Opinion
A127613 A127690
09-08-2011
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JAMES PATRICK RAY et al., Defendants and Appellants. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. CHRISTOPHER MORGAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. Nos. FCR240918, 240919)
(Solano County Super. Ct. No. FCR240920)
Seventy-eight-year-old Farhan Jweinat was beaten and robbed by two men who entered his home. He went into a coma after having surgery to repair a broken jaw suffered during the attack, and died about 10 months later. Appellants Christopher Morgan, James Ray and Paula Moyer were jointly tried before a jury and convicted of first degree murder under a felony murder theory. (Pen. Code, §§ 187.) The jury also found true special circumstance allegations that appellants Morgan and Ray had committed the murder during the course of a robbery and a first degree burglary, and that appellant Moyer had committed the murder during the course of a first degree burglary. (§ 190.2, subds. (a)(17)(A) & (G).) All three were sentenced to prison for life without the possibility of parole.
Further statutory references are to the Penal Code unless otherwise indicated.
Appellants contend: (1) the evidence was insufficient to show that injuries inflicted during the attack were the cause of death, and the court should have given an instruction on medical malpractice by the treating doctors as a superseding cause; (2) the court did not adequately respond to a jury question regarding the mental state necessary for the felony-murder special circumstance allegations to apply to an aider and abettor; (3) the prosecutor committed misconduct by mischaracterizing the burden of proof beyond a reasonable doubt during closing argument; (4) the admission of an incriminating out-of-court statement by defendant Morgan deprived defendant Ray of his right to confront the witnesses against him; and (5) cumulative error requires reversal. We affirm.
I. FACTUAL BACKGROUND
Farhan Jweinat lived in the Vacaville home of his son Suleiman and his family. Farhan was in good health for his age, although he suffered from coronary artery disease and had stents in two arteries. On the afternoon of May 5, 2006, while other members of the Jweinat family were not at home, neighbors discovered Farhan standing in the front yard, covered in blood with his hands tied behind his back. Farhan said in broken English, "[T]hey won't stop hitting me, they won't stop hurting me, they just keep hitting me over and over." He said they had wanted money and he gave them $700. Farhan was taken to the hospital for treatment, where he told Detective Carey of the Vacaville Police Department that his attackers were two "American" men in their 30s.
Because this opinion refers to family members who share the same last name, we sometimes refer to them by their first names only. No disrespect is intended.
Farhan's daughter-in-law Vera Jweinat rushed home after she learned what had happened. She walked through the house with Detective Carey and saw that every room had been ransacked. There was blood on the floor in the kitchen, family room, Farhan's bedroom and an adjacent bathroom. Farhan's bedroom, which was usually spotless, was in disarray, and his dentures were found in a large pool of blood in the kitchen. Vera found a bottle of pepper spray on her bedroom dresser that did not belong to her, and Detective Carey smelled pepper spray and noticed a liquid that appeared to be pepper spray on the kitchen floor. Vera discovered that gold jewelry worth between $50,000 and $70,000 was missing, as was a computer, a Gameboy, her son's tennis shoes and various household decorations. One of the neighbors had seen a blue car parked in the Jweinats' driveway and had noticed a woman with long black hair and a red sweater near the car.
Appellant Moyer, who has long black hair, had recently worked as a housekeeper for the Jweinats. Farhan had been home when Moyer came to clean, although the two did not have much interaction because Farhan's English was limited. In March 2006, Vera Jweinat had discovered that about $60,000 to $70,000 in casino winnings was missing from its hiding place in her master bedroom, and she suspected Moyer of taking it. She reported the theft to police, but then asked them to stop the investigation because her daughter was afraid. Vera had asked Moyer to return for one final cleaning job, intending to confront her, but when Moyer came over, Vera changed her mind and decided not to raise the subject.
After reviewing the police report regarding the March 2006 theft, Detective Carey decided to contact Moyer about the current burglary and assault on Farhan. Carey went with other officers to Moyer's house in Woodland at about 11:45 p.m. on May 5, 2006, the same day as the burglary and assault. They found a black ring on the counter next to Moyers's purse and a bracelet inside the purse, both of which were later identified by Vera Jweinat as belonging to her. The purse also contained a receipt from a McDonald's located about half a mile from the Jweinats' home, which was generated on May 5, 2006, at 12:33 p.m. Moyer's boyfriend Paul Hinojosa was present and his black Acura was parked in the driveway. The car was impounded and later searched, during which time officers found a red sweatshirt and three rings belonging to Vera Jweinat.
After interviewing Moyer, police went to the home of her next door neighbors, appellant James Ray and his girlfriend Karly Harrison. Ray was discovered hiding under the bed with a gun holster underneath him, and a handgun was found under the mattress. He was carrying a wallet with over $400 in cash, and another $200 in cash was inside the pocket of a pair of shorts found in the bedroom. Jewelry that was later identified as belonging to Vera Jweinat was found in the bedroom closet, hidden between some pants that were folded on a shelf. A pair of black pants found in the house ultimately tested positive for Farhan Jweinat's blood.
The pants had a size 38 waist. The blue jeans Ray was wearing at the time of his arrest had a size 33 waist.
Meanwhile, Farhan Jweinat remained in the hospital for treatment. On May 17, 2006, he suffered a cardiac arrest and stopped breathing after receiving surgery for a broken jaw that he suffered during the attack. He was resuscitated, but remained in a persistent vegetative state and ultimately died on March 19, 2007, about 10 months after the attack. According to Dr. Arnold Josselson, who performed the autopsy, the cause of death was "anoxic encephalopathy (loss of oxygen to the brain) due to blunt force injuries."
Although she initially lied to the police to protect Ray (who wrote her love letters while they were both in jail), Karly Harrison ultimately became the principal witness for the prosecution and was allowed to plead guilty to first degree burglary with a maximum sentence of four years in exchange for her truthful testimony at appellants' trial. She testified to the following events surrounding the burglary of the Jweinat home:
Harrison had met Ray while they were both residents in a drug and alcohol rehabilitation center in 2005. They moved in next door to Moyer and her boyfriend Hinojosa, with whom they became acquainted. Moyer bragged to Harrison about taking $74,000 from a house in Vacaville while she was working as a housekeeper, and said she had bought two cars with the money after spending $5,000 on drugs and in casinos. In March 2006, Moyer told Harrison she had been called to clean the house again and was nervous that it might be a "setup."
Moyer, Ray and Hinojosa discussed burglarizing the Jweinats' house to see whether they had more cash. Harrison was opposed, because she was worried that Ray would get into trouble and go to prison. The plan was to commit the burglary on May 4, 2006, but it did not go forward and Hinojosa said he could not do it the following day because he had an appointment he could not miss. Moyer came to Ray and Harrison later that night and told them that Hinojosa's brother Chris (appellant Christopher Morgan) could stand in for Hinojosa.
Early the next morning, May 5, 2006, Moyer came to the house and gave Harrison a line of methamphetamine. Moyer also brought over some beanies, walkie talkies and gloves. Harrison understood that they were going to burglarize the Jweinats' house that day, and Ray convinced her to come along so she could make sure he stayed in the car and did not go inside the house.
Harrison and Ray drove to Vacaville in Ray's car, a teal blue Corsica, and met Moyer and Morgan at a McDonald's near the Jweinats' home. Moyer and Morgan were driving the black Acura owned by Hinojosa. After having lunch, Moyer told Harrison to get into the Acura with her, while Ray and Morgan got into the Corsica. Moyer led the way to the Jweinats' house, parked on the street and then conferred with Ray and Morgan. Ray parked the Corsica in the Jweinats' driveway and went toward the house with Morgan. Moyer received a call on her cell phone and Harrison heard her tell the caller to use the back door because it was always open.
As she and Harrison were waiting in the Acura, Moyer changed into a red sweatshirt. After about 10 minutes, Moyer told Harrison to drive her to the Jweinats' house so she could "get them out." Moyer went inside the house while Harrison drove back to their original parking place, and about 10 minutes later, Harrison saw Moyer, Ray and Morgan come out of the house and get into Ray's car. Harrison met them back at the McDonald's, where she noticed that Morgan had blood on his clothes. Moyer and Morgan drove away in the Acura, while Harrison rode home in the Corsica driven by Ray. Ray told her that everything had "got all fucked up," and "the less you know the better." He showed her a gun in a holster and told her he got it during the burglary.
Although Suleiman and Vera Jweinat told the police they did not have a gun in the house, bullets were found in Farhan's room during the investigation of this crime.
Later that day, Moyer, Hinojosa and Morgan went to Ray's and Harrison's house and divided up jewelry, watches, "little bags," shoes, clothing and a computer. After the others left, Ray started talking about leaving California and Harrison took him to a motel in Sacramento. Ray returned later that night because he did not want to be without Harrison, and Harrison began packing so they could go to Reno. At some point she realized that police were entering Moyer's house. She told Ray to leave, but he did not do so and they were both arrested that night.
Another important trial witness was Mariah Alsop, the significant other of Moyer's mother, Gail Garcia. Alsop testified at trial that on the day after Moyer's arrest, she and Garcia went to Moyer's home to remove Moyer's belongings. While Alsop was standing outside smoking a cigarette, a man she did not then know, but whom she identified as appellant Morgan, came up to her and started talking. He said, "I'm so scared," and when asked why, said it was "because they're looking for me." Morgan told Alsop that they were supposed to steal a car and he was going to drive one of the cars, then said that he waited at a McDonald's and they were supposed to bring the car to him. He then changed his story and said that he and Ray went into a house and found an old man there. They bound the man and put him in the bathroom, and Morgan told him that if he kept his mouth shut nothing would happen. Morgan went upstairs to look for things to steal and heard Ray yelling, "You better get the f—down here, I just hit this old man." Morgan went downstairs and saw Ray viciously beating the old man, who had blood running down his head. Morgan told Alsop that he joined Ray in the beating, and then he and Ray left.
Ray testified in his own defense and claimed that he had moved out of the home he shared with Harrison several days before the crime was committed and had not participated at all. He explained that he was visiting Harrison on the night of their arrest because they needed to discuss their relationship. Ray's friend John Lee and other members of Lee's family testified that Ray was at their home in Sacramento during the day on May 5, 2006, a fact they remembered because of the Cinco de Mayo holiday.
Ray also called Detective Carey as a witness, who testified that a man named Jason Stevens had been discovered with jewelry taken from the Jweinats' house. Carey did not consider him a suspect in the case and had not tried to verify his whereabouts on May 5, 2006. Other individuals in the Woodland and Davis areas were also caught with jewelry that had been taken from the Jweinats' house.
In addition to Ray's alibi/third party culpability defense, appellants attempted to show that they were not liable for felony murder or the special circumstances because the injuries Farhan suffered during the robbery and burglary did not cause his death. The medical evidence was as follows:
Farhan was initially admitted to North Bay Medical Center on the day of the attack, and was then airlifted to U.C. Davis Medical Center for treatment, where he was admitted in critical condition. His jaw was broken, but the necessary surgery was delayed to allow the blood thinners that he was taking for his heart condition to leave his system. Farhan had difficulty breathing and was placed on a ventilator several times during his stay, and a tracheostomy tube was placed in his neck to allow him to breathe more easily. Surgery was performed on his broken jaw on May 12, 2006 (a week after the attack), and he remained in critical condition in the intensive care unit until May 16, 2006, when he was moved to a regular hospital ward. On May 17 he had a cardiac arrest and stopped breathing, which deprived his brain of oxygen. It was impossible to determine which occurred first—the cessation of breathing or the cardiac arrest. Although Farhan was resuscitated, he remained in a persistent vegetative state until he died 10 months later, on March 19, 2007.
Dr. Josselson, a forensic pathologist who testified as the prosecution's expert, testified that it was not possible to determine exactly what caused Farhan's heart to stop. The medical records noted that a mucous plug may have developed in his tracheostomy tube, thus blocking the flow of oxygen and causing a cardiac arrest due to the loss of oxygen. Though Farhan had been checked shortly before the episode, a mucous plug could have developed suddenly. Dr. Josselson also believed that the various stresses to Farhan—the recent attack, his stay at the hospital, the use of a breathing tube, his inability to readily communicate with hospital staff in English, all on top of a heart weakened by coronary disease—could have caused him to suffer cardiac arrest. The medical notes from Farhan's records showed that his blood pressure was elevated after the surgery, and that the doctors were trying to control his pain, another source of stress. Farhan had undergone a procedure on May 9, 2006 (a few days before his jaw surgery) to insert a filter into his vena cava so a blood clot developing in his leg would not go into his heart.
Farhan was not on a heart monitor at the time of his cardiac arrest, so there was no electrocardiogram (EKG) to indicate a problem immediately before the event. Dr. Josselson thought that both stress and a mucous plug contributed to the cardiac arrest, but either factor alone could have been the cause. Dr. Josselson believed that the assault during the burglary led to a chain of events causing cardiac arrest and that as a result of the cardiac arrest, Farhan went into a vegetative state and died.
The defense presented the expert testimony of Dr. Coleman Ryan, a cardiologist. According to Dr. Ryan, Farhan had suffered from coronary artery disease but had been doing well for several days before and after the jaw surgery on May 12, 2006. He was no longer on a ventilator, his oxygen readings were good and his treating physicians had declared him stable. Dr. Ryan characterized the cause of death as a "mystery." It was unlikely that stress caused cardiac arrest, as stress is more likely to cause heart arrhythmia and there was no evidence of arrhythmia. Dr. Ryan did not believe there was any evidence of a mucous plug, although he had not been provided with a hospital note by a U.C. Davis medical resident the day after the event noting "susp mucous plug" as a cause. He noted that while morphine (which was being administered to Farhan) could cause respiratory arrest, there was no indication of an excessive dose. Dr. Ryan did not believe that the injuries Farhan suffered on May 5, 2006 caused the cardiac arrest.
Dr. Steven Karch, an expert in cardiac pathology, also testified for the defense. Dr. Karch believed the cause of death was undetermined, but was definitely not a heart attack, as the EKGs had been normal and there was no evidence of stressors. In his opinion, a mucous plug was unlikely to have been the cause because a person deprived of oxygen in this manner is apt to thrash around trying to breathe, and there is no evidence that this occurred. Dr. Karch acknowledged that Farhan's hands had been tied to the bed to prevent him from pulling out the tracheostomy tube. Farhan suffered from an enlarged heart, which can cause sudden cardiac arrest and death.
II. DISCUSSION
A. Causation Issues
1. Sufficiency of the Evidence of Causation
Appellants contend the evidence was insufficient to show that the injuries inflicted on Farhan Jweinat during the robbery and burglary proximately caused his death 10 months later. We disagree.
A homicide conviction requires proof that the defendant's conduct proximately caused the victim's death. (People v. Butler (2010) 187 Cal.App.4th 998, 1009 (Butler).)Proximate cause in a criminal case is determined by ordinary principles of causation and is a question of fact for the jury. (People v. Armitage (1987) 194 Cal.App.3d 405, 420; People v. Harris (1975) 52 Cal.App.3d 419, 427.) The cause of death includes any " 'act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the [death] and without which the [death] would not occur.' " (People v. Schmies (1996) 44 Cal.App.4th 38, 48.) When there are concurrent causes of death, the defendant is criminally responsible if his or her conduct was a substantial factor contributing to the result. (Butler, at p. 1009.)
A jury's finding of proximate causation will not be disturbed on appeal if there is substantial evidence—evidence that is reasonable, credible, and of solid value—from which it may be reasonably inferred that the defendant's act was a substantial factor in producing death. (Butler, supra, 187 Cal.App.4th at p. 1009; People v. Wyatt (2010) 48 Cal.4th 776, 781.) On appeal, we do not reweigh the evidence or determine credibility issues; " ' " '[i]f 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.' " ' " (People v. Catlin (2001) 26 Cal.4th 81, 139.)
In this case, the evidence showed that Farhan was severely beaten by appellants Morgan and Ray while burglarizing his home. Appellant Moyer aided and abetted Morgan and Ray in the burglary, knowing that Farhan lived in the house. Morgan and/or Ray struck Farhan with enough force to knock out his dentures and break his jaw. When he was admitted to the hospital, Farhan had difficulty breathing and was given a tracheostomy tube to help him breathe. After he underwent the surgery necessary to repair his broken jaw, he suffered a cardiac arrest and his brain was deprived of oxygen. Although he was resuscitated, he remained in a persistent vegetative state before dying several months later. Dr. Josselson, the forensic pathologist who conducted the autopsy and reviewed the medical records associated with the injuries, believed the cardiac arrest that ultimately lead to Farhan's death was caused by either a mucous plug in the tracheostomy tube, or the stress of his injuries and hospitalization, or some combination thereof. He explained, "[T]he assault led to a train of events that caused his cardiac arrest; and as a result of the cardiac arrest, he went into this persistent vegetative state and died." Dr. Josselson's testimony provided substantial evidence that Farhan's death was caused by the violent acts committed against him.
Appellants argue that Dr. Josselson's testimony did not amount to substantial evidence of causation because the exact cause of the cardiac arrest could not be determined. Citing People v. Phillips (1966) 64 Cal.2d 574 (Phillips),disapproved on other grounds in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12, and People v. Stamp (1969) 2 Cal.App.3d 203, 209 & fn. 2, they claim that a medical opinion regarding the cause of death must rise to a level of "a reasonable medical certainty" to support a conviction.
In Phillips, a defendant convicted of murder argued that the evidence was insufficient because the prosecution's medical expert had offered an opinion regarding the cause of death that was based on a standard of "reasonable medical certainty" rather than "beyond a reasonable doubt." (Phillips, supra, 64 Cal.2d at p. 579.) The court rejected the argument, noting that testimony resting on a reasonable medical certainty was sufficient. The court in Stamp rejected a challenge to expert medical testimony that was based on "medical probability rather than actual certainty," noting that an opinion couched in terms of reasonable medical certainty was sufficient. (Stamps, supra, 2 Cal.App.3d at p. 209, fn. 2.) Neither Phillips nor Stamp stands for the proposition that an expert medical opinion regarding the cause of death must be disregarded unless it is explicitly couched in terms of reasonable medical certainty. To the contrary, "a diagnosis need not be based on certainty, but may be based on probability; the lack of absolute scientific certainty does not deprive the opinion of evidentiary value." (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293; see also People v. Jackson (1971) 18 Cal.App.3d 504, 507.)
In any event, we disagree with appellants' premise that Dr. Josselson did not testify to a reasonable medical certainty regarding causation. He was quite certain that the injuries caused by the assault were the cause of Farhan's death in the hospital, though he was unable to say whether the cardiac arrest was caused by a mucous plug in the tracheostomy tube, the overall stress of the assault and subsequent hospitalization, or some combination of the two. Nor are we persuaded by appellants' efforts to discredit Dr. Josselson's testimony, or their reliance on the defense experts' opinions to the contrary. It is for the jury, not the reviewing court, to determine whether the testimony of a qualified expert is persuasive. (See People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.)
2. Medical Negligence as Superseding Cause
When the victim's death is the result of an independent intervening act by a third party, that act may amount to a superseding cause absolving the defendant of criminal liability for a homicide. (See People v. Funes (1994) 23 Cal.App.4th 1506, 1523.) To be deemed a superseding cause, the act must occur after the defendant's original act and must be " 'unforeseeable. . . an extraordinary and abnormal occurrence.' " (Ibid.; People v. Autry (1995) 37 Cal.App.4th 351, 361.) Appellants claim the trial court had a sua sponte duty to instruct the jury on the concept of superseding cause, citing the evidence that Farhan Jweinat died in the hospital as a result of a mucous plug in his tracheostomy tube. We disagree.
A person who inflicts a dangerous wound upon another ordinarily cannot avoid criminal liability for homicide by claiming that inadequate medical treatment for the wound contributed to the victim's death. (People v. Roberts (1992) 2 Cal.4th 271, 312; see also People v. Stanley (2006) 39 Cal.4th 913, 946.) "The defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act." (People v. Crew (2003) 31 Cal.4th 822, 847.) Medical treatment will not be deemed an unforeseeable superseding cause unless it is grossly improper and is the sole cause of death. (Roberts, at p. 312; see also People v. McGee (1947) 31 Cal.2d 229, 240.)
The trial court was not required to give a sua sponte instruction on the hospital's negligence as a superseding cause because substantial evidence did not support such an instruction and it did not appear the defense was relying on that theory. (See People v. Booker (2011) 51 Cal.4th 141, 179 (Booker).)No expert testimony was elicited on the subject. (See Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523 (Kelley) [expert testimony generally required to show that a medical practitioner failed to meet the prevailing standard of care, except in cases where the negligence is obvious to laypeople].) Appellants argued at trial that the prosecution had failed to prove the injuries inflicted on Farhan were the cause of his death, but they never suggested (to the court or to the jury) that the hospital was instead responsible or that the possible mucous plug was a result of medical negligence.
Appellants contend the hospital should not have employed the wrist restraints that were used to prevent Farhan from pulling out the tracheostomy tube, because these restraints rendered him unable to remove the tube when it became clogged. This speculative assertion, raised for the first time on appeal, is not supported by any of the medical testimony at trial and is not a conclusion obvious to a layperson. (See Kelley, supra, 66 Cal.App.4th at p. 523.) No substantial evidence was presented at trial that would have supported the instruction now proposed by the appellants. (Booker, supra, 51 Cal.4th at p. 179.)
The jury was instructed on the causation principles relevant to this case. CALCRIM No. 240 provided in part, "An act causes death if the death is the direct, natural and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes." CALCRIM No. 620 stated, "There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death. [¶] Farhan Jweinat may have suffered from an illness or physical condition that made him more likely to die from the injury than the average person. The fact that Farhan Jweinat may have been more physically vulnerable is not a defense to murder. If the defendant's act was a substantial factor causing the death, then the defendant is legally responsible for the death. This is true even if Farhan Jweinat would have died in a short time as a result of other causes or if another person of average health would not have died as a result of the defendant's actions. [¶] If you have a reasonable doubt whether the defendant's act caused the death, you must find him or her not guilty." Appellants do not claim that the instructions given were inaccurate or misleading.
Appellants alternatively argue that trial counsel were ineffective in failing to request jury instructions on superseding cause. We are not persuaded. A defendant asserting ineffective assistance of counsel has the burden of showing: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice, i.e., a reasonable probability that the result of the proceeding would have been different were it not for the error. (Strickland v. Washington (1984) 466 U.S. 668, 686, 688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216, 218.) Among other things, a claim of ineffective assistance requires proof of a reasonable probability of a different outcome but for counsel's decision. (In re Lucas (2004) 33 Cal.4th 682, 721.) Even if counsel had requested an instruction on superseding cause based on medical negligence, there is no reasonable probability the court would have given it when it was not supported by substantial evidence. (People v. Lam (2010) 184 Cal.App.4th 580, 583-584.)
B. Response to Jury Question Regarding Meaning of "Reckless Indifference to Human Life"
Under California law, a defendant who is not the actual killer can only be subjected to a felony-murder special circumstance when it is proven that he or she acted with an intent to kill or with "reckless indifference to human life and as a major participant " in the underlying felony. (§ 190.2, subd. (d).) Appellants argue that the burglary and robbery special circumstances must be reversed because the court did not adequately respond to a jury question regarding the meaning of "reckless indifference to human life." We reject the claim.
The trial court instructed the jury with CALCRIM No. 703, which provided in relevant part, "If you decide that a defendant is guilty of first degree murder but was not the actual killer, then, when you consider the special circumstances of Murder in the course of Robbery or Murder in the course of First Degree Burglary, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life. [¶] In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove either that the defendant intended to kill, or the People must prove all of the following: [¶] 1. The defendant's participation in the crime began before or during the killing; [¶] 2. The defendant was a major participant in the crime; [¶] AND 3. When the defendant participated in the crime, he or she acted with reckless indifference to human life. [¶ A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death." (Italics added.)
During deliberations, the jury sent a note asking, "Does the law or other jury instructions expand on the statement 'a person acts with reckless indifference to human life' found in 703 #3?" The court discussed the note with counsel, observing that the phrase had been adequately defined in CALCRIM No. 703. Counsel for defendant Ray stated, "Your Honor, I have no objection to the Court going into the jury room and explaining to them the same way that you did to us. I think that's - that does answer the question. It's responsive, and it is the law. They obviously can't be instructed on case law and things like that, so I think that would be the best move." Counsel for Morgan and Moyer agreed and the court indicated it would do what counsel suggested.
Appellants do not dispute that CALCRIM No. 703 was accurate insofar as it went, but they claim the court should have amplified the definition of "reckless indifference" rather than simply referring the jury to the instruction already given. This argument has been forfeited by counsels' failure to request an additional instruction. "A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024; see also People v. Jennings (2010) 50 Cal.4th 616, 671 (Jennings).)
We would also reject the claim on the merits. CALCRIM No. 703 contained the statutory language of section 190.2, subdivision (d), which in turn was derived from Tison v. Arizona (1987) 481 U.S. 137, 158 & fn. 12, in which the United States Supreme Court held that the Eighth Amendment does not prohibit the death penalty as disproportionate when a defendant who was not the actual killer was a major participant in the underlying felony and acted with reckless indifference to human life. (People v. Estrada (1995) 11 Cal.4th 568, 575 (Estrada).)The California Supreme Court has rejected the claim that the phrase "reckless indifference to human life" is a term requiring further definition; hence, in the absence of a request, it is sufficient to simply instruct the jury in the language of the statute. (Estrada, at pp. 576-577.) The version of CALCRIM No. 703 that was given in this case went a step further and defined "reckless indifference to human life" to mean that the defendant "knowingly engage[d] in criminal activity that he or she knows involves a grave risk of death," the definition that was set forth in Tison, supra, at p. 157 and has thus been incorporated into section 190.2, subdivision (d). (Estrada, at pp. 576-577.) No further definition or clarification was required.
Appellants also complain that counsel should have been present when the court responded to the jury's question because it was a critical stage in the proceedings. (See United States v. Cronic (1984) 466 U.S. 648, 659.) Because counsel agreed that the court would go into the jury room and refer the jurors to the definition of reckless indifference set forth in CALCRIM No. 703, the claim is forfeited. (See People v. Rhoades (2001) 93 Cal.App.4th 1122, 1126; People v. Hawthorne (1992) 4 Cal.4th 43, 69-70.) In any event, there being no contrary indication in the record, we presume the court responded to the jury question as agreed and simply referred the jurors to the existing instruction without providing further amplification of the law or additional instructions. The absence of counsel did not deprive appellants of the assistance of counsel during a critical state of the proceedings and could not have been prejudicial under these circumstances. (See People v. Benavides (2005) 35 Cal.4th 69, 86-87; People v. Alcalde (1944) 24 Cal.2d 177, 188-189 [defendant not prejudiced when court, outside the presence of defendant and his counsel, answered "no" to jury's question regarding its ability to specify that a life sentence be without parole; "no" was the only answer that would have been possible even if counsel had been present and objected]; see also People v. Virgil (2011) 51 Cal.4th 1210, 1233-1238 [defendant's Sixth Amendment right to be personally present at trial not violated by his absence from sidebar conferences when there was no showing his presence bore a substantial relation to his defense].)
Appellants alternatively claim that their attorneys were ineffective in failing to ask for an additional definition of "reckless indifference" and in allowing the court to answer the jury's note outside their presence and without the presence of a court reporter. They cannot establish the prejudice necessary to prevail on such a claim because it is not reasonably probable they would have obtained a more favorable result had they requested amplification of "reckless indifference" or been present for the court's response to the jury question. (Strickland, supra, 466 U.S. at p. 694.)
C. Prosecutorial Misconduct
Appellants argue that the prosecutor committed misconduct during closing argument by making several improper analogies to the standard of proof beyond a reasonable doubt: (1) recognizing the image of the Statue of Liberty in a jigsaw puzzle while some pieces are still missing; (2) determining medical treatment for a dying child and making other decisions where someone's "life is on the line;" and (3) getting married. Although trial counsel objected only to the jigsaw analogy, we consider the effect of the other challenged remarks to forestall appellants' alternative argument that counsel were ineffective in failing to preserve the issues on appeal. (People v. Lewis (1990) 50 Cal.3d 262, 282-283.)
The standards governing review of prosecutorial misconduct claims are well-settled. " 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such " 'unfairness as to make the resulting conviction a denial of due process.' " [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.]' " (People v. Parson (2008) 44 Cal.4th 332, 359.)
We conclude reversal is not required.
1. Background
The prosecutor did not discuss the reasonable doubt standard during the initial phase of closing argument. Moyer's counsel described the standard as one "we don't really use in our lives on a day-to-day basis, even on an unusual basis. You know, the big decisions you make, like buying a house or getting married, having kids, you don't use this standard of proof." She also noted that one situation in which the reasonable doubt standard might be employed was the decision to withdraw a family member from life support: "[Y]ou would want to make sure you have evaluated every possible option for that person . . . . And so that is the same standard that you would use in deciding whether these charges are true." Morgan's counsel also commented on the burden of proof, describing it as "that degree of certainty that you would make in a medical decision where if you're wrong someone is going to die. . . . [I]f at the end of that discussion, you have enough faith that you're willing to risk your child's life, that's beyond a reasonable doubt." He gave a second example of reasonable doubt as "the level of comfort in a parachute that you would have before you jump out of a plane at 30,000 feet, right."
During rebuttal argument, the prosecutor addressed the subject of proof beyond a reasonable doubt when discussing the import and reliability of Karly Harrison's testimony: "Now, what the Court told you when he was reading you the instructions is that there has to be corroboration to accomplice testimony, and the jury instruction tells you that it only has to be slight. There's plenty of corroboration in this case, and what does that give you, well, I'm going to talk about beyond a reasonable doubt, what it is and what it isn't. [¶] Beyond a reasonable doubt is you take a puzzle and let's say it has the Statue of Liberty on it, and you start putting the pieces together, and first you have the ocean and the water, and then you start getting to the island part and pretty soon you start building the Statue of Liberty and you can tell what you're building. And once the picture becomes clear to you, then you can convict somebody." Defense counsel made an objection, which was overruled.
The prosecutor continued: "So the picture is clear in this case. Is there enough pieces put together in this puzzle for you to convict these three defendants. Well, let's think about that. We talked a lot about Karly Harrison, the defense did. She's just adding pieces because there's other pieces to this case, isn't there. There's the stolen property which the Judge gave you a jury instruction that you consider as something as evidence of a recent burglary. It can't be the only thing you consider, but it's one thing. Contrary to what you were told that you can't consider it, but you can. And there's other evidence . . . . [¶] What reasonable doubt is not, Ladies and Gentlemen, it is not if your child is in the hospital and going to die that you're going to make a decision based on beyond a reasonable doubt. You are going to make a decision based on all doubt, and that is not the standard in a criminal case. [¶] And I guarantee it, Ladies and Gentlemen, when you stood up and took your vows when you got married, you didn't do it beyond a reasonable doubt. You had no doubt that that person you were standing next to was the person you wanted to spend the rest of your life with. You weren't like thinking, well, yeah, I don't know, are my doubts reasonable. No. Those aren't even good comparisons. Because if somebody's life is on the line, you're going to make sure you have every fact and know every possible thing that you need to know before you make a decision. That is not the standard in a criminal case. As I told you in voir dire, the standard in this case is the same in a DUI, is the same in a petty theft."
2. Statue of Liberty Puzzle Analogy
Appellants contend the prosecutor committed misconduct in comparing the reasonable doubt standard to putting together a jigsaw puzzle and recognizing that it was a picture of the Statue of Liberty while some of the pieces were still missing. Citing People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1264-1269 (Katzenberger), which found misconduct under similar circumstances, they argue that the prosecutor's analogy understated the burden of proof. We consider " 'whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203 (Cole).)
In Katzenberger, the prosecutor's closing argument included a PowerPoint presentation in which six of eight puzzle pieces created a picture immediately and easily recognizable as the Statue of Liberty, although a portion of the statue's face and torch were not visible. (Katzenberger, supra, 178 Cal.App.4th at pp. 1264-1265.) Over defense objection, the prosecutor argued that even without the missing pieces, one would know beyond a reasonable doubt that the puzzle depicted the Statue of Liberty. (Ibid.) The appellate court concluded that the presentation was misleading, leaving the "distinct impression that the reasonable doubt standard may be met by a few pieces of evidence" and "invit[ing] the jury to guess or jump to a conclusion, a process completely at odds with the jury's serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt." (Id. at p. 1267.) The presentation had also suggested, erroneously, that proof beyond a reasonable doubt could be measured quantitatively at 75 percent (six of eight puzzle pieces). (Id. at pp. 1267-1268.) Though the prosecutor's actions were harmless in light of the jury instructions correctly defining reasonable doubt and the overwhelming evidence of the defendant's guilt, the presentation did amount to misconduct. (Id. at pp. 1268-1269, applying standard of prejudice articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
Although the prosecutor's remarks in this case resemble those that were found to be error in Katzenberger, there are significant distinctions. Here, the prosecutor was specifically addressing the circumstantial evidence that corroborated Karly Harrison's accomplice testimony. The implication of the argument was not that the jury should speculate about missing pieces of evidence, but that it was permissible to convict appellants so long as enough evidence had been presented to demonstrate their guilt beyond a reasonable doubt—even if the prosecution did not present direct evidence of each and every detail of the charges offenses. The prosecutor did not attempt to quantify the burden of proof beyond a reasonable doubt by suggesting, either directly or indirectly, that any particular percentage of pieces were sufficient to complete the "puzzle." Nor were the comments accompanied by a lengthy visual demonstration that would have unduly emphasized the analogy.
Although both courts and prosecutors are well-advised to refrain from embellishing on the statutory definition of reasonable doubt, it is not reasonably likely the jurors applied the jigsaw puzzle analogy in this case to lessen the prosecution's burden of proof. (Cole, supra, 33 Cal.4th at pp. 1202-1203.)
3. Dying Child/Medical Treatment Analogy
We turn next to prosecutor's comments regarding decisions made on behalf of a dying child or in other situations where someone's "life is on the line." No objection was made to this aspect of the argument and the issue has been forfeited the issue on appeal. (Cole, supra, 33 Cal.4th at pp. 1201-1201.) But because appellants alternatively contend that their trial attorneys provided ineffective assistance of counsel in failing to object, we consider the issue on the merits. (People v. Welch (1999) 20 Cal.4th 701, 759-760 (Welch).)
The challenged comments were made in an apparent response to the argument by defense counsel that the standard of proof beyond a reasonable doubt required the same degree of certainty as would be required before withdrawing life support for a child or other family member. The prosecutor suggested that the degree of certainty necessary to convict was actually lower that that used to make such critical medical decisions.
Although we ultimately conclude that the remarks do not require reversal, we do not agree with the prosecutor's assertion. The decision to discontinue medical treatment on behalf of one's child is a deeply personal and emotional one that is likely to transcend scientific or evidentiary probabilities. A parent facing such a decision will often rely on ethical, philosophical and religious principles that differ substantially from the factual and legal issues to be decided in a criminal case. But these considerations do not necessarily require a higher degree of certainty than is necessary to find a defendant guilty; indeed, by their very nature they may be uncertain and subject to debate. Moreover, a person who is facing criminal charges may well have his or her "life on the line," and we would be loath to suggest that the decision to convict can rest on evidence less compelling than the evidence required to make a potentially life-ending medical decision on behalf of a loved one.
That said, the gist of the prosecutor's argument suggested that some decisions are so serious that they cannot be made in the face of any doubt, whereas the reasonable doubt standard does not require the elimination of all possible doubt. This underlying legal point is an accurate description of the law, even if the factual scenario used to illustrate it was inapt. It is not reasonably likely the jury construed the remarks in a manner that diminished the standard of proof beyond a reasonable doubt. (Cole, supra, 33 Cal.4th at pp. 1202-1203.)
4. Marriage Analogy
Finally, we consider the prosecutor's comparison of the reasonable doubt standard to the decision to get married. This issue was forfeited by counsel's failure to object, but we consider the merits to forestall appellants' alternative claim of ineffective assistance of counsel. (Welch, supra, 20 Cal.4th at pp. 759-760.)
It is well-established that a prosecutor should not compare reasonable doubt to the degree of certainty involved in important everyday life decisions such as getting married and having children. (People v. Johnson (2004) 115 Cal.App.4th 1169, 1171-1172; People v. Nguyen (1995) 40 Cal.App.4th 28, 35.) "The marriage example is [] misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce." (Johnson, at pp. 1171-1172.)
Here, the prosecutor's reference to marriage was somewhat cryptic, but seemed to suggest (incorrectly) that the decision to marry is one that typically involves no doubt. Again, however, the point being made was that proof beyond a reasonable doubt does not require the elimination of all possible doubt. Viewing the comment in the context of this broader point, it is not reasonably likely the jury applied the remarks in an objectionable fashion. (Cole, supra, 33 Cal.4th at pp. 1202-1203; see also People v. Jasmin (2008) 167 Cal.App.4th 98, 116 [not error for prosecutor to stress fact that jury's task was "akin to making a critical, life changing decision, which required a careful and reasonable review of all available facts"].)
5. Prejudice
We also conclude that any mischaracterization of the burden of proof was harmless beyond a reasonable doubt under the standard for federal constitutional error. (Chapman, supra, 386 U.S. at p. 24; Katzenberger, supra, 178 Cal.App.4th at p. 1268-1269 [prosecutorial misconduct in understating burden of proof is not structural error requiring reversal per se].) The jury was given CALCRIM No. 220, which accurately defined the presumption of innocence and the burden of proof beyond a reasonable doubt. (People v. Pierce (2009) 172 Cal.App.4th 567, 572.) CALCRIM No. 200 advised, "If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." CALCRIM No. 222 stated, "Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence."
The standard of prejudice applicable to a jury instruction that improperly defines reasonable doubt is currently pending before the Supreme Court in People v. Aranda, S188204, previously published at 188 Cal.App.4th 1490.
These instructions obviated any prejudice that might have otherwise flowed from the prosecutor's comments. " 'When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." ' " (Katzenberger, at p. 1268.)
Because the prosecutor's challenged remarks were harmless beyond a reasonable doubt, the failure to object to some of those remarks was not prejudicial under the rubric of appellants' alternative claim of ineffective assistance of counsel. (See People v. Cain (1995) 10 Cal.4th 1, 44.) There is no reasonable probability that the result of the proceeding would have been different were it not for the prosecutor's comments. (Strickland, supra, 466 U.S. at pp. 686, 688.)
D. Admission of Morgan's Statement Against Codefendant Ray
Over Ray's objection, Mariah Alsop was allowed to testify about a conversation she had with Morgan on the day after the offense, in which Morgan implicated both himself and Ray. The jurors were instructed with a version of CALCRIM No. 305 that advised them "you have heard evidence that defendant Christopher Morgan made a statement out of court. You may consider that evidence only against him, not against any other defendant." Relying on Bruton v. United States (1968) 391 U.S. 123, Ray contends the admission of an incriminating statement by a nontestifying codefendant violated his right to confrontation under the Sixth Amendment of the federal Constitution. We disagree, because the challenged statements were not testimonial under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and were not subject to the federal Confrontation Clause.
Ray does not argue that the introduction of Morgan's statement violated any other statutory or constitutional provisions.
The statement at issue in Bruton was a confession by a nontestifying codefendant that had also incriminated the appealing defendant during their joint trial. The court concluded that the evidence, which was not admissible against the appealing defendant under any recognized hearsay exception, violated the right of cross-examination secured by the Confrontation Clause of the Sixth Amendment, and would do so even if the jury was instructed to only consider the evidence against the codefendant who made the statement. (Bruton v. United States, supra, 391 U.S. at p. 137.) Thus, when Bruton applies, the court must either redact the out-of-court statement to avoid references to the other codefendant or must order separate trials. (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 43.)
In Crawford, supra, 541 U.S. 36, the United States Supreme Court established new rules for determining whether the admission of a hearsay statement violates a criminal defendant's constitutional right to confrontation. The court held that out-of-court testimonial statements are subject to the Confrontation Clause and are admissible only when the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. (Id. at pp. 68-69.) In Davis v. Washington (2006) 547 U.S. 813, 821, the court made explicit the corollary rule that the Confrontation Clause does not apply to nontestimonial statements, leaving the states free to regulate the introduction of such evidence through statutory hearsay rules. (See also Whorton v. Bockting (2007) 549 U.S. 406, 420; People v. Gutierrez (2009) 45 Cal.4th 789, 812; People v. Gann (2011) 193 Cal.App.4th 994, 1007.)
Bruton was based solely on the Confrontation Clause. Under Crawford, the confrontation clause is not even implicated if the statement at issue is nontestimonial. The protections afforded a codefendant under Bruton thus do not apply to a nontestimonial statement. As explained in United States v. Figueroa-Cartagena (1st Cir. 2010) 612 F.3d 69, 85 [cert. denied 5/31/2011], "If none of the co-defendants has a constitutional right to confront the declarant, none can complain that his right has been denied. It is thus necessary to view Bruton through the lens of Crawford. . . . The threshold question in every case is whether the challenged statement is testimonial. If it is not, the Confrontation Clause 'has no application.' " (See also United States v. Johnson (6th Cir. 2009) 581 F.3d 320, 326, ["[b]ecause it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to non-testimonial statements"].) The same conclusion was recently reached in People v. Arceo (2011) 195 Cal.App.4th 556, 571-575.
The trial court in this case correctly found that Morgan's private conversation with Alsop, a person unconnected to law enforcement or the court system, was not testimonial in nature. (See People v. Jefferson (2008) 158 Cal.App.4th 830, 842-843 [conversation between friends after officers left was not testimonial].) Evidence of that conversation did not, therefore, violate the federal Confrontation Clause, even though some of the statements incriminated Ray as well as Morgan himself.
Even if Bruton still applies to nontestimonial statements by a codefendant, we would find any error in admitting Morgan's unredacted statement to Alsop harmless beyond a reasonable doubt. (Jennings, supra, 50 Cal.4th at p. 652.) The sole theory on which the case was presented to the jury was felony murder. It was undisputed that Farhan Jweinat was beaten by two men during the course of a burglary and robbery. The main issues to be determined, from Ray's perspective, were whether the injuries inflicted caused Farhan's death and whether Ray was one of the two assailants. Morgan's statement to Alsop was irrelevant to the first issue, and though it did implicate Ray as the second perpetrator, the other evidence of his identity was even stronger: Karly Harrison testified extensively about Ray's planning and execution of the crime; the police officers who arrested Ray at his home on the night of the crime found property taken from the Jweinats' house; Ray was hiding under the bed when officers arrested him; a pair of pants found in Ray's home had spots of the victim's blood; and Ray's car matched the general description of the car that was seen in the Jweinats' driveway. In light of this evidence that Ray was the man who accompanied Morgan, we can say beyond a reasonable doubt that the introduction of Morgan's unredacted statement was harmless.
E. Cumulative Error
Appellants claim that even if none of the errors alleged requires reversal, their cumulative impact deprived them of a fair trial. We disagree. To the extent we have found error in connection with the prosecutorial misconduct claims, such error was harmless. Reversal is not required, whether the issues are considered individually or collectively. (See People v. Gutierrez, supra, 45 Cal.4th at pp. 828-829.)
III. DISPOSITION
The judgments are affirmed.
NEEDHAM, J. We concur. JONES, P. J. BRUINIERS, J.