Filed
6/17/13 P. v. Settle CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOHNATHAN WILLARD SETTLE,
Defendant and
Appellant.
F062174
(Super.
Ct. No. F06909017)
APPEAL from
a judgment of the Superior Court of
County. W. Kent Hamlin, Judge.
John P.
Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Johnathan Willard Settle strangled and killed
his 62-year-old great‑aunt, Rita Cordrey, about 11 days after he was
released from prison. He appeals from
his first degree murder conviction, contending (1) defense counsel was
ineffective for failing to object to inadmissible and prejudicial evidence,
(2) the trial court abused its discretion by denying defendant’s motion to
discharge a juror, and (3) the abstract of judgment must be corrected to
reflect the credits to which defendant is entitled. We will direct the trial court to amend the
abstract of judgment to reflect the proper credits and affirm the judgment as
so modified.
PROCEDURAL SUMMARY
On
September 14, 2007, the Fresno County District Attorney charged defendant with
murder (Pen. Code, § 187, subd. (a)).
defendant personally used a deadly or dangerous weapon within the meaning of
section 12022, subdivision (b)(1) and that the murder was committed
intentionally and involved the infliction of torture pursuant to section 190.2,
subdivision (a)(18).
A jury
found defendant guilty of first degree murder
and found the deadly weapon allegation true, but the torture allegation not
true.
The trial
court sentenced defendant to 25 years to life on the murder count, plus a
one-year term on the deadly weapon enhancement.
FACTS
August 25, 2006
name="_ftnref2" title="">[2]
Defendant’s Return Home from Prison
On about
August 25, when defendant was 24 years old, he got out of prison and came home
to live with his mother, Jovonne, in an apartment on Willow Avenue. Jovonne was Rita’s niece. Jovonne testified that when defendant came
home, he was overly affectionate with her.
He wanted to hug and cuddle a lot.
He would hug her and tell her it was “hom[ie] love,†an expression she
had never heard. Once, he hugged her and
gave her an open kiss on the chin, which he had never done before.
Delberta, about it. When Jovonne and
defendant sat around the house in the evenings, he would tell her to sit up
straight and cross her legs. He said,
“[B]ecause they’re watching us.†She
told him she was in her own home and she could sit as she liked. She told him he should relax, but she thought
he was not “thinking right.â€
September 2 — Defendant’s Party
On
Saturday, September 2, Jovonne had a party for defendant at their apartment to
celebrate his release from prison. Rita
was among the partygoers, as was Eldon, defendant’s cousin. Rita yelled at Eldon for crossing his arms
during prayer, and she yelled at someone else for using a cell phone. It was common for Rita to yell at
people. She was bipolar and she got
angry quickly. She had a habit of
getting after people. She left the party
shortly after the yelling.
September 4 — The Day Before the Murder
On Monday,
September 4, Rita came by to apologize to Eldon for yelling at him at the
party.
At about
5:30 or 6:00 p.m., as one of Rita’s neighbors left her apartment on Ventura
Avenue, she saw defendant standing outside of Rita’s apartment, leaning on the
wall around the corner from her front door.
The neighbor lived in the apartment across from Rita’s apartment. She and Rita were friends and they had known
each other about seven years. The
neighbor walked directly past defendant.
They made eye contact, but did not exchange words. The neighbor put her things in her trunk, but
she realized she had forgotten something.
So she walked directly past defendant a second and third time when she
returned to her apartment to retrieve the item and then returned to her car. Defendant did not move, but he held his head
down now. He was wearing a T-shirt,
jeans, and white tennis shoes.
Around 8:30
or 9:00 p.m., Jovonne picked defendant up from work at his uncle’s vineyard and
brought him home. After Jovonne
showered, she came downstairs and saw defendant sitting on the couch and
watching television. He was holding a
knife and flicking it. The knife was a
regular pocket knife with two or three blades in it. It was not a switchblade.
knife. The flicking irritated her and
she was not sure if he was allowed to possess the knife while on parole. She told him to stop and he said okay. She asked him where he got the knife. He told her he got it from his cousin at the
vineyards for cutting the raisins. He
said he needed a knife to do the job.
She told him to put it away and he agreed. She said, “I don’t even know if you’re
supposed to have a knife like that in the house.†She told him to put it away or she would take
it. He said, “I paid money for the
knife, and I’ll put it away.†She said,
“[J]ust give me the knife. I’ll put it
in my room and tomorrow, when you go work with your uncle, you can have it
back.†He said, “No, you’ll throw it
away.†He walked quickly upstairs,
changed out of his pajamas and into khaki shorts, a red T-shirt, and white
tennis shoes. She did not know if he was
wearing a white tank top under his T-shirt.
He left the house around 9:30 or 9:40 p.m. and Jovonne did not see
or hear from him after that.
At about
10:45 p.m., when Rita’s neighbor got home to the apartment complex, she did not
see defendant outside Rita’s apartment.
Around
11:30 p.m., defendant arrived at the house of Joseph, his longtime friend. He woke Joseph up. They walked to another friend’s house, then
came back to Joseph’s house. Defendant
put his knife on the couch. It was
silver and had a belt clip on it. The
blade was about six inches long. He had
a screwdriver on the front of his pants near the fly. He seemed normal. They talked about girls and music and were
together for about an hour and one-half.
Tuesday, Sept 5 — Rita’s Murder and the Investigation
At about
2:00 a.m., Rita’s neighbor woke up when she heard Rita screaming. The screams sounded like Rita was in danger
and being harmed. The neighbor heard a
male voice yelling at Rita for about a minute, trying to quiet her, and the
neighbor heard loud banging and rumbling noises. She was able to hear the noises easily
because the building was old and the walls were thin. She was too afraid to go outside.
At about
2:30 a.m., defendant arrived at the house of his uncle, Delbert, who was Rita’s
brother and Eldon’s father. Delbert’s
house on Tulare Avenue was located between Rita’s apartment and Jovonne’s
apartment. Everyone was asleep except
for Eldon, who was up playing video games.
He heard knocking at the back door.
He opened the door and saw defendant in a white tank top, shorts, and
tennis shoes. The white tank top had a
bloody handprint and other blood smears on it.
There was quite a bit of blood on the tank top and it was very
obvious. Eldon looked defendant over and
saw scratch marks on his arms. The
scratches on his upper right arm started at his shoulder and went down
diagonally toward his chest. Eldon
thought the blood on the tank top came from someone else, not from defendant’s
own scratches. Eldon asked defendant
what happened, and defendant told him he had gotten in “a fight with a scrap,â€
which Eldon took to mean a gang member.
Eldon did not believe defendant because he did not look like he had been
in a fight with a man, where punches are usually thrown. Defendant asked to borrow some money, and
Eldon gave him five dollars, the only money he had. Defendant left after staying less than
five minutes.
Eldon woke
Delbert up. They had a brief
conversation about defendant and they called Jovonne. Delbert did not go back to sleep.
At about
6:30 a.m., defendant returned to Delbert’s house. Delbert, Eldon, and Eldon’s brother were
getting ready to leave in Delbert’s car.
Defendant was now bare-chested, and the white tank top was rolled up and
draped around his neck. He was wearing
yellowish-brown shorts. Delbert thought
it was unusual that defendant was not wearing a shirt; he usually dressed
properly. Delbert noticed the deep diagonal
scratches on defendant’s upper arm.
Delbert asked, “[Defendant], what you doing here?†Defendant did not respond, so Delbert said,
“We’re gonna have to go. You want to go
with us?†Defendant answered, “Yeah,
I’ll go.†They got in Delbert’s car and
left. In the car, Eldon and defendant
were talking about defendant’s becoming a rapper or musician, when suddenly
defendant asked Eldon if he said something about Rita. Eldon said, “No, I didn’t say anything about
Rita.†Eldon thought the question seemed
out of place because they had not been talking about Rita. They dropped Eldon’s brother off at the bus
stop, then stopped for a donut. Delbert
thought defendant was acting a little nervous.
They drove to the hospital to pick up Delbert’s wife from work. When Eldon went into the hospital to get her,
Delbert noticed that defendant was “very very nervous†in the parking lot as
they waited 15 minutes. He turned side
to side, as if he was looking for something.
On the way
home, they drove down Iowa Street and noticed Rita’s red truck parked one block
north and three houses east of Delbert’s house, which was unusual because Rita
did not live there and when she came to visit them she would park in their
driveway. Furthermore, Delbert knew Rita
went to work at 6:00 a.m. and therefore her truck should have been parked at
work. For Delbert, “[m]ore red flags
were going up because that was unusual.â€
He did not say anything. He
tapped Eldon’s knee and told him, “Shh, don’t say nothing,†Delbert was afraid bad things had
happened. Defendant did not say anything
when they saw Rita’s truck.
At about
8:00 a.m., they arrived back at Delbert’s house. Defendant came inside and Delbert’s wife put
some medication on his scratches.
Defendant said, “Oh, I’m not gonna be leaving. I want to lay down here and rest for a little
while.†Delbert wondered why defendant
was not going home. As defendant lay on
the couch for about 15 minutes, Delbert called Jovonne. He told her, “[Defendant] is here again, and
I’m just letting you know that Rita’s truck is parked out on Iowa [Avenue],
about three houses down.†Before
defendant left, he told Delbert, “I love you Uncle Del.†This was unusual because Delbert and
defendant never talked a lot. They would
just say hello or give each other a familial hug. Defendant went outside to get a cigarette,
then walked across the street toward Iowa Avenue. He looked back and saw Delbert watching him. He kept walking and Delbert lost sight of
him.
Delbert was
really concerned, so he called Jovonne again.
He told her defendant had just left and Rita’s truck was still
there. Jovonne drove over to Rita’s
truck and Delbert and Eldon walked to meet her.
The inside of the truck was messy, as usual, and the keys were in the
ignition. Delbert told Jovonne not to
drive the truck. But she thought the
truck had been stolen and she did not want to leave it there for the
thief. She wanted to return it to Rita,
so she got in the truck and drove it to Rita’s apartment complex. Delbert and Eldon walked back home and drove
over to Rita’s to meet Jovonne.
When
Delbert arrived at Rita’s apartment complex, Jovonne had already been inside
Rita’s apartment. She said, “Rita is
cold already. Her legs were cold.†They went out to the sidewalk, sat down on
the planter, and called the police.
At 9:38
a.m., officers arrived at Rita’s apartment in response to the call. Jovonne gave the officers the keys, directed
them to Rita’s apartment, and told them the doors were unlocked. The apartment had only one entrance, which
was accessed from a courtyard. The door
had a separate lock and deadbolt, and was covered by a metal security
door. The officers found no signs of
damage or forced entry at the doors or any of the windows. The apartment was cluttered, with telltale
signs of a violent struggle. Items were
on the floor and furniture was out of place.
cards, driver’s license, and other miscellaneous items was on the coffee
table. A new cell phone and its box were
on the table, and a $100 bill was under some items. Things were all over the floor.
In the
doorway between the living room and the bedroom lay Rita’s body. She was on her back wearing a nightgown,
which was pulled up to her stomach, exposing her naked lower body. Her legs were slightly spread apart. She had a bite mark on her left cheek and
dried blood matted on her hair. Her
hands were bloody and bruised. A vacuum
cleaner was tipped on its back side at her feet. The vacuum’s cord, which was still attached
to the vacuum, extended across her right leg and stomach, under her left arm,
behind her neck, and to her right hand.
The end of the cord was gathered up in her right hand and she appeared
to be gripping it.
The lower
portion of the open bedroom door, beside which Rita lay, was smeared with
blood. Inside the bedroom, a nightstand
was tipped over and a dresser’s drawers were open. Items were on the floor in front of the open
drawers. Damaged eyeglasses were on the
floor. The bed was unmade and two Bibles
were sitting on it. In front of the
bathroom doorway was a towel, some panties, and a bloody pillow.
Detective
Frazier spoke to Jovonne, Delbert, and Eldon.
Delbert and Eldon told him they had contact with defendant in the early
morning and he had blood and scratches on him.
They felt he might be involved.
Frazier directed a team of undercover officers to look for defendant.
The
coroner, Dr. Chambliss, was also on the scene.
He observed bruising on Rita’s neck and he concluded the vacuum
cleaner’s cord was a possible ligature.
He saw no other possible ligature near Rita. Her left cheek bore an obvious bite mark
surrounded by bruising, and her right cheek and nose were bruised. The tops of her hands were bruised, and there
was a cluster of slit-like injuries to her left lower back area. Her hips were bruised and her legs were
abraded and bruised. All of these
injuries were inflicted before her death.
A
technician swabbed the interior and exterior perimeters of the bite mark on
Rita’s face and he scraped under her fingernails for possible trace
evidence. He lifted six latent finger
prints from dirty dishes on the dining table, a cell phone, and the cell phone
user guide. A print lifted from a glass
tumbler matched defendant’s thumb print.
from the vacuum cleaner. The print on
the tumbler was the only print that matched defendant’s print. A technician also swabbed Rita’s truck for
possible DNA.
title="">[7]
When
officers went to the apartment of Rita’s neighbor and asked her if she knew
Rita, she broke down and cried because she realized something had happened to
Rita and she regretted not helping her or calling the police when she heard her
screaming.
Meanwhile,
undercover officers began surveillance of Jovonne’s apartment complex and the
surrounding area. An officer observed
defendant walking through the pedestrian gate and into the complex. Defendant passed within about 10 feet of the
officer. Defendant was walking nonchalantly
and casually. He was wearing khaki
shorts and a white T-shirt, and he had a white tank top tossed over his left
shoulder. He was carrying some jeans
rolled up in a ball under his right hand.
Defendant did not walk toward his apartment, but instead walked around
to the back of the complex. The officers
stopped him at gunpoint in the carport.
He dropped the tank top and jeans, and complied when told to lie on the
ground. He was handcuffed and taken into
custody. Rolled up inside the jeans was
a can of beer. A pocket in the jeans
contained $40, plus some change. The
white tank top was blood-stained, and one of the white tennis shoes he was
wearing was smeared with blood on the outside portion of the shoe, on the
laces, and on the tongue. He was not
carrying a weapon. The officers
transported him to headquarters.
Frazier
conducted a recorded interview of Jovonne.
The recording was played for the jury.
Jovonne explained that when defendant got out of prison, he treated her
like a woman, rather than his mother. He
had a look of love in his eyes that was different than how a son would look at
his mother. He also told her to sit
properly and keep her legs together. She
told him, “Come on. I’m your mom. You’re not thinking right, you know.†Then he approached her and kissed her, bit
her chin, and said, “Give me a hug … this is Homie love ….†She said the bite was more of a nip and not
really a bite. Another time he held her
tight from the back and she said, “What the hell? Let go.â€
She told him, “You cannot … no.
Huh-uh, [defendant]. You
disrespected me.†She told him to let
her go. He said, “Ah, you just want a
little, just a little Homie love.â€
Jovonne
told Frazier she saw defendant with a knife, which she described as a
switchblade. She told defendant he could
not have a switchblade because it was illegal.
She told him she would take the knife and give it back to him when he
was off parole. She said he could not
have the knife in her house. When he
refused to give it to her, she threatened to call the police. He said he would leave and he did around 9:30
or 10:00 p.m.
After
defendant arrived at headquarters, Frazier and Detective Tello interviewed him
after reading him his Miranda
jury. Defendant described his knife as a
regular pocketknife with a six- or seven-inch blade. When asked if the blade popped out
automatically, he said, “Yeah, it just popped out.†He said, “[Y]ou press the button to flip it
out.â€
left home around 8:00 or 8:30 p.m. After
he left the apartment complex, he threw his knife away. He walked down Peach Avenue to Jensen Avenue
and got in a fight with a Mexican because the Mexican gave him dirty
looks. The Mexican scratched defendant’s
arm while they were fighting. After the
fight, defendant went to the recording studio of a producer named Cool D around
11:00 p.m. Defendant cleaned the
Mexican’s blood off his shorts and other things, then left around 3:00 or 4:00
a.m. Next, he went to Delbert’s
house. He did not want to go home
because his mother “was trippin’ off the little pocketknife [he] had.†He arrived at Delbert’s house around
4:00 a.m. He knocked on the back
door. Eldon answered and asked what defendant
was doing. He answered he was not doing
anything, but he had gotten in a fight.
He realized it was too early, so he left and went back to Cool D’s
house. He walked less than a block when
he decided to return to Delbert’s house instead. He arrived back there at 6:00 or
6:30 a.m. He waited around the
house until he thought his mother had gone to work. He left and called his cousin, Paul, from a
pay phone. At about 8:45 or 9:00 a.m.,
Paul picked him up at a liquor store.
They went to Paul’s house and listened to the radio in the back
yard. “[S]ome white guy, Dave,†gave him
a ride back to his mother’s apartment and that was when the officers stopped
him.
Defendant
explained that he was wearing his shorts and the tank top during the fight with
the Mexican. The blood on the tank top
belonged to the Mexican. He said it
might appear to be Rita’s blood if she and the Mexican had the same DNA. He explained that some people do have the
same DNA. Defendant denied driving
Rita’s truck, other than in 2001. And he
said, “I, I, I guarantee you guys won’t find my DNA under her fingernails. You know what I’m saying? I didn’t have shit to do with that shit, you
know?†When the detectives asked him
what he would say if the DNA under Rita’s fingernails turned out to be his, he
said, “That DNA could be anyone’s.†And
when they asked him what he would say if the blood on the tank top came back as
Rita’s, he said, “What if it comes back to a Mexican? How are you gonna know?†They explained to him that they would in fact
know. Defendant continued to deny his
involvement and eventually refused to speak further.
At about
5:20 p.m., officers drove defendant to the hospital for collection of
evidence. He was seated in the hospital
hallway while they waited for a nurse.
No conversation occurred with defendant until he asked an officer, “How
much time will I get for murder?†The
officer truthfully told him she did not know, nor did she know the crimes that
he was being charged with.
A
registered nurse, who worked as a sexual assault forensic examiner, performed a
sexual assault examination on defendant.
She observed and documented his scratches and tattoos. He told her he had been in a fight the
previous night. She observed no saliva,
semen, or blood secretions on defendant’s body, and she concluded the
examination was negative for a sexual assault.
She collected blood samples from defendant.
September 6 — Examination of Rita’s Body
On
September 6, Dentist Alan Benov made impressions of defendant’s teeth. From the impressions, Benov made models to
create models of defendant’s upper and lower teeth. Benov took the models to the morgue to
examine the bite marks on Rita’s left cheek.
The bite mark was situated so the upper teeth were toward her ear and
the lower teeth were toward the angle of her mouth. There was penetration, bruising, and some
abrasion from a dragging force. Either
Rita was resisting and pulling away, or the bite was made in an aggressive
fashion. Benov determined that defendant’s
models were consistent with the bite mark.
The same
day, Dr. Chambliss performed an autopsy on Rita’s body. He determined that the cause of death was
ligature strangulation. There were two
parallel linear bruises across the front and sides of her neck. The upper bruise was about five and one-half
inches long and the lower bruise was about nine and one-half inches long. They were about one-half inch apart. The thyroid cartilage of the larynx and the
hyoid bone were fractured and some of the neck muscles had hemorrhaged. These injuries were consistent with the
ligature strangulation. Rita also had
bruising and at least 11 abrasions under her jaw, which could have been
produced by the perpetrator’s hands or by Rita’s hands if she raised them to her
neck area and curled them to resist the ligature. These injuries were probably caused by one or
two sets of hands. The bruises and
abrasions on Rita’s shoulders and legs were likely inflicted during the course
of a struggle. The bite mark showed
tearing of the skin from a forceful pulling away of the tissue. The cluster of puncture wounds on her lower
back was within a large circular bruise.
They penetrated the skin and fatty tissue (an inch or more), but not the
muscle or the body cavity. The wounds
were consistent with having been inflicted by a knife. The instrument that produced the wounds was
repeatedly inserted close to the body.
The bruising indicated they were inflicted within minutes prior to
death. Rita also suffered a small blunt
force laceration to the top back portion of her scalp.
Dr.
Chambliss saw evidence of a struggle, but death itself could have occurred
quickly. The evidence suggested the
strangulation process was not long.
DNA Analysis
Thomas
Fedor, a forensic serologist
who specialized in DNA analysis, worked for Serological Research Institute, a
private, accredited crime lab. He
performed Short Tandem Repeat (STR) analysis on the samples in this case. Fedor tested the DNA at 15 genetic regions
(loci), plus a gender indicator to create a DNA profile. He compared the DNA in the samples to the DNA
in reference samples of defendant’s and Rita’s blood.
The DNA in
the blood on defendant’s tank top matched Rita’s DNA. And the DNA in the blood on the shoe also
matched Rita’s DNA (even though it also included some DNA from someone
else). The frequency of the DNA profile
in the blood, or the chance that someone unrelated would have that profile, was
about one in 343 quintillion (343 followed by 18 zeros). The population on earth was about seven or
eight billion. Further, the analysis
demonstrated that the blood on defendant’s shoe could not have come from either
defendant or Jovonne.
A swab of
the bite mark on Rita’s face tested positive for amylase, a salivary
enzyme. The swab contained very low
levels of a mixture of DNA from more than one person. The major contributor’s profile was consistent
with Rita’s profile, the frequency of which, as noted above, was one in
343 quintillion. The minor
contributor could have been defendant, but the profile was limited and its
frequency was one in 14. Because the
minor contributor’s profile was not very discriminating, Fedor conducted Y‑chromosome
(Y‑STR) testing on a bite mark swab.
The profile produced by this testing matched defendant’s profile. Y-STR testing cannot discriminate between the
members of the same paternal line, such as father and son, or brother and
brother.
The
scrapings from Rita’s fingernails contained a mixture of DNA from more than one
person. The mixture was consistent with
having come from Rita and defendant. The
chance that a randomly chosen man would have the same profile as defendant was
about one in 99 quadrillion (99 followed by 15 zeros).
The swab of
the shift lever of Rita’s truck produced a limited DNA profile, so Fedor
conducted Y-STR testing on it and found that the profile matched defendant’s
profile.
Behavior toward Delberta
Delberta
was Jovonne’s sister and defendant’s aunt.
At trial, she explained an incident that occurred about six years before
the murder. She gave defendant a ride
from an appointment and dropped him off at home. He gave her a hug and affectionately nibbled
the side of her neck. She pushed him
away and told him, “You don’t do that.â€
He answered, “Why? It was just a
friendly kiss.†She told him, “You don’t
kiss your aunt that way.†He said,
“Okay. I’m sorry.†She thought his behavior was inappropriate
between an aunt and a nephew. He did not
kiss her like she was his aunt. But she
noted that he did not bite her to break her skin. It was more like a nibble and it did not even
leave a mark.
Blood on the Tennis Shoe
At trial,
Jovonne explained that the blood on defendant’s shoes was her blood. Defendant’s shoes had been on the bathroom
floor when she was in the bathroom showering.
She walked across the room to get her supplies because she was
menstruating, and two drops of blood fell onto his shoes. She immediately washed the blood off with a
wet washcloth.
Frazier
testified that Jovonne never told him that her blood was on defendant’s
shoes.
The parties
stipulated that if Scott Baly (defense counsel) and Ralph Torres were called as
witnesses, each would testify that Jovonne never told them that her biological
fluid may have come in contact with defendant’s shoes, and if she had told
them, they would have taken steps to follow up on that information, which they
did not do.
Defense Evidence
An officer
who documented the scene in Jovonne’s apartment observed in the sink of the
upstairs bathroom a light pink towel with an apparent blood stain.
DISCUSSION
I. Ineffective Assistance of Counsel
Defendant
contends defense counsel provided ineffective assistance by failing to object
to evidence that defendant had incestuous feelings toward his mother, Jovonne,
and his aunt, Delberta. Defendant says
counsel should have objected to the evidence as inadmissible character evidence
(Evid. Code, § 1101, subd. (a)) or as unduly prejudicial (Evid. Code,
§ 352). Defendant explains that the
failure was not harmless because, “despite sufficient evidence to support the
verdict, because the prosecution’s case for first-degree murder was not
overwhelming, and because the evidence of [defendant’s] incestuous actions was
highly prejudicial, there was a reasonable probability that, absent the
inadmissible evidence, a single juror would have voted for second-degree
murder.â€
Evidence of
a person’s character is inadmissible when offered to prove his conduct on a specific
occasion. (Evid. Code, § 1101, subd.
(a).) That evidence, however, may be
admitted “when relevant to prove some fact (such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or accident
… ) other than his or her disposition to commit such an act.†(Evid. Code, § 1101, subd. (b); see People
v. Ewoldt (1994) 7 Cal.4th 380, 393 & fn. 1.) “‘Relevant evidence’ means evidence,
including evidence relevant to the credibility of a witness or hearsay
declarant, having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.†(Evid. Code, § 210.) “Motive is always relevant in a criminal
prosecution.†(People v. Perez
(1974) 42 Cal.App.3d 760, 767.) “Motive
describes the reason a person chooses to commit a crime.†(People v. Hillhouse (2002) 27 Cal.4th
469, 504.) “Motive is an intermediate
fact which may be probative of such ultimate issues as intent [citation],
identity [citation], or commission of the criminal act itself [citation].†(People v. Scheer (1998) 68
Cal.App.4th 1009, 1017-1018.)
Evidence of
defendant’s inappropriately romantic behavior toward his mother and aunt, and
their rebuking reactions to it, was relevant to prove a possible motive for
defendant’s killing his own great aunt, who may have similarly rejected his
sexual advances, rebuked him, or even threatened to report his behavior to
others. The condition of Rita’s
apartment and her many injuries demonstrated she had endured an extensive
struggle before her death. She was found
on the floor with her legs separated and her nightgown lifted to expose her
naked lower body. The bite on her cheek
further suggested a perversely intimate element to the brutal attack. The evidence of defendant’s prior
inappropriate behavior toward the females in his family was admissible under
Evidence Code section 1101, subdivision (b).
But even
when evidence of prior acts is admissible under Evidence Code
section 1101, subdivision (b), it may be excluded under Evidence Code
section 352 if its probative value is substantially outweighed by the
probability its admission would unfairly prejudice the defendant, mislead the
jury, or confuse the issues. (People
v. Balcom (1994) 7 Cal.4th 414, 426-427; People v. Abilez (2007) 41
Cal.4th 472, 500.)
In this context, “‘prejudicial’ is not synonymous with
‘damaging.’†(People v. Yu (1983)
143 Cal.App.3d 358, 377.) “‘“Prejudiceâ€
as contemplated by [Evidence Code] section 352 is not so
sweeping as to include any evidence the opponent finds inconvenient…. “‘The “prejudice†referred to in
tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues….
[T]he statute uses the word in its etymological sense of “prejudging†a
person or cause on the basis of extraneous factors. [Citation.]’
[Citation.]â€â€™â€ (
438-439, citations omitted.)
While
defendant’s inappropriately romantic behavior toward his mother and aunt
certainly cast him in an unfavorable light, its probative value as evidence of
motive outweighed the risk of undue prejudice to defendant. “‘[B]ecause a motive is
ordinarily the incentive for criminal behavior, its probative value generally
exceeds its prejudicial effect, and wide latitude is permitted in admitting
evidence of its existence.’
[Citations.]†(People v.
Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) Here, it provided an explanation for why defendant
would struggle with and harm his own female relative, inflicting a bite on her
face and leaving her in a sexually exposed position. In addition, the evidence of defendant’s
inappropriate behavior “was no stronger and no more inflammatory†than the
evidence of the murder. (
p. 405; see also People v. Foster (2010)
50 Cal.4th 1301, 1332 [claim that prior acts “‘highly inflammatory’†rejected
because “they were less inflammatory than the evidence in the present caseâ€].)
In sum, the
evidence was relevant, probative, not unduly prejudicial, and properly
admitted. Accordingly,
a meritless objection to this evidence.
(People v. Cudjo (1993) 6
Cal.4th 585, 616 [no ineffective representation for failure to object where
there is no sound basis for objection]; People
v. Majors (1998) 18 Cal.4th 385, 403.)
Defense counsel’s representation did not fall below an objective
standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People
v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
II. Motion to Discharge Juror No. 4
Defendant
argues that the trial court abused its discretion when it refused to discharge
Juror No. 4 because she worked for the same business and on the same floor as
Rita. Juror No. 4 did not recognize
Rita’s name during voir dire, but informed the court that she realized she
worked with Rita as soon as she saw Rita’s photograph during trial
testimony. She did not know Rita and had
no opinions about her or particular sympathy for her. She said having worked in the same place with
Rita would not influence the way she would view the evidence. Although she had heard people at work talking
about a coworker who was killed, possibly using Rita’s name, Juror No. 4 did
not “even know her.†When she overheard
this conversation, she did not gather or form any opinions that would influence
her at trial. She did not think she
would have any concerns while deliberating about how her decision might affect
people at work or how they might view her verdict. She did not want to discuss the case after
the verdict with people at work anyway.
Defense
counsel moved to remove Juror No. 4, explaining that her statement that she did
not want to tell her coworkers she was on the jury demonstrated that she would
be “affected by this knowledge.†He
said, “People don’t want to come out and admit they could be unfair, but this
is a flag of unfairness.â€
The
prosecutor disagreed, arguing that Juror No. 4 did not even know Rita, and the
reasons she would not want to talk about the case with coworkers were the
gruesome nature of the photographs she had seen and the likelihood that her
coworkers did not know exactly what had happened to Rita or how bad it really
was.
The trial
court stated:
“Okay. Well, I don’t see any likelihood that this
could have an impact on her decision making.
This is somebody who works on the floor, who she didn’t even notice was
missing for some period of time, couldn’t make the connection to her name as to
the person that no longer worked there.
The name didn’t mean anything to her in voir dire. You know, … it’s probably a good idea if we
have a [photograph of the] decedent, for future purposes to put it on [the
projector]. Anybody think you know this
person? But I’m quite confident if she’d
done that she’d have said the same thing.
[‘]I didn’t really know her, she looked familiar, seen her working on
the floor, um, heard other people talking about it, didn’t get any particular
information.[’] I wouldn’t want to come
back to work and let people know I was on a jury that involved a gruesome
torture killing of one of their co-workers for the very reasons [the prosecutor
has] already articulated; for them trying to get from me all the information
they could have gotten at the trial, but really information that to preserve
the dignity of the decedent is really not the kind of thing she’d share with
her coworkers. Whether she’d want to
talk to them or not is entirely up to her, but I just don’t think there’s any
possibility at all that her having worked on the floor with this woman, this
woman she didn’t even notice was no longer there, this woman she didn’t know by
name and who she had, having seen her photo, apparently no real contact with,
there’s just no likelihood in my view that that’s in any way gonna influence
her decision. So I’ll decline to remove
her and you have a record.â€
Section 1089 provides: “If at any time, whether before or after the
final submission of the case to the jury, a juror dies or becomes ill, or upon
other good cause shown to the court is found to be unable to perform his or her
duty, … the court may order the juror to be discharged .…†“‘Before an appellate court will find error
in failing to excuse a seated juror, the juror’s inability to perform a juror’s
functions must be shown by the record to be a “demonstrable reality.†The court will not presume bias, and will
uphold the trial court’s exercise of discretion on whether a seated juror
should be discharged for good cause under section 1089 if supported by
substantial evidence. [Citation.
[Citations.]†(
Cal.4th 774, 807.) In making our
determination, “[w]e defer to the trial court’s judgment on [the juror’s]
credibility.†(People v. San Nicolas
(2004) 34 Cal.4th 614, 646; see also People v. Beeler (1995) 9 Cal.4th
953, 989 [recognizing the importance of a court’s observation of a juror’s
demeanor in reviewing a decision to discharge], abrogated on another ground as
recognized in People v. Pearson
(2013) 56 Cal.4th 393, 462.) Here, we
conclude that “[t]he record before us does not show that [Juror No. 4] was
unable to fulfill her functions as a demonstrable reality. Accordingly, we find no abuse of discretion
in the trial court’s decision to retain the juror.†(People
v. Jablonski, supra, at p. 807.)
III. Abstract of Judgment
Lastly,
defendant maintains that the abstract of judgment must be amended to reflect
1,640 (rather than 1, 140) total custody credits due to the time he spent
confined to a mental hospital. The
People agree. We shall order the
abstract amended to reflect the proper number.
DISPOSITION
The
trial court is directed to correct the abstract of judgment to reflect 1,640
(rather than 1,140) total custody credits and forward a certified copy of the
amended abstract to the Department of
Corrections and Rehabilitation. The
judgment is affirmed as modified.
name="_ftnref11" title="">[11]
_____________________
Kane, J.
WE CONCUR:
_____________________
Levy, Acting P.J.
_____________________
Franson, J.
name="_ftn1" title="">[1] All
statutory references are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] All
subsequent dates refer to 2006 unless otherwise noted.
