P. v. Grant
Filed 11/25/13 P. v. Grant CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE
DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES GRANT,
Defendant and Appellant.
H037673
(Santa
Clara County
Super. Ct.
No. CC802250)
A jury convicted defendant Charles Grant of
§ 187)
title="">[1]
and found true an allegation that he personally used a dangerous or deadly
weapon in committing the crime (§ 12022, subd. (b)). Defendant admitted a prior serious felony
conviction (§§ 667, subd. (a), 1192.7), and the trial court sentenced him to an
aggregate term of 31 years to life.
On appeal, defendant contends that (1) the
trial court improperly excluded lay opinion testimony; (2) the prosecutor
committed misconduct; (3) there was insufficient
evidence of burglary to support the felony murder charge; (4) the trial court improperly
admitted evidence of defendant’s poverty; (5) the trial court improperly
admitted evidence of uncharged crimes to show motive; (6) the trial court improperly
excluded evidence of the victim’s boyfriend’s past cocaine addiction; and (7)
the cumulative effect of these errors violated defendant’s
I.
Background
Kristi Harris was stabbed to death in her
San Jose apartment on August 29, 1988. Police
collected evidence and questioned numerous people, including Kristi’s roommates
and family members, her boyfriend Mark Naillon, her neighbors, and defendant,
who lived in the apartment next door.
No charges were brought.
The case was reopened 20 years later, after DNA
testing on fingernail scrapings taken from Kristi identified defendant and Mark
as possible contributors. Testing also
identified defendant as a possible contributor to DNA found on Kristi’s workout
pants and as the source of DNA extracted from a pubic hair found near her body.
The prosecution’s theory was that defendant,
who had been up all night using drugs, killed Kristi when she came home that Monday
morning and interrupted his burglary of her apartment. The defense theory was that Mark, who told
police he and Kristi argued two days before the murder, killed her Monday during
his lunch break.
Prosecution witnesses testified that Kristi,
Janet Jennings Miller, and Kristen Olsen Grant shared an apartment in the Cedar
Glen complex in 1988. The downstairs
bedroom was Kristi’s, as was the assigned parking space across the street. Kristi usually parked there, but if she was “running
in and out fairly quickly,†she used a visitor spot closer to her front door.
Kristi worked as a hairdresser at her
father’s beauty salon. She had Mondays
off and typically spent them working out, running errands, doing laundry, and
visiting her parents. She jogged on a
nearby par course early on Monday mornings, and about 50 percent of the time,
she met her sister Dana there. It took about
20 minutes to run the par course.
Ky Grant, whom Kristen later married, spent
a lot of time at the Cedar Glen apartment.
Mark, whom Kristi had been dating for “a couple years,†visited and sometimes
spent the night, but he and Kristi spent more time at his house about 15
minutes away. Testimony about Mark and
his relationship with Kristi was uniformly positive.
It was unusual for Kristi to stay at Mark’s
on Sunday nights. If she did, she
sometimes took running clothes with her, but more typically on Mondays, she would
return home and change into them.
Kristen testified that on the Saturday
before the murder, she and Ky and Kristi and Mark attended Kristen’s sister’s
wedding. Kristen recalled Kristi and Mark
“[d]ancing, happy, [and] having a good time.â€
Kristi spent Saturday night at Mark’s and telephoned Kristen on Sunday to
let her know she planned to spend Sunday night at his house too.
When Kristen left for work around 7:45 a.m. that
Monday, Ky and Janet were already gone, and Kristi was not yet home. Kristen expected her to return soon, since she
“liked to get up and get going on her Mondays.†The screen on the living room window was in
place when Kristen left.
Janet remembered opening the living room
window before she left for work that Monday. The screen was on the window, undamaged. When Janet came home that evening, she noticed
that Kristi’s car was “in the front like a visitor’s spot.†Janet assumed that Kristi and Kristen were
both home. As she approached the apartment,
Janet noticed that the living room screen was “off and thrown in the corner,†which
was “odd.†“It made me stop and think,
and I assumed that maybe somebody got locked out [and] . . . needed to . . .
climb through the window.†Janet
unlocked the door, saw Kristi lying on the floor “brutally attacked,†and ran,
“panicked,†down the path to the common area.
Christopher Jones shared a Cedar Glen
apartment with Spencer Knight and Keith Lentz.
Their apartment was on the other side of defendant’s, which was next
door to Kristi’s. Jones occasionally
visited defendant and had seen him using methamphetamine and cocaine. Jones, Knight, and Lentz were on their porch
when Janet “came out running, screaming . . . .†They “couldn’t understand a word . . . something
about her roommate . . . .†Jones “ran,
opened up the door and almost tripped over the body,†which was “right there.†He called police.
Ruth Anderson was Cedar Glen’s property manager
in 1988. She was on defendant’s porch,
speaking to his then-wife Stacey about better supervising her four children,
when Janet came home that Monday night. Anderson
heard a door unlock, then a scream, and Janet ran past her. Defendant came outside right then, “and the
first words out of his mouth were, ‘Where’s my bike? What happened to my bike?’ †Janet “was in hysterics,†Anderson told the
jury, and defendant “could plainly see her,†but he did not acknowledge her unusual
behavior in any way. Anderson “thought
immediately it was unusual.†Someone
asked her to call Mark, and she did so. The police arrived right after that.
San Jose Police Officer Robert Froese
arrived on the scene at 8:57 p.m. Froese
was briefed that the front window of Kristi’s apartment was open, that the
screen had been removed, and that “the neighbors living in [defendant’s
apartment] were concerned that it too may have been burglarized.†Asked to investigate, Froese walked through
defendant’s apartment with him, remaining inside for two to three minutes. He did not shake defendant’s hand, have any
other physical contact with him, or touch anything in the apartment. Nothing in the apartment was amiss.
Froese entered Kristi’s apartment about half
an hour later, after inspecting her car and the area outside her apartment. Kristi’s body was lying in a pool of blood on
the living room floor. Her car keys,
sunglasses, and a notepad were on the dining room table, and some laundry was
on the floor. Her purse was in her bedroom.
A twisted clasp from a necklace was found on
the floor at the bottom of the stairs, and the broken necklace was found by a
chair in the living room. Froese noted blood
stains on the living room carpet, on the stereo cabinet, on the television, and
on the receiver. Dust patterns indicated
that the receiver had been moved slightly.
There were blood swipes on the wall of Kristi’s bathroom and on the
inside of the front door, and there was a blood smear to the right of the front
doorknob. An impression on Kristi’s
bedroom door jamb appeared to have been made by the tip of a knife. Froese told the jury he believed the assault
started outside Kristi’s bedroom door by the stairs and then moved to the
living room.
Froese’s partner, officer Kenneth Womack,
took fingernail scrapings from Kristi, and forensic vacuumings were also
performed. “It’s possible†that Froese held
Kristi’s fingers as Womack collected the evidence, but Womack did not recall
him doing so. Both officers wore
gloves.
Retired homicide detective George Padilla
began interviewing witnesses that night.
Neither Kristi’s roommates nor Ky said anything about Mark that caused Padilla
concern, and her family was “quite clear†that they did not consider Mark a
potential suspect.
Padilla interviewed Mark early Tuesday
morning and followed up a few days later.
“[A]t all times cooperative,†Mark described his activities “from the
moment he woke up†that Monday and during the previous weekend, volunteering
that he and Kristi had argued at the wedding Saturday. Mark gave police the names of people he had
interacted with on Monday. His story
checked out.
Padilla interviewed Kristi’s sister Dana,
who told him that Kristi telephoned her early Monday morning. Dana originally said Kristi called between
8:30 and 9:00 a.m., but then gave 9:00 to 9:30 a.m. as her best estimate. A few days later, she described her previous
estimates as “rough†and said her best estimate was that Kristi called between
8:45 and 9:30 a.m. It was clear to
Padilla that Dana was having difficulty remembering the specific time of the
call.
Padilla interviewed defendant on September
7, 1988, and the recording of that interview was played for the jury. Defendant said he was unemployed and that his
right forearm was in a cast because he had had surgery on his thumb. The Monday of the murder was Stacey’s first
day at word processing school, so she left early for an 8:00 a.m. class. Defendant and the children, aged nine, seven,
three, and 13 months, walked to Food Villa for a loaf of bread, returning home,
he “guess[ed],†around 9:30 or 10:00 a.m. They made sandwiches and then walked to Lawton
School to visit Stacey, arriving “[r]oughly 10:30 or 11:00 -- something like
that.†Stacey was still in class, so “some
lady†showed them the computer room. They
“sat outside for a while†and then walked to Valley Medical Center (VMC), but the
doctors were at lunch. They returned to the
school, and when Stacey got out of class at 12:45 p.m., they went back to VMC, where
doctors examined defendant’s thumb. After
“a couple hours†at VMC, they walked home.
Finding a check in the mail, they walked to Fry’s to get groceries, but
when they arrived, they learned that the check was a PG&E rebate that could
not be cashed for groceries. They walked
home, arriving “[a]bout 8:00†in the evening. About 15 minutes later, Stacey told him his
bicycle was missing, so he went downstairs. “[Jones] and them were outside. And I asked them if they seen my bike . . .
.â€
Asked if he had any ideas about what happened
that morning, defendant suggested that his “second cousin†William Leroy Lewis,
who was “on drugs now†and “just did a lot of time and just got out,†might
have come by to borrow the bike and “somethin’ might’ve happened then, or I don’t
know.†Defendant said Lewis had come by
Sunday night when “us cousins were together.â€
He identified the cousins as Theo Phillips and Thaddeus and Gregory
Fort. Phillips spent Sunday night at
defendant’s apartment and left for work “about 6:00 in the morning.†Padilla testified that police tried to follow
up but could not locate the any of the cousins.
Padilla interviewed defendant’s nine-year-old
daughter Shaunte, and the recording of the interview was played for the
jury. Shaunte was sleeping when her
mother left for school that Monday morning, and defendant woke her up and told
her to get dressed because they were going to the store for a loaf of bread. They came home, made sandwiches, and left to
pick up her mother. They saw her
father’s doctor because he had cut the back of his hand. Shaunte did not see him cut himself, but he said
he had done it slicing frozen hamburger.
“[I]t happened before we went to the store,†she said. Her father did some laundry before they went
to pick up her mother.
Padilla interviewed defendant a second time
on September 13, 1988, and the recording of that interview was played for the
jury. Defendant added new details,
admitting that he had cut his left hand “pretty deep†after they came back from
the store and made sandwiches. He got
his cast wet trying to clean the wound, so he went to VMC for stitches and to
have the cast repaired. He did not tell
police about the cut earlier because he was “scared,†having heard after the
first interview that “somebody at the apartment said some black guy must have
did it because . . . their family . . . told [Knight and another neighbor] that
the girl had had black skin or something in her fingernails.†Padilla told the jury that no officer had been
under the impression that “black skin†had been found under Kristi’s
fingernails.
Stacey told the jury she and defendant separated
in 1996 and divorced in 2000. She controlled
the family finances. Defendant had a
drug problem before and during the time they lived at Cedar Glen, and he would
use drugs as often as he could get them. He sometimes asked her for money to buy drugs,
and she knew him to resort to theft or selling things from their home to pay
for drugs. Neighbors and defendant’s
cousins visited regularly, and Stacey did not like that because she knew they
would be doing drugs. Defendant used beer
and brandy as precursors to crack cocaine and methamphetamine and typically
stayed up all night when he used drugs.
Then he would “crash,†and he was “irritable†when he woke up. He threatened to harm her if she left him.
Stacey was upstairs when she heard visitors
arriving around 10:00 or 11:00 p.m. on the Sunday before the murder. Defendant woke her in the middle of the night
for money, and she reluctantly gave him $50.
When she got up the next morning, it appeared to her that he had been up
all night.
The children were still asleep when Stacey
left for school around 7:30 a.m. She
called home when her first class ended a little before 9:00 a.m. to see if they
were awake, but no one answered. She
called again when her second class ended a little before 10:00 a.m., and
this time, someone answered.
Stacey was surprised when her family showed
up at the school “close to 1 o’clock.†She noticed a cut on defendant’s hand and what
appeared to be blood “like on the cotton part of the cast,†and he told her he
cut himself slicing frozen hamburger. The
explanation struck her as odd because he had worked as a chef. She did not recall him ever, before or since
that day, cutting himself in the kitchen.
Besides, they had a microwave, so he could have defrosted the frozen
meat first. It was unusual for defendant
to prepare dinner in the morning. It was
also unusual for him to have marched all four children to Food Villa for a loaf
of bread, because there was a 7-Eleven right outside the Cedar Glen complex.
Stacey and Kristi had spoken only in
passing. Kristi had never visited
Stacey’s apartment, and no one in Stacey’s family had ever been inside Kristi’s
apartment.
Shaunte testified that when the family lived
at Cedar Glen, she sometimes walked or rode her bike to the 7-Eleven for bread
or milk. She recalled very little about
the day of the murder or about her 1988 interview with Padilla. She agreed that her memory of the incident
would have been clearer two weeks after the murder and said she would not have
lied to the police. She did not recall
defendant ever having cut himself with a knife except on that Monday.
Lewis testified that he and defendant got
together three or four times a week in 1988 to smoke marijuana and crack
cocaine. On the Sunday before the
murder, Lewis, defendant, and defendant’s cousins smoked marijuana and drank
beer in defendant’s apartment. It would
not have been unusual for defendant to have been using cocaine that night as
well. Lewis could not recall more because
drugs had damaged his memory.
Douglas Taylor lived at Cedar Glen in 1988. Defendant called him after midnight on the
night before the murder, and Taylor went to defendant’s apartment and sold him methamphetamine. Taylor saw six or seven men there.
Gary Lentz was asleep in his brother’s Cedar
Glen apartment on the night before the murder.
Between midnight and 2:00 a.m., he awoke to find defendant and another
man “rummaging around†by the coffee table.
Defendant’s speech was “rapid†and “a little kind of frantic,†and he claimed
to be looking for cigarettes. Lentz was
95 percent sure he had locked the front door because he was “compulsive†about
that. He believed the intruders gained
entry through a window, because the windows were “easy to pop.†Lentz was angry, and he told the intruders to
leave.
Kristi’s sister Dana testified that she
looked for Kristi when she arrived at the par course at 8:10 a.m. that Monday, “[b]ecause
typically she would have run about that time.â€
Kristi was not there, so Dana ran by herself and then went to clean the
salon. It was a chore the sisters
shared. Dana’s roommate Kim Seandel
called the salon between 8:40 and 8:45 a.m. to report that Kristi had telephoned. “Maybe less than minutes†later, Kristi
called Dana at the salon and told her she and Mark had cleaned it the night
before. Dana told Kristi she had already
run the par course, and Kristi said she planned to run, do her laundry at their
parents’ house, and then go to the gym. The sisters made plans to talk later that day about
who would feed the family dog, since their parents were out of town.
Dana testified that Kristi never said where
she was calling from. Kristi had no “particular
habit,†sometimes calling Dana from Mark’s house and sometimes calling from her
apartment. Kristi was not generally one
who liked to sleep in when she was not working.
Dana tried to reach her at her apartment “around noon†but no one
answered, so she called her parents’ house.
No one answered there either.
The parties stipulated that Dana’s roommate
Kim was interviewed by police on August 29, 1988, and that Kim told them that “at
approximately 8:45 a.m. [that morning], she was home and received a telephone
call from Kristi . . . . Kristi asked to
speak with Dana, and [Kim] told her that Dana was at the shop. Kristi said she was planning to go running
and wanted to know if Dana could join her.
Kristi told [Kim] she would immediately call Dana at the shop. [Kim] said Kristi sounded fine, upbeat.â€
Leslie Ann Dyerly lived at Cedar Glen in
1988. She had Mondays off. Dyerly left to do errands around 9:00 or 9:30
a.m. that Monday. As she came downstairs
from her second-floor apartment, she noticed Kristi, “and we said ‘good morning.’ â€
Kristi was by a black car, “locking up, like she had just come
back.†She was wearing workout clothes,
and her hair was in a ponytail. Dyerly
was “100 percent†certain, “absolutely certain,†that she saw Kristi on the
morning of the murder and not on some other Monday morning.
Kristi’s boyfriend Mark testified that he
owned a painting company. Kristi was awake
when he left his house around 7:00 a.m. that day for Palo Alto, where his crew was
painting the Coverts’ house. They ran
out of paint around 11:00 a.m., and Mark left to buy more. He drove home to pick up a check, cashed it
at a nearby market, returned home to put most of the cash away, and then drove
to the paint store he did business with.
He bought the paint and a can of stain he had offered to get for the
owners of the market, dropped off the stain, got gas, picked up lunch for his
crew, and returned to Palo Alto, arriving around 12:45 p.m. He did not stop by Kristi’s apartment that
day; that was not something he did on Mondays, because it was “her only day to
do what she need[ed] to do,†and “when I’m at work, I have so many things I
need to accomplish during the day, I don’t mix the two, ever.†He arrived home around 5:15 p.m., and he was outside
with his brothers and neighbors when Anderson telephoned.
Mark told the jury he and Kristi argued at
the wedding. Both had been
drinking. “It was a tiff,†he said. “[T]here was a person . . . across the room
and he was staring and staring . . . all night at us, and, you know, typical
boyfriend/guy, I asked who this cat was and why is he doing that . . . .†Later that evening, the “guys were all doing
shots,†and “an older woman came up to the bar . . . and . . . snuggled up next
to [Mark].†“Kristi walked up and
elbowed me in the rib and said, ‘Uh-huh, what are you doing?’ But we laughed about it.†After the wedding, the two had an “emotionalâ€
but “[e]xtremely positive†conversation about their future together. “We told each other . . . we’re not going to
sweat the small stuff and we’re going to get married and have an awesome life.â€
Mark denied killing Kristi.
Retired police detective sergeant David
Harrison interviewed the Coverts in 1988. Mr. Covert told him that he came home from
work between 11:45 a.m. and 12:30 p.m. that Monday and saw Mark and his crew with
food that Mark had bought for them.
Harrison also interviewed one of the owners of the market where Mark
cashed the check that Monday morning, and she corroborated Mark’s account.
Dr. Parvis Pakdaman qualified as an expert
in forensic pathology and determining the cause and manner of death. He identified “stab wounds and slashes, chest
and neck†as the cause of death and told the jury that determining the time of
death is not a precise science. It was
“almost impossible†to do so from the coroner’s observation in this case that
rigor mortis was “present and hard†at a particular time.
Brooke Barloewen, a supervising criminalist
at the Santa Clara County District Attorney’s Office Crime Laboratory (the SCC
crime lab), qualified as an expert in hair comparison, screening for the
presence of biological material, and performing DNA testing. Barloewen extracted DNA from one of the pubic
hairs found near Kristi’s body and created a DNA profile. There was another pubic hair in the vacuumings
taken from Kristi’s apartment that looked macroscopically “similar†to the
other hair, but Barloewen was unable to extract DNA from that hair.
Lisa Skinner, a criminalist at the SCC crime
lab, examined a sampling of Kristi’s fingernail scrapings. Kristi was the source of DNA extracted from
the left hand scrapings, and there was no foreign DNA detected. The right hand scrapings contained a mixture
of DNA from at least two people. Kristi
was a possible major contributor, and defendant was a possible minor
contributor. There was one minor allele
that could have come from Mark, but a single allele is not a sufficient basis
for any conclusions. Skinner did not
perform statistical calculations because the lab was not routinely doing that
in 2005.
Skinner compared the DNA profile from the
pubic hair found near Kristi’s body to defendant’s DNA profile and identified
him as the source of that DNA.
Lynne Burley, a supervising criminalist and
DNA technical advisor at the SCC crime lab, qualified as an expert in screening
evidence for the presence of biological material and performing DNA
testing. In 2006, Burley extracted DNA
from a second sampling of Kristi’s fingernail scrapings. Kristi was a possible contributor to the DNA
extracted from the left hand scrapings, and there was no foreign DNA in the
profile.
Burley analyzed DNA extracted from the right
hand scrapings and concluded that it contained a mixture of DNA from at least
three people. She identified Kristi as a
possible major contributor and defendant and Mark as possible minor
contributors, with defendant contributing more DNA than Mark. She explained that “it’s not unusual†to find a
person’s own DNA under his or her fingernails. It was also “reasonable†that Mark’s DNA would
be found under Kristi’s fingernails “from recent contact.â€
Burley performed “a combined probability of
inclusion calculation.†The probability
that a randomly selected African-American would have DNA consistent with that attributed
to defendant was one in 970,000. The
likelihood for a randomly selected Caucasian was one in 180,000, and for a
randomly selected Hispanic, it was one in 200,000. The likelihood that a randomly selected person
would have DNA consistent with that attributed to Mark was one in 23,000
African-Americans, one in 4,700 Caucasians, and one in 4,100 Hispanics.
Burley calculated a “likelihood ratio,â€
which showed that it was 6.42 trillion times more likely that the combined DNA
extracted from the right hand fingernail scrapings came from Kristi, Mark, and
defendant than from Kristi, Mark, and a random African-American. It was 52.4 trillion times more likely that it
came from Kristi, Mark, and defendant than from Kristi, Mark, and a random
Caucasian, and 96 trillion times more likely that it came from Kristi, Mark,
and defendant than from Kristi, Mark, and a random Hispanic. Burley excluded Stacey and her four children,
the Fort brothers, Phillips, Lewis, and Froese as possible contributors.
In an effort to draw further
interpretations, Burley performed Y-STR testing, which examines male DNA only
and “isn’t as discriminating†as the autosomal testing described above. Y-STR testing identified defendant as a
possible major contributor and Mark and Froese as possible minor contributors
to the DNA extracted from Kristi’s right hand fingernail scrapings. Burley noted that Mark’s and Froese’s Y-STR
profiles were “fairly identical,†which is “kind of the downside to doing Y-STR
testing.†Considering the tests she
performed as a whole, however, Burley excluded Froese as a possible contributor
to the DNA extracted from Kristi’s right hand fingernail scrapings. Skinner testified that she agreed with this
conclusion.
Burley examined Kristi’s workout pants and found
DNA “consistent with [defendant’s profile]†on the left front thigh area. The probability that a randomly selected African-American
male would have this partial profile was one in 125. Burley excluded the Fort brothers, Phillips,
Lewis, and defendant’s stepsons as possible contributors.
Surgeon Dr. Barry Press qualified as an expert
in hand surgery. He reviewed defendant’s
medical records and testified that the cast on defendant’s arm would not have
prevented him from gripping a knife or using it forcefully.
Psychiatrist Dr. Douglas Tucker qualified as
an expert in psychiatry, drug addiction, and the effects of drugs on the human
body. Presented with a hypothetical that
tracked the prosecution’s version of events that Sunday and Monday, Dr. Tucker opined
that the scenario was “consistent with the desperation of somebody who wants to
continue using the drug.†He explained
that crack cocaine has a short half-life in the body. “[W]hen people are drinking and smoking
crack, and maybe . . . using methamphetamine, and . . . at some point, there’s
not immediate access,†users start to go through withdrawal. “You get the early withdrawal and then you
get what’s called tweaking, which is an extremely unpleasant, agitated, half
withdrawal, half intoxicated state with methamphetamine and cocaine where a
person can initiate a kind of frenzied seeking for more drugs . . . .†The hypothetical pattern of drug use would
not negate the intent to kill or to commit theft.
Anthony Le and his sister Mai Le testified
for the defense. Le and his sister lived
at Cedar Glen in August 1988, and police interviewed him the day after the
murder. The parties stipulated that he
told police he left for school at 11:00 a.m. on the morning of the murder. He did not notice Kristi’s car when he left,
but he saw it parked in the stall closest to her apartment when he returned at
4:00 p.m. Le conceded on
cross-examination that he did not know Kristi, had never spoken to her, and had
no reason to pay attention to where she parked her car.
The parties stipulated that Debra Gonzalez,
a receptionist at Lawton School, was interviewed by police on September 12,
1988, and told them that the school’s sales representative had given defendant
a brief tour of the school shortly after noon on the day of the murder.
Criminalist Mark Moriyama qualified as an
expert in trace evidence evaluation. He examined
nine “off-white particles†vacuumed from Kristi’s carpet and compared them to a
sheetrock sample, a ceiling sample, and a sample of casting material from a
hospital. Three were similar to the
ceiling sample. Five were “layered†and
had “infrared characteristics similar to latex.†Moriyama could not identify a source of the
latex-like material.
Henry Templeman, who qualified as an expert
in fingerprint analysis, testified that no identifiable fingerprints from
Kristi’s apartment matched defendant’s but two matched Mark’s.
Former San Jose Police Officer Jerome Smith,
who interviewed Dyerly on August 29, 1988, testified that his report made
no mention of Dyerly having seen Kristi that morning, but he conceded on
cross-examination that the report only documented her afternoon activities.
After deliberating for six and a half hours,
the jury returned a guilty verdict and found the personal use allegation true. Defendant admitted a prior serious felony
conviction, and the trial court sentenced him to an aggregate term of 31 years
to life. Defendant filed a timely notice
of appeal.
II.
Discussion
A.
Claimed Improper Exclusion of Testimony
1.
Background
The prosecution moved in limine to exclude
Dana’s lay opinion about where Kristi telephoned her from that Monday. The prosecutor described Dana’s conflicting
statements on the subject. At the preliminary
examination, Dana testified that Kristi “really didn’t have a habit†on Monday
mornings—sometimes she would start her day from Mark’s, and other times she
would go home and start her day from there.
It was Dana’s impression that
Monday. Dana later testified that Kristi
told her that she was at Mark’s. Dana would
testify at trial, the prosecutor told the court, that “Kristi never told her
where she was calling from.†The trial
court excluded Kristi’s purported statement as inadmissible hearsay and ruled that
any lay opinion testimony by Dana on the subject had to be based on something
other than that hearsay statement.
Dana’s roommate Kim reportedly told an
investigator in 1988 that when Kristi called her looking for Dana, she said that
she was at Mark’s. By the time of trial,
Kim had no memory of that Monday’s events.
The trial court excluded Kristi’s statement to Kim as inadmissible
hearsay.
2.
Dana’s Testimony
Defendant claims the trial court improperly
excluded Dana’s lay opinion testimony. We
disagree.
“If a witness is not testifying as an
expert, his testimony in the form of an opinion is limited to such an opinion
as is permitted by law, including but not limited to an opinion that is: [¶] (a)
Rationally based on the perception of the witness; and [¶] (b)
Helpful to a clear understanding of his testimony.†(Evid. Code, § 800; People v. Farnam
(2002) 28 Cal.4th 107, 153.) Whether to
admit lay opinion testimony is within the trial court’s sound discretion. (People
v. Medina (1990) 51 Cal.3d 870, 887.)
Defendant argues that Dana should have been
permitted to opine that since she and Kristi “had previously made plans to run
early in the morning,†Kristi’s failure to show up caused Dana to believe that
Kristi must have overslept and was still at Mark’s when she called. The problem with this argument is that the
proffered opinion is not rationally based on Dana’s perceptions. (Evid. Code, §
800, subd. (a).)
Dana’s observations do not support the premise
that she and Kristi “had previously made plans†to meet that morning. It was not Kristi’s “habit†to jog with Dana on
Mondays; the two met at the par course only “50 percent of the time.†Sometimes they met “spontaneously,†and other
times, they planned it in advance. Dana did
not recall speaking with Kristi over the weekend, nor did she call her early that
Monday morning. She simply went to the
par course “in maybe hopes to meet up with
[Kristi] to run with her.†(Italics
added.) She was disappointed
there. These facts do not rationally
support Dana’s proffered opinion.
The record discloses no other observations
by Dana to support the proffered opinion.
She heard no voices in the background and no “music or the radio or anything
like that†during her five-minute conversation with Kristi. Her opinion was speculation. It was not an abuse of discretion to exclude
it.
Price
v. Northern Electric Railway Company (1914) 168
Cal. 173 (Price), on which defendant
relies, does not compel a different conclusion. Injured in a workplace accident, Price was allowed
opine at trial that the work that day was being “ ‘rushed’ †by the
foreman. (Id. at p. 181.) The testimony
was properly allowed, the court held, because it was rationally based on Price’s
personal observations that the foreman’s orders that day “ ‘were all in a hurry up style’ †and communicated in language that “ ‘most of the time’ †was “ ‘forcible
language.’ †(Ibid.) Dana’s proffered opinion, by contrast, was
not rationally based on any personal observations she described at trial.
Defendant next contends that “everything
which Kristi said to Dana which caused Dana to believe that Kristi was
telephoning from Mark’s house†should have been admitted under Evidence Code 356’s
rule of completion. His failure to raise
this argument below forfeited it on appeal. (People
v. Pearson (2013) 56 Cal.4th 393, 460 (Pearson).) It lacks merit in any event.
Evidence Code section 356 provides that “[w]here
part of an act, declaration, conversation, or writing is given in evidence by
one party, the whole on the same subject may be inquired into by an adverse
party; when a letter is read, the answer may be given; and when a detached act,
declaration, conversation, or writing is given in evidence, any other act,
declaration, conversation, or writing which is necessary to make it understood
may also be given in evidence.†(Evid.
Code, § 356.) “ ‘The purpose of this section is to
prevent the use of selected aspects of a conversation . . . , so as to create a
misleading impression on the subjects addressed.’ [Citations.]†(Pearson,
supra, 56 Cal.4th at p. 460.) Portions of a conversation that do not
clarify or explain the portions that were admitted may be excluded in the trial
court’s discretion. (
287, 319 (Williams).)
Defendant does not argue that the admitted
portions of Kristi’s telephone conversation with Dana created a misleading
impression. (Pearson, supra, 56
Cal.4th at p. 460.) Nor does he explain
why the excluded portions of the conversation were necessary to make the
admitted portions understood. (Evid.
Code, § 356.) The conversation
“wasn’t very long, maybe [a] couple minutes.†Kristi’s apparent purpose in calling was to
tell Dana she did not need to clean the salon because Kristi and Mark had
already cleaned it on Sunday night.
Kristi briefly described her plans for the day, and the sisters agreed
to talk later about who would feed the family dog. The jury was not left with a misleading
impression that Kristi had called from one location as opposed to the
other. Nothing the jury heard required explanation
or clarification by any excluded portions of the conversation, including any
statement by Kristi that she was calling from Mark’s. (Pearson,
at pp. 460-461.)
Defendant next contends that Dana’s
preliminary hearing testimony should have been admitted under the prior
inconsistent statement exception to the hearsay rule. He concedes that his trial counsel did not seek
admission of the statement on that ground, but maintains that the argument was
preserved for appeal, either because further argument on the issue would have
been futile or because his counsel’s failure to object constituted ineffective
assistance of counsel. We reject both arguments.
“The proponent of hearsay has to alert the
court to the exception relied upon and has the burden of laying the proper
foundation†for its admission. (
759, 778-779 (Livaditis).) Defendant did not do that, so he cannot argue
that it would have been futile to raise the issue “again†because the trial
court had already “ruled against [him] once.â€
At the hearing, defendant’s trial counsel argued that Dana’s
Kristi’s statement to Kim that she was calling from Mark’s) were “very
material†because they appeared to have been made between 9:00 and 9:30 a.m. that
morning, which “tighten[ed] up the timeframe in which [defendant] could have
possibly done this homicide to probably a half hour.†Counsel opined that he could get Kristi’s
statement into evidence only through Dana or Kim, neither of whom had any
desire to mislead the court. He did not
identify any recognized exception to the hearsay rule and argue that Kristi’s
statement fell within it. He simply
asked the court, in general terms, “to find that under those specific
circumstances, that there would be an exception to the hearsay rule that would
allow me to, in fact, get into cross-examination on that precise issue.†“I think it’s hearsay,†the court responded,
“but I’m not hearing an exception. That
evidence or that statement is excluded.â€
Where, as here, the trial court all but invited defense counsel to
articulate a specific exception to the hearsay rule, defendant cannot claim it
would have been futile for his counsel to have done so. We reject defendant’s futility argument. (Livaditis,
supra, 2 Cal.4th at pp. 778-779.)
Defendant argues in the alternative that his
trial counsel was prejudicially deficient in failing to seek admission of
Dana’s preliminary examination testimony as a prior inconsistent statement to
impeach her trial testimony. We
disagree.
A defendant seeking reversal for ineffective
assistance of counsel must prove both deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 218 (
(1984) 466 U.S. 668, 687 (Strickland).) “The
defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.†(Ledesma, at pp. 217-218.)
A court deciding
an ineffective assistance claim does not need to address the elements in order,
or even to address both elements if the defendant makes an insufficient showing
on one. (Strickland, at p. 697.) “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, that course should be followed.†(Ibid.)
Here, defendant cannot show prejudice. There was no evidence from which the jury
could have concluded that Kristi called Dana that morning from anywhere other
than Mark’s house or her own
apartment. It was undisputed that her
apartment was only a 15-minute drive from Mark’s house. Dana testified that Kim telephoned her at the
salon between 8:40 and 8:45 a.m., and that “[m]aybe less than minutes later,â€
Kristi called her. Their conversation
lasted “maybe [a] couple minutes.†Had Kristi
called Dana from Mark’s, then, she would have had time to get home by 9:00 or
9:30 a.m., when Dyerly said she saw her locking up her car. Defendant does not dispute this point. His alibi did not begin until 11:00 a.m.,
when he and the children would have been walking to Lawton School. Thus, whether Kristi called from Mark’s house
or from her own apartment, defendant would have had time to commit the
murder. That, the powerful DNA evidence linking
defendant to the murder, and the lack of evidence implicating Mark, make it not
reasonably probable that, but for defendant’s trial counsel’s unprofessional
errors, the result of the proceeding would have been different. (Strickland,
supra, 466 U.S. at p. 687.)
3.
Kim’s Testimony
Defendant asserts that Kristi’s statement to
Dana’s roommate Kim should have been admitted under Evidence Code section 356. He forfeited that argument, and it fails in
any event for the same reasons his similar argument about Kristi’s statement to
Dana failed. Kristi called Kim looking
for Dana. Kim told Kristi that Dana was
at the salon, and Kristi said she would call Dana there. Defendant does not contend, and we do not
believe, that there is anything misleading about this testimony that the
excluded portion of Kristi’s conversation with Kim would have explained or
clarified. (Pearson, supra, 56 Cal.4th at p. 460; Williams, supra,
40 Cal.4th at p. 319.)
Defendant next argues that Kristi’s hearsay
statement to Kim was admissible under Evidence Code section 1250 as a statement
of intent. He forfeited this argument by
failing to raise it below. (People
v. Ramos (1997) 15 Cal.4th 1133, 1177-1178 (Ramos).) In any event, it lacks
merit, because the record does not support defendant’s assertion that Kristi
told Kim “that, because her sister Dana was not at home, Kristi
investigators was made, it is not included in the record on appeal. The prosecutor’s motion in limine asserted
that Kim “reported to investigators that Kristi said she was calling from Mark’s
home.†At the hearing on the motion,
defendant’s trial counsel told the court that Kristi “had a telephone
conversation with Kim in which she indicated to Kim that she was, in fact, at
the apartment of [Mark].†When the trial
court described the proffered evidence as “a statement that Kristi told Kim on
the phone ‘I’m calling from [Mark’s] house,’
†neither side challenged that characterization. Kristi’s straightforward assertion that she
was at Mark’s house was not admissible under Evidence Code section 1250 for the
simple reason that it was not a statement of intent. (See People
v. Majors (1998) 18 Cal.4th 385, 403 [statements of the defendant’s intent
to conduct a drug deal admitted]; People
v. Earnest (1975) 53 Cal.App.3d 734, 743-744 [statement of intent to burn
residence to collect insurance proceeds admitted].)
Defendant next argues that the exclusion of
Kristi’s statement to Kim violated his equal protection rights because the
court admitted different evidence favorable to the prosecution under the state
of mind exception. We reject the
argument. The first prerequisite to a successful
claim under the equal protection clause
is a showing that the state has adopted a classification that affects two or
more “similarly situated†groups in an unequal manner. (In re Eric J. (1979) 25 Cal.3d 522,
530, italics added.) Parties whose
meritorious evidentiary motions are granted are not similarly situated with parties
whose evidentiary motions are denied.
Relying on Chambers v. Mississippi
(1973) 410 U.S. 284 (Chambers), defendant
contends that the exclusion of testimony about where Kristi called from violated
his right to present a defense. Not so. Chambers stands for the proposition
that a state may not impede a defendant’s right to put on a defense by applying
evidentiary rules “mechanistically to defeat the ends of justice.†(Id. at
p. 302.) It does not hold that a
defendant must be allowed to present any evidence he chooses. In noting that “[f]ew rights are more fundamental
than that of an accused to present witnesses in his own defense,†the
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.†(Ibid.) The challenged statement here was properly
excluded as hearsay to which no exception applied, and its exclusion did not
violate defendant’s due process rights. (
1102-1103.)
Defendant argues that exclusion of the
testimony violated his right to cross-examine witnesses. The argument is meritless. “[A] criminal defendant states a violation of
the Confrontation Clause by showing that he was prohibited from engaging in
to show a prototypical form of bias on the part of the witness . . . .†(Delaware
v. Van Arsdall (1986) 475 U.S. 673, 680, italics added (
otherwise appropriate cross-examination of Dana. He was precluded from cross-examining her
with hearsay statements to which no exception applied. His confrontation
rights were not violated.
B.
Asserted Prosecutorial Misconduct
Defendant claims the prosecutor committed misconduct
when he said at closing argument that “we simply don’t know where [Kristi] was
calling from.†Defendant forfeited this claim
by failing to raise it below, and in any event, it lacks merit. (People
v. Panah (2005) 35 Cal.4th 395, 462.)
“ ‘ “The applicable federal and state standards regarding prosecutorial
misconduct are well established. ‘ “A
prosecutor’s . . . intemperate behavior violates the federal Constitution when
it comprises a pattern of conduct ‘so egregious that it infects the trial with
such unfairness as to make the conviction a denial of due process.’ †’ [Citations.]
Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves ‘ “ ‘the use of deceptive
or reprehensible methods to attempt to persuade either the court or the jury.’ †’ †’ [Citation.]â€
(People v. Gray (2005) 37
Cal.4th 168, 215-216.) “A prosecutor is
given wide latitude to vigorously argue his or her case and to make fair
comment upon the evidence,
including reasonable inferences or deductions that may be drawn from the
evidence.
[Citation.]†(
the prosecutor before the jury, the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion.’ [Citations.]†(People v. Cole (2004) 33 Cal.4th 1158, 1202-1203 (
The challenged statement here was fair
comment on the evidence. Dana testified
unequivocally at trial that Kristi never said where she was calling from that
morning. She explained that Kristi had
no particular habit; she sometimes called from Mark’s and other times called
from her own apartment. There was evidence
to support a finding either way, and either way, defendant had time to commit the
murder. We see no reasonable likelihood
that the jury could have construed the prosecutor’s neutral remark in an
objectionable fashion. (Cole, supra, 33 Cal.4th at pp. 1202-1203.)
The record does not support defendant’s
assertion that the prosecutor “knew perfectly well†where Kristi called from
and “dishonest[ly]†misrepresented that he did not. Defendant’s argument assumes that a particular
statement out of Dana’s many conflicting statements on the subject (i.e., her
statement at defendant’s 1991 preliminary examination that Kristi in fact said
she was at Mark’s house) was “the truth†and that her other statements and her
trial testimony were false. Dana’s varying
statements on the subject were excluded because her apparent confusion rendered them unreliable and
speculative. Kim’s
statement to police was excluded as unreliable hearsay. At trial, Dana told the jury that Kristi
“never†said where she was calling from.
The prosecutor did not commit misconduct by arguing that “we simply
don’t know where [Kristi] was calling from.â€
C.
Claimed Insufficiency of the Evidence
Defendant contends that there was
insufficient evidence of burglary to support the felony murder charge. There was no evidence that he entered
Kristi’s apartment with larcenous or felonious intent, he argues, because
nothing was missing, and the apartment had not been ransacked. We disagree.
Section 189 defines felony murder: “All murder . . . which is committed in the
perpetration of, or attempt to perpetrate . . . burglary . . . is murder of the
first degree.†(§ 189.) Section 459 defines burglary: “Every person who enters any house, room,
apartment, . . . or other building, . . . with intent to commit grand or petit
larceny or any felony is guilty of burglary.†(§ 459.)
“ ‘Although the People must
show that a defendant charged with burglary entered the premises with felonious
intent, such intent must usually be inferred from all of the facts and
circumstances disclosed by the evidence, rarely being directly provable. [Citations.]
When the evidence justifies a reasonable inference of felonious intent,
the verdict may not be disturbed on appeal.’ [Citations.]†(People v. Price (1991) 1 Cal.4th 324,
462.) A reasonable inference is one that
is “ ‘ “drawn from
evidence rather than . . . a mere speculation as to probabilities without
evidence.†’ †(People
v. Raley (1992) 2 Cal.4th 870, 891.)
“ ‘In reviewing a challenge to the sufficiency of the evidence . . . ,
we review the entire record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt.’ [Citation.]
‘The appellate court presumes in support of the judgment the existence
of every fact the trier could reasonably deduce from the evidence.’ [Citation.]†(People
v. Ramirez (2006) 39 Cal.4th 398, 463 (Ramirez).) “In deciding the sufficiency of the evidence,
a reviewing court resolves neither credibility issues nor evidentiary
conflicts. [Citation.] Resolution of conflicts and inconsistencies
in the testimony is the exclusive province of the trier of fact.†(People
v. Young (2005) 34 Cal.4th 1149, 1181.)
Here, there was ample evidence to support a
jury finding that someone broke into
Kristi’s apartment that morning with theft in mind. The window screen that was on when Janet and
Kristen left for work had been slit and removed, dust patterns indicated that
the receiver had been moved slightly, and a broken necklace and its twisted
clasp were found on the living room floor. The jury could reasonably have inferred from these facts that
Kristi interrupted a burglary when she came home that morning. (See Ramirez,
supra, 39 Cal.4th at p. 463.) So too could the jury reasonably have inferred
that defendant was the one who broke in, because DNA evidence implicating him was
found in Kristi’s apartment when it was undisputed that neither he nor anyone
in his family had ever been inside her apartment and that Kristi had never visited
his.
There was, moreover, additional evidence to
support a finding that defendant broke in with the specific intent to commit
theft. Witnesses testified that he had
been up all night drinking and using drugs with his cousins and that he
typically used crack cocaine and methamphetamine when they came over. He woke Stacey in the middle of the night for money,
then bought methamphetamine from Taylor.
He broke into the Lentz apartment between midnight and 2:00 a.m., and
when he was caught “rummaging around,†his speech was “a little kind of frantic.†The jury could reasonably have inferred from
these facts that defendant had exhausted his drug supply, was experiencing the
very unpleasant withdrawal symptoms that Dr. Taylor described, and was engaged
in the sort of “frenzied seeking†for more drugs that those symptoms triggered. The jury could reasonably have concluded
that, having left the Lentz apartment empty handed, defendant broke into
Kristi’s in search of something to sell to sustain his habit—in short, with
larcenous intent—and killed her when she interrupted him. That nothing was actually taken from Kristi’s
apartment does not mean larcenous intent was lacking, because “[t]he jury
reasonably could have concluded that defendant abandoned his plan to steal in
order to flee and avoid apprehension.†(
We conclude that there was sufficient evidence of burglary to support
defendant’s felony murder charge.
D.
Evidence of Defendant’s Poverty
1.
Background
The trial court granted defendant’s motion
in limine to exclude reference to defendant’s financial status and “whether
he’s impoverished or not.†The court
clarified that the prosecution would be permitted to introduce evidence and to
argue that defendant “was motivated to break into the apartment to steal
something that he could use to acquire more drugs.†At trial, the prosecutor elicited evidence
from Stacey that she was not employed in August 1988, that money was “a little
bit†tight with four children, that she controlled the family finances, and
that if defendant needed money, she would be the one to give it to him. When she could not recall if defendant was working
at the time, the prosecutor asked if she recalled any income coming in as a
result of his efforts, and she blurted out “AFDC [Aid to Families with
Dependent Children].†“The question is
his efforts, his work,†the prosecution prompted her; “[t]hat’s what I’m trying
to get at.†Stacey responded that
defendant was not working at the time and that she controlled the finances. She testified that she preferred to shop for
groceries at Fry’s, which was less expensive than Food Villa. Describing what the family did on the day of
the murder, Stacey testified that they mistook a PG&E rebate check for a
tax refund and tried to buy groceries with it.
Asserting a violation of the trial court’s
in limine ruling, defendant moved to strike Stacey’s testimony about
defendant’s “poverty,†specifically, her reference to AFDC, and asked the court
to give a limiting instruction “with respect to AFDC.†The prosecutor did not oppose the request for
a limiting instruction, and the court instructed the parties to prepare one
that they agreed upon. The court then denied
the motion to strike, noting that it would deal with the request to give a
cautionary instruction “as I’ve indicated.â€
The court later gave a limiting instruction on a different issue, but
neither the parties nor the court again mentioned a limiting instruction about
Stacey’s reference to AFDC.
2.
Analysis
Defendant claims the trial court’s failure to
strike evidence of his “poverty†and/or to deliver a curative instruction after
Stacey blurted out “AFDC†and described trying to buy groceries with the
PG&E rebate check violated his right to due process. We disagree.
“Generally, evidence of a defendant’s
poverty or indebtedness is inadmissible to establish a motive to commit robbery
or theft, ‘because reliance on poverty alone as evidence of motive is deemed
unfair to the defendant, and the probative value of such evidence is considered
outweighed by the risk of prejudice.’
[Citation.]†(People v.
McDermott (2002) 28 Cal.4th 946,
999 (McDermott).) However, “the
admission of evidence, even if erroneous under state law,
results in a due process violation
only if it makes the trial fundamentally unfair. [Citations.]â€
(People v. Partida (2005) 37
Cal.4th 428, 439 (Partida);
70.) “Only if there are no
permissible inferences the jury may draw from the evidence can its admission
violate due process. Even then, the
evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citations.] Only under such circumstances can it be
inferred that the jury must have used the evidence for an improper purpose.†(Jammal v. Van de Kamp (9th Cir. 1991)
926 F.2d 918, 920 (Jammal).) “Absent fundamental unfairness, state law
error in admitting evidence is subject to the traditional Watson[
reasonably probable the verdict would have been more favorable to the defendant
absent the error.†(Partida, at p. 439.)
Here, even if we assume that defendant
preserved the issue and further assume that the trial court erred, defendant
cannot establish a due process violation, because the jury could have drawn permissible
inferences about defendant’s motivation and intent from the challenged evidence. It could reasonably have inferred that defendant
broke into Kristi’s apartment not because he was impoverished as a general
matter but because he was in that “extremely unpleasant, agitated, half
withdrawal, half intoxicated state†that Dr. Taylor described, had an immediate
desire for more drugs to sustain his high, and did not want to wait for Stacey
(who controlled the family finances, was “uncomfortable†giving him money for
drugs, and felt that “there were better uses for that moneyâ€) to come home from
school and give him more than the $50 she had already given him. Thus, admission of the evidence did not
render defendant’s trial fundamentally unfair.
Applying the Watson standard, we conclude that any error was harmless. Stacey’s reference to “AFDC†was fleeting and
her testimony about the PG&E rebate check relatively brief. We have already noted the strength of the
prosecution’s case. It is not reasonably
probable that defendant would have obtained a more favorable result had the
challenged evidence been excluded. (
E.
Uncharged Crimes Evidence
Defendant claims the trial court improperly
admitted evidence of uncharged crimes to establish motive. We disagree.
“ ‘Subdivision (a) of [Evidence Code] section 1101 prohibits admission
of evidence of a person’s character, including evidence of character in the
form of specific instances of uncharged misconduct, to prove the conduct of
that person on a specified occasion.
Subdivision (b) of section 1101 clarifies, however, that this rule does
not prohibit admission of evidence of uncharged misconduct when such evidence
is relevant to establish some fact other than the person’s character or
disposition.’ [Citation.] ‘Evidence that a defendant committed crimes
other than those for which he is on trial is admissible when it is logically,
naturally, and by reasonable inference relevant to prove some fact at issue,
such as motive [or] intent . . . .
[Citation.] The trial judge has
discretion to admit such evidence after weighing the probative value against
the prejudicial effect. [Citation.] When reviewing the admission of evidence of
other offenses, a court must consider:
(1) the materiality of the fact to be proved or disproved, (2) the
probative value of the other crime evidence to prove or disprove the fact, and
(3) the existence of any rule or policy requiring exclusion even if the
evidence is relevant. [Citation.] Because this type of evidence can be so
damaging, “[i]f the connection between the uncharged offense and the ultimate
fact in dispute is not clear, the evidence should be excluded.†[Citation.]’
[Citation.] ‘ “We review for abuse of discretion a
trial court’s rulings on relevance and the admission or exclusion of evidence
under Evidence Code sections 1101 and 352.â€
[Citation.]’ [Citation.]†(People
v. Fuiava (2012) 53 Cal.4th 622, 667-668 (Fuiava).)
1.
Evidence of Defendant’s Drug Use
Defendant argues that evidence of his drug
use was inadmissible to prove motive for two reasons: because “[t]here is no direct causal
connection between drug use and theft†and because the evidence was “an
improper proxy for evidence of poverty.â€
(Boldface omitted.) We cannot
agree.
We note at the outset that the r
| Description | A jury convicted defendant Charles Grant of first degree murder (Pen. Code, § 187)[1] and found true an allegation that he personally used a dangerous or deadly weapon in committing the crime (§ 12022, subd. (b)). Defendant admitted a prior serious felony conviction (§§ 667, subd. (a), 1192.7), and the trial court sentenced him to an aggregate term of 31 years to life. On appeal, defendant contends that (1) the trial court improperly excluded lay opinion testimony; (2) the prosecutor committed misconduct; (3) there was insufficient evidence of burglary to support the felony murder charge; (4) the trial court improperly admitted evidence of defendant’s poverty; (5) the trial court improperly admitted evidence of uncharged crimes to show motive; (6) the trial court improperly excluded evidence of the victim’s boyfriend’s past cocaine addiction; and (7) the cumulative effect of these errors violated defendant’s due process rights. We affirm. |
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