Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07WF1288, Carla Singer, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Landendorf and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Substantial evidence supports the premeditation and deliberation requirement for defendant’s first degree murder conviction as well as his burglary conviction. The court did not err in admitting evidence or instructing the jury. We affirm.
I
FACTS
Defendant Essam Mousa Nesheiwat was found guilty of the first degree murder of Mary Blum and two counts of first degree residential burglary. The court sentenced him to 105 years to life in state prison.
On May 25, 2007, Garden Grove police responded to a call about a residential burglary on Bowles Street in Garden Grove. As part of the investigation, the police spoke with defendant, who rented a room from owner Mary Blum, who was just a few months short of her 88th birthday. Defendant told the investigating officer he removed some glass from a living room window because he noticed there was a crack in it and was concerned that it was a danger. Blum said there was no property missing and that “she felt that there was no crime after all.”
On Thursday, June 7, Blum’s daughter went to the house looking for her mother. She noticed her mother’s purse and keys were missing. She filed a missing persons report.
At about 4:30 a.m. on June 8, two men waved down Officer Paul Ashby as he was leaving the police station. One of the men was defendant who Ashby recognized from the burglary call a few weeks earlier. The other was defendant’s brother. Ashby asked defendant if he knew anything about Blum. He said defendant “eventually tells me he does and that he killed her.”
In an interview at the police department on June 8, defendant said he lived in Blum’s guest house for three months. Blum had knee replacement surgery on March 28, 2007, and used a walker. Defendant described his drug use to the police. He said he stole money to support his habit.
In his police interview, defendant related what happened. On Wednesday morning, June 6, 2007, Blum knocked on the door of the guest house, and she opened the door while defendant was “smoking the crack.” Blum asked him what he was doing. Blum said she was going to call the police. At first, defendant said: “I just don’t know what happened after that.” But then he said he “hit her on the wall” and she fell in the walker.
Defendant said: “I pushed her, she hit the side of the wall, you know, close to the door.” He added: “She slammed like this and I hold like this. I hit her on the wall, she fell.” Blum had blood on her face. Blum was scratching and crying and defendant choked her, covered her face with a pillowcase so she couldn’t scream and placed his hand over her mouth on top of the pillowcase. Defendant said: “She wouldn’t be quiet.” He said he was “sitting on top of her, ” and punched her three or four times. Blum scratched and bit him. Defendant pulled her by her feet so he could close the door. After 20 minutes, she stopped doing or saying anything. Defendant “pulled her around. [He] took her to the bathroom, put her in the tub because nobody can see.” Defendant couldn’t sleep, so he left and got a motel room.
One of the officers asked defendant why he didn’t stop short of killing Blum, pointing out he could have “got the money and not killed her.” Defendant responded: “I leave and they’re going to, they’re going to go after me.” He said he went to her house and took her purse because the victim “told me what she had, you know, the money in there....”
The coroner testified the cause of Blum’s death was “suffocation by another.” He described the “telltale signs” of petechial hemorrhages in the eyes. He was asked how long it takes an individual to die from suffocation, and responded: “At least minutes. It can be prolonged beyond that, but at least minutes.” He added the minimal time would be three to four minutes.
II
DISCUSSION
Sufficiency of Evidence
Defendant contends there was insufficient evidence to support the premeditation and deliberation requirement for his first degree murder conviction. He also argues the evidence was insufficient to support his conviction for the May 25 burglary.
In addressing challenges to the sufficiency of evidence, “the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - evidence that is reasonable, credible and of solid value - such that a reasonable trier of fact could find 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. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
“‘Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence.... Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence... from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.]’ [Citation.]” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1463.)
“To prove the killing was ‘deliberate and premeditated, ’ it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.” (Pen. Code, § 189.) ‘“Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
The coroner said it would have taken at least minutes for Blum to die. Defendant told the police he pushed, slammed and punched the victim, sat on top of her and covered her mouth with both a pillowcase and his hand after she caught him smoking dope and after she told him she was going to call the police. Even assuming he initially knocked into the victim without thinking about what he was doing, which we are not finding here, defendant told the police he was concerned about Blum calling out. He had to take the time to find something to smother her screams, so he had to stop or slow down his attack long enough to collect a pillowcase, place it over her head and continue with his attack.
It was 20 minutes before she stopped calling out or resisting. He was asked why he killed her, and clearly stated it was because “they’re going to go after me.” He had time to think about what he was doing, ponder the significance of his actions and plan what he would do next. The record in this case demonstrates more than sufficient evidence from which the jury could have reasonably concluded he deliberated about and premeditated his killing of the victim.
With regard to the May 25 burglary, the corpus delicti “rule generally requires the prosecution to prove ‘the body of the crime itself’ independent of a defendant’s extrajudicial statements. [Citation.]” (People v. Sapp (2003) 31 Cal.4th 240, 303.) Furthermore, “the modicum of necessary independent evidence of the corpus delicti, and thus the jury’s duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be ‘a slight or prima facie showing’ permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant’s statements may be considered to strengthen the case on all issues. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1181.)
Here the police responded to a complaint about a burglary on May 25. The victim found a broken window in a part of her residence not easily seen from the street. Ashby inspected the window and found the glass removed from the victim’s residence. This testimony permitted the jury to reasonably conclude a burglary was committed on May 25. Defendant’s extrajudicial statements that he removed the glass and that he eventually did steal Blum’s money from her residence were additional evidence of the May 25 burglary.
Photographs
Defendant next argues he was denied his constitutional right to a fair trial by the admission of gory photographs. The Attorney General contends the photographs were not prejudicial.
The parties had a disagreement over five photographs, exhibits 2 through 6. All five were permitted into evidence, although the court ordered that exhibit 6 had to be modified to block out an objectionable portion.
With regard to exhibit 2, the court stated: “This is obviously the deceased body of an older woman, but her vagina is not exposed. Certainly her placement in the bathtub is relevant, in addition to the fact that the blue item is covering her face and head. It’s clearly relevant. I don’t think it’s inflammatory at all. I don’t think it’s, you know, unduly graphic. I don’t think that it is gruesome. I certainly don’t think that it is a photo that would shock anybody’s conscience or make it difficult for the jury.”
As to exhibits 3 and 4, the court said “both appear to the court to be autopsy photos of the same - well, I shouldn’t say of the same. Number 3 is obviously the forensic scientist examining the left eye of the victim. Number 4 is the forensic scientist examining the right eye of the victim. [¶] Both photos show an individual with blue, gloved hands using a tweezer or other instrument of that nature to lift the eyelid to peer at the eyes.” The prosecutor said they were offered to “illustrate the petechial hemorrhaging in the eyes and the cloudiness of the eye, which is relevant to Dr. Enloe’s opinion as to the cause of death being suffocation.” The court said: “To be honest with you, these photos just aren’t that bad. I just don’t really see a problem.”
As to exhibits 5 and 6, photographs of each of the victim’s arms, the court stated: “Number 5 appears to be the victim’s arm. This is an autopsy photo. There is a card identifying the victim visible in the picture. The arm is being held by a forensic scientist. And the arm shows bloodstains, redness, bruising.” Regarding exhibit 6, the court said: “And number 6 is the left arm.” The prosecutor explained they illustrate the doctor’s documentation of her injuries. With respect to exhibit 5, the court said it was not gruesome or inflammatory and that it depicts relevant evidence. As to exhibit 6, the court ordered the prosecutor to block out the body of a cadaver in the background.
The fundamental premise of due process requires that a party be afforded an opportunity to examine and respond to evidence, which may deprive him or her of life, liberty, or property. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15.) “‘When we speak of administering “justice” in criminal cases, under the English or American system of procedure, we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected.’ [Citations.]” (People v. Sarazzawski (1945) 27 Cal.2d 7, 11.)
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Cain (1995) 10 Cal.4th 1, 33.)
For purposes of analysis, “‘prejudicial’ is not synonymous with ‘damaging, ’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance on material issues. [Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
“The weighing process under [Evidence Code] section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules. [Citation.] Moreover, the trial court’s ruling under [Evidence Code] section 352 will be upset only if there is a clear showing of an abuse of discretion. [Citations.]” (People v. Stewart (1985) 171 Cal.App.3d 59, 65-66.)
“Thus, as the Supreme Court has repeatedly and recently reaffirmed, ‘when ruling on a [Evidence Code] section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under... section 352.’ [Citations.]” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.)
The record here reflects the trial court carefully considered defendant’s arguments regarding the admission of the photographs. In fact, the court found one of them to be inadmissible unless it was altered to remove an objectionable portion. We find no error in the court’s admission of these photographs.
Jury Instructions
Defendant next argues that “instructional error prejudicially undermined the presumption of innocence, lowered the prosecution’s burden of proof and shifted that burden to [defendant].” He specifically takes issue with the court’s instruction of CALCRIM Nos. 372, 220, 222 and 223.
The trial court instructed the jury with CALCRIM No. 372, as follows: “If the defendant fled or tried to flee (immediately after the crime was committed), that conduct may show that (he) was aware of (his) guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” While discussing instructions beforehand, defense counsel pointed out to the trial judge that defendant’s leaving the guest house and going to a motel may have indicated only that his mind was not clear because of drugs and he needed to reflect upon the situation.
The Attorney General cites Penal Code section 1127c, which states: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.” The Attorney General argues the trial court was obligated to instruct the jury with CALCRIM No. 372 because the evidence “permitted the jury to infer that [defendant] fled because he knew he was guilty, and since the prosecutor relied on defendant’s flight to prove an element of the murder charge, the court was obligated to instruct the jury with CALCRIM No. 372.”
In rejecting arguments somewhat similar, to defendant’s argument here, two cases have already refused to accept the notion CALCRIM No. 372 impermissively lowers the prosecution’s burden of proof. (People v. Paysinger (2009) 174 Cal.App.4th 26, 27-28; People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1159.)
The instruction merely informed the jury that if defendant fled or tried to flee, “that conduct may show that he was aware of his guilt, ” and that it was up to the jury “to decide the meaning and importance of that conduct.” We find no error in the court’s giving the flight instruction.
CALCRIM Nos. 220, 222 and 223 defined reasonable doubt, evidence and direct and circumstantial evidence. Defendant did not object to these instructions at trial and has forfeited his claim for appeal. (People v. Jenkins (2000) 22 Cal.4th 900, 1020.)
Numerous courts have already rejected the same arguments. Had defendant not forfeited his claims, we would reject them here. (People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; People v. Hernández Ríos, supra, 151 Cal.App.4th 1154, 1156; People v. Barker (2001) 91 Cal.App.4th 1166, 1177.)
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J.FYBEL, J.