Opinion
A125038
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LOUIS ALTES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 050613364)
Robert Altes was convicted of second degree murder for the fatal shooting of Pablo Gutierrez. He contends the trial court violated his Sixth Amendment right of confrontation when it admitted the expert testimony of a forensic pathologist who did not conduct the autopsy on Gutierrez or prepare the pathology report. In addition, Altes asserts claims of evidentiary and procedural error and contends the court imposed an unauthorized victim restitution order. We find no prejudicial error and therefore affirm the judgment.
BACKGROUND
I. Prosecution Case
A. Gutierrez's Death
Altes lived in Brentwood with his parents, Louis and Virginia, at the time of these events. Gutierrez occasionally stayed in a camper on the property. Altes suspected Gutierrez was stealing tools from him to sell so he could have money to buy drugs.
On the day of the shooting, Altes heard Gutierrez was on the property and confronted him about the missing tools. Altes was armed with a .22 caliber handgun. In a little while he came back inside carrying a broken pellet rifle. The barrel was twisted and falling apart. He threw the gun on a couch and said: "He tried to kill me with it so I shot him."
Altes then went next door to the home of Brenda Smith and Andy Gartelman. He told Smith and Gartelman that he thought he had shot someone. The three of them went outside, where Gutierrez was lying on the ground near the barn. Gutierrez was saying, "it hurts, it hurts," but Smith thought that except for a small scratch on his face he looked fine.
Smith called Gutierrez's friend, Michael Molina, and told him to hurry over because Gutierrez had been shot. Molina arrived within minutes with his girlfriend, Carissa Trolesi, and Sean Winn. Gutierrez was rolling on the ground, clutching his stomach and moaning in pain. He looked like he had been badly beaten. There was a cut on his forehead, his lips were white, and his eyes were wide open. Altes was spraying Gutierrez with a garden hose, saying "get up you worthless piece of shit" and "get him out of here or I'm going to dump him in the delta." Altes said he had beaten Gutierrez for stealing his tools and he refused to call 911 because he "didn't want to go to jail over this piece of shit."
Others felt differently. Trolesi called 911 from her cell phone. The group decided that Altes would drive Gutierrez to a nearby Valero station and Molina would wait with him there for the ambulance.
Molina, Winn and Trolesi drove to the gas station and waited for Altes and Gartelman to follow with Gutierrez. Altes did not turn up, so Molina and Winn drove back to the property to look for him. They saw his van coming down the driveway, so they drove back to the Valero station and arrived around the same time as an ambulance and police.
Altes drove by the Valero station without stopping, pulled into a different gas station, then turned around and headed back toward the Valero station. Molina, Winn and Trolesi pointed him out to the police as he passed by. An officer flagged Altes into the Valero station. Gutierrez's body was found on the floorboard behind the front seat, underneath a large garbage bag.
Altes told Winn that he "could have waited a bit" before calling 911. Winn was angry and scared. He yelled at Altes, "What the fuck is wrong with you? Over a fucking chain saw and a weed whacker. What the fuck?"
B. The Investigation
Gutierrez died from a single gunshot wound that severed a major artery in his lower abdomen. Forensic pathologist Dr. Icheki Ogan testified that blood loss from the gunshot wound would have caused incapacitation and death within minutes. There were scrapes and a laceration on Gutierrez's head and neck, sand in his mouth, nose and hair, and an injury on his left hand that was probably defensive. None of Gutierrez's injuries suggested he had been involved in a life or death struggle with a larger man. Tests for drugs and alcohol were negative.
Police found a broken pellet gun in the Altes's living room. His father said Altes told him Gutierrez tried to shoot him with the pellet gun, but that Altes took it away and used it to beat Gutierrez. Officers found a .22 caliber Smith & Wesson revolver on a dresser in Altes's bedroom. One bullet had been fired.
Firearms expert Chris Coleman testified that Gutierrez was shot from a distance of 18 to 36 inches, but he could not conclusively identify the .22 Smith & Wesson retrieved from Altes's bedroom as the murder weapon or determine whether the shooting was in self-defense. The .22 did not misfire when he tested it. Coleman testified that a BB gun or pellet gun can misfire.
C. Altes's Statement
Altes was interviewed by police the evening of the shooting. The jury was shown a video of the interview. In it, Altes said he went outside to warn Gutierrez that he had 24 hours to return the stolen tools. He went back into the house and loaded a .22 revolver with one round, because "that's all it takes" to either warn or to kill. Gutierrez was in Altes's workshop when he returned. He tried to fire a warning shot, but the gun misfired. Gutierrez grabbed a pellet rifle and tried to shoot at Altes, but the pellet rifle also misfired.
Gutierrez began swinging the pellet rifle like a club, hitting Altes once on the shoulder and breaking the barrel. Altes aimed his revolver at Gutierrez's groin, intending to shoot him in "[h]is balls, his huevos," and pulled the trigger. Gutierrez fell to the ground. Altes returned to the house with the pellet gun and told his parents he had shot Gutierrez because Gutierrez tried to shoot him with it.
Altes immediately went to Gartelman and Smith's house, pounded on the door and told them he had shot Gutierrez. They went back to where Gutierrez was lying on the ground. When Molina arrived, Altes told him to "get this piece of shit out of here, would you." Molina suggested they drop Gutierrez at a bus stop, but Altes thought they should take him to an emergency clinic.
They moved Gutierrez to Altes's van, hitting his head on a wood burning stove and a bench in the process. Then they drove to a Savers gas station to buy gas before they turned around toward the hospital. Altes voluntarily pulled into the Valero station when he saw the police were there.
Altes told police, "I'd do the same God damn thing again, except with a bigger weapon. If I could change back time, I'd've [sic] used a bigger gun. [¶] That's the only thing I'm sorry for; not whipping out the heavy artillery."
II. Defense Case
Altes maintained that he shot Gutierrez in self-defense after Gutierrez attacked him with the pellet gun as he lawfully defended his property. Doris Logoteta testified that her granddaughter, Trina Velasco, had been Gutierrez's girlfriend and was the mother of his child. On January 1, 2006 Logoteta woke up to hear Velasco and Gutierrez fighting. She called 911. Velasco was crying and had blood on her face and mouth. Gutierrez was yelling profanities and trying to leave the apartment with the baby. Logoteta told the police investigator that Gutierrez was short, but strong for his height.
Jeff Pontes is married to Velasco's mother. He and his wife have custody of Velasco and Gutierrez's young son. In June 2006 his wife filed a police report about receiving a threatening telephone call from Gutierrez.
Brentwood detective Veronica Bettger testified that Carissa Trolesi was placed under surveillance for suspected methamphetamine sales in July 2007, although she was never arrested.
III. Jury Verdict and Sentencing
The jury convicted Altes of second degree murder and found true an allegation that he personally used and discharged a firearm. The court sentenced him to a total term of 40 years to life in prison. This appeal timely followed.
DISCUSSION
I. Confrontation Clause
Dr. Brian Peterson conducted an autopsy on Gutierrez and prepared a report. By the time of trial he had moved out of state, and Dr. Ogan, one of his former medical partners, testified as the prosecution's expert in his stead. Altes contends that permitting Dr. Ogan to testify in reliance on Dr. Peterson's findings violated his Sixth Amendment right to confront the witnesses against him. He relies primarily on Crawford v. Washington (2004) 541 U.S. 36, 51 [124 S.Ct. 1354; 158 L.Ed.2d 177] (Crawford) and Melendez-Diaz v. Massachusetts (2009) ____ U.S. ____ [129 S.Ct. 2527, 174 L.Ed.2d 314] (Melendez-Diaz). In Melendez-Diaz, the United States Supreme Court held that Crawford bars the admission of affidavits reporting the results of forensic tests of substances for narcotics unless the analyst who performed the tests is available for trial or the defendant was afforded a prior opportunity for cross-examination. But neither Crawford, Melendez-Diaz nor the more recently decided Bullcoming v. New Mexico (2011) ____ U.S. ____ [131 S.Ct. 2705, 180 L.Ed.2d 610] (Bullcoming) is determinative here.
In Crawford, supra, the United States Supreme Court held the Sixth Amendment right of confrontation is violated by the admission of testimonial statements of a witness who is not subject to cross-examination at trial unless the witness is unavailable to testify and the defendant had a previous opportunity for cross-examination. (541 U.S. at p. 68.) Melendez-Diaz applied the Crawford rationale to hold that a forensic analyst's report of tests of a substance for the presence of illegal drugs was a testimonial statement for Sixth Amendment purposes. (Melendez-Diaz, supra, 129 S.Ct. at p. 2532.) Most recently, the court held in Bullcoming, supra, 180 L.Ed.2d at pp. 619-620, that the introduction of a blood-alcohol analysis report through the testimony of a forensic analyst who did not perform, observe or certify the analysis violated the defendant's confrontation right.
Under these cases, the conclusion is all but inescapable that a pathologist's report on the autopsy of an apparent homicide victim — like Dr. Robertson's report here — is testimonial under the Sixth Amendment. Altes's contention here, however, is not challenging, or at least is not primarily addressed to, the admission of Dr. Peterson's report. Rather, he contends that Crawford and Melendez-Diaz compelled the exclusion of Dr. Ogan's expert testimony about the manner and cause of Gutierrez's death. In allowing that testimony, Altes maintains "the court improperly precluded [him] from examining the percipient witness whose observations of the injuries formed the basis for critical conclusions regarding whether the crime committed was murder."
Pending clarification from the California Supreme Court in the wake of Melendez-Diaz and Bullcoming, we will assume for purposes of our discussion that Dr. Peterson's report is testimonial within the meaning of Confrontation Clause jurisprudence. (See, e.g., Melendez-Diaz, supra, 129 S.Ct. at pp. 2532-2542; Bullcoming, supra, 180 L.Ed.2d at pp. 619-620; compare People v. Geier (2007) 41 Cal.4th 555, 605-607 [holding, before Melendez-Diaz, that DNA test results are nontestimonial, and thus not subject to confrontation clause requirements under Crawford].) The question is currently pending before our high court in People v. Dungo, review granted December 2, 2009, S176886, and related cases.
We disagree. This is not a case in which the testifying expert was a mere conduit for forensic information prepared and analyzed by someone else, as in Bullcoming. Here, instead, the main thrust of Dr. Ogan's testimony expressed his independent interpretation of the postmortem photographs and x-rays through the lens of his knowledge and experience. Specifically, his testimony that Gutierrez's facial abrasions were postmortem drag-type marks from a "rough surface," consistent with dragging a body face down, was not based on any descriptions, statements or tests by Dr. Peterson, but on the photographs depicting those wounds. The same is true for Dr. Ogan's key testimony that Gutierrez's hand injury was probably defensive; that he would have bled to death within minutes of being shot; and that the bullet wound would probably have caused some external, as well as internal, bleeding. Dr. Ogan's opinion that people can be killed by .22 caliber guns as easily as by larger weapons was based only on his professional experience. The accusatory opinions in this case, thus, were reached and conveyed not on the basis of the nontestifying pathologist's testimonial statements, but through the testifying expert's independent assessment of photographs and other nontestimonial evidence. (See People v. Geier, supra, 41 Cal.4th at pp. 607 (maj. opn.); see id. at p. 622 (conc. opn. of Werdegar, J.).)
More questionable under Melendez-Diaz and Bullcoming is other testimony in which Dr. Ogan related Dr. Peterson's descriptions of Gutierrez's injuries and his opinions about the cause of death to the jury. But, assuming this testimony ran afoul of the Sixth Amendment, it was not prejudicial. First, Dr. Peterson's findings and conclusions were, for all intents and purposes, no different than Dr. Ogan's independent assessment of Gutierrez's injuries. Moreover, there was overwhelming nonexpert evidence against Altes - including his videotaped statements that he intentionally shot at Gutierrez's "cojones" and that his only regret was not using a bigger gun, as well as testimony by percipient witnesses about Altes's brutal treatment of Gutierrez after he shot him. While Dr. Ogan's testimony about Dr. Peterson's findings may have had some cumulative value, we think it is clear beyond a reasonable doubt on this record that only one verdict was possible with or without it. (See People v. Geier, supra, 41 Cal.4th at p. 608 [Chapman analysis of confrontation clause violations].)
Crawford's redirection of confrontation clause analysis to the testimonial nature of out-of-court statements has given rise to cogent Sixth Amendment concerns about expert testimony that depends for its validity and value on the truth of testimonial statements by nonwitnesses. (See People v. Hill (2011) 191 Cal.App.4th 1104, 1134-1137; People v. Goldstein (2005) 6 N.Y.3d 119, 126-129 [810 N.Y.S.2d 100, 843 N.E.2d 727]; Mnookin, Expert Evidence and the Confrontation Clause after Crawford v. Washington (2007) 15 J.L. & Pol'y 791, 815-830; see also Bullcoming, supra, 180 L.Ed.2d at p. 629 (conc. opn. of Sotomayor, J. [observing that Bullcoming leaves open the constitutionality of expert testimony based on testimonial statements by others]).) But that issue is not presented here. Dr. Ogan's opinions were not rooted in Dr. Peterson's findings or conclusions. Altes had a full opportunity to test Dr. Ogan's opinions on cross-examination and to explore any weaknesses in his conclusions and discrepancies between the evidence on which his assessments were premised. To the extent the people were able to put Dr. Peterson's report before the jury through Dr. Ogan's testimony, the error was harmless.
We reiterate that Altes does not seem to contend the admission of the report itself constitutes prejudicial error, perhaps because defense counsel explicitly withdrew his initial objection to its admission at trial. In any event, our conclusion that the challenged testimony was harmless is equally applicable to the report itself.
II. Victim's Prior Acts of Violence, Drug Use and Theft
Altes contends the trial court committed prejudicial error when it ruled that evidence of Gutierrez's prior acts of violence, used to prove his violent and aggressive character, were admissible only if Altes knew about them. Because the law allows evidence of a victim's violent character to prove the victim was the aggressor, he argues, the court should not have conditioned the admissibility of Gutierrez's prior acts of violence on Altes's awareness of them.
Altes correctly states the law, but his argument is premised on an incorrect reading of the record. " 'It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible.' " (People v. Wright (1985) 39 Cal.3d 576, 587.) "If this character was known to the defendant, the evidence tends to show the defendant's apprehension of danger; if it was not known, the evidence nevertheless tends to show that the victim was probably the aggressor." (1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 57, p. 389.) Here, the court ruled that Altes could "get any possible violent acts" or "threats of violence" in as evidence of Gutierrez's allegedly violent character. Its ruling was not restricted to evidence of incidents known to Altes. Consistent with that ruling, Altes introduced, and the court admitted, evidence of domestic violence between Gutierrez and Velasco, and he relied upon that evidence in his closing argument. His complaint of error is unfounded.
Altes also maintains the court should have let him support his self defense theory with evidence that Gutierrez abused drugs because "a drug user's behavior on a particular occasion is likely to be more violent, more irrational and more unpredictable on a particular occasion than a non-drug user's" and "[t]hat knowledge may well have factored into [Altes's] fear and state of mind" when he killed Gutierrez. This argument, too, fails for the simple reason that the court admitted the evidence Altes asserts was excluded. The court ruled: "I have said repeatedly that Pablo Gutierrez's past is not relevant character evidence. The only way it would come in, whether or not there was a theft or anything else, would be if it was relevant to the defendant's state of mind. [¶] . . . [¶] And I don't know that this - you haven't given an offer of proof that this witness would say she's had conversations with Mr. Altes about the drug usage, nothing like that. So, at this point I don't have anything to go on about how it affects Mr. Altes' frame of mind. [¶] I keep asking you for . . . where the drug usage of Pablo Gutierrez -where that goes with regard to Mr. Altes' frame of mind. [¶] Do you have an offer of proof on that?" (Italics added.) Defense counsel responded that the witness would say she had discussed Gutierrez's drug use with Altes. The court continued: "Okay. So I would allow a limited inquiry into that with regard to what Mr. Altes supposedly knew very soon before the incident. [¶] . . . . [¶] As I said earlier, to the extent the fact - the fact that Mr. Altes may have thought the victim was stealing or the fact that he thought the victim was using drugs in the few months before the incident, it would not come in for the truth. It would only come in for Mr. Altes' state of mind." (Italics added.)
On the other hand, the court's exclusion of evidence not linked to Altes's state of mind was proper. Absent an offer of proof that Altes was aware of it, evidence that Gutierrez used drugs was not admissible to support his claim of self-defense. (People v. Tafoya (2007) 42 Cal.4th 147, 165-166; People v. Minifie (1996) 13 Cal.4th 1055, 1065-1069.)
Altes's claim that the court erroneously excluded evidence of Gutierrez's reputation for theft fails for the same reasons. The court allowed evidence about Gutierrez's alleged thievery to the extent it was relevant to Altes's state of mind, but otherwise excluded it as inadmissible propensity evidence. That ruling was correct. (People v. Tafoya, supra, 42 Cal.4th at pp. 165-166.)
III. Restitution Order
Altes argues the trial court imposed an unauthorized victim restitution fine when it ordered him to pay almost $16,000 to Israel Cordero, Gutierrez's stepfather, pursuant to Penal Code section 1202.4. He says Cordero is not a "victim" within the meaning of the restitution statute because, as a stepfather, he is neither an "immediate surviving family [member] of the actual victim" (§ 1204, subd. (k)(1)) nor a "person who has sustained economic loss as a result of a crime" and who "satisfies any of the following conditions: (A) At the time of the crime was the parent, grandparent, sibling, spouse, child or grandchild of the victim. [¶] (B) At the time of the crime was living in the household of the victim. [¶] (C) At the time of the crime was a person who had previously lived in the household of the victim for a period of not less than two years in a relationship substantially similar to a relationship listed in subparagraph (A). [¶] (D) Is another family member of the victim, including, but not limited to, the victim's fiancé or fiancée, and who witnessed the crime. [or] [¶] (E) Is the primary caretaker of a minor victim." (§ 1204, subd. (k)(3).)
Further statutory references are to the Penal Code.
We will not consider the merits of this contention because it was forfeited by Altes's conceded failure to raise it at the contested restitution hearing. Altes asserts we should address his challenge anyway because the restitution order is an unauthorized sentence. "As pertinent here, the 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.] . . . [¶] Although the cases are varied, a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing." (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Chambers (1998) 65 Cal.App.4th 819, 823.) This is not such a case. Had Altes raised the issue in the trial court, the factual record could have been developed to show whether Contreras possibly satisfied any of the criteria listed under section 1202.4, subdivision (k)(3). Alternatively, the prosecution could have attempted to make the case that a stepfather qualifies as an immediate family member within the meaning of section 1202.4, subdivision (k)(1), an issue which seems to be unsettled. (See generally People v. Crisler (2008) 165 Cal.App.4th 1503, 1507-1508 [finding biological parents qualified under subdivision (k)(1) and stepfather qualified under subdivision (k)(3), without addressing whether he also qualified under subdivision (k)(1)].) The issue was therefore waived for appeal, and this court cannot properly address it.
IV. In Limine Rulings
Altes asserts the trial court violated his due process rights when it ruled on pretrial evidentiary motions that had been previously considered and decided by the judge initially assigned to the case. This contention, too, was forfeited.
The case was originally assigned to the Honorable John Sugiyama. At the start of the trial Judge Sugiyama heard and ruled on a number of motions in limine. These included a Miranda motion as well as rulings concerning admissibility of prior convictions, uncharged prior acts by Gutierrez and others, post-mortem photographs, and psychiatric testimony. Judge Sugiyama subsequently granted a defense request for a continuance, and told the parties that the Presiding Judge would decide whether the case would ultimately be reassigned to the same department for trial.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
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Trial recommenced four months later before the Honorable Jill Fannin. The prosecutor filed a brief arguing that Judge Sugiyama's motions in limine had no binding effect on Judge Fannin because they were interim rulings subject to reconsideration and modification at any time prior to submission and were based on the state of the case five months earlier. Altes did not file an opposition.
The following colloquy took place before Judge Fannin. "The Court: I think both parties agree that [Judge Sugiyama's rulings] were interim rulings. [The prosecutor] submitted a brief to that effect. So I don't want to hear about how Judge Sugiyama ruled - [Defense Counsel]: Well, but I think - The Court: — because it's not binding on me. [Defense Counsel]: True. The Court: So I don't want to hear about it. [Defense Counsel]: Even if there's no new information? The Court: Correct. I just don't want to hear about it." (Italics added.) Judge Fannin proceeded to rule on the in limine motions.
And no wonder, because defense counsel expressly agreed that Judge Sugiyama's rulings were not binding. Altes's claim on appeal that his follow-up query - "Even if there's no new information?" - was an objection reads more into the record than we can find. While Altes asserts his lawyer "over and over again objected to each of the specific rulings made by the trial court that conflicted with Judge Sugiyama's prior rulings," not one of those objections was based on an argument that the earlier rulings were binding. Altes's failure to assert that claim at trial resulted in its forfeiture for appeal. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 989; People v. Neely (1999) 70 Cal.App.4th 767, 781.)
DISPOSITION
The judgment is affirmed.
Siggins, J. We concur: Pollak, Acting P.J. Jenkins, J.