Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD206206, David M. Gill, Judge.
McINTYRE, J.
A jury convicted Richard James Welk of the first degree murder of David Duane Fortner and found true the allegation that he used a knife in the commission of the murder. Welk appeals, contending: (1) the evidence was insufficient to support his first degree murder conviction; (2) the trial court erred in admitting his prior statements to a girlfriend regarding use of a knife; and (3) the trial court erred in failing to sua sponte instruct the jury with CALCRIM No. 358. We find no prejudicial error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
Consistent with the standard of review, we summarize the facts in the light most favorable to the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Early in the evening on April 28, 2007, Welk and his friend, Wayne Brown, went to Mission Beach in San Diego where they met up with friends. While at the beach, Welk had an altercation with Fortner, who appeared to be homeless. During the altercation, Welk stabbed Fortner in the neck with a knife and killed him. Multiple witnesses, including Brown, testified to describe events relevant to the stabbing incident.
On the evening of the incident, Ruben Frausto was at the beach and noticed Fortner, who was wearing headphones and singing, sitting on the seawall. Frausto saw Welk approach Fortner and taunt him. Fortner told Welk to stop, but when Welk continued the taunting, Fortner swung at him to get him to move away. Fortner was unsteady on his feet, appeared to be intoxicated, and never actually struck Welk. At some point, Frausto saw Welk holding a knife behind his leg and heard him say to Fortner, "I'm going to get you in self-defense." Welk swung the knife in an upward "roundhouse" motion and hit Fortner in the left side of his neck. When Welk pulled his hand away, Fortner fell to the ground and did not move again. Welk walked away and said "I told ya I'd get you. Self-defense. Self-defense. Everybody saw that. Self-defense."
Oscar Kebriti was at the beach with his wife when he saw Welk approach Fortner. Kebriti observed Fortner trying to punch Welk and saw the two men fighting, but thought they were playing. At one point, Kebriti saw Welk pull a knife out of his pocket, flip it open and stab Fortner in the neck. As Fortner fell to the ground, Welk folded the knife and returned it to his pocket. Welk then said something to a group of people and left on his bike.
Elsie Machuca also witnessed the stabbing incident. Machuca never saw Fortner strike or advance toward Welk. Rather, Fortner was moving away from Welk and had his hands up to block Welk's blows. Machuca saw Welk strike Fortner and then pull back with a knife in his hand. Welk folded the knife, put it in his shorts, and walked over to a group of people sitting along the seawall. Welk then gave someone a "high five" and left on his bike.
Anthony Atwood was at the beach with his friend, Omar Cantu, when he noticed Welk and Fortner yelling at each other. Fortner was trying to disengage by putting his hands up and backing away. Welk punched Fortner in the face, causing him to fall into the sand. As Fortner tried to get up, Welk pulled out a knife, flipped it open, and held it by his side. Before Fortner could fully stand up, Welk cupped Fortner's head in his left hand and, with a quick forceful blow, stabbed him in the neck with the other hand. Fortner fell to the ground as Welk folded the knife and put it away. With a smile on his face, Welk then walked up to a group of people and enthusiastically said, "Oh, yeah. That's right."
On the night of the incident, Misti Ann Ramsay was at a friend's house when Welk arrived. A news story regarding the stabbing incident was on the television. Welk responded to the story by stating, "I did it. I got in it with that guy and that was me." Welk also said that he was attacked by a homeless person and acted in self-defense. When Ramsay returned home that evening, she called the police and stated that Welk bragged to her about the incident when it came on the news. Additionally, that evening, Welk called Brown and said, "I guess I got him pretty good" or "I got him."
B. Procedural Background
The San Diego County District Attorney charged Welk with first degree murder and alleged that the murder was committed with a knife. A jury convicted Welk, as charged in the information. The trial court sentenced Welk to prison for an indeterminate term of 25 years to life, plus an additional one-year term for the knife enhancement. Welk appeals.
DISCUSSION
I. First Degree Murder Conviction
Welk claims that there is insufficient evidence to support the jury's determination that the murder was premeditated and deliberate.
In determining the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Evidence of premeditation need not be overwhelming and "'we need not be convinced beyond a reasonable doubt that defendant premeditated the murder[ ]. The relevant inquiry on appeal is whether "'any rational trier of fact'" could have been so persuaded.' [Citations.]" (People v. Wharton (1991) 53 Cal.3d 522, 546.)
Penal Code section 189 provides in relevant part, "All murder which is perpetrated by means of... willful, deliberate, and premeditated killing... is murder of the first degree." "In this context, 'premeditated' means 'considered beforehand, ' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' [Citations.] The process of premeditation and deliberation does not require any extended 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.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
In People v. Anderson (1968) 70 Cal.2d 15, the Supreme Court "'identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing. However, ... "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]"' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1249.)
Here, there is sufficient evidence that Welk murdered Fortner in a premeditated and deliberate fashion. In fact, there is ample evidence from which the jury could have reasonably inferred that Welk wanted to kill Fortner. The evidence shows that Welk taunted Fortner, who was intoxicated and unsteady on his feet. During the altercation, Fortner tried to fight back, but never actually struck Welk. Fortner was trying to disengage himself by putting his hands up and backing away, but despite these attempts, Welk said to Fortner, "I'm going to get you in self-defense."
Further, the jury could have reasonably inferred that Fortner was an unresisting victim. When Fortner tried to stand up after being punched by Welk, Welk pulled out a knife, flipped it open, and held it by his side. Before Fortner could fully stand up, Welk cupped Fortner's head in his hand and, with a single quick blow, stabbed him in the neck with such force that it completely severed his spinal cord and vertebral artery and cut into his cervical vertebrae. (See People v. Horning (2004) 34 Cal.4th 871, 902-903 ["The manner of killing, a single bullet from close range into the brain of a bound and blindfolded—and hence, so the jury could reasonably infer, unresisting—victim, shows a calculated design to ensure death rather than an unconsidered explosion of violence."].) Welk walked away and said "I told ya I'd get you. Self-defense. Self-defense. Everybody saw that. Self-defense."
Based on the evidence, a rational trier of fact could have concluded that Welk rapidly and coldly formed the idea to kill Fortner during the course of events at the beach that evening, and that he therefore acted after a period of reflection, rather than on an unconsidered or rash impulse.
II. Prior Statement Evidence
A. Facts
Prior to trial, Welk moved in limine to exclude testimony from Cynthia Terry, Welk's former girlfriend, that some months before the murder Welk gave her a knife and advised her to defend herself from an attacker by stabbing him in the neck. Welk argued that the testimony was highly prejudicial and that it is common knowledge that a stab wound to the neck will result in grave injury or death. The prosecution, however, argued that the testimony was admissible as proof of intent to kill and to show Welk's knowledge that a stab wound to the neck would inflict great injury or death. The trial court found the testimony admissible under Evidence Code section 1101, subdivision (b) and stated that its probative value outweighed any prejudice under Evidence Code section 352.
At trial, Terry testified that she dated Welk for about one year from March 2006 to March 2007. During that time, Welk gave Terry a knife to protect herself. Welk advised Terry that if she was being attacked, she should stab the attacker in the neck. Welk demonstrated by pointing to the left side of Terry's neck. After Welk was arrested, Terry informed the police about the knife and advice that Welk gave her.
The admissibility of Terry's testimony was raised again in Welk's motion for a new trial. The trial court questioned its earlier ruling under Evidence Code section 1101, but nonetheless found the statements admissible under Evidence Code section 1220 as an admission.
B. Analysis
Welk contends the trial court prejudicially erred in admitting the testimony of Terry regarding Welk's advice to her to use a knife for protection.
The trial court retains broad discretion in determining the relevancy of evidence (People v. Scheid (1997) 16 Cal.4th 1, 14) and we will not reverse an evidentiary ruling unless the appellant demonstrates a manifest abuse of that discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Evidence that the defendant committed prior bad acts is inadmissible when offered solely to prove the defendant's criminal disposition to commit such an act (Evid. Code, § 1101, subd. (a); People v. Ewoldt (1994) 7 Cal.4th 380, 393, 399, superseded by statute on other grounds), but "evidence that a person committed a crime, civil wrong, or other act" is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than [the defendant's] disposition to commit such an act." (Evid. Code, § 1101, subd. (b).)
"Evidence Code section 1101's recognition of the admissibility of certain evidence to prove such things as 'preparation, ' 'plan, ' and 'identity, ' is not limited... to 'uncharged offenses'; it embraces also 'other acts'" (People v. Harris (1978) 85 Cal.App.3d 954, 958), which do not have to be considered a "crime" to be admissible. (People v. Wills-Watkins (1979) 99 Cal.App.3d 451, 456, fn. 1.) Further, in addition to evidence of physical acts, Evidence Code section 1101 extends to prior statements. (See People v. Rodriguez (1986) 42 Cal.3d 730, 756-757.)
Here, Welk contends the trial court erred in admitting Terry's testimony because there was no similarity between Welk's prior conduct and statements to Terry about the use of a knife and the charged offenses. We conclude, however, that Terry's testimony was admissible under Evidence Code section 1101, subdivision (b). The conduct and statements in question were relevant to show intent and knowledge regarding the use of a knife and stab wound to the neck to inflict great bodily injury. Welk further contends that the prior conduct and statements were not admissible because they did not constitute "misconduct." However, Welk's argument fails because Evidence Code section 1101 allows for evidence of "other acts" that need not be a crime to be admissible. (People v. Wills-Watkins, supra, 99 Cal.App.3d at p. 456, fn. 1; People v. Harris, supra, 85 Cal.App.3d at p. 958.)
Equally unavailing is Welk's argument that the trial court abused its discretion under Evidence Code section 352 because the evidence was unduly prejudicial and cumulative. The trial court's discretion is broad when assessing whether the probative value is outweighed by undue prejudice (People v. Brown (2000) 77 Cal.App.4th 1324, 1337), and the court could reasonably conclude that the probative value of the evidence outweighed any prejudicial effect, since it was significant evidence concerning Welk's knowledge and intent and yet did not involve any violent act by Welk.
In light of our conclusion that the trial court properly admitted Terry's testimony under Evidence Code section 1101, subdivision (b), we need not consider Welk's argument regarding admissibility under Evidence Code section 1220.
III. CALCRIM No. 358
Welk next complains that the trial court prejudicially erred in failing to sua sponte instruct the jury under CALCRIM No. 358 on his out-of-court statements because the testimony of witnesses concerning the events surrounding the stabbing incident were inconsistent. The People essentially concede the court erred in failing to instruct on CALCRIM No. 358, but assert the error was harmless on this record. We agree.
The relevant version of CALCRIM No. 358 (Evidence of Defendant's Statements), provides:
"You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [¶] [You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded.]"
A trial court has a sua sponte duty to instruct the jury to view evidence of a defendant's oral admissions with caution. (People v. Carpenter (1997) 15 Cal.4th 312, 392, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) The purpose of a cautionary instruction is to assist the jury in determining if a statement was in fact made. (Carpenter, supra, at p. 393.) A cautionary instruction only applies to a defendant's inculpatory statements. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) "Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]" (People v. Pensinger (1991) 52 Cal.3d 1210, 1268.)
Instructional error involves state law and is reviewed under the People v. Watson (1956) 46 Cal.2d 818 harmless error standard. (People v. Dickey (2005) 35 Cal.4th 884, 905.) A "'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence, ' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) The test must be "based upon reasonable probabilities rather than upon mere possibilities." (Id. at p. 837.) Further, challenged instructions may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. (People v. Tuggles (2009) 179 Cal.App.4th 339, 365.)
Here, Welk argues that the failure of the court to sua sponte instruct the jury on CALCRIM No. 358 was prejudicial because of the inconsistent testimony of witnesses concerning the stabbing incident. Although the testimony of witnesses varied slightly regarding the specific details of the altercation and stabbing, our review of the record shows there was no conflict in the evidence about the words used by Welk, the meaning of those words, or whether those statements were repeated accurately. (People v. Pensinger, supra, 52 Cal.3d at p. 1268.) Prior to the stabbing, Frausto heard Welk say, "I'm going to get you in self-defense." After the stabbing, Frausto heard Welk say, "I told ya I'd get you. Self-defense. Self-defense. Everybody saw that. Self-defense"; and Atwood heard him say, "Oh, yeah. That's right." Later that night, Ramsay heard Welk say, "I did it. I got in it with that guy and that was me"; Brown testified that Welk said "I guess I got him pretty good" or "I got him." Additionally, Terry testified that at some point Welk told her to defend against an attacker by stabbing him in the neck. There was no evidence to dispute or question the accuracy of any of these statements. Therefore, there was no conflict in the evidence that Welk in fact made the statements. (People v. Carpenter, supra, 15 Cal.4th at p. 393.)
Moreover, other instructions told the jurors how to evaluate the accuracy and credibility of the witnesses' testimony at trial (CALCRIM No. 226) as well as how to evaluate the prior statements of a witness (CALCRIM No. 318). This latter instruction specifically told the jury: "You have heard evidence of [a] statement[s] that a witness made before the trial. If you decide that the witness made (that/those) statement[s], you may use (that/those) statements in two ways: [¶] 1. To evaluate whether the witness's testimony in court is believable; AND [¶] 2. As evidence that the information in (that/those) earlier statement[s] is true." (CALCRIM No. 318.) These instructions, coupled with the instructions on the elements of murder (CALCRIM Nos. 520 and 521) and the reasonable doubt standard (CALCRIM No. 220), adequately alerted the jury to carefully review the testimony of the witnesses. Thus, we conclude that there is no reasonable probability the jury would have reached a different result had the trial court instructed the jury on CALCRIM No. 358.
Welk further contends his trial counsel rendered ineffective assistance of counsel by failing to request the instruction. This claim fails in light of our conclusion Welk failed to establish any merit to his substantive claims or prejudice from the alleged error. (See People v. Price (1991) 1 Cal.4th 324, 440.)
In sum, we believe any error in the court's failure to give CALCRIM No. 358 was harmless because, on this record, it is not reasonably probable that a more favorable result would have occurred had the court given such instruction. (People v. Dickey, supra, 35 Cal.4th at p. 905.).
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P.J., AARON, J.