Opinion
G053040
08-31-2017
THE PEOPLE, Plaintiff and Respondent, v. SHALABH RASTOGI, Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Teresa Torreblanca and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12ZF0140) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Teresa Torreblanca and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Shalabh Rastogi strangled his wife several weeks after finding out she was having an affair with another man. At trial, he claimed he acted in the heat of passion brought on by his wife's deceitful and adulterous behavior, but the jury found him guilty of first degree premeditated murder. He now contends: 1) There is insufficient evidence to support that finding; 2) his statements to the police were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); 3) the trial court erred in allowing expert testimony on how long it takes a person to lose consciousness and die from strangulation; 4) the exclusion of certain evidence about the victim infringed his right to a fair trial; and 5) cumulative error compels reversal. Finding no basis to reverse, we affirm the judgment.
FACTS
Appellant and his wife Jalina George were born and wed in India. After immigrating to the United States and spending a decade in Boston, they moved to Irvine with their three preteen children in 2011. Soon after, Jalina began an affair with a man named Vladimir. Appellant found out about the affair in the spring of 2012. At trial, he testified at length regarding the events that transpired between then and May 21, 2012, the day he strangled Jalina.
According to appellant, his suspicions about Jalina's fidelity arose in March 2012. At first he just had a feeling she was becoming more distant. But then in April he discovered she had a prescription for a contraceptive, which struck him as odd because he had undergone a vasectomy. When he asked Jalina about the prescription, she said, "I'm keeping my options open."
A week later, appellant went to Jalina's workplace to pay her a surprise visit over the lunch hour. The surprise, however, was mostly his. Using a tracking application on his phone, he located Jalina in her car in a parking lot talking to Vladimir. Appellant did not say anything to Jalina at that time, but, he confronted her about it that night. Jalina became angry. She accused appellant of following her all the time. While she denied having an affair, she did agree to go to marriage counseling with appellant.
They only attended one counseling session together, but appellant also received counseling on his own. As part of his therapy, he wrote a long note entitled "My Life," in which he described his feelings about his relationship with Jalina. Appellant said he was sad and remorseful about losing Jalina, but it was something he had to accept because she was a "free spirit" and it was too late for them to make amends. He also made it clear he harbored no ill will toward Jalina and wanted her to be happy. Appellant gave the note to Jalina on May 13, which was Mother's Day. They spent the bulk of that day car shopping with their children, as if everything were normal.
Four days later, on May 17, appellant saw Jalina's computer sitting unattended in their home. Unable to resist temptation, he looked through her texts and emails and discovered hundreds of correspondences between her and Vladimir. Appellant was upset by the intimate nature of the correspondences. After downloading them onto a thumb drive, he called Jalina and asked her about them. She told appellant he was reading too much into the messages and denied there was anything going on between her and Vladimir.
After Jalina arrived home that evening, she and appellant drove to a nearby shopping mall to discuss things further. Due to their immigration status, neither wanted a divorce. But they knew they had to change their current living situation, so they wrote out a separation agreement. The agreement called for appellant and Jalina to act in the best interests of their children. Jalina also wanted to include a provision declaring, "This is an open marriage now," but appellant refused to go along with that. He did write, "WE ARE DONE!!" at the bottom of the agreement, though. He expected Jalina to move out that very evening, but when they got back to their house, she told him she wanted to give him "a night to remember her by," and they ended up having sex and sleeping together.
The following morning, Friday, May 18, Jalina left the house with two suitcases. Appellant suspected she was going to spend the night with Vladimir, but she returned home later that night. When he asked her if she was staying for good, she did not say anything, so he just let it go. Jalina invited another couple over for dinner the following evening. Although appellant wasn't in the mood to socialize, he acquiesced to the plan. At that point, he was still angry with Jalina, but he was also hopeful their relationship could be salvaged.
On Saturday night, appellant and Jalina entertained as planned. Things went well, and after their guests left, they had sex on the living room couch. As they were falling asleep together that evening, appellant felt "confused and happy." While he liked the thought of being back together with Jalina, he was not sure about the status of their relationship.
The next day, Sunday, May 20, he asked Jalina if she was back to stay permanently as his wife, and she replied, "No, we are done." Frustrated with Jalina's fickle approach to their relationship, appellant told her she had to figure out whether she wanted to be with him and the family or go live with Vladimir. Jalina left the house without telling appellant where she was going. Appellant then contacted Vladimir and told him that if he wanted to have a serious relationship with Jalina, that was fine, but if he did not, then he should stop using her because it was causing too much grief for everyone. Vladimir told appellant he was not interested in Jalina, and he subsequently broke off all communication with her.
The following morning, on Monday, May 21, Jalina called appellant and angrily accused him of meddling in her relationship with Vladimir. Appellant replied that God would guide her in making the right decisions in her life. He also said he forgave her for what she had done, and his door would always be open if she wanted to come back to him and the family. That afternoon, Jalina called appellant and told him she was coming home. However, she also told appellant she did not want him coming near her or telling her how to live her life. Although appellant did not like those conditions, he was hopeful he and Jalina might be able to reconcile their differences.
It was not to be. That evening at around six o'clock, appellant dropped off his children at theatre practice in Santa Ana. He then returned home to find Jalina walking into the house with her suitcases. Appellant followed her into the bedroom and asked if she was coming back for good to be his wife. Jalina started giving appellant conditions for her return, and they began to argue while Jalina was standing inside their small, walk-in closet. Appellant was standing by the door to the closet. When Jalina tried to walk past him, he blocked her with his hands. She then told him, "Fuck you." "I will take the kids from you." She also accused appellant of breaking up her relationship with Vladimir and warned, "I will do it again. You think you're very smart you found out about all this. Next time I'll do it in front of you, right here on this bed."
Appellant was angry and humiliated. He does not remember everything that happened next, but he does remember going at Jalina, putting his hands around her neck and choking her until she fell to the floor and stopped moving. Afterward, he tried to revive her by shaking her, splashing water on her face and giving her CPR, but she did not come to. He got scared and thought about calling 911. While he was figuring out what to do, Jalina's friend Deepthi called her phone. Appellant answered and said Jalina was in the shower. Then, pretending to be Jalina, he sent two text messages using Jalina's phone. The first message, which was to Deepthi, said, "Came home. Will call you later." And the second message, which appellant sent to his own phone, said, "I need to go. Please [bring] the kids with you [on] the next flight." Appellant then used his computer to book airline tickets to India for him and his children.
After that, appellant picked up his children in Santa Ana, thinking he would flee to India with them. However, when he went into the bedroom and saw Jalina lying dead on the floor, he changed his mind. Explaining why, appellant testified, "She was the love of my life. I just couldn't let her be there." He called his brother-in-law in Fremont, told him what had happened, and asked him to come and get his children. Then, over 90 minutes after killing Jalina, he called 911.
Appellant told the 911 dispatcher he had strangled his wife to death with his hands because she was having an affair. That's also what he told the police when they arrived at his house and took him into custody. He was questioned for about an hour at the scene and said he lost control while arguing with Jalina in their bedroom, squeezing her neck until she stopped breathing.
Following his interview at the scene, appellant was transported to the Irvine police station, where he was read his Miranda rights for the first time and interviewed for another two hours. During that interview, appellant explained at length how he came to discover that Jalina had been cheating on him. He said he had been trying to work things out with her and get past that issue, but she refused to see things his way and blamed him for all their problems. Describing what happened when they were arguing in their bedroom, appellant said Jalina was swearing at him and threatening to take their children away, so he grabbed hold of her neck and did not let go until "she became very silent." Appellant claimed, "I just snapped. I didn't know what I was doing." He also said that while he was choking Jalina, he told her, "You ruined my life. I did everything for you. You cheated on me, now you're taking the kids . . . away from me. What am I going to do?"
Later in the interview, appellant lamented, "I've lost everything. She was the love of my life. I've never thought of any other woman. I lost her. I lost my job. I lost my status here. I lost my kids." When the detectives told appellant he could take solace in the fact that God still loved him, he said "not after today." At the detectives' urging, he agreed to write an apology letter to his children explaining why he had killed their mother. In the letter, appellant wrote, "I found out recently that momma had a boyfriend. She was lying to me about it. [¶] I could not take [it] as she is the only one that I had loved."
At trial, forensic pathologist Yong-Son Kim testified to her findings in conducting Jalina's autopsy. She said Jalina died from forceful manual strangulation, but there was no way for her to tell how long Jalina remained conscious or alive after appellant started choking her. Even though Dr. Kim was unable to make these determinations, she said that when constant pressure is applied to the neck, the average person will lose consciousness after 15 to 60 seconds, and they will die within 4 to 5 minutes.
Testifying for the defense, clinical psychologist Nancy Kaser-Boyd explained that when a person's emotions are highly aroused by extreme fear, anger or anxiety, they may experience a dissociative state of mind known as a "red-out." In that state, the person's sense of time may become distorted, and afterwards they may not be able to remember everything that occurred while they were under the stress of their emotions.
In closing argument, the prosecutor asserted appellant was guilty of first degree murder because he willfully, deliberately and premeditatedly killed Jalina. The defense posited appellant acted in the heat of passion caused by Jalina's deceitful, adulterous and erratic behavior, and therefore was only guilty of voluntary manslaughter. The jury adopted the prosecution view and convicted appellant of murder in the first degree. He was sentenced to 25 years to life in prison.
DISCUSSION
Sufficiency of the Evidence
Appellant argues the evidence compels a finding he killed Jalina in the heat of passion, and therefore the verdict should be reduced from first degree murder to voluntary manslaughter. The argument is premised on the belief there is insufficient evidence to support the jury's verdict of first degree murder, but as we now explain, that premise is incorrect.
The standard of review for assessing the sufficiency of the evidence to support a criminal conviction is "highly deferential." (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Our task is to "review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence . . . from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27, italics added.) In so doing, we do not reweigh the evidence or reevaluate the credibility of the witnesses who testified at trial; rather, "[w]e presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (Ibid.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [it]."' [Citation.]" (People v. Cravens (2012) 53 Cal.4th 500, 508.)
The three categories of evidence traditionally deemed relevant to the issue of premeditation and deliberation are: 1) Planning activity; 2) facts concerning the defendant's prior conduct with the victim, i.e., motive evidence; and 3) the circumstances surrounding the method of the killing. (People v. Thomas (1992) 2 Cal.4th 489, 516-517, citing People v. Anderson (1968) 70 Cal.2d 15.) These categories are descriptive, not normative or exhaustive, and are intended "to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.]" (People v. Perez (1992) 2 Cal.4th 1117, 1125.) We must remember "premeditation can occur in a brief period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .' [Citations.]" (Id. at p. 1127.) The question of just "how long a thought must be pondered before it can be said to be deliberated and premeditated" is "fundamentally a question of fact for the jury in each case under proper instructions." (People v. Bender (1945) 27 Cal.2d 164, 184; overruled on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110.)
In contrast to the mindset required for premeditated murder, heat of passion "is a state of mind caused by legally sufficient provocation that causes a person to act out, not out of rational thought but out of unconsidered reaction to the provocation. While some measure of thought is required to form an intent to kill or conscious disregard for human life, a person who acts without reflection in response to adequate provocation does not act with malice." (People v. Beltran (2013) 56 Cal.4th 935, 942.) Sufficient provocation "need not occur instantaneously, but may occur over a period of time" (People v. Wharton (1991) 53 Cal.3d 522, 569) from a series of acts or events. (People v. Lee (1999) 20 Cal.4th 47, 60; People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1245.) However, where "'sufficient time has elapsed between the provocation and the [killing] for passion to subside and reason to return,'" culpability for the killing will not be reduced. (People v. Breverman (1998) 19 Cal.4th 142, 163, quoting People v. Wickersham (1982) 32 Cal.3d 307, 327.)
This was a close case. It illustrates how fine the line between murder and manslaughter can be. However, as appellant admits, he had a strong motive to kill Jalina based on her adulterous behavior and the way she treated him after he found out about her affair. He killed Jalina in a manner that indicates he had considerable time to reflect on what he was doing. According to forensic pathologist Kim, it takes less than a minute for a person to lose consciousness when they are being strangled, but it takes up to four or five minutes of constant pressure before they will finally succumb. That's a long time to stand face-to-face with a person you are trying to kill. It means that even after Jalina lost consciousness, appellant still had three or four more minutes to think about what he was doing. His decision to keep choking Jalina after she passed out is strong evidence of premeditation and deliberation. (People v. Hovarter (2008) 44 Cal.4th 983, 1020; People v. Stitely (2005) 35 Cal.4th 514, 544; People v. Davis (1995) 10 Cal.4th 463, 510.)
While appellant testified he lost control of himself and does not remember every aspect of the killing, the jury was not required to believe that self-serving testimony. (People v. Silva (2001) 25 Cal.4th 345, 369.) Viewing the record in the light most favorable to the judgment, as we are required to do, there is substantial evidence, both in terms of motive and manner of killing, to support a finding appellant acted with premeditation and deliberation in killing his wife. That's not to say there wasn't a formidable case for heat of passion manslaughter, as well. But the jury was given the option of convicting appellant of manslaughter, and it decided his actions constituted first degree murder. We cannot say, as a matter of law, the jury's decision was erroneous.
The Admissibility of Appellant's Pretrial Statements
Appellant contends the trial court erred in denying his motion to suppress the statements he made to the police after the killing. He argues the statements he made at his house were inadmissible because he was in custody, yet the police did not read him his Miranda rights. And he asserts the statements he made at the police station were inadmissible because: 1) they were elicited after he invoked his right to counsel; 2) he did not voluntarily waive his Miranda rights; and 3) the police intentionally manipulated the timing of his Miranda advisement to obtain a confession from him.
Appellant's contact with the police arose after he called 911 and reported he had strangled his wife because she was having an affair. Following the 911 call, appellant said goodbye to his children, came out of his house with his hands up, and complied with the commands of the officers who were arriving at the scene. Irvine Police Officer Frank Caruso immediately directed appellant to lie on the ground and placed him in handcuffs. Then he had appellant sit up and explained to him he was being detained but not under arrest. Caruso asked appellant where his wife was, and he said in the bedroom closet. Caruso then asked, "What happened in there?" Appellant said his wife was having an affair, they were "trying to work it out, but she was lying all the time" and he "just couldn't control himself."
At that point, Caruso removed appellant's handcuffs because the scene was secure. After reminding appellant he was still being detained for investigative purposes, he again asked appellant to tell him what happened. Appellant proceeded to explain how events had transpired between Jalina and him during the last few days and how he strangled her in their bedroom closet. During the interview, appellant was despondent. Although he provided a wealth of detailed information about his family and his relationship with Jalina, he answered "I don't know" when Caruso asked him his ZIP Code and what day of the week and month it was. At one juncture, he asked Caruso to "just kill [him]," but Caruso said he could not do that. Appellant also repeatedly asked about his children and what was going to happen to them. Caruso assured appellant his children were going to be oaky. He also told appellant he would assist him in terms of contacting any relatives who might be willing to look after them.
Toward the end of the interview, Caruso informed appellant he would probably be taking him to the police station for further questioning because it was more private there. When appellant asked if he would be able to see his children again, Caruso said yes, but he was not sure when. Sticking with that topic, appellant then asked, "Do I have to talk to some lawyer for that or . . . ." Caruso told appellant he did not need a lawyer to talk to his children, which prompted appellant to ask if he could see them now. Caruso said he did not know where they were at the moment, but after he got a few things done, he would find out. He asked appellant if that was ok, and appellant said "yeah." When the interview was over, Caruso thanked appellant for his honesty and obtained his written consent to search his house and car. Then he handcuffed appellant and transported him to the Irvine police station.
At the station, Caruso removed appellant's handcuffs, gave him some water and let him use the restroom. While they were waiting for an interview room, appellant asked when he would be able to see his children. Caruso said some detectives were going to come and talk to him first. He told appellant he would see what he could do to facilitate his request to see his children. This conversation ensued:
"[Appellant]: Can I get a lawyer then?
"[Caruso]: "That - if you want a lawyer, that is your right.
"[Appellant]: Yes.
"[Caruso]: Okay. But, um . . . you'll probably get one if you go to court - regarding a lawyer.
"[Appellant]: "What happens now?
"[Caruso]: [I]f you know a personal lawyer, you call one. It's up to you.
"[Appellant]: [muffled/inaudible]
"[Caruso]: Okay.
"[Appellant]: What happens now? I - I don't know how . . .
"[Caruso]: Right now we're just waiting. [The] detectives [are] gonna come in and talk to you.
"[Appellant]: Yeah, but am I supposed to talk to a lawyer first?
"[Caruso]: Well, that's your decision.
"[Appellant]: Should - can I talk to the lawyer first?
"[Caruso]: I don't have a lawyer right here, right now to give you. You'll have to call for one or get one assigned.
"[Appellant]: I don't know anybody.
"[Caruso]: Okay. Then you'll have - if you want a lawyer, it'd have to be through the court system. That's how normally you get lawyers.
"[Appellant]: Okay.
"[Caruso]: But I don't know exactly where we're at in the investigation, so that's why a detective will come in and talk to you, I believe, and then we'll be able to figure out what's going on all the way. So what we have to do right now is just wait.
"[Appellant]: My kids are . . .
"[Caruso]: What's that?
"[Appellant]: My kids?
"[Caruso]: What about your kids? I don't know where they're at right now. I'm waiting to find out where they're at.
"[Appellant]: Oh, man."
With that, Caruso took appellant to an interview room and introduced him to Detectives James Do and Vicky Hurtado. By this time, it was shortly after midnight. Appellant asked if his children were okay, and the detectives told him they were at the police station and doing fine. They then told appellant they were going to read him "a couple of things," and they wanted him to answer yes or no after hearing them. The detectives proceeded to inform appellant of his Miranda rights, including the right to have an attorney "before and during questioning." They also informed appellant, "If you cannot afford an attorney, one will be appointed for you before questioning if you wish[.]" After stating each right, the detectives asked appellant "do you understand," and he answered "yes." When they were finished reading appellant his rights, they did not ask appellant if he wanted to waive them. Instead, they just started asking him questions.
At the beginning of the interview, while the detectives were obtaining his background information, appellant remarked, "See I don't know how anything - how this works." He asked, "Should I talk to a lawyer? I need to get back to my kids." The detectives assured appellant his children were safe and that they would work with his friends and relatives to make sure they were taken care of. They then turned the conversation to the matter at hand and began questioning appellant about Jalina's death. Appellant gave the detectives a detailed account of how he came to discover Jalina's affair and how their relationship played out in the wake of that discovery. His explanation of events largely mirrored the testimony he would later give at trial.
As the interview wore on, appellant asked the detectives what was going to happen to him and if he could see his children. They said they wanted to ask him a few follow-up questions and did not know if he could see his children right now. Saying he did not know how the legal process worked, appellant exclaimed, "I don't know whether I need a lawyer present here. I have no idea." Nevertheless, the interview pressed on, and the detectives eventually convinced appellant to write an apology letter to his children. Although appellant was reluctant to write the letter, the detectives assured him his children would benefit from hearing his side of the story.
In seeking to suppress his pretrial statements, appellant argued the police violated his Fifth Amendment right against self-incrimination by failing to advise him of his Miranda rights before interviewing him outside his home. He also argued the police violated his Sixth Amendment rights by ignoring his request for an attorney once he arrived at the police station. And he asserted he did not voluntarily waive his Miranda rights before speaking with Detectives Do and Hurtado. After reading the transcripts of appellant's police interviews, the trial court found all of his pretrial statements were lawfully obtained. Therefore, it denied his motion to suppress.
At trial, the prosecution played appellant's stationhouse interview for the jury, but it did not introduce the interview that occurred outside his home. Rather, it was the defense that elicited evidence regarding appellant's home interview. That evidence came in through Officer Caruso, who was called by the defense after appellant took the stand in his own defense.
Given that the prosecution did not attempt to introduce appellant's home interview into evidence, the Attorney General contends we need not decide whether that interview was legally obtained, i.e., whether appellant was in custody for Miranda purposes when the interview took place. Appellant disagrees. He claims that because the prosecution used his extrajudicial statements to impeach him on cross-examination, he was effectively forced to introduce evidence of his home interview for rehabilitation purposes. Therefore, we should assess the legality of both interviews. We decline appellant's invitation to do so, because in our opinion any error in admitting the interviews into evidence was harmless beyond a reasonable doubt.
Irrespective of whether the police acted lawfully in obtaining appellant's statements, two things are apparent. First, there is no question appellant's statement to the 911 dispatcher that he had strangled his wife to death was properly admitted into evidence. Second, it is also undisputed appellant's initial statements to Officer Caruso outside his home - that Jalina was having an affair and lying all the time and that he just could not help but kill her - were admissible because they were made while the police were trying to sort out a potentially dangerous situation and secure the area so no one, including appellant's children, would get hurt. (See New York v. Quarles (1984) 467 U.S. 649 [creating public safety exception to the Miranda rule].) This is important because, based on that evidence alone, the jury would have known both the motive for, and method of, the killing, which, as explained in the preceding section, were highly indicative of a premeditated murder.
Appellant is correct that the prosecution relied on his interview statements to bolster its case for first degree murder. However, many of those same statements were indispensible to the defense, which used them to lay the foundation for appellant's heat of passion claim. For example, appellant provided the police with a great deal of information about how he discovered Jalina was having an affair and how she repeatedly lied to him about it. He also talked in detail about how Jalina allegedly manipulated his emotions in the days leading up to the killing and how she tormented him just moments before her death. As to the latter issue, appellant told the police Jalina was cussing at him, belittling him and threatening to take away their children while they were arguing in their bedroom. And that while he was strangling her, he told her, "You ruined my life. I did everything for you. You cheated on me, now you're taking the kids away from me. What am I going to do?" This evidence was crucial in terms of supporting appellant's assertion that Jalina had pushed him over the edge and that he was acting not out of rational thought but in the heat of passion brought on by her unbridled provocation.
In assessing prejudice, we must also keep in mind that appellant's statements to the police were largely consistent with his trial testimony. Given this, it is hard to see how the admission of appellant's police statements could have hurt his case. In his reply brief, appellant suggests he might not have taken the stand had the trial court excluded his interview statements. However, if appellant did not testify, and the jury did not hear his statements to the police, the evidentiary basis for his heat of passion claim would have been virtually nonexistent. True, the jury still would have heard evidence that appellant told the 911 dispatcher and Office Caruso that he strangled Jalina because she was having an affair and he could not control himself. But without all the detailed background information about the affair and the killing that appellant provided to the police and in his testimony, it is unimaginable the jury would have convicted him of heat of passion manslaughter. Because appellant's only real chance of obtaining a manslaughter verdict was to present the jury all the details surrounding his relationship with Jalina and her death, any error in admitting his statements to the police was manifestly harmless.
The Admissibility of Expert Testimony on Manual Strangulation
Appellant also asserts the trial court erred by allowing Dr. Kim to testify about how long it would take an average person to become unconscious and die from manual strangulation. Appellant contends this testimony lacked a proper foundation and was irrelevant and unduly prejudicial, but we do not see it that way.
Defense counsel moved in limine to limit Dr. Kim's testimony regarding the circumstances of Jalina's death. In particular, defense counsel sought to prevent Dr. Kim from testifying about how long it took Jalina to become unconscious and die after appellant started strangling her. The trial court granted that request, but it ruled Dr. Kim could give her opinion as to the cause of Jalina's death. It also ruled Dr. Kim could testify how strangulation affects the body, and "[i]f there is sufficient foundation, the time periods involved in those physiological changes happening."
At trial, Dr. Kim testified Jalina died from manual strangulation, i.e., the "forceful compression of the neck by the hands of another." She also opined the obstruction of Jalina's airway was carried out in an "intentional and very forceful" manner. When asked what type of pressure is required to fatally strangle someone, she said, "[W]e're talking about constant pressure applied upon the neck organs, for a couple of minutes, at least four to five minutes." As to how long it takes a person who is being strangled to become unconscious, Dr. Kim testified, "There are different studies, and there is definitely a range you have to give, depending on [the] activity of the person losing consciousness. It ranges anywhere from 15 seconds to probably 40 seconds. At the most, 50, 60 seconds."
Dr. Kim testified she based these opinions on her education and training, as well as her experience as a forensic pathologist. She also cited the books Forensic Pathology, by Vincent and Dominick DiMaio, and Spitz and Fisher's Medicolegal Investigation of Death as sources for her opinions. Dr. Kim said those two books are widely used by forensic pathologists around the world. They not only summarize and reference hundreds of studies and articles dealing with the topic of manual strangulation, they discuss one study in particular in which 65 volunteers had pressure applied to their necks to determine when they would lose consciousness.
In reviewing a claim of evidentiary error, we apply the deferential abuse-of-discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 724.) Under that standard, we will not disturb the court's ruling unless it "exceeds the bounds of reason, all of the circumstances before it being considered. [Citation.]" (People v. Santamaria (1991) 229 Cal.App.3d 269, 277.)
With regard to the relevancy of Dr. Kim's testimony, appellant contends the brutality of Jalina's injuries had little probative value on the key issue of intent. That may be true, but Dr. Kim's testimony was not offered to prove the brutality of Jalina's injuries so much as it was to establish the timing issues surrounding her death. As we have explained above, Dr. Kim's testimony about how long it takes a person being choked to lose consciousness and die was highly relevant to the issue of premeditation and deliberation.
Appellant contends this testimony was prejudicial because it was tantamount to an opinion on the ultimate issue in the case, i.e., appellant's intent. However, Dr. Kim did not testify appellant acted with premeditation and deliberation in killing Jalina. Rather, she simply provided foundational evidence from which the jury could infer appellant possessed that state of mind. In any event, when otherwise admissible, the law permits an expert's testimony to encompass the ultimate issue to be decided by the trier of fact. (Evid. Code, § 805.)
Appellant argues Dr. Kim's testimony was not "otherwise admissible" because it was speculative and lacked evidentiary support. In so arguing, he notes the one study Dr. Kim mentioned in her testimony occurred in a controlled setting and was not based on data from actual homicide cases. He also points out that factors such as age, weight, gender, stress level and lung capacity can affect how long a person remains conscious and alive in response to being strangled. However, these issues, which were explored during Dr. Kim's cross-examination, go to the weight, not the admissibility, of her testimony.
Moreover, it was obvious from Dr. Kim's testimony that her time estimates were given with respect to the average person and that there could be some variation from person to person. That is why her time estimates were given in a range as opposed to a specific number. It was also clear from Dr. Kim's testimony that her opinions were not based on any single study or source but rather a conglomerate of information she has acquired throughout her education, training and career as a forensic pathologist. As such, there was an adequate foundation for her opinions.
Appellant further asserts Dr. Kim's testimony regarding the timing issues involved in the strangulation process went beyond the "average person" and effectively amounted to opinion about how long it took Jalina to become unconscious and die in this case. There was some testimony to this effect, but it was elicited by appellant's own attorney, so he has no cause to complain. In addition, Dr. Kim made it abundantly clear in her testimony there was no way for her to determine exactly when Jalina became unconscious and died. Rather, her testimony was offered as a general framework from which the jury could draw its own conclusions on those issues. This was a permissible use of expert testimony. The admission of Dr. Kim's opinions did not constitute an abuse of discretion or infringe appellant's right to a fair trial.
The Exclusion of Proffered Defense Evidence
Appellant also takes issue with the trial court's decision to exclude evidence from Jalina's friends, family and coworkers indicating she had a history of deceitful and erratic behavior. Again, we disagree.
According to defense counsel's offer of proof, she had three witnesses lined up to testify about Jalina's shortcomings. First, Jalina's job supervisor was prepared to testify Jalina had been performing poorly at work and had asked to work at home on the false pretense she was recovering from hernia surgery when in fact she really had a "tummy tuck." Second, Jalina's sister was prepared to testify Jalina and appellant had strife early on in their marriage due to religious and cultural differences, Jalina was hotheaded and had a strong and controlling personality, and Jalina had told her she was planning to abandon her family and move in with her. Third, Jalina's paramour Vladimir was prepared to testify Jalina had lied to him to win his affection, and she also had threatened to tell his wife about their affair when he became disinterested in her. The trial court excluded this proffered testimony on the grounds it was improper character evidence and irrelevant. The court also determined that some of the testimony constituted inadmissible hearsay because it encompassed statements that were attributable to Jalina.
Appellant contends this evidence was not meant as an attack on Jalina's character, but was simply intended to corroborate his testimony that Jalina was acting irrationally and whipsawing his emotions in the days, hours and minutes leading up to the killing. However, the prosecution did not present any evidence to contradict appellant's testimony in this regard, nor did it try to portray Jalina's behavior in a false light. In fact, in her closing argument, the prosecutor acknowledged Jalina had made some questionable decisions in her life and was no angel.
Under these circumstances, we cannot fault the trial court for barring additional evidence regarding Jalina's supposed character flaws. The exclusion of further evidence on this subject did not constitute an abuse of discretion or render the trial unfair. Nor is it reasonably likely appellant would have obtained a more favorable verdict had his proffered evidence been admitted. Its exclusion is therefore not cause for reversal. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Cumulative Error
Lastly, appellant contends the cumulative effect of the trial court's errors undermined his right to a fair trial. However, none of the court's alleged errors, whether considered individually or as a whole, prevented appellant from presenting a full and fair defense or precluded the jury from deciding the case in a fair and impartial fashion. No cause for reversal has been shown.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.