Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR215293
Swager, J.
A jury convicted defendant Charles Branch of the murder of his wife, Shirley Branch. (Pen. Code, § 187, subd. (a).) The jury also found a gun-use allegation to be true. (§ 12022.53, subd. (d).) On appeal, defendant claims that the trial court erred in admitting the testimony of a police officer regarding his prior experience with female suicides. He also claims that his attorney rendered ineffective assistance of counsel by failing to object to the testimony of defendant’s former neighbor who testified that defendant had threatened him with a gun several years earlier. We affirm.
All further statutory references are to the Penal Code, unless otherwise noted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 29, 2004, an information was filed charging defendant with the murder of his wife Shirley (§ 187, subd. (a)). The information also alleged that he personally and intentionally discharged a firearm to cause the death (§ 12022.53, subd. (d)).
Shortly after 11:00 a.m. on March 19, 2004, defendant called 911 to report that his wife was bleeding from the head and was not breathing.
Robert Silva, defendant’s neighbor, testified at trial that he spoke with defendant earlier that morning and that defendant’s behavior appeared to be “normal.” They spoke for about 10 to 15 minutes, after which they each went back to their houses.
Approximately 10 minutes later, Silva heard another neighbor yelling. Silva went outside and saw defendant in front of his house speaking on his telephone. Defendant appeared upset. He told Silva that Shirley was in the bedroom.
Silva walked into the bedroom and saw Shirley lying on the bed. Her left side was covered by the bed covers. He saw that she had a gunshot wound to her head. The blood around the wound was black and appeared to be dried or clotted. It was not dripping. When he touched her to see if she had a pulse, Silva observed that her body was cool and her skin color was cyanotic (bluish in color). He then noticed a firearm on the right side of the bed. It was about four to six inches from Shirley’s wrist.
Officer Gary Anderson arrived at defendant’s house shortly thereafter. Silva walked Anderson to the bedroom. At trial, Anderson testified that Shirley was lying on the bed with her right arm outside of the bed coverings and that there was a handgun near her right hand. There was a gunshot wound in the area of her right temple. The blood around the wound was coagulated and there was blood on the pillow and the sheets. When he touched her wrist to check for a pulse he noticed that her body temperature appeared to be cooler than normal.
Anderson spoke with defendant, who reported that he had eaten breakfast with Shirley that morning and that she had gone back to bed afterwards while he went out to mow the lawn. He came back into the house later and found his wife nonresponsive. He said he did not know what was wrong with her.
At trial, Anderson said that he became somewhat suspicious because out of the many suicides involving females that he had worked there had always been a suicide note and only two of the women had used a gun to kill themselves.
Later that day Officer Nancy Sanchez interviewed defendant at the hospital, where he had been taken after complaining of chest pains. He told her essentially the same story that he had told Anderson regarding his and Shirley’s activities of that morning. He also said that he had not noticed a weapon when he entered the bedroom and discovered his wife.
When asked about their relationship, defendant reported that he and his wife had a very loving relationship, that they were “inseparable,” and that there were no problems in their relationship. He denied having anything to do with his wife’s death.
Sanchez interviewed defendant again about a month later. By this time, the investigating officers were aware of many additional facts. They had learned that defendant had been having an affair with a woman named Natalie Parks for some time prior to his wife’s death. Additionally, toxicology reports showed that Shirley had a substantial amount of Valium in her system at the time of her death. Gunshot residue had been found on both of her hands, including the hand that had been under the blanket. Defendant’s fingerprint had been found on the gun and tests showed that he had gunshot residue on his hands on the day he reported his wife’s death. Sanchez also knew that defendant had obtained a prescription for Valium three weeks before Shirley died.
When confronted with these facts, defendant initially denied having been prescribed Valium. He also denied having an affair, but later admitted it. He also eventually admitted that he had lied about how his wife had died. He told Sanchez that he had entered the bedroom and had seen his wife pointing the gun to her head. The gun discharged when he tried to grab it from his wife’s hand. He stated that his finger could have been on the trigger when the gun went off.
Defendant said he waited only a few seconds before calling 911 and admitted that he lied to the dispatcher about what had happened to his wife. When confronted with contradictory physical evidence, such as the fact that her body was already cool when Silva checked for her pulse, and that the blood around the wound had already dried, defendant could not explain the discrepancies. He was placed under arrest.
Defendant was tried by a jury. On February 17, 2006, the jury found defendant guilty of first degree murder and found the firearm enhancement to be true.
On March 15, 2006, the trial court sentenced appellant to 25 years to life for the murder and 25 years to life for the enhancement. This appeal followed.
DISCUSSION
I. “Expert” Testimony by Officer Anderson
Defendant claims that the trial court erred in allowing Anderson to “nominate himself [as] an expert on suicide by women,” and to effectively tell the jury that Shirley’s death was not the result of a suicide.
As noted above, Anderson testified that after he arrived at defendant’s house he became suspicious because, in the course of his career, he had only seen two cases in which a woman used a firearm to commit suicide and every woman had left a suicide note. Defendant faults the trial court for allowing this testimony, arguing that Anderson should not have been allowed to offer these opinions because they were impermissible as expert testimony. He claims Anderson “lacked the qualifications to testify in the area of suicides by women.”
As Anderson began to testify regarding how his suspicions were aroused at the crime scene, defendant objected at various points on the following grounds: 1) that the prosecutor’s questions were leading or suggestive, 2) that there was a lack of foundation for opinion evidence, 3) that the testimony invaded the jury’s factfinding role, and 4) that the questioning called for speculation.
1. Anderson Did Not Offer an Expert Opinion
Although it is arguable that defendant did not preserve the issue he now raises on appeal by failing to specifically object on the ground that Anderson “lacked the qualifications to testify in the area of suicides by women,” we nevertheless find no error. From our reading of the record, we do not believe that Anderson’s testimony can be properly characterized as expert testimony. He did not make any sweeping generalities about female suicides. Nor did he opine specifically that he believed Shirley had not committed suicide. He simply stated that his suspicions were aroused because, in his personal experience, he had not investigated any suicides involving females who did not leave a suicide note, and he had seen only two females use guns to kill themselves. Thus, he did not offer an opinion that females always leave suicide notes or that they rarely use guns to commit the act.
Evidence Code section 720, subdivision (a), provides: “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.”
Anderson’s testimony is thus more properly characterized as lay opinion testimony. Evidence Code section 800 provides: “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.” (See People v. Farnam (2002) 28 Cal.4th 107, 153–154.)
Anderson’s opinions were based on his personal observations regarding crime scenes that he had viewed over the course of his career. On this record, we cannot say that his testimony regarding his experience with female suicides lacked a rational basis, or that it failed to clarify his testimony. The testimony was helpful to the jury insofar as it was relevant to show why the officers might have been disposed to fully investigate Shirley’s death, rather than simply closing the case as a suicide. Moreover, it is common knowledge that police officers are trained to assess potential crime scenes and that they often rely on their past experience in deciding whether further investigation is warranted. The trial court acted well within its discretion in permitting this lay opinion testimony. (See People v. Farnam, supra, 28 Cal.4th 107, 153–154.)
2. The Error, if Any, was Harmless
In any event, we believe that even if the court did err in allowing Anderson’s testimony, the error did not alter the outcome of the trial and, thus, does not warrant reversal. As defendant’s counsel admits “There is no gainsaying the incriminating evidence against Mr. Branch. He was having an affair. He lied to police. He had gunshot residue on his hands.”
In our view, the evidence against defendant was even more substantial than his briefs acknowledge. The physical evidence, such as the dried blood, supported the view that Shirley was killed an appreciable time before defendant called 911. There was also evidence that she had significant quantities of Valium in her system that reasonably appeared to originate from a prescription defendant had recently obtained for himself. Additionally, there was a lack of testimony from those close to Shirley suggesting that she had harbored any intentions to commit suicide. Accordingly, even if the trial court did err, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
While witnesses testified that Shirley was upset that her husband was having an affair, her son, brother, and close friend all testified that Shirley had never mentioned thoughts of suicide.
We reject defendant’s assertion that the standard of review announced in Chapman v. California (1967) 386 U.S. 18 applies when assessing the impact of the improper admission of evidence.
II. Ineffective Assistance of Counsel
Defendant further contends that his trial counsel rendered ineffective assistance by failing to object under Evidence Code section 1101 (section 1101) to evidence that he had threatened a neighbor with a gun in 1988.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687–688, 693–694; People v. Ledesma (1987) 43 Cal.3d 171, 216–218.) To demonstrate prejudice, 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.” (People v. Williams (1997) 16 Cal.4th 153, 215.)
1. Evidence of Prior Conduct
Defendant offered two witnesses who testified to his character as a non-violent person. Neither witness had heard that in 1988 defendant pulled a gun on a neighbor and threatened him. Both testified that if it were true, it might change their opinion of whether defendant could be violent.
In rebuttal, the prosecution called Dale Johnson to testify. Johnson had been a neighbor of defendant in 1988. Their relationship was tense because defendant did not like where Johnson chose to park his car. One day, Johnson had just parked his car when defendant came out of his house and yelled at him. He subsequently pulled a gun from under his bathrobe and put it up to Johnson’s face. Johnson contacted the authorities about this incident in 2004 when he read a newspaper article about defendant’s arrest in this case.
Although evidence of a defendant’s uncharged misconduct is generally inadmissible to show bad character or criminal propensity (People v. Catlin (2001) 26 Cal.4th 81, 145; Evid. Code, § 1101, subd. (a)), when a defense witness testifies about the defendant’s good character traits, the prosecutor may test the validity of the witness’s opinion or reputation testimony by asking limited questions about whether the witness has heard of acts by the defendant inconsistent with those character traits (Evid. Code, § 1102, subd. (b); People v. Ramos (1997) 15 Cal.4th 1133, 1173; People v. McKenna (1938) 11 Cal.2d 327, 335–336; People v. Hempstead (1983) 148 Cal.App.3d 949, 953–954). However, under this rule of admissibility the prosecutor may not present specific acts of misconduct. (1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 56, p. 388; People v. Felix (1999) 70 Cal.App.4th 426, 431–433; see People v. Lopez (2005) 129 Cal.App.4th 1508, 1528.) It thus appears that defense counsel could have objected to the admission of Johnson’s testimony regarding the gun-waving incident under section 1101. His failure to do so, however, does not necessarily constitute ineffective assistance.
Evidence Code section 1101, subdivision (a), provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
Evidence Code section 1102 provides: “In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is:
3. Tactical Reasons Preclude a Finding of Ineffective Assistance
“ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” [Citations.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” [Citation.] [¶] In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.]’ [Citation.]” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) In particular, we note: “An attorney may choose not to object [to inadmissible evidence] for many reasons, and the failure to object rarely establishes incompetence of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.)
In the present case, we agree with the Attorney General that defendant’s counsel may have had a tactical reason to refrain from raising the Evidence Code section 1101 objection. The jury had previously been made aware of defendant having possibly threatened someone with a gun during the prosecution’s cross-examination of defendant’s character witnesses. Thereafter, when Johnson took the stand and the prosecutor examined him in a fashion that introduced independent proof of the confrontation, defense counsel knew that the jury had already been properly apprised of the possible threat via the examination of defendant’s good character witnesses. Defense counsel could reasonably determine that it was better for defendant to be given an opportunity to undermine Johnson’s testimony rather than to seek to exclude the evidence elicited by the prosecutor.
Regardless of whether defendant’s counsel did or did not have a legitimate tactical reason for refraining from objecting to Johnson’s testimony, there is no reasonable probability of a different result had defendant’s counsel moved to exclude this evidence. (People v. Watson, supra, 46 Cal.2d 818, 836.) As shown in our discussion above regarding Anderson’s testimony, the evidence against defendant was substantial. To the extent trial counsel failed to lodge appropriate objections, no ineffective assistance can be established in the absence of any showing of prejudice. (People v. Boyette (2002) 29 Cal.4th 381, 430–431.) It is not reasonably probable that the jury would have reached a result more favorable to appellant if Johnson’s testimony had been excluded.
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.
“(a) Offered by the defendant to prove his conduct in conformity with such character or trait of character.
“(b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).”