly homosexual, had a history of multiple sex
partners, some of them strangers.
Telephone
records established that numerous calls were made from Bradley’s telephone to
appellant’s between December 31, 2009
and January 1, 2010, and
that appellant returned the calls.
Appellant lived one-half block from Bradley’s apartment. A carving knife was found in appellant’s
living room which had blood consistent with Bradley’s DNA profile on it.
Appellant
was arrested. During the booking
process, appellant told an officer that he had met ‘“the other guyâ€â€™ when he
was 16, and that he had sex with the other guy.
Appellant was then 25 years old.
He said he had encountered the victim again recently and that they had
gone back to the victim’s place.
Appellant said the victim was having sex with him “so hardâ€. He told the officer he had the knife with him
because he was a recycler.
Appellant
was charged with Bradley’s murder. He
was convicted of second degree murder and the jury found true an allegation
that he personally used a knife in the commission of the offense (Pen. Code, §
12022, subd. (b); statutory references are to this code unless otherwise
indicated.) He was sentenced to
life. This timely appeal followed.
DISCUSSION
I
Appellant
argues the trial court erred in requiring him to testify as to the factual
basis for a defense expert’s testimony that he suffered from post traumatic
stress disorder (PTSD). He claims he was
forced to waive his Fifth Amendment
privilege against self incrimination in order to preserve his Sixth
Amendment right to present the PTSD defense.
A. Standard of Review
Appellant
contends that this is a question of law reviewed de novo. The cases he cites for that proposition do
not support it. (People v. Culp (2002) 100 Cal.App.4th 1278 [issue was the
calculation of good conduct and work credits, a question of law on undisputed
facts]; People v. Cromer (2001) 24
Cal.4th 889, 896 [discussion of case law on the standard of review where there
are mixed questions of law and fact]; People
v. James (1998) 62 Cal.App.4th 244, 259–261 [question was whether a felony
is inherently dangerous for purposes of the second degree felony-murder rule];
729, 732 [sole issue on appeal was the calculation of presentence custody
credits, a question of statutory interpretation subject to independent
review].) The question presented by
appellant is more properly framed as whether the trial court erred in ruling
that appellant’s testimony was required to lay an adequate foundation for the
testimony of the expert witness on PTSD.
We review the trial court’s ruling on that question for abuse of discretion. (People
v. Moore
B. Procedural Context
Before
trial, the prosecutor moved to limit the examination of defense expert witness,
Dr. Kaser-Boyd, and to exclude inadmissible hearsay in the guise of expert
opinion. One of his arguments was that
the defense could not put the defendant’s statements before the jury in the
guise of using them as a basis for Dr. Kaser-Boyd’s opinion that he suffered
from PTSD. At the outset of the
discussion of that motion, the court adressed the order of the witnesses. Defense counsel said: “As an offer of proof, I’m letting the court
know my client will be testifying.†The
court asked why defense counsel did not plan to call appellant right away since
he planned to testify. Defense counsel
said she was not ready to have him testify on direct because she had been
preparing for the examination of Dr. Kaser-Boyd.
The court
then took up the prosecution’s motion to require appellant to testify first in
order to lay a foundation for Dr. Kaser-Boyd’s testimony about the basis for
her opinion that he suffered from PTSD.
The court asked whether appellant would testify before Dr.
Kaser-Boyd. Defense counsel said that he
would not, and that he did not have to because the expert witness could testify
about hearsay statements which were used to form her opinions. The prosecutor argued that this was a
backdoor method of placing appellant’s statements before the jury without his
testimony. Defense counsel said she was
confused about the prosecutor’s concern because she had represented to the
court that defendant would testify. The
court observed that if appellant changed his mind about testifying, the
prosecutor would have no way of challenging Dr. Kaser-Boyd’s testimony about
what appellant told her.
The trial
court tentatively ruled that Dr. Kaser-Boyd could not testify unless defendant
testified, citing People v. Coleman (1985)
38 Cal.3d 69 (Coleman), disapproved
on another ground in People v. Riccardi (2012)
54 Cal.4th 758, 824, fn. 32, and People
v. Carpenter (1997) 15 Cal.4th 312 (Carpenter),
superseded by statute on another ground as stated in People v. Friend (2009) 47 Cal.4th 1, 87. It took a recess to read People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) which was cited by defense counsel. In Gardeley,
a law enforcement gang expert was allowed to testify that a crime was committed
for the benefit of a criminal street gang based on hearsay evidence. (Id.
at pp. 618–620.) Defense counsel argued
that the court’s ruling would force appellant to choose between invoking his
Fifth Amendment privilege not to testify or having Dr. Kaser-Boyd prevented
from testifying about the basis for her PTSD opinion. The court relied on the rule that it had the
discretion to weigh the probative value of the inadmissible evidence relied
upon by an expert witness against the risk that the jury might improperly
consider it as independent proof of those facts, citing Gardeley. (
testified about his history of sexual abuse, Dr. Kaser-Boyd could not testify
about his statements which were a basis for her opinion that he suffered from
PTSD. Appellant testified before Dr.
Kaser-Boyd.
C. Contentions
Appellant
claims the court’s ruling required that he waive his Fifth Amendment privilege
against self-incrimination in order to preserve his Sixth Amendment right to
present a defense. He contends that
evidence of PTSD is routinely admitted in California and elsewhere through
expert testimony, citing two cases on battered woman syndrome. He also cites People v. Lucero (2000) 23 Cal.4th 692. In the passage cited, the court summarized
testimony by the defendant’s expert that defendant suffered from posttraumatic
stress disorder caused by war experiences while serving three tours of duty in
Vietnam. (Id. at pp. 712–713.) But the
court did not address whether a sufficient foundation for this testimony was
presented. Several witnesses from the
defendant’s unit testified about combat situations and casualties suffered by
the unit, although they did not remember defendant individually. In addition, family members testified about
the defendant’s difficult and impoverished childhood. (Id.
at pp. 711–712.) This testimony laid an
independent foundation for the expert witness’s opinion that defendant suffered
from PTSD, making it unnecessary to discuss whether the testimony of the
defendant himself was required to lay the foundation. Cases are not authority for propositions not
considered. (People v. Wilder (1995) 35 Cal.App.4th 489, 498–499.)
Appellant
asserts that the prosecution could have challenged his underlying hearsay
statements by cross-examining Dr. Kaser-Boyd.
Respondent argues that the trial court did not abuse its discretion in
following Coleman and
could change his mind and decline to testify, leaving incompetent hearsay
before the jury. Alternatively, it
contends any error was harmless under either People v. Watson (1956) 46 Cal.2d 818 or Chapman v. California (1967) 386 U.S. 18. Respondent argues that appellant planned to
testify for two purposes independent of the PTSD defense. The first was to lay the foundation for
testimony of Yolanda Castillo about a statement made by appellant four years
before that he had been raped by a Black man who worked at a theater. Respondent also contends that appellant’s
testimony was necessary to establish that he was drunk when he went to the
victim’s apartment, as a basis for a jury instruction on voluntary intoxication. Alternatively, respondent argues that
appellant’s testimony regarding his history of sexual abuse in general, and by
the victim, “ultimately strengthened Dr. Kaser-Boyd’s conclusions.â€
D. Analysis
“When
the relevance of proffered evidence depends on the existence of a preliminary
fact, the proponent of the evidence has the burden of producing evidence as to
the existence of that preliminary fact.
(Evid. Code, § 403, subd. (a)(1).)
The proffered evidence is inadmissible unless the trial court finds
sufficient evidence to sustain a finding of the existence of the preliminary
fact. (Ibid.; see also People v.
Marshall (1996) 13 Cal.4th 799, 832 [‘the trial court must determine
whether the evidence is sufficient to permit the jury to find the preliminary
fact true by a preponderance of the evidence’].) ‘The decision whether the foundational
evidence is sufficiently substantial is a matter within the court’s
discretion.’ [Citations.]†(People
v. Bacon (2010) 50 Cal.4th 1082, 1102–1103.)
These principles
apply to the opinions offered by an expert witness. “‘[T]he value of an expert’s opinion depends
on the truth of the facts assumed.’
[Citation.] ‘Where the basis of
the opinion is unreliable hearsay, the courts will reject it.’ [Citations.] It is settled that a trial court has wide
discretion to exclude expert testimony, including hearsay testimony, that is
unreliable. [Citations.]†(People
v. McWhorter (2009) 47 Cal.4th 318, 362 (McWhorter).) It is
established that an expert witness’s opinion “‘may not be based “
support [citation], or on speculative
or conjectural factors . . . . [¶] Exclusion of expert opinions that rest on
guess, surmise or conjecture [citation] is an inherent corollary to the
foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact
to evaluate the issues it must decide?â€
[Citation.]’ (
43 Cal.4th 959, 1008.)†(
405.)
The rule of
Evidence Code section 801 is that “[a]n expert may rely on otherwise
the evidence is reliable and of the type that experts in the field reasonably
rely upon in forming their opinions.
[Citations.] On the other hand, an
expert’s reliance on hearsay does not automatically make the hearsay evidence
itself admissible. ‘An expert may
generally base his opinion on any “matter†known to him, including hearsay not
otherwise admissible, which may “reasonably . . . be relied
upon†for that purpose.
[Citations.] On direct
examination, the expert may explain the reasons for his opinions, including the
matters he considered in forming them.
However, prejudice may arise if,
“‘under the guise of reasons,’†the expert’s detailed explanation “‘
evidence. [Citation.]’†[¶] Because an expert’s need to consider
extrajudicial matters, and a jury’s need for information sufficient to evaluate
an expert opinion, may conflict with an accused’s interest in avoiding
substantive use of unreliable hearsay, disputes in this area must generally be
left to the trial court’s sound judgment. [Citations.] . . .
[¶] . . . In such cases, Evidence Code section 352 authorizes the court to
exclude from an expert’s testimony any hearsay matter whose irrelevance,
unreliability, or potential for prejudice outweighs its proper probative
value. [Citation.]’ (People
v. Montiel (1993) 5 Cal.4th 877, 918–919.)â€
(People v. Yuksel (2012) 207
Cal.App.4th 850, 856–857 (Yuksel),
italics added.)
In
arranging to meet with a minor for sexual purposes. (§ 288.4, subd. (b).) A defense psychologist specializing in sexual
offenses testified that he saw no evidence that the defendant was a pedophile,
based on interviews with the defendant, psychological tests, and a review of
the police file. When defense counsel
asked the psychologist to explain the reasons for his opinions, the expert said
that an important consideration was that this was a single incident. The expert began to say “He has no priorâ€
when the prosecutor interrupted with an objection. The court sustained the objection to that and
other questions by which defense counsel attempted to solicit the
psychologist’s opinion that the defendant had never before sought sex with a
minor. On appeal, the defendant argued
that this was error because evidence of no prior sexual misconduct was relevant
to prove that he lacked a propensity to commit a sexual offense. (Id.
at p. 856.)
The
argument was rejected. The court
observed that the defense psychologist was permitted to testify why he believed
the defendant was not a pedophile, in that pedophilia was a persistent and
abnormal sexual interest in children.
The psychologist said a single incident of sexual contact with a minor
does not qualify as pedophilia. The
court concluded that the objections to appellant’s hearsay statements to the
psychologist that the charged incident was isolated were properly
sustained. No abuse of discretion was
found. (Yuksel, supra, 207
Cal.App.4th at p. 857.) Implicit in the
could have testified that he had had no prior sexual contact with a minor to
lay a foundation for the expert to testify that this statement was a basis for
his opinion that the defendant was not a pedophile. Absent that foundational testimony, the
psychologist could not testify about the defendant’s statements. As in Yuksel,
we find no abuse of discretion in the ruling that Dr. Kaser-Boyd could not
testify regarding appellant’s statements about prior sexual abuse in light of
the risk that the jury would consider these hearsay statements for the truth of
the matter stated.
Appellant
contends the prosecutor’s reliance on
Carpenter, supra, 15 Cal.4th at
p. 403 was misplaced. He argues
that Carpenter “did not confer
authority on a trial court to require a defendant to testify as a prerequisite
for admitting the testimony of his expert witness.†Instead, he asserts that Carpenter held that a trial court should allow the defense a
reasonable opportunity to present expert testimony. The passage in Carpenter quoted by appellant was a conclusion that the trial court
had allowed the defense a reasonable opportunity to present expert testimony,
“while maintaining control over the presentation of unreliable or prejudicial
and sometimes cumulative hearsay.†(
rule that while an expert may explain the basis for his or her opinions,
“‘prejudice may arise if, “‘under the guise of reasons,’†the expert’s detailed
explanation “‘[brings] before the jury incompetent hearsay evidence.’†[Citations.]’†(Ibid.) The Carpenter
court went on to hold that under Evidence Code section 352, the trial court
may “‘exclude from an expert’s testimony any hearsay matter whose irrelevance,
unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]’
The discretion to exclude hearsay applies to defense, as well as
prosecution expert evidence.
[Citation.]†(
Appellant
also challenges the prosecutor’s reliance on
Coleman, supra,
the defendant was convicted of murdering his wife, son and a niece. He testified that he had not thought of
killing his family before he shot them to death, but the prosecution had three
letters written by his wife 18 months before the killings in which she said
that the defendant had threatened to kill her many times. The principal issue in Coleman was the potential for prejudice from the victim wife’s
statement about past conduct by the accused.
(Id. at p. 83.) The Supreme Court acknowledged the general
rule that an expert “may not under the guise of reasons bring before the jury
incompetent hearsay evidence.†(
hearsay evidence is recited in detail, a limiting instruction may not cure the
prejudice. (Ibid.)
Appellant
contends Dr. Kaser-Boyd explained that she found appellant’s statements to be
reliable because there was objective corroborating evidence. This included evidence that he ran away as a
child, developed a serious substance abuse problem, had frequent nightmares,
recurring thoughts about childhood sexual abuse, and feelings of
worthlessness. He was diagnosed in jail
with a major depressive order, described by Dr. Kaser-Boyd as a manifestation
of PTSD. Appellant cites Dr.
Kaser-Boyd’s testimony at page 3403 of the reporter’s transcript that appellant
had many signs of being molested as a child, including running away. But she did not testify to the source of the
information that appellant had a history of running away independent of
appellant’s statements to her about his childhood experiences and adult
symptoms. Appellant also cites the next
page of Dr. Kaser-Boyd’s testimony, that appellant developed a serious
substance abuse problem after he arrived in Los Angeles in late adolescence, a
symptom common in victims of sexual molestation. But once again, Dr. Kaser-Boyd did not
explain the source of information about appellant’s substance abuse
problem. Dr. Kaser-Boyd also cited independent
jail records which documented appellant’s frequent nightmares, recurring thoughts
about childhood sexual abuse, and feelings of depression and
worthlessness.
On this
record, we find no abuse of the trial court’s discretion in requiring appellant
to testify to a factual foundation for Dr. Kaser-Boyd’s opinion that he
suffered from PTSD. As in
discretion in concluding that admission of appellant’s statements through the
expert’s testimony would allow the jury to consider those statements for the
truth of the matter asserted. (
II
Appellant argues that while cross-examining him, the
prosecutor committed numerous incidents of prejudicial misconduct which
undermined his state and federal due process rights to a fair trial. He points out that the trial court overruled
objections by his trial counsel on pages 3171 and 3333 of the reporter’s
transcript.
A. Misconduct
1. Prostitution
Appellant
argues it was improper for the prosecutor to ask appellant if he had told
detectives that he had prostituted himself for money. He cites a series of questions during his
cross-examination in which appellant denied asking Bradley for money in
exchange for sex. Appellant denied prostituting
himself for money. The court sustained a
defense objection to a question asking whether appellant prostituted himself
for people who “appreciate†it. The
prosecutor then asked: “Mr. Fructuoso,
you told Detective Frettlhor that you don’t like to prostitute yourself for
money; isn’t that true?†There was no
objection, and appellant answered “Yes.â€
The court overruled an objection when the prosecutor next asked whether
appellant told Detective Frettlhor that he did prostitute himself for money,
but only to people “who appreciate†it.
When the interpreter said the question had not been interpreted, the
prosecutor asked whether appellant told Detective Frettlhor that he did
prostitute himself. An objection was
overruled and appellant denied saying both that, and that he only prostituted
himself for people who appreciate it.
Appellant also denied committing prostitution with another man.
At sidebar,
defense counsel argued that the transcript of appellant’s interview with the
detectives clearly showed that appellant denied engaging in prostitution for
money. The prosecutor disagreed, quoting
the transcript in which appellant said he did not prostitute himself, and “I
just like to do it with persons I like.â€
The prosecutor told the court he planned to play this recording for the
jury. Defense counsel continued to argue
that appellant consistently denied prostituting himself for money during the
interview. The court read the transcript
and ruled that the prosecutor had a good faith basis to inquire into this area,
and overruled the objection. The court
advised defense counsel that she could examine appellant about the conversation
on redirect.
Later,
outside the presence of the jury, the prosecutor asked to make a record
regarding his good faith basis for asking appellant whether he told the
detective he had prostituted himself. He
read the following portion of the transcript of the police interview into the
record regarding appellant’s relationship with another man: “Question, ‘bisexual? Okay, now your relationship, your
relationship with Danny, was that just for money, or did you do it sometimes
for—because you wanted to?’ ‘Well, that
happened at a time, well, that he had me, and I didn’t think there was a reason
to say or to reject him or—but I did like him.’
[¶] ‘You liked him?’ [¶]
‘Yes. I did like—yes, and I
didn’t like prostituting myself for money, no.’
[¶] ‘But did you do it?’ [¶] ‘Yes.’â€
The prosecutor said this was the basis for his good faith belief that
appellant told the detective he had prostituted himself for money and with
Danny. The prosecutor read the next
portion of the interview transcript in which the detective asked appellant how
long he had been prostituting himself.
Appellant once again denied that, and said “‘I just like to do it with a
person I like.’â€
Defense
counsel argued that “it†in the last quoted sentence could refer to either
prostitution or sex. She contended it
was not a reference to prostitution because appellant corrected the detective
and said “‘No, I didn’t prostitute myself.’â€
The court said that it had allowed the question and asked the prosecutor
whether he planned further examination of appellant on that issue. The prosecutor said he did not, that he just
wanted to demonstrate the basis for his good faith belief in the propriety of
that line of questioning. Ultimately,
the prosecutor chose not to play the interview for the jury.
2. Concealed Knife
After a
recess, the court said: “I have a note
from one of the jurors who has a different view concerning the interpretation,
and I’m going to read it in the record.
Then counsel may want to inquire again to see if you can clarify the
point, whether Mr. Haidar [the prosecutor] said something to the effect of,
quote “‘In fact, that’s when you pulled the knife out of your pants?’ Or,
quote, ‘Translator never mentioned anything about his pants or the knife being
concealed.’†The court invited counsel
to consider the note and decide whether they wanted to reexamine appellant
about these questions. Redirect
examination of appellant resumed, and he was asked whether he had a weapon
concealed in his pants on January 2, 2010 when he went to Bradley’s
apartment. Appellant said he did
not.
3. Observation of Animal Slaughtering
In
prosecutor asked him about his work in produce at a market in Oaxaca before he
came to the United States. The
prosecutor asked whether animals were slaughtered at that market. Appellant said no, small animals were
sold. When the prosecutor asked whether
they were sold alive, the trial court sustained an objection that there was no
good faith basis for those questions.
Objections were sustained to questions as to whether appellant had seen
animals being slaughtered while in Mexico.
At a
sidebar conference, the prosecutor argued that whether appellant had observed
animals being slaughtered by slitting their throats was “relevant to his
knowledge and ability to [do] what he did to Bennett Bradley which is slitting
his throat.†Defense counsel objected
that there was no evidence that appellant slaughtered animals, and that the
question was argumentative. She
complained that the prosecutor had repeatedly asked questions containing a fact
not in the record which could not be proven, which was prejudicial to appellant. She contended the prosecutor had no good
faith basis to believe that animals were slaughtered in the market where
appellant worked in Oaxaca. The court responded: “That’s not an unusual position to
take.†Defense counsel argued that this
line of questioning was prejudicial misconduct because the prosecutor was, in
effect, testifying to facts not in evidence.
In arguing
that the question about animal slaughtering was part of a pattern of misconduct
by the prosecutor, defense counsel cited the note from a juror about the
interpretation of testimony regarding whether appellant concealed a knife in
his pants. Defense counsel argued that
this note demonstrated that one of the jurors had observed that the prosecutor
was testifying to facts in the context of his questions to appellant.
The
prosecutor responded: “It’s common
knowledge. I’ve been to Mexico. These small towns, they slaughter animals. It’s not anything unusual.†Defense counsel demanded an offer of proof
from the prosecutor as to the basis for a belief that appellant has a specific
knowledge about how to slaughter animals.
The court
ruled that the entire line of questioning was not irrelevant and that the
prosecutor had not acted improperly. It
observed: “I just think that it’s common
sense that if you cut someone’s throat, they are either going to die or be
severely injured for a long time. I
think it’s a waste of time. That’s why I
sustained the objections.†The
prosecutor was admonished to move on to another line of questioning and did
so.
B. Analysis
“‘A
prosecutor’s misconduct violates the Fourteenth Amendment to the United States
Constitution when it “infects the trial with such unfairness as to make the
conviction a denial of due process.â€
[Citations.] In other words, the
misconduct must be “of sufficient significance to result in the denial of the
defendant’s right to a fair trial.â€
[Citation.] A prosecutor’s
misconduct that does not render a trial fundamentally unfair nevertheless
violates California law if it involves “the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.†[Citations.]’
[Citations.]†(
960 (Clark).) In order to preserve a claim of prosecutorial
misconduct, the defendant must make a timely and specific objection, and also
must ask the trial court to admonish the jury to disregard the
impropriety. (Ibid.) “The failure to
timely object and request an admonition will be excused if doing either would
have been futile, or if an admonition would not have cured the harm. [Citations.]â€
(Ibid.)
Respondent
argues that appellant forfeited his claims of prosecutorial misconduct because
his counsel either failed either to object or to request that the jury be
admonished. As to the issue regarding
prostitution activities, although defense counsel objected on the grounds that
the questions had been asked and answered and were argumentative, respondent
argues no objection was made on the grounds of misconduct. It also argues defense counsel did not ask
the court to admonish the jury to disregard the impropriety, even when she
questioned whether the prosecutor had a good faith basis to ask appellant about
his statements to the detective. In
response to the prosecutor’s questions about whether appellant hid the knife in
his pants when he went to Bradley’s house, the only objection raised by defense
counsel was that the question had been asked and answered. Respondent concedes that defense counsel
objected to the impropriety of the animal slaughter line of questions by the
prosecutor, but argues she failed to request that the jury be admonished to
disregard it.
We agree
that defense counsel did not raise the correct objection to the concealed knife
line of questioning. Defense counsel did
object to the propriety of the prostitution and animal slaughter
questions. More significantly, she did
not request an admonishment as to any of the three lines of questioning at
issue. Appellant claims there was no
basis for an admonishment because his attorney’s objections had been
overruled.
It is
established that defense counsel must state a specific objection
disregard the impropriety in each instance of claimed prosecutorial
misconduct. (People v. Thomas (2012) 54 Cal.4th 908, 938–939, citing
607 [objection at trial that a question posed to the witness was argumentative
did not preserve a claim of prosecutorial misconduct by attempting to shift the
burden of proof].) Appellant does not
argue, nor has he demonstrated that “corrective actions, such as appropriately
strong admonitions, would not have been able to cure any prejudicial effect on
the jury had defendant requested them.â€
(People v. Fuiava (2012) 53
Cal.4th 622, 680; see also People v.
Boyette (2002) 29 Cal.4th 381, 447 [holding that claim of misconduct was
not preserved where defense counsel failed to request the jury be admonished,
where there was no indication such a request would be futile or that counsel’s
failure to so request was so prejudicial as to constitute ineffective
assistance.].)
Alternatively,
appellant argues the failure of his counsel to interpose a specific objection
or request that the jury be admonished as to each of the three incidents of
misconduct constitutes ineffective assistance of counsel. He claims this is “because a defense attorney
would have no tactical reason to remain silent under an onslaught of highly
prejudicial prosecutorial misconduct.
(U.S. Const. Amend. VI; Strickland v. Washington (1984) 466 U.S.
668, 687–688.)†The Supreme Court has
repeatedly held that “the mere failure to object rarely rises to a level
implicating one’s constitutional right to effective legal counsel. [Citation.]â€
(People v. Boyette,
In
the Supreme Court rejected a claim that defense counsel was ineffective by
failing to object to claimed instances of prosecutorial misconduct. It concluded that “defense counsel could have
reasonably concluded that such evidence was tangential to the case and that
objections would serve only to accentuate defendant’s negative qualities in the
minds of the jurors. [Citation.]†(Id.
at pp. 677–678.) “‘[D]eciding whether to
object is inherently tactical, and the failure to object will rarely establish
ineffective assistance.’
[Citation.]†(
1290.) In People v. Huggins (2006) 38 Cal.4th 175, 206, the Supreme Court
reiterated: “Moreover, ‘[i]f the record
on appeal fails to show why counsel acted or failed to act in the instance
asserted to be ineffective, unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory
explanation, the claim must be rejected on appeal.’ [Citation.]â€
It suggested that one satisfactory explanation for a failure to object
would be the desire of defense counsel to avoid drawing the jurors’ attention
to the prosecutor’s comments. (
Even
assuming that all of the misconduct claims are preserved for appeal, we find no
basis for reversal. As to the
prostitution line of questioning, we conclude the prosecutor demonstrated a
good faith belief in the facts underlying these questions. “‘“It is improper for a prosecutor to ask
questions of a witness that suggest facts harmful to a defendant, absent a good
faith belief that such facts exist.â€â€™
[Citations.]†(
80.) The prosecutor’s questions were
properly based on the portion of the interview with the detective in which
appellant said he prostituted himself for money, although he did not like
it. Any ambiguity in this statement
could have been addressed by defense counsel on redirect. It was relevant to appellant’s defense that
the murder occurred when Bradley attempted to rape him, as he had done when
appellant was 16.
Similarly,
since the knife with Bradley’s blood was found in appellant’s apartment, the
prosecutor had a good faith basis to ask appellant whether he had the knife
concealed in his clothing when he went to Bradley’s apartment. We agree with respondent that the juror’s
note appeared to refer to problems the juror had with the interpretation rather
than the prosecutor’s conduct.
We find
less support for the prosecutor’s questions about appellant’s observation of
animal slaughter in Mexico while working at a market. But the trial court sustained defense
objections that the prosecutor had no good faith factual basis for this line of
questioning. After objections to two
questions were sustained, a sidebar was held.
Although the court found the prosecutor had not acted improperly, it
found the questions were a waste of time and directed the prosecutor to move on
to another topic. Defense counsel failed
to ask the court to admonish the jury to disregard the questions. The jury was instructed that the questions by
counsel are not evidence. It was told: “Do not assume that something is true just
because one of the attorneys asked a question that suggested it was true.†On this record, we find no prejudicial
misconduct under either the state or federal standards.
III
Appellant
argues the trial court erred in allowing testimony, over defense objection, by
Aimee Rogers, an analyst for Orchid Cellmark about DNA analyses she did not
personally perform. He contends that the
worksheets she relied on in reaching an opinion regarding DNA evidence were
testimonial hearsay. Appellant contends
that the admission of this testimony violated his
Amendment.
A. Procedural Background
Rogers
testified at a hearing under Evidence Code section 402 about the procedures at
the Orchid Cellmark laboratory for extracting and analyzing DNA. She explained that automation specialists
placed evidence samples into machines which then generated an electropherogram,
known as a visual DNA printout.
Worksheets of the technician’s work and quality assurance tests were
kept. Rogers testified that she prepared
a report (exhibit 45) based on her analysis of 350 pages of raw data generated
by the machines from materials collected from Bradley, defendant, and various
locations at the crime scene. She had
not personally observed the creation of the data and the work of the
technicians, although she reviewed all the worksheets and found no violations
of protocols or errors.
Appellant
argued that admission of this evidence violated his Sixth Amendment
confrontation rights. The trial court
concluded that the technicians who took part in the testing process, but who
did not testify, were “not themselves reporting any objective facts.†The court concluded that they were
“submitting the samples to machines, which are generating information, which is
now to be used by the expert.†It
allowed Rogers to testify to her analysis of the DNA.
Rogers then
testified before the jury that Bradley’s DNA was found on the knife recovered
from appellant’s apartment. Appellant’s
DNA was found on samples taken from the bathroom sink and soap dispenser in
Bradley’s apartment. The probability
that the DNA found on the bathroom sink and soap dispenser belonged to anyone
else but appellant in the southwest Hispanic population was one in 115.4
quadrillion. The probability of a random
unrelated individual in the Black population having the same DNA profile as
Bradley’s as found on the sink, soap dispenser and knife was one in 438
trillion, one in 2.909 quadrillion in the Caucasian population, one in 10.25
quadrillion in the southeast Hispanic population, one in 34.31 quadrillion in
the southwest Hispanic population, and one in 229.4 quadrillion in the Asian
population.
B. Legal Principles
“The Sixth
Amendment of the United States Constitution grants a criminal defendant the right
to confront adverse witnesses.†(
573 (Lopez).) In Crawford
v Washington (2004) 541 U.S. 36 (Crawford),
“the court created a general rule that the prosecution may not rely on
‘testimonial’ out-of-court statements unless the witness is unavailable to
testify and the defendant had a prior opportunity for cross-examination.†(Lopez,
supra, 55 Cal.4th at p. 576, citing
laboratory findings of nontestifying analysts:
Melendez-Diaz v. Massachusetts (2009)
557 U.S. 305 (Melendez-Diaz);
___, 131 S.Ct. 2705 (Bullcoming), and
Williams v. Illinois (2012) 567 U.S.
___, 132 S.Ct. 2221 (Williams). Little agreement was reached by the justices
in these cases, the first two of which were decided 5-4, although in each case
Justice Thomas found a distinct reason for agreeing to the outcome of the
majority in each. In
but a four justice plurality.
The
California Supreme Court addressed this quartet of cases in a trilogy of cases
decided in 2012: Lopez, supra, 55 Cal.4th
569, People v. Dungo (2012) 55
Cal.4th 608 (Dungo), and
Cal.4th 650. It carefully examined the
various approaches adopted by the United States Supreme Court. The court recognized that the United States
Supreme Court had not agreed upon a definition of “testimonial†for
confrontation clause purposes. (
Based on its reading of the quartet of United States Supreme Court
cases, the Lopez court identified two
“critical components†required to find a statement testimonial: 1) the statement must have been made with
some degree of formality or solemnity; and 2) “all nine high court justices
agree that an out-of-court statement is testimonial only if its primary purpose
pertains in some fashion to a criminal prosecution, but they do not agree on
what the statement’s primary purpose must be.â€
(Id. at p. 582.)
The Supreme
Court in Lopez reasoned that it need
not consider the primary purpose of a nontestifying analyst’s laboratory report
on blood alcohol level, because it concluded that the critical portions of the
report “were not made with the requisite degree of formality or solemnity to be
considered testimonial.†(
p. 582.) In Lopez, a report written by a nontestifying analyst was admitted
into evidence. A different criminologist
testified at trial that he had reviewed the laboratory report and stated the
conclusion of the analyst who prepared that report. The testifying analyst went on to say that
based on his own experience and review, he had reached the same
conclusion. (Id. at p. 574.)
Five pages
of the laboratory report at issue in Lopez
were comprised “entirely of data generated by a gas chromatography machine
to measure calibrations, quality control, and the concentration of alcohol in a
blood sample.†(Lopez, supra, 55 Cal.4th
at p. 583.) Although the nontestifying
analyst’s signature or initials appeared on each of these five pages, there was
no statement, express or implied by him on any of them. (Ibid.) The Court concluded that machine generated
printouts are not testimonial and do not implicate the Sixth Amendment right to
confrontation. While it acknowledged
that the United States Supreme Court has not yet addressed this question, the
appellate courts which had upheld the use of such printouts. (Ibid.) It reasoned:
“Because, unlike a person, a machine cannot be cross-examined, here the
prosecution’s introduction into evidence of the machine-generated printouts
. . . did not implicate the Sixth Amendment’s right to
confrontation.†(Ibid.)
Factual
distinctions between our case and Lopez
bolster the conclusion that Rogers’ testimony was not barred by the Sixth
Amendment. Here, the only report
received into evidence was prepared by Rogers herself, based on raw data
generated by machines which she described as “robots†operated by nontestifying
automation technologists. The 350 pages
of raw data were not admitted into evidence.
We conclude that under the reasoning of Lopez, supra, 55 Cal.4th
at p. 583, Rogers’ reliance on the machine-generated raw data did not violate
the confrontation clause.
The first
page of the chart on which the testifying analyst relied in
both the nontestifying analyst and a laboratory assistant, who also did not
testify.
the defendant’s blood sample contained .09 percent alcohol was admitted for its
truth. (Lopez, supra, 55 Cal.4 at p. 584.)
The Lopez majority concluded
that the notations did not meet the requirements that they be made with
formality or solemnity. Neither the
nontestifying analyst who performed the analysis nor the lab assistant signed,
certified, or swore to the contents of page one of the report. (Id.
at p. 584.) Justice Werdegar, in a
concurring opinion signed by Chief Justice Cantil-Sakauye, Justice Baxter and
Justice Chin, agreed that the logsheet notations were not made with sufficient
formality or solemnity to be deemed testimonial. (Id.
at p. 585.)
Respondent
argues, and we agree, that there is no evidence that the raw data on which
Rogers relied was prepared with the requisite formality or solemnity. Nor is there here evidence of a sworn
certification, declaration, or other formality.
Under these circumstances, we conclude the trial court did not err in
allowing Rogers to testify to her own opinions based on the raw data generated
by other technicians using various machines.
IV
Appellant
argues the trial court erred in admitting a statement he made to an officer
transporting him for booking, five hours after he had been given and waived his
rights under Miranda v. Arizona,
officer.
A. Procedural Background
Detective
Frettlhor testified at an Evidence Code section 402 hearing he advised
appellant, in Spanish, of his Miranda rights. This was during an interview at the Olympic
station on January 5, 2010 at 2:30 a.m.
Appellant said he understood his rights.
The interview ended at approximately 4:00 a.m. At that point, Detective Matthew Gares
arranged for Officer Dana Grant and her partner to transport appellant for
booking. He told Officer Grant that
appellant had been Mirandized,
interviewed, and was ready for booking.
While at the Twin Towers jail facility, appellant initiated a
conversation with Officer Grant in English.
The conversation culminated in his statement that he had a knife in his
possession when he went to Bradley’s apartment on the day of the murder because
he was a recycler. Appellant argues this
statement should not have been admitted.
The trial
court found that appellant was properly advised of his Miranda rights and that he waived them. Defense counsel argued that appellant should
have been readvised of his Miranda rights
by Officer Grant because there was a change in interrogator, a change of
location, and appellant was not reminded that he had been advised of his
sophisticated in that he used a Spanish interpreter, did not grow up here, and
had no formal education. He did not have
an extensive criminal history involving prior contacts with the police and
familiarity with Miranda warnings. She contended that Officer Grant was mistaken
in believing that appellant understood everything she said to him in
English. The prosecutor argued that only
a few hours had passed between the time appellant was advised of his
the conversation with Officer Grant by asking how long he would be in
jail. The prosecutor observed that
appellant had been arrested in 2007 on a narcotics charge and on one other
occasion.
The trial
court ruled that Officer Grant would be allowed to testify to appellant’s
statements because he had been properly advised of his rights and had waived
his right to remain silent only a few hours before. Defense counsel then argued that appellant’s
question about how long he would be in jail should not be seen as allowing
Officer Grant to start questioning him about the crime. The court said it would review the relevant
authority. The parties do not advise us
that the court changed its ruling thereafter, and Officer Grant testified about
the statements.
Before the
jury, Officer Grant testified that she was assigned to transport appellant to
jail. While at the Twin Towers jail, appellant
asked her in English how long he would be in jail. She said she did not know much about the
case, but that it was a serious charge.
She asked how long he had known “the other guy.†Appellant said he met Bradley when he was 16,
got drunk with him, and then had sex with him, which made him feel ashamed and
dirty. They had lost touch until
recently (appellant was then 25 years old) and started having sex again. She asked appellant how he had gotten the
knife, and testified that appellant responded “he already had it with him
because he was a recycler.†This was the
end of the conversation.
B. Analysis
“After
a valid Miranda waiver, readvisement
prior to continued custodial interrogation is unnecessary ‘so long as a proper
warning has been given, and “the subsequent interrogation is ‘reasonably
contemporaneous’ with the prior knowing and intelligent waiver.†[Citations.]’
(People v. Smith [(2007)] 40
Cal.4th [483,] 504.) The necessity for
readvisement depends upon various circumstances, including the amount of time
that has elapsed since the first waiver, changes in the identity of the
interrogating officer and the location of the interrogation, any reminder of
the prior advisement, the defendant’s experience with the
indicia that the defendant subjectively underst[ood] and waive[d] his
rights.’ (Ibid.; see People v. Mickle (1991)
54 Cal.3d 140, 171 [an interrogation conducted 36 hours after the first
interview was reasonably contemporaneous].) . . .†(People
v. Williams (2010) 49 Cal.4th 405, 434–435.) In Williams,
the Supreme Court concluded that no readvisement was required because the
second interrogation was reasonably contemporaneous with the first, where it
was 40 hours later at the same location as the first and was conducted by one
of the previous interrogators. (
defendant had experience with the criminal justice system (prior convictions
for residential burglary and rape, and for attempted burglary) and “evinced no
reluctance to be interviewed.†(
In
readvisement was required where a fourth interview of the defendant occurred
36 hours after the defendant had twice received and waived his
at p. 171.) After his arrest, the
defendant was hospitalized in a room locked from the outside, from which the
Supreme Court concluded “[i]t was clear from the circumstances that defendant
was still in official custody.†(
Based on two prior convictions for lewd conduct and willful cruelty to a
child, the court found that the defendant was familiar with the criminal
justice system and “could reasonably be expected to know that any statements
made at this time might be used against him in the investigation and any
subsequent trial.†(Ibid.) The officers asked the defendant if he remembered them and
their prior conversations. (
required for second interview conducted five hours after waiver of rights where
location was unchanged, defendant had prior citations and warnings from police,
and defendant was mentally alert and spoke freely during ongoing and
cooperative process]; People v. Smith,
supra, 40 Cal.4th at pp. 504–505 [no
readvisement required for second interview 12 hours after original advisement
where defendant remained in custody, location was unchanged, and officers were
the same, defendant was asked if he wanted to hear warnings again]
Here,
appellant acknowledges that the five hours that elapsed between the time he was
advised of his Miranda rights by
Detective Frettlhor and his admission about the knife to Officer Grant is
shorter than the time frames found sufficiently contemporaneous in a number of
cases which did not require readvisement.
But he argues that his second statement was made in a different location
to a different officer. He also contends
that he was unsophisticated, citing his limited English skills, lack of
education, and childhood in Mexico. He
discounts his two prior arrests for narcotics-related offenses. He asserts:
“It would be reasonable for appellant to believe the questioning by Officer
Grant was not something that would be used against him since it was done in a
police car, in English, by a different interrogator, and without any reference
to Miranda.â€
Officer
Grant testified at trial that appellant initiated the conversation with her
“[w]hile at Twin Towers†when she was “next to the defendant.†Appellant had been arrested and was waiting
for booking in a jail facility, accompanied by a police officer. He had two prior arrests from which we can
reasonably assume he was familiar with criminal procedures, including
rights and waived them. Significantly,
he initiated the conversation with Officer Grant. Under the totality of these circumstances, we
find no error in admission of his statement to Officer Grant about bringing a
knife to the crime scene.
V
Appellant
argues that the trial court’s response to a jury question about the difference
between first and second degree murder was inadequate, leaving the jury confused
and unable to differentiate between the two crimes. He was convicted of second degree
murder.
The jury
was given CALCRIM Nos. 520 and 521. As
given, CALCRIM No. 520 was titled: “
Aforethought (Pen. Code, § 187).
During
deliberations, the jury sent the following note to the court: “‘We need a clear definition, please, between
first and second degree murder.’†The
court informed counsel that it had asked the jury to be more specific. The jury responded: “‘There is some confusion due to
instructions, its wording, in particular, page 9 re: 521 mentioned explanation
in 520, but we need some clarification.’â€
The court concluded that this question referred to the following
language in CALCRIM number 521:
“‘Requirements for second degree murder, based on expressed or implied
malice, are explained in CALCRIM number 520, first or second degree murder with
malice aforethought.’†The court
observed: “[I]t does stand out because
there’s nothing in 520 that makes mention of second degree murder or expressed
or implied malice.â€
After
further colloquy, it was agreed the jury would be brought into the
courtroom. The court told the jury there
were two options, to reread the particular instructions, or to have the
foreperson ask for further clarification.
The foreperson said: “We’ve read
them a couple times already, the instructions.
521 states that the definition of second degree is found in 520.†The court interjected that this was
correct. The foreperson continued: “But 520, the title is first and second
degree.†The court suggested that the
jury ignore the titles of the instructions and asked if this would help
deliberations. The foreperson
answered: “Right.†The court explained that titles of instructions
are used only for quick reference. He
inquired whether the foreperson wanted to go back into the jury room to ask the
fellow jurors whether further clarification was needed. No additional questions or notes were sent by
the jury.
The trial
court judge told the jury that he would be absent the next day, but if it
wanted to continue deliberations, it could do so with another judge
presiding. Although it is not reflected
in the record, apparently this was the choice of the jurors because they resumed
deliberations the next day with a different trial court judge presiding. At the outset of the day, outside the
presence of the jury, that judge stated his understanding that there was an
issue about the jury and asked counsel for background. Defense counsel recounted the foreperson’s
concern about the title of CALCRIM No. 520, but said it was not clear exactly
what the jury was unclear about. She
said that overnight she had become uncertain as to whether the trial judge’s
suggestion to ignore the titles of the instructions cured the jury’s
confusion. The substitute judge
indicated that the titles for instructions are not part of the instruction to
be considered by the jury. The
prosecutor agreed. The court asked
whether the jury had sent out any questions since the direction to ignore the
titles the previous day. The prosecutor
said that it had not. The court said it
wanted to be certain that there was no pending jury question. It indicated:
“If there’s no pending jury question, it seems to be prudent just to
allow the jury to continue to deliberate based upon whatever answer or response
Judge Landin gave, and if they have a need for further clarification, we can
always address it if it comes to pass.â€
Defense
counsel asked the court to make it clear that CALCRIM No. 520 does describe
first and second degree murder and to remind the jury that the third element,
whether it was a justifiable or excusable homicide, was addressed in other
instructions the jury already had received.
The court expressed reluctance to do so since it had not heard the
previous discussion with the jurors or the colloquy between Judge Landin and
counsel. It was not inclined to “bring
the jury out and tell them something that I don’t know needs to be told.†The prosecutor concurred. The court made it clear that it would be
willing to respond to any further question from the jury after consultation
with counsel. Later that day, following
a recess, the jury reached a guilty
verdict on second degree murder.
Appellant argues
that in light of the jury’s confusion, “there is no reliable way to know if the
jury understood that if appellant acted in self-defense to avoid being raped,
or if he acted in imperfect self-defense or heat of passion, he was not guilty
of second degree murder.†He also
suggests this was a compromise verdict because it was reached the day before
Thanksgiving.
The jury
was understandably confused about the definition of second degree murder as
treated in CALCRIM Nos. 520 and 521, but appellant is not raising a separate
issue of instructional error. Instead,
his argument is that the trial court did not adequately respond to the jury’s
questions. These instructions required
the jury to determine whether appellant acted with malice aforethought, and if
it found he did, whether the killing was premeditated, willful, or deliberate
in order to eliminate first degree murder, and then consider second degree
murder, an analysis made more difficult by these instructions. But the instructions made it
| Description | Jose Fructuoso appeals from his conviction by jury verdict of second degree murder. He contends the trial court erred in requiring his testimony as a foundation for expert psychiatric testimony that he suffered from post traumatic stress disorder. He claims the prosecutor committed numerous incidents of prejudicial misconduct. Appellant argues that the trial court erred in admitting DNA testimony in violation of his right to confrontation guaranteed by the Sixth Amendment to the United States Constitution. He asserts that the admission of a statement he made to a transporting police officer without readvisement of his Miranda[1] rights was error. He contends the trial court’s response to a jury question about the difference between first and second degree murder was inadequate. Finally, appellant challenges the sufficiency of the evidence of second degree murder, arguing that it instead supports a verdict of voluntary manslaughter committed in the heat of passion. |
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