face="Times New Roman">P. v. Yablonsky
face="Times New Roman">Filed 12/4/13
P. v. Yablonsky CA4/2
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
face="Times New Roman">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opinion has not been certified for publication or ordered published for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
face="Times New Roman">
IN THE
COURT OF APPEAL OF THE STATE OF
FOURTH
APPELLATE DISTRICT
DIVISION
TWO
face="Times New Roman">
face="Times New Roman">
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THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN HENRY YABLONSKY,
Defendant and Appellant.
E055840
(Super.Ct.No. FVI900518)
OPINION
APPEAL from the Superior Court of
Bernardino County. John
M. Tomberlin, Judge. Affirmed as
modified.
face="Times New Roman">Richard A. Levy, under appointment by the Court of
Appeal, for Defendant and Appellant.
face="Times New Roman">Kamala D. Harris, Attorney General, Julie L. Garland,
Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy
Attorneys General, for Plaintiff and Respondent.
face="Times New Roman">A jury found defendant and appellant, John Henry Yablonsky
(defendant), guilty of first degree murder
(Pen. Code, § 187, subd. (a))
death by strangulation of Rita Cobb, and also found true the special circumstance
allegation that defendant committed the murder during the commission of a rape
(§ 261). After denying defendant’s
motion for new trial, the trial court sentenced defendant to state prison for
the indeterminate term of life in prison without the possibility of parole.
Defendant raises various claims of
error in this appeal, the details of which we recount below in our discussion
of those claims. In general, defendant
challenges the trial court’s rulings on the admissibility of evidence, the
effect of which defendant claims deprived him of his constitutional
quality of representation afforded him by his trial counsel, the effect of
which defendant contends deprived him of his constitutional right to the
effective assistance of counsel. We do not
share defendant’s view. With the
exception of defendant’s claim of sentencing error, which the Attorney General
concedes, we conclude either error did not occur, or if it did, it was
harmless. Therefore, we will affirm the
judgment after modifying defendant’s sentence by striking the parole revocation
restitution fine.
This case involves the
September 1985 murder of Rita Cobb.
Defendant was arrested for that crime in March 2009, after a sample of
his deoxyribonucleic acid (DNA) matched DNA from sperm cells found in a vaginal
swab taken from Rita Cobb’s body following her apparent murder in 1985. His DNA, and the fact that when interviewed
by law enforcement officers defendant admitted he knew Rita Cobb but denied
having had sex with her, is the evidence that connects defendant with the
murder and therefore is the evidence on which the jury relied to find defendant
guilty.
face="Times New Roman">That Rita Cobb was murdered is undisputed. Her son, Daryl Kraemer, and his girlfriend,
found Cobb’s nude, decomposing body on the bed in the bedroom of her Lucerne Valley home. A wire coat hanger was wrapped tightly around
her neck and knotted on the side. Marshall
Franey, a San Bernardino County Deputy Coroner assigned to investigate the
death, estimated, based on the moderate decomposition of the body, that Rita
Cobb died at least two days before her body was discovered.
face="Times New Roman">Dr. George Saukel, the forensic pathologist who performed the
autopsy on Rita Cobb’s body, confirmed Franey’s estimate regarding the time of
death. He concluded Cobb’s death had
been caused by both manual strangulation, as evidenced by fractures to bones in
Cobb’s neck, and ligature strangulation, as evidenced by a wire coat hanger wrapped
tightly and twisted twice around Cobb’s neck. Dr. Saukel also found sperm cells in Rita
Cobb’s vagina. Based on the condition of
those cells, Dr. Saukel estimated sexual intercourse could have occurred as
much as a day and one-half before Cobb’s death, or postmortem.
face="Times New Roman">DNA analysis of the sperm cells was performed in 1999. San Bernardino County Deputy Sheriff’s
criminalist Donald Jones testified based on his analysis of the DNA results
that the sperm cells were from a single donor.
Jones compared the DNA from the sperm cells to other DNA obtained from
16 blood samples apparently taken from the crime scene, and also obtained from
known donors. Those comparisons did not produce
a match.
face="Times New Roman">In January 2003, another criminalist employed by the San
Bernardino County Sheriff’s Department conducted a more sophisticated analysis
of the sperm and semen contained in the vaginal swab from Rita Cobb. This second analysis produced a complete DNA
profile of 13 markers which then was entered into a nationwide database, CODIS
DNA. Some years later,
notified that the sample she had entered matched defendant.
face="Times New Roman">Based on the DNA match, on March 8, 2009, two San Bernardino
County Sheriff’s detectives contacted defendant at his home in Long Beach and
questioned him about Rita Cobb.
Defendant acknowledged that he knew Cobb, because he had rented the
“back house†on her property, and lived there with his wife and young son for
about six to nine months. Cobb lived in
a second house on the same property. Defendant
and his family moved out around April 1985.
Defendant described his relationship with Cobb as that of landlord and
tenant. He denied having any form of
social relationship with Cobb. Over the
course of the interview, which began at defendant’s home, then moved to the
local police station, the detectives asked defendant three different times
whether he had had a sexual relationship with Cobb. Each time defendant said no. At the conclusion of the interview, the
detectives arrested defendant.
face="Times New Roman"> The detectives
obtained a buccal swab, i.e., cells from the cheek, inside defendant’s mouth. A DNA analysis of the buccal cells confirmed
defendant’s DNA matched the DNA obtained from the sperm and semen recovered
from the vaginal swab taken from Rita Cobb.
face="Times New Roman">Rita Cobb was last seen alive on Friday, September 20, 1985,
at a social gathering at the home of her friends, John and Francesca. Cobb drank alcohol most of the evening. She appeared more intoxicated than usual by
the time she got ready to leave around 10 or 11 p.m. Bruce Nash offered to drive Cobb home. He testified Cobb declined the offer. However, John recalled Nash did drive Cobb
home in her own car, and Nash’s girlfriend followed in Nash’s car.
face="Times New Roman">Daryl Kraemer had not been able to reach his mother by
telephone over the weekend of September 21 and 22. On Monday he called her work, and learned
Cobb had not come in, so he and his girlfriend drove to Cobb’s home. They discovered her body around 11:30 a.m.
and called authorities.
face="Times New Roman">Additional facts will be recounted below as pertinent to the
issues defendant raises on appeal.
EVIDENCE
face="Times New Roman">Defendant did not put on a defense. He had intended to present evidence to show
someone other than he had killed Rita Cobb.
To that end he planned to introduce evidence about another unsolved
homicide in which 63-year-old Helen Brooks had been killed in Apple Valley a
few months before Rita Cobb was killed and DNA evidence from that crime did not
match defendant’s DNA. He also intended
to present evidence to show Rita Cobb had a reputation for dating many
different men, a penchant defendant describes as “extraordinary promiscuity,â€
any one of whom could have killed her. The
trial court excluded evidence of the Helen Brooks murder and Rita Cobb’s
reputation, and also sustained the prosecutor’s hearsay and relevance objections
when defense counsel asked Bruce Nash whether Rita Cobb had indicated she
intended to go to a bar when she left the gathering at John and Francesca’s
house on Friday night. The trial court
also excluded, on the basis of hearsay, evidence that in 1988, three years
after Rita Cobb’s murder and long before defendant became a suspect, the
sheriff’s department received a report from WeTip that an anonymous caller
reported hearing William Backhoff bragging at a party that he had killed Rita
Cobb.
face="Times New Roman">Defendant contends the trial court’s rulings are erroneous
and collectively had the effect of preventing him from presenting a defense in
violation of his due process right to a fair trial. Although a close issue, we disagree for
reasons we now explain.
Brooks Homicide
face="Times New Roman">During trial, defense counsel informed the court that he
intended to question various witnesses, including the criminologist, about the apparent
rape and murder of Helen Brooks, an unsolved homicide defense counsel claimed “is
in many respects almost identical to the Rita Cobb case.†Defense counsel could not (or at least did
not) identify specific similarities but stated “there’s so many ways these two
cases are similar [and] because of that for the first two or three years after
September 23rd of 1985, the sheriff’s department treated the two cases as if
they had been committed by the same person.â€
The prosecutor objected on the basis of relevance because there was no
evidence to link the person who killed Helen Brooks to the Rita Cobb
murder. The trial court agreed and ruled
the evidence inadmissible not only because it was not relevant but also because
it was likely to confuse the jury.
face="Times New Roman">“In general, third party culpability evidence is admissible
if it ‘rais[es] a reasonable doubt of defendant’s guilt.’ [Citation.]
This does not mean, however, that no reasonable limits apply. Evidence that another person had ‘motive or
opportunity’ to commit the charged crime, or had some ‘remote’ connection to
the victim or crime scene, is not sufficient to raise the requisite reasonable
doubt. [Citation.] Under [People v.]
party culpability evidence is relevant and admissible only if it succeeds in
‘linking the third person to the actual perpetration of the crime.’ [Citations.]â€
(People v. DePriest (2007) 42 Cal.4th 1,
43.) We review a trial court’s rulings
on the admissibility of evidence under the abuse of discretion standard. (People v. Waidla
(2000) 22 Cal.4th 690, 724.)
face="Times New Roman">Defendant describes the evidence regarding Helen Brooks as
“reverse other crime evidence,†in that it showed defendant had not committed
the other crime because his DNA did not match DNA obtained from Brooks. Defendant argues that if the two crimes are
closely similar, and defendant was not the perpetrator of one of the crimes, “this
constituted powerful circumstantial evidence that he was not the perpetrator in
the other case, either.†In other words,
defendant claims the person who killed Helen Brooks must have been the person
who also killed Rita Cobb, and therefore the Brooks homicide is circumstantial
evidence of third party culpability in the Cobb homicide.
face="Times New Roman">There are several defects in defendant’s argument, the first
of which is his premise that the person who raped Helen Brooks also was the
person who killed her. As defendant argued
in his own defense in this case, that premise is not necessarily true. The killer might not have been the rapist;
two different people could have been involved.
Therefore, the absence of defendant’s DNA in the Brooks case does not
eliminate him from the pool of people who might have killed her.
face="Times New Roman">The second defect in defendant’s argument is that even if we
were to accept his initial premise, defendant did not establish the factual
similarities between the Cobb and Brooks crimes. He showed only that both crimes involved
older women who lived in the Lucerne Valley, and who were killed in the summer
of 1985. In challenging the trial
court’s ruling, defendant claims he made an offer of proof that the Brooks and
Cobb homicides were “in many respects almost identical.†Defense counsel did make that statement, but
he did not support that claim with any factual details about the Brooks
homicide. In arguing the issue on
appeal, defendant cites to a police report included in his motion for new
trial. That police report was not before
the trial court when it ruled on the admissibility of the Brooks crime. Moreover, the police report, which lists
several unsolved homicides involving older women, only discloses that on July 5,
1985, 63-year-old Helen Brooks was apparently killed and her body was found in
an apartment located on Highway 18, in Apple Valley.
face="Times New Roman">Defendant also made an offer of proof that DNA obtained in
the Brooks case did not match defendant’s DNA, and therefore defendant was
eliminated as a suspect in that case.
The prosecutor had told the trial court about the Helen Brooks case, in
the course of putting on the record that he had made parts of the file in that
case available to defense counsel. In
describing the case to the trial court, the prosecutor said Brooks had been
raped and murdered. Neither defense
counsel’s statement nor the facts contained in the record on appeal establish
that the DNA obtained in the Brooks case was obtained from a vaginal swab of the
victim. The record on appeal does not
include any other details about that crime, such as how Brooks was killed or
where and how her body was found. Absent
those details, defendant failed to link the person who killed Helen Brooks with
the homicide of Rita Cobb.
face="Times New Roman">We also do not accept defendant’s assertion that the trial
court precluded his attorney from making the necessary offer of proof. But even if we agreed, and thus excused the
oversight in this case, the additional evidence defendant would have cited is the
evidence we have recounted above. That
evidence does not make the connection between the two crimes. Similarly, we do not share defendant’s view
that on appeal we must accept his offer of proof as true. Defendant not only has failed to cite any
authority that supports this assertion,
proof is not supported by the facts he cites in the appellate record.
face="Times New Roman"> For each of the
reasons discussed, we conclude defendant failed to establish the requisite link
between the perpetrator of the Brooks homicide and the homicide of Rita
Cobb. Therefore, defendant failed to
show the Brooks homicide was relevant and could raise a reasonable doubt about his
guilt in this case. Consequently, we
must conclude the trial court did not abuse its discretion by ruling that evidence
inadmissible at trial.
Rita Cobb’s Lifestyle
face="Times New Roman">Citing the forensic evidence, specifically the evidence that
sexual intercourse between defendant and Cobb could have occurred as much as a
day and a half before Cobb’s death, defendant intended to show Cobb dated many different
men. That evidence would support the
further argument that any one of the many men she dated could have killed her
after defendant and Cobb had sex. To
that end, defense counsel told the trial court he wanted to have “the jury
understand, as everyone else in those—in 1985 understood, that Ms. Cobb did
have a number of gentleman [sic] of
different ages, and she entertained them at her residence. She invited them to be there, and it was not
uncommon for her to have male guests at home.â€
The prosecutor objected on the ground such evidence was inadmissible
character evidence. The trial court
ruled the evidence was not relevant and excluded it. In doing so the court noted defendant had
established through the testimony of Rita Cobb’s son and his wife that
Ms. Cobb dated and had people over to her house. Although defense counsel protested “there was
more,†presumably meaning he had additional questions he wanted to ask those
two witnesses on that subject, the trial court denied that request and
reaffirmed its ruling.
Although described as character
evidence, the evidence in question is in fact evidence of third party culpability,
i.e., evidence that one of the men Rita Cobb was dating or had dated could have
been the person who killed her. Once
again, defendant failed to make the necessary offer of proof, defendant’s
contrary claim notwithstanding. Defendant claimed Rita Cobb was known to date
many men, and to have them over to her house.
However, he did not offer any facts to support that assertion. On appeal, he cites facts set out in his
pretrial motion to dismiss. Defendant
did not rely on those facts in arguing the admissibility of the evidence to the
trial court, and did not refer to the pretrial motion in arguing the existence
and admissibility of evidence regarding what we will refer to as the victim’s
lifestyle. Defendant also cites a police
report included in his motion for new trial.
Because that motion was not filed until after trial, the trial court
could not have considered the police report.
Defendant claims the trial court “was probably already familiar†with
that police report because in an unreported meeting in chambers, the attorneys
and the trial court purportedly discussed witness statements contained in that
police report. The trial court might
have known about the police report but that fact is not obvious from the
record. Therefore, we cannot say the
police report was part of the record at the time the trial court ruled the
evidence about Rita Cobb’s lifestyle was inadmissible to prove third party
culpability.
As previously discussed, “[t]hird party
culpability evidence is admissible if it is ‘capable of raising a reasonable
doubt of defendant’s guilt. At the same
time, we do not require that any evidence, however remote, must be admitted to
show a third party’s possible culpability. . . . [E]vidence of mere motive or opportunity to
commit the crime in another person, without more, will not suffice to raise a
reasonable doubt about a defendant’s guilt: there must be direct or circumstantial
evidence linking the third person to the actual perpetration of the
crime.’ [Citations.]†(People v. Page
(2008) 44 Cal.4th 1, 38.)
Evidence the victim had dated many
different men, or even that she was inclined to pick up men at local bars, does
not even rise to the level of evidence of motive or opportunity to kill the
victim. The conclusion one of those men
killed Rita Cobb is rank speculation, rather than a logical inference drawn
from circumstantial evidence. Without
some fact that tends to link one of those men to the crime, the challenged
evidence was not relevant. Therefore,
the trial court did not abuse its discretion by excluding that evidence at
trial. (People v.
Waidla, supra, 22
Cal.4th at p. 724.)
WeTip Report
Defendant contends he was denied his
right under the federal constitution
to present a defense because the trial court excluded not only the previously
noted evidence but also evidence that in August 1988 the San Bernardino County
Sheriff’s Department received an anonymous tip, through WeTip, Inc., that
William Backhoff had been at a party where he had been bragging about having
strangled, raped, and mutilated Rita Cobb about three years earlier. Backhoff said he had picked up the victim at
the bar called Zodiac, and when the victim said she was turned off sexually to
him, Backhoff bragged that he strangled her until she “turned black†and then
described further crimes against the victim after she was dead.
face="Times New Roman">Defendant points out Backhoff had a connection to Rita Cobb,
which defendant set out in his motion to dismiss based on a violation of his
right to a speedy trial. According to
defendant, two days after Rita Cobb’s body was found, Backhoff showed up
claiming he had heard they were looking for him. At that time, Backhoff acknowledged he had
dated the victim and been to her house, but said he had never had sex with her.
Three years later, presumably in
response to the WeTip report, a deputy sheriff again contacted Backhoff. This time he repeatedly stated he had not
done anything wrong. Backhoff later committed
suicide.
The trial court ruled the WeTip report
was inadmissible hearsay. Hearsay is an
out-of-court statement offered to prove the truth of the matter stated. (Evid. Code, § 1200.) Hearsay evidence is generally
inadmissible. (Ibid.) The statement reported to WeTip would be hearsay
if defendant offered it to prove the truth of what Backhoff said, i.e., that he
killed Rita Cobb. If the statement were
offered to show what if anything the sheriff’s department did in response to
the WeTip report, the report and its content is not hearsay. Defendant however did not offer the statement
for its nonhearsay purpose. Instead, he
contends the trial court violated his due process right to present a defense by
excluding the hearsay statement from evidence.
face="Times New Roman">Defendant relies on Chambers v. Mississippi
(1973) 410 U.S. 284 (Chambers) to
support his claim that hearsay evidence is admissible if its exclusion would
deprive defendant of his right to present a defense. Our state Supreme Court explained in
an accused to present witnesses in his own defense. [Citations.] [But i]n the exercise of this right, the
accused, as is required of the State, must comply with established rules of
procedure and evidence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence.’ [Citation.]
Thus, ‘[a] defendant does not have a
constitutional right to the admission of unreliable hearsay statements.’ [Citations.]
Moreover, both we (People v. Hawthorne
(1992) 4 Cal.4th 43, 56 []) and the United States Supreme Court (
explained that Chambers is closely tied to the
facts and the Mississippi evidence law that it considered. Chambers is not
authority for the result defendant urges here.â€
(Id. at p. 269.)
face="Times New Roman">The trial court did not violate defendant’s due process right
to present a defense by excluding the WeTip report. That report not only was hearsay, it was also
provided by an unreliable anonymous source.
We cannot say the trial court abused its discretion by excluding that
report from evidence at trial. (
Cal.4th at p. 724.)
Victim’s Hearsay Statement
face="Times New Roman">Defendant contends the trial court erred by sustaining the
prosecutor’s hearsay objection when defense counsel asked Bruce Nash if Rita
Cobb indicated when she left John and Francesca’s house on the night of
September 20 she was going somewhere other than home. Defense counsel argued the statement was
relevant because Nash would testify, after Cobb declined his offer to drive her
home, she said she was going to a bar.
The trial court was of the view the statement was hearsay and
irrelevant. Trial counsel did not
address the hearsay issue. On appeal,
defendant argues Cobb’s statement to Nash was admissible under
section 1250, as a statement of Cobb’s intent or statement of mind. We agree with defendant.
face="Times New Roman">The Supreme Court held in People v. Alcalde,
supra, 24 Cal.2d 177, the murder
victim’s statement she was going out with Frank was admissible as a statement
of her future intent which in turn is circumstantial evidence she acted in
accordance with that intent. (
As the Supreme Court explained in People v. Jones
(1996) 13 Cal.4th 535, “the Legislature enacted Evidence Code section 1250,
which provides in relevant part that ‘evidence of a statement of the
declarant’s then existing state of mind . . . is not made
inadmissible by the hearsay rule when . . . [t]he evidence is offered to prove
or explain acts or conduct of the declarant.’
The legislative history of section 1250 makes it clear that this
provision specifically was intended, in part, to codify the
[Citation.]†(
short, “‘a statement of the declarant’s intent to do certain acts is admissible
to prove that he did those acts.
[Citation.]’ [Citation.]†(People v. Chambers
(1982) 136 Cal.App.3d 444, 452, citing 7 Cal. Law Revision Com. Rep. (1965) p.
1235.)
face="Times New Roman">Although admissible as a statement of intent, a trial court
may exercise discretion under Evidence Code section 1252 to exclude such a
statement if the trial court finds “the statement was made under circumstances
such as to indicate its lack of trustworthiness.†(Evid. Code, § 1252.) The Attorney General argues the trial court
exercised that discretion in this case because Cobb was drunk at the time she
made the statement, and in any event there was no evidence to show she actually
went to a bar.
face="Times New Roman">The trial court, in ruling the statement inadmissible, did
not consider whether Cobb was drunk at the time she made the statement. Instead, the trial court focused on defense
counsel’s failure to cite an exception to the hearsay rule. Absent such an exception, the trial court
viewed Cobb’s statement as unreliable hearsay.
The exception, as previously noted, is Evidence Code section 1250.
face="Times New Roman">The trial court did question the relevance of Cobb’s
statement that she was going to a bar, because several witnesses apparently had
testified they did not see her at a bar on the night in question. The trial court’s relevance analysis is
incorrect. Cobb’s statement is
relevant. Whether she actually went to a
bar was an issue for the jury to decide.
Cobb could have driven to a bar and been waylaid by someone in the
parking lot. Or she could have gone to a
bar other than the one the witnesses had patronized on the night in question. Whether Cobb actually went to a bar rather
than home was relevant to the defense that someone other than defendant killed
Cobb. Defendant argued as much in his
closing argument.
face="Times New Roman">Although we conclude the trial court erred in excluding
Nash’s testimony regarding Rita Cobb’s statement of intent, that error requires
reversal only if it was prejudicial, i.e., if it is reasonably probable the
jury would have reached a result more favorable to defendant if Cobb’s
statement had been admitted into evidence at trial. (Evid. Code, § 354.) Defense counsel effectively argued to the
jury that someone other than defendant could have killed Rita Cobb. According to the forensic evidence, Cobb died
no later than noon on Saturday but she could have had sex as much as a day and
a half before her death. Therefore, she
could have had sex with A on Thursday night but then have been killed by B sometime
after that. Defense counsel noted there
was no evidence to show Cobb had been sexually assaulted. Defendant also argued that Joe Saunders,
whose fingerprints were found on a glass in Cobb’s kitchen, could have killed
Rita Cobb. The excluded evidence does
not add anything to defendant’s argument.
face="Times New Roman">Accordingly, we conclude the trial court’s error in excluding
the victim’s statement she intended to go to a bar rather than home was
harmless.
Defendant moved for a new trial on
the ground he had been denied the effective assistance of counsel. The trial court denied his motion. Defendant contends the trial court
erroneously relied solely on trial counsel’s performance in court as the basis
for denying his new trial motion. According
to defendant that is an error of law that we independently review. We disagree.
The trial court did cite trial
counsel’s courtroom performance at the hearing on defendant’s new trial motion. From that defendant would have us conclude
the trial court only considered that performance and did not consider the
purported omissions set out in his new trial motion. We do not share defendant’s interpretation of
the trial court’s statement.
face="Times New Roman">But even if we did conclude the trial court only considered
defense counsel’s performance in court, we nevertheless would conclude the
trial court did not err in denying defendant’s new trial motion.
“‘A new trial may be granted where
the trial court finds that the defendant received ineffective assistance of
counsel. [Citations.] To prevail on this ground, a defendant must
show both that his counsel’s performance was deficient when measured against
the standard of a reasonably competent attorney and that counsel’s deficient
performance resulted in prejudice to defendant in the sense that it “so
undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.†[Citations.]’
[Citation.]†(
face="Times New Roman">Defendant did not make the required showing. Defendant asserted in his motion for new trial
that his trial attorney did not properly investigate and prepare for trial and
that he failed to make several motions.
Among other things, defendant argued his trial attorney failed to
investigate and pursue evidence that would have established a connection
between the murder of Rita Cobb and Helen Brooks. In particular, defendant argued that he and
the person who killed Helen Brooks have the same rare blood type, one that is
found in less than two percent of the population. Unfortunately, Mr. Smith, the attorney who
prepared and filed defendant’s new trial motion, did not support that assertion
with a citation to any of the evidence submitted in support of the motion, or any
evidence contained in the trial court record.
Therefore, neither the trial court nor this court can determine whether
that assertion is accurate.
Mr. Smith also asserted trial
counsel was ineffective because he did not retain an expert to review the forensic
evidence and to testify at trial. According
to the evidence submitted in support of his motion, trial counsel did contact
an expert and obtained a cost estimate of $3,300 to review the evidence. The record does not disclose whether trial
counsel actually retained this or any other expert witness. It discloses only that trial counsel did not
present expert testimony at trial.
Absent a contrary showing by defendant, we must assume trial counsel’s
decision was sound trial strategy. (
trial motion that expert testimony would have been beneficial to defendant, he
has not shown trial counsel’s decision was incorrect. (Ibid.)
Mr. Smith also argued in the new
trial motion that trial counsel was ineffective because he failed to have DNA
analysis conducted of hairs that were recovered from Rita Cobb’s body and the
bed where her body was found. According
to the new trial motion one hair included a root that could have been analyzed for
DNA. That hair was “completely different,
color wise and lengthwise as to [defendant’s] hair type.†DNA analysis of the hair could have produced
a profile of someone other than defendant. Here again, the record does not show whether trial
counsel requested a DNA analysis of the hair; it shows only that such evidence
was not presented at trial.
Mr. Smith also faulted trial counsel
for not conducting an extensive investigation of various witnesses, identified
in a motion to dismiss, who knew Rita Cobb and could have testified about her
lifestyle, specifically that she was known to date and have sex with many
different men. As previously discussed,
trial counsel attempted to present evidence regarding the victim’s social and
sex habits at trial, but the trial court excluded that evidence.
Mr. Smith also argued that trial counsel
was ineffective because he did not pursue a connection between Robert Mark
Edwards, a suspect in what he claims is a similar unsolved murder committed in
May 1986. Law enforcement officers
eliminated Edwards as a suspect because they concluded he was incarcerated at
the time Rita Cobb was murdered.
However, the evidence shows Edwards was not incarcerated until December
1985; Cobb was killed two months earlier in September. Moreover, the police report indicates Edwards
was incarcerated from December 1985 to December 1986, which if correct means he
also could not have committed a murder in May 1986. Once again, Mr. Smith showed only that trial
counsel did not present evidence at trial regarding the investigation of
Edwards as a suspect in this case.
Similarly, in arguing trial counsel
was ineffective because he did not investigate or present evidence regarding the
sheriff’s investigation of Joe Saunders and William Backhoff as suspects in the
murder of Rita Cobb, Mr. Smith did not submit any evidence to show the results
of such investigations. The record shows
only that trial counsel did not present that evidence at trial.
face="Times New Roman">We will not recount the other ways in which defendant claimed
his trial attorney’s representation was deficient because defendant did not
present sufficient evidence in his motion for new trial to support such a
finding. Absent additional evidence,
such as a declaration from trial counsel, we cannot determine whether defendant’s
trial attorney failed to conduct the requisite investigation and preparation,
or whether he did so and obtained evidence unfavorable to defendant. In short we simply cannot determine from this
record whether trial counsel’s representation was deficient. Because defendant failed to establish the
first prong of his ineffective assistance of counsel claim the trial court
properly denied defendant’s motion for new trial.
Defendant contends the trial court
erred when it ruled, if defendant testified at trial, the court would permit
the prosecutor to present evidence under Evidence Code section 1108 that two
women claimed defendant had raped them, one in 1982 and the other in 1996. Defendant did not testify at trial and as a
result the women did not testify.
Because he did not testify, this
claim is not preserved for review on appeal.
“It is well established that the denial of a motion to exclude
impeachment evidence is not reviewable on appeal if the defendant subsequently
declines to testify. (See
the defendant with a prior conviction is not reviewable on appeal if the
defendant did not testify]; People v. Collins
(1986) 42 Cal.3d 378, 383–388 [] (Collins)
[prospectively adopting the Luce rule].)†(People v. Ledesma
(2006) 39 Cal.4th 641, 731.)
Defendant contends this case is
distinguishable from Collins, and
that the issue is preserved even though he did not testify. We cannot see the distinction. During the in limine hearing in this case the
prosecutor expressed the opinion that under Evidence Code section 1108, he
could introduce the testimony of the two women who claimed to have been raped
by defendant in his case-in-chief, but he chose, as a “tactical decision,†not
to introduce the evidence until defendant testified. Defendant did not testify, so the evidence
was not introduced at trial.
face="Times New Roman">In arguing the issue is preserved despite his failure to
testify, defendant relies on People v. Gonzalez
(2006) 38 Cal.4th 932 and People v. Brown
(1996) 42 Cal.App.4th 461 [Fourth Dist., Div. 2] and he faults respondent for
not addressing those cases. Neither case
is relevant. In Gonzalez,
the issue was whether the trial court erred when it refused the defendant’s
request for disclosure of the evidence the prosecutor intended to use to
impeach two defense witnesses. The
Supreme Court held the issue involved the defendant’s right to discovery and
therefore was preserved for review on appeal, even though the witnesses did not
testify. (Gonzalez,
at pp. 955-960.) In Brown,
the defendant claimed the impeachment evidence was obtained in violation of his
Sixth Amendment right to counsel and this court held that when the issue is
purely one of law concerning a constitutional right, the defendant need not
testify to preserve the claim of error.
(Brown, at p. 471.) Defendant does not claim he was denied
discovery, nor does he claim a constitutional violation. Instead he contends simply that the trial
court abused its discretion when it ruled the impeachment evidence was admissible.
face="Times New Roman">Because defendant did not testify, the prior rape evidence
was not presented at trial. Defendant
contends the threat of the evidence being presented is what made him decide not
to testify, and therefore was prejudicial.
But that is precisely the rationale of the rule: “[I]f the defendant does not testify, any
possible harm from the trial court’s ruling is wholly speculative.†(People v. Ledesma,
supra, 39 Cal.4th at p. 731-732.) We simply cannot see how this case is
distinguishable from Collins,
notwithstanding defendant’s contrary assertion.
Defendant contends, and the Attorney
General concedes, the trial court’s instruction on the felony-murder special
circumstance was incorrect because it did not include the requirement of intent
to kill. In 1983, the Supreme Court held
in Carlos v. Superior Court (1983) 35 Cal.3d
131, intent to kill is an element of the felony-murder special circumstance. The Supreme Court overruled
(1987) 43 Cal.3d 1104, 1147, and held that intent to kill must be proven only
if the defendant is an aider and abettor.
Because the crime here occurred in 1985, Carlos
applies. (People v.
Wharton (1991) 53 Cal.3d 522, 586, fn. 16, [intent to kill is a
requirement in cases involving a felony-murder special circumstance committed
after Carlos but before Anderson.] The Attorney General concedes the trial court
in this case did not instruct the jury that intent to kill is an element of the
felony-murder special circumstance.
The issue we must resolve is whether
the instructional error was harmless.
“The determination of whether Carlos error is
harmless ‘depends on application of the harmless-beyond-a-reasonable-doubt
standard of Chapman v. California (1967) 386 U.S.
18, 24 [].’ [Citation.] In other words, ‘error in failing to instruct
that a special circumstance contains a requirement of the intent to kill is
harmless when “the evidence of defendant’s intent to kill . . . was
overwhelming, and the jury could have had no reasonable doubt on that
matter.â€â€™ [Citation.]†(People v. Haley
(2004) 34 Cal.4th 283, 310 (Haley).)
The evidence of intent to kill in
this case is overwhelming. The only
issue at trial was the identity of the person who killed Cobb. According to the forensic pathologist, Rita
Cobb died as the result of both manual and ligature strangulation. Defendant wrapped his hands around Cobb’s
throat, as evidenced by the fracture of the hyoid bone and voice box cartilage
in her neck. Defendant then also
strangled Cobb with a wire coat hanger, which he wrapped twice around her neck
and tightened by twisting. That in our
view is overwhelming evidence of intent to kill such that the trial court’s
error in failing to instruct the jury on that element of the felony-murder
special circumstance was harmless beyond a reasonable doubt.
face="Times New Roman">In arguing the error was prejudicial, defendant points to
evidence that a pair of white shorts that could have been used as a gag had
been found on or near Rita Cobb’s face when her body was discovered. Defendant claims the evidence that he might
have used a gag shows he only intended to keep Cobb from screaming, and
therefore failure to instruct on intent to kill was not harmless beyond a
reasonable doubt. In
Cal.4th 283, which defendant cites to support this claim, the defendant said he
only pressed a pillow down over the victim’s face to keep her from screaming
after she interrupted him committing a burglary, and that she was alive when he
left. (Id.
at pp. 310-311.) The forensic evidence
and the defendant’s statement to the police were both consistent with the
defendant’s claim. (Id.
at p. 311.) Therefore, the court
concluded the evidence of intent to kill was not overwhelming and the instructional
error was prejudicial. (
Unlike Haley,
the evidence in this case shows defendant not only used his hands to strangle
Cobb but he also used a wire coat hanger, and possibly also used a gag. That evidence overwhelmingly supports a
finding of intent to kill. Therefore, we
conclude the trial court’s instructional error was harmless beyond a reasonable
doubt. (Haley,
supra, 34 Cal.4th at p. 310.)
Defendant contends the trial court effectively
coerced the jury to render a verdict of guilt when it directed the jurors to
continue deliberating after they announced they were deadlocked and the foreperson
disclosed the split was eight for guilt and four for acquittal. We disagree.
At the outset we note defendant did
not object when the trial court, after hearing the claim they were deadlocked,
ordered the jurors to stop their deliberations for the day and return the
following morning to continue deliberating.
His failure to object arguably waives the issue for review on appeal.
Neufer (1994) 30 Cal.App.4th 244, 254.) However, because defendant also claims he was
denied the effective assistance of counsel as a result of counsel’s failure to
object, we will address the merits of his claim.
“The applicable legal principles are
well established. Under section 1140,
the trial court is precluded from discharging the jury without reaching a verdict
unless both parties consent or ‘unless, at the expiration of such time as the
court may deem proper, it satisfactorily appears that there is no reasonable
probability that the jury can agree.’ We
have explained that ‘[the] determination whether there is reasonable
probability of agreement rests in the sound discretion of the trial court. [Citation.]
The court must exercise its power, however, without coercion of the
jury, so as to avoid displacing the jury’s independent judgment “in favor of
considerations of compromise and expediency.â€
[Citation.]’ [Citations.]†(People v. Sheldon
(1989) 48 Cal.3d 935, 959; see also People v. Neufer,
supra, 30 Cal.App.4th at p. 254.)
The trial court in this case did not
make any coercive remarks or engage in any other conduct directed at persuading
the minority jurors to change their minds or acquiesce to the majority view. After questioning the foreperson, who
confirmed the jurors had made progress toward reaching a unanimous verdict each
day of their deliberations, the trial court simply ordered the jurors to return
the following morning and “talk to each other.â€
The court added it would not require the jurors to stay unless they felt
like they were making progress. In
arguing the trial court’s action was coercive, defendant cites the foreperson’s
statement, when asked why he believed the jury was deadlocked, that “[e]ach
juror has indicated [that] they’re solid in their position.†The cited fact is the essence of a deadlocked
jury; it adds nothing to the analysis.
Moreover, as defendant acknowledges, the foreperson also volunteered his
view that further discussion might change the count.
Defendant also contends the trial
court, before ordering the jurors to continue deliberating, should have
instructed the jurors according to CALCRIM No. 3551 not to change their
positions just because their opinion is different from that of other jurors or
just because other jurors want them to change. Defendant acknowledges that neither his
attorney,
name="_ftnref5" title="">face="Times New Roman">[5] nor the prosecutor asked
for the instruction. Defendant does not
cite any authority to show the trial court should have given the instruction
sua sponte. Instead, he relies on
Court cited the fact the trial court had given such an admonition as additional
support for the conclusion the jury’s verdict was not the result of
coercion. (Id.
at p. 534.) The trial court’s failure to
give such an instruction in this case does not alter our conclusion the trial
court did not coerce the jurors to reach a verdict of guilt.
Because the trial court’s actions
were not coercive, there was no reason for defendant’s trial counsel to object
to the trial court’s order directing the jurors to continue deliberating. In other words, defendant has failed to show
trial counsel’s performance was deficient.
Absent such a showing, defendant cannot establish he was denied the
effective assistance of counsel. (
both deficient performance and resulting prejudice].)
Defendant also contends the trial
court violated his Sixth Amendment right to representation by counsel because
his trial attorney was not present when the trial court questioned the
foreperson and ordered the jurors to resume deliberating. Defendant does not dispute that he was
represented by an attorney specially appearing on behalf of his trial attorney,
who was ill. Instead defendant questions
whether so-called “stand-in counsel†was adequately prepared to represent him
during the discussion.
Defendant did not object in the
trial court to his trial attorney’s absence, or to stand-in counsel
representing him, or to the trial court responding to the jury’s declaration
they were deadlocked. Therefore, defendant
has not preserved this issue for review on appeal. (People v. Roldan
(2005) 35 Cal.4th 646, 729, overruled on other grounds in People v.
Doolin (2009) 45 Cal.4th 390, 421.)
Moreover, because he did not object, defendant’s assertions regarding
stand-in counsel’s ability to represent him are purely speculation.
and he did not object to that representation, we must reject his Sixth
Amendment claim in this appeal.
In September 2010, defendant filed a
motion under section 1424 to disqualify the district attorney’s office in this
case because in his June 2010 reelection campaign, District Attorney Mike Ramos
distributed campaign fliers that included a photograph of defendant and the
fact of his arrest for the murder of Rita Cobb.
Defendant appended one of the campaign fliers to his motion.
presumably his booking photo, with the caption, “John Henry Yablonsky [¶] Charged
with murder in the 1985 slaying of Lucerne Valley mother Rita M. Cobb—on trial
this year by Mike Ramos’ Cold Case Unit.â€
Next to the photo of defendant is a quotation, under the caption,
printed all in bold letters, “It’s Never a ‘Cold Case.’†The quotation say, “‘A case is never cold to
the family of a murder victim. That’s why I have worked
with the Sheriff to start the Cold Case Unit. Using DNA evidence, we have filed murder
charges in 19 cold cases. Twenty five
years after the crime, Rita Cobb’s family will have closure.’†The quote includes the attribution, “Mike
Ramos, District Attorney.â€
The trial court found defendant
failed to make the showing required under section 1424 that the campaign flier
created a conflict that rendered it unlikely defendant would receive a fair
trial. Therefore, the trial court denied
defendant’s motion. Defendant contends
the trial court abused its discretion.
We disagree, but we will not resolve that issue, because defendant has
failed to show prejudice.
The pertinent legal principals are
set out in section 1424, which as defendant correctly points out, includes both
the substantive and procedural rules pertinent to a motion to disqualify the
district attorney’s office. First, defendant’s
moving papers must set out the grounds upon which disqualification is sought
and must include affidavits that set out the facts that support the asserted
grounds. (§ 1424, subd. (a)(1).) In order to prevail, the defendant must show
the conflict of interest is of such a nature as to “render it unlikely that the
defendant would receive a fair trial.†(
Court has construed section 1424 “as establishing a two-part test: (i) is there a conflict of interest?; and (ii)
is the conflict so severe as to disqualify the district attorney from acting? Thus, while a ‘conflict’ exists whenever there
is a ‘reasonable possibility that the DA’s office may not exercise its
discretionary function in an evenhanded manner,’ the conflict is disabling only
if it is ‘so grave as to render it unlikely that defendant will receive fair
treatment.’ [Citation.]†(People v. Eubanks
(1996) 14 Cal.4th 580, 594.) “[T]he
potential for prejudice to the defendant—the likelihood that the defendant will
not receive a fair trial—must be real, not merely apparent, and must rise to
the level of a likelihood of unfairness.†(Id. at p. 592.) In other words, the defendant must show more
than the appearance of a conflict or impartiality; the defendant must show an
actual likelihood of unfair treatment. (
not just an individual prosecutor but also an entire prosecuting office, he
must make an ‘especially persuasive’ showing.
[Citation.]†(
recusal motion, ‘[o]ur role is to determine whether there is substantial
evidence to support the [trial court’s factual] findings [citation], and, based
on those findings, whether the trial court abused its discretion in denying the
motion.’ [Citations.]†(People v. Vasquez,
supra, 39 Cal.4th at p. 56.)
face="Times New Roman">Defendant did not make the required showing in the trial
court. Defendant’s only claim in his recusal
motion was that as a result of singling defendant out in his campaign
literature, the district attorney effectively committed himself to obtaining a
conviction in defendant’s case. Defendant
did not cite any examples in his moving papers of how the prosecutor’s
commitment to a conviction might result in unfair treatment to defendant. Instead defendant submitted his own
declaration in which he stated that in June 2010, after the district attorney’s
campaign literature was mailed to voters, defendant filed a civil action
against the district attorney. Within 24
hours after filing that lawsuit,
“subjected to intense harassment in the West Valley detention Center,
including, but not limited to, repeated and prolonged searches of [his] cell,
having [his] court materials thrown about the cell and disorganized, having
legal mail compromised, and the repeated denial of my court ordered right to
use the law library.â€
face="Times New Roman">Defendant’s suggestion that the sheriff’s actions are somehow
attributable to the district attorney is based on speculation, not fact. Defendant failed to establish in the trial
court that a conflict existed because he failed to show a real potential for
unfair treatment.
face="Times New Roman">Defendant argues in his opening
brief that the district attorney had an intense personal stake in the
outcome of defendant’s trial, as a result of which there was a strong risk defendant
would not be treated evenhandedly. Assuming
this argument is implicit in the one defendant actually made in his trial court
moving papers, and assuming further the trial court abused its discretion in
denying defendant’s recusal motion, we nevertheless would conclude the error is
harmless.
face="Times New Roman"> Where the defendant
does not seek review by extraordinary writ of the trial court’s denial of a section
1424 motion, reversal on appeal is required only if the defendant shows actual
prejudice, i.e., it is reasonably probable a result more favorable to the
appealing party would have been reached absent the error. (People v. Vasquez,
supra, 39 Cal.4th at pp. 66-71;
face="Times New Roman">Defendant argues the trial court’s presumed error was
prejudicial because defendant was forced to ask about the district attorney’s
campaign mailer during jury selection, and also because the deputy district
attorney who actually tried the case was “likely†precluded from negotiating
any plea to a lesser charge.
face="Times New Roman">Defendant’s second argument is obviously speculation. Moreover, nothing in the district attorney’s
campaign flyer suggested the district attorney was committed to convicting
defendant of first degree murder with the rape special circumstance. As quoted previously, the flyer stated only
that defendant had been charged with murder in the 1985 death of Rita Cobb, as
a result of which her family would get closure.
The mere existence of the campaign flyer
| Description | A jury found defendant and appellant, John Henry Yablonsky (defendant), guilty of first degree murder (Pen. Code, § 187, subd. (a))[1] in connection with the death by strangulation of Rita Cobb, and also found true the special circumstance allegation that defendant committed the murder during the commission of a rape (§ 261). After denying defendant’s motion for new trial, the trial court sentenced defendant to state prison for the indeterminate term of life in prison without the possibility of parole. |
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