Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10280
ROBIE, J.
Jennifer Anderson’s dead body was found hanging in the garage of the Sacramento home she shared with her husband, defendant Kier Anderson. He was charged with her murder. The issue at trial was whether Jennifer’s death was a homicide or suicide. The People presented evidence defendant was a controlling husband who had convinced Jennifer to enter into a three-way sexual relationship with him and another man named Joel Steele. Steele and Jennifer developed their own relationship and rejected defendant and his cross-dressing female persona, Claire. Jealous and insecure, defendant strangled Jennifer to death and then staged her death to look like she killed herself. The jury believed the People’s version of events and found defendant guilty of first degree murder.
Defendant appeals, raising the following two contentions: (1) the court erred and his counsel was ineffective in allowing the jury to hear evidence of the state of his marriage, his sexual practices, and “other lurid evidence”; and (2) the People presented insufficient evidence Jennifer’s death was a homicide. Disagreeing, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Jennifer married in 2000 when he was 33 and she was 23. They lived in a house in Sacramento that was across the street from a triplex they owned.
During their marriage, defendant was disrespectful and condescending to Jennifer. If she was reading a book for pleasure, he would comment that “she should be reading to improve her mind not just to enjoy a book.” When they were with others, he would remark that her comments were “‘not appropriate’” and would act “fatherly [and] domineering.” Jennifer was “very submissive and usually [would] take it.” He would also “berat[e]” her for “half an hour to 45 minutes” at a time, while Jennifer would “just kind of g[e]t smaller and, beaten down.”
Jennifer began seeing a marriage and family therapist. She told the therapist defendant “was becoming increasingly demanding regarding sex and his bisexual needs and wants.” She “wanted to keep the family together... so she was going to try to accommodate him if she could.”
Jennifer knew that defendant was a bisexual and cross-dresser before they married.
One way Jennifer accommodated defendant was acquiescing to a three-way sexual relationship with their friend Joel Steele. On December 26, 2005, Steele moved in and began a relationship with them that lasted approximately four weeks. At first, sex between the three of them was equal, but as the weeks progressed, Jennifer and Steele began having sex with each other more often, which made defendant “not very happy.” Jennifer told her mother she had fallen in love with Steele and realized he “treated her with respect, ” “something she had [not] experienced in marriage.”
One night when Steele and Jennifer came home later than expected after picking up food for the family, Steele and defendant had an “intense argument.” Steele decided to move out.
Thereafter, Jennifer had “[o]ccasional contact” with Steele. On January 23, 2006, Jennifer e-mailed him that she was very “unsure” about her future with defendant and was waiting to “see what [her] stars say about [she and defendant] as a couple.”
That evening, Jennifer called police because defendant had tried to commit suicide. He wrote a suicide note that stated as follows: “‘all men are bad on some level and... they all hurt women.... [¶] [B]ut at least the feminine aspect can be generous, nurturing and kind.... I guess my heart is truly broken because it doesn’t feel like it’s working any more. I wish I was dead.... Please cut me down gently and lay me to rest in pink frosted lipstick. I want to look innocent. I’m not ashamed of wanting to be a girl. I am ashamed of being a man. [¶] I’m sorry I was such a terrible, cruel man. I hope Jennifer will find a good man. She deserves better than the likes of me. [¶] I’m sorry I hurt you, Sweetie. [¶] Kier. (Who hated being a man.)’”
Toward the end of January and the beginning of February 2006, Jennifer confided in those close to her that her marriage was deteriorating and she was falling in love with Steele. She told her mother defendant had been “cruel too often” and she “d[id]n’t love him any more [sic].” She told her father defendant “didn’t treat her well and that she couldn’t take it anymore.” “[S]he was getting attached to [Steele], ” and “he treated her well.” She told her brother she was going to be splitting up with defendant and he was going to be moving into the triplex. She told her friend Suzanne McBride her eyes had been “open[ed] to the cruelty she endured over the years, and... she was ready to separate” from defendant. “She was falling in love with [Steele].”
Around the same time, Jennifer became “more confident, ” “more assertive, ” and “liberated.” Her mother noticed that Jennifer took “greater pride in her appearance, ” “was wearing jewelry and making sure she had her makeup on and just ha[d] a more positive outlook about herself.” Her sister-in-law noticed that Jennifer appeared “liberated because she was getting a divorce.” Jennifer told her Steele “was nice to her [and] treated her good.”
On February 24, 2006, Jennifer wrote in her journal that she and defendant had “‘gone through ups and downs, but it look[ed] like it[ was] over.’” They were “‘very different.’” She “‘got [their astrology] charts done, ’” which “‘showed... [they we]re not a good match’” and “‘[t]here [wa]s always going to be a power struggle in [their] relationship.’”
An audiotape containing a conversation between Jennifer and the astrologist was introduced into evidence. Jennifer said she “was ready to leave [defendant] and go with [Steele].” Steele told her he “‘always had a real connection with [her]’” and he “didn’t like the way [defendant] treated [her].” The astrologer said Jennifer had “more karmic connections with [Steele] than [she] d[id defendant]” and she and Steele were like “magnets.”
February 27, 2006, was the last day Jennifer’s family and friends saw or heard from her. Jennifer had lunch with her friend McBride and told her that she and defendant planned on moving his belongings to the triplex that night and she had made the correct decision to separate from defendant. That day was “the happiest [McBride] had seen [Jennifer] in a long time.” Jennifer told her coworker Diana Wright she had made up her mind to leave defendant and was going to tell him that night. Jennifer seemed “very confident” and “empowered.” Around 5:45 p.m., Jennifer called her mother to wish her a happy wedding anniversary. It was a short call because her parents were about to have dinner. Jennifer called back soon thereafter and said she and defendant “had just had a big fight” and he was planning on moving out. Jennifer’s mother heard defendant shouting in the background, “‘Give me the case -- give me the tape, Jen. I want the tape.’” When Jennifer said, “No, ” defendant responded, “‘Give me the tape. Quit playing games.’” Jennifer said, “‘I’m not playing games, ’” “[a]nd then the phone went dead.” That was the last time Jennifer’s mother heard from her.
Jennifer’s parents tried unsuccessfully to reach her on her cell phone and her home phone the entire evening. At one point, defendant answered one of the phones and said Jennifer had gone for a walk. But a moment later he said the car was gone. Jennifer’s father asked police to conduct a welfare check.
Police went to the house that evening. Defendant said he and Jennifer were separating and “they had had an argument during the evening.” He told police Jennifer was on a walk, but police could not find her.
The next day, February 28, 2006, Jennifer’s parents still could not reach her, so police went back to the house. As one of the officers was searching the cluttered garage, he became “kind of alarmed” when he saw what looked like long hair through some stacked items. It turned out to be Jennifer’s dead body hanging from a rope by a large knot. The tail of the noose was in between her bra and sweater.
An autopsy was conducted on Jennifer’s body. Jennifer had three fractures in her neck. She had four hemorrhages on the inside of her scalp, bruising on her chin and jaw, and bruising on “all sides of her legs, ” including her ankles, lower legs, knees, and thighs. As to her clothing, one of her socks was on upside down. Her underwear had soil stains on the outside back portion (like she had been dragged) while the pants she was wearing did not. Her underwear had urine stains while her pants did not. And her bra (which had blood on it) was much dirtier than her sweater (which did not have any blood on it).
The day police found Jennifer’s body, they interviewed defendant. He told them the following: He, Jennifer, and Steele were involved in a three-way relationship that ended up ruining the Andersons’ marriage. During the three-way relationship, he and Steele had sex three times, while Jennifer and Steele had sex 150 times. After all three were intimate, Jennifer would “get out of bed with [defendant] and go to [Steele’s] bed.” That made defendant “really jealous and insecure.” “[I]t really became obvious to [defendant] that [he] was not needed in the relationship anymore.” Also during the three-way relationship, Steele discovered defendant’s cross-dressing female persona, Claire. While at first Steele and Jennifer accepted Claire, Steele and Jennifer later “started... attack[ing] [Claire, saying] she was bad. They didn’t want her around, and they didn’t like her... and that made [defendant] feel really bad.” Defendant was “angry” at both Jennifer and Steele for hurting him. During the same period, defendant noticed Jennifer’s demeanor changed from insecurity and indecisiveness to strength and confidence. She had decided to divorce him. On the night of February 27, 2006, they had fought about Jennifer’s taped astrological reading. The fight turned physical, with Jennifer tackling him and he grabbing her by the neck. This lasted only a few seconds and when he got a hold of the tape player, he fled to his parents’ house where he spent the night.
Defendant had scratches on his left hand, right arm, neck, and chin. He had bruises on his biceps, triceps, lower legs, and thighs.
In the middle of the interview, police told defendant there were “officers at your house right now... [¶] [a]nd they found your wife, okay, she’s deceased.” Defendant “[s]igh[ed]” and asked what happened. Police said they did not know. Defendant said “she probably hurt herself, took some pills” or could have “cut herself” as she had done in the past.
After the interview, police searched the house and defendant’s car. They found many documents defendant had written.
These included notes in his Far Side calendar. On January 17, 2006, defendant wrote, “‘The sexathon came to an end tonight. Jennifer and I did it in front of [Steele], and he did not join us when invited. He feels guilty. The two of them attempted to do it privately later, but I interrupted. Things are feeling really weird, and I worry what’s coming next.’” On January 18, 2006, defendant wrote, “‘I confessed my needs and detailed them in a written letter that caused a lot of strife. [Steele] was almost ready to split. We discussed that sex had gotten a little out of hand and a little unbalanced... J & J vowed to reduce their sexual frequency....’” On January 19, 2006, defendant wrote, “‘Jennifer seems to be much more understanding and says she’s willing to take responsibility... [(]and the lead for developing my feminine persona and helping to introduce this to [Steele).] I love her very much, and I’m grateful for her help and caring approach.’”
The Far Side calendar also contained loose documents. One was entitled, “Covenant of Unconditional Submission In Perpetuity” and was written on January 20, 2006. It stated, “‘I, Jennifer, consent that as Kier’s wife and life partner, my intimate body is his possession to do with as he deems appropriate....’” Another was entitled, “‘Cooling.’” That document stated, “I am starting to get the feeling that perhaps [Steele] is not the ‘one’ for a long-term relationship.... [S]omehow I get the feeling that I’ll always just be a special friend to [Steele], no matter how much I suck his dick, offer him my ass or service his. I’ll never be his sweetheart or his bitch or even his ‘girl.’ I think I can feel the arc of our relationship heading nowhere for me. That makes me very sad and sorrowful.”
Another document police found written by defendant was entitled “‘Concerns For Counseling, ’” dated January 21, 2006. One paragraph read as follows: “Sexual compatibility-oral... willingness to please lover or just another thing for her to withhold. Feel resentful about and push me towards the role of unreasonable, over-demanding, abusive spouse.”
When police searched defendant’s car on February 28, 2006, they found a letter defendant had typed. The letter stated Steele had “quietly and without my knowledge, suggested to Jennifer that we should have separate, one-on-one relationships.... What a sneaky, back-stabbing, self-serving trick.... Wrong way to be a friend.... He offered her emotional support for... our marriage... and encourag[ed] Jennifer to emotionally withdraw from me.... This not only caught off me [sic] emotionally and made me feel insecure, but it also set an example for Jennifer that it’s okay to do this to a lover... I have seen signs and been suspicious of [Steele]’s motives since the first week of January. [Steele] has been trying to cut me out emotionally for at least two weeks. I wonder now if maybe his entire, I want to receive anal sex trip, might have been overplayed in order to get himself into the relationship.... I think the real reason that [Steele] bailed out and won’t give it another chance is because he knows I have figured him out. That’s why he couldn’t handle my jealousness and insecurity.... Adding up everything... Steele is a poor choice for a continued friendship.”
DISCUSSION
I
The Court Did Not Err In Admitting Evidence Of The State Of The Andersons’ Marriage And Defendant’s Sexual Practices
Defendant contends the court violated his right to due process in admitting the following evidence, claiming it was irrelevant and/or more prejudicial than probative: (1) evidence of the state of his marriage (such as the way he treated Jennifer and the change in her demeanor); and (2) evidence regarding Steele, the existence of Claire, and defendant’s bisexuality and cross dressing, some of which came in through defendant’s writings. According to defendant, this evidence served “no point but to blacken [his] name before the jury and influence [its] objective assessment of the relevant evidence.” Defendant further contends that to the extent these claims were forfeited, counsel was ineffective for failing to object.
As we explain, the evidence was relevant and the court did not abuse its discretion in finding that its probative value was not outweighed by its prejudicial effect. Counsel therefore was not ineffective for failing to object.
A
Evidence Of The State Of The Andersons’ Marriage
Evidence of the state of the Andersons’ marriage came in through the testimony of Jennifer’s relatives and friends in the form of their observations and statements Jennifer had made to them. It also came in through Jennifer’s journal entry, her e-mail to Steele, the astrological tape, and defendant’s own statements to police. Together, this evidence showed the following:
Defendant was disrespectful and condescending to Jennifer for most of their marriage. Jennifer would be “very submissive and usually take it” and became “smaller” and “beaten down.” In the months and days before Jennifer died, however, Jennifer’s reaction to the way defendant treated her changed and she became “more confident” and “more assertive.” This change was due in part to the fact she had decided to divorce defendant. Defendant had been “cruel too often” and she “d[id]n’t love him any more [sic].” She was going to be splitting up with defendant, and he was going to be moving to the triplex. Defendant realized he was not needed in the relationship anymore and he was jealous, insecure, and angry.
Defendant claims this evidence was “relevant only to his character and more prejudicial than probative.” Not so. This evidence tended to show Jennifer was not devastated by the idea of divorce but that he was, she was fed up with defendant mistreating her and defendant knew that, and she was liberated at the prospect of a life without him. The evidence was relevant to show Jennifer did not have a reason to kill herself but that defendant had a reason to kill Jennifer.
To the extent defendant contends some of this evidence was inadmissible under the state-of-mind exception to the hearsay rule, Evidence Code section 1250, he is wrong. “Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind... is not made inadmissible by the hearsay rule [if] [¶] (1) [t]he evidence is offered to prove the declarant’s state of mind... or [¶] (2)... to prove or explain acts or conduct of the declarant.” (Evid. Code, § 1250, subd. (a).) A statement offered to show the declarant’s state of mind is admissible if made under circumstances that indicate it is trustworthy. (Evid. Code, § 1252.) Evidence Jennifer told others about her state of mind, i.e., she did not love defendant and she was feeling liberated, was trustworthy because it was corroborated by several witnesses, including her mother, brother, friends, and even defendant’s own statements to police. Her statements concerning her state of mind were appropriately considered as circumstantial evidence of her state of mind regarding the state of her marriage and other significant ongoing events. This evidence was highly relevant to the question of whether she committed suicide or was killed.
As to the evidence of witnesses’ observations of the state of the Andersons’ marriage, including how defendant treated Jennifer and how her reaction to that behavior changed over time, that evidence was not hearsay. Hearsay is an out-of-court statement offered for the truth of the matter. (Evid. Code, § 1200, subd. (a).) Observations are not statements.
To the extent defendant contends this evidence was cumulative, we disagree. The sole issue in the case was whether Jennifer killed herself or whether defendant did so. The People’s decision to provide a number of witnesses who each testified as to different observations made of the Andersons’ marriage, Jennifer’s change in demeanor over time, and her statements provided a consistent picture as to what was happening in the marriage and Jennifer’s feelings about it. This consistency could be provided only by a number of witnesses all who told a similar story, albeit with different observations and conversations to illustrate that story. The court did not abuse its discretion in allowing these witnesses to testify.
B
Evidence Regarding Steele, Evidence Regarding Claire, And Evidence Of Defendant’s Bisexuality And Cross-Dressing
Defendant contends the evidence regarding his sexual behavior, including his bisexuality and Claire and the existence of Steele, was irrelevant and unduly prejudicial. Not so.
Together, this evidence showed the following: Before they married, Jennifer had known that defendant was a bisexual and cross-dresser and “she liked that and supported it.” To accommodate defendant in an effort to save her marriage, she agreed to a three-way sexual relationship with Steele. During that relationship, Jennifer fell in love with Steele and realized he “treated her with respect, ” “something she had [not] experienced in marriage.” Also during that time, Steele and Jennifer “started... attack[ing] [Claire], [saying] she was bad. They didn’t want her around, and they didn’t like her... and that made [defendant] feel really bad.” He became “really jealous and insecure” and it “became obvious to [defendant] that [he] was not needed in the relationship anymore.”
This evidence provided motive for defendant to kill Jennifer. Defendant’s bisexuality explained why defendant, Jennifer, and Steele had formed a three-way sexual relationship. The rejection of Claire by Steele and Jennifer along with the exclusive relationship the two formed upset defendant. That relationship also helped show Jennifer’s change in attitude from being desperate to liberated and her desire to end her marriage. And evidence of defendant’s cross-dressing female persona Claire was relevant because that persona was someone Jennifer had formerly embraced but then rejected around the time she was found dead.
To the extent defendant argues that some of this evidence such as the astrological tape that mentioned Steele was inadmissible because it contained “double hearsay” in the form of Jennifer’s statement about what Steele said and contained “inadmissible hearsay” that the astrologer thought Steele and Jennifer were like magnets, he is wrong because these statements were not offered for the truth of the matter asserted. Rather, they were offered to explain what defendant and Jennifer had been fighting about on the night she was killed, as both Jennifer’s mother and defendant referenced the tape as the precursor to the fight. The hearsay rule is inapplicable when evidence is not offered for the truth of the matter. (See Evid. Code, § 1200, subd. (a).)
To the extent defendant claims the introduction of writings that referenced his sexuality were irrelevant character evidence that “diverted the jury from the basic questions before it” because of the “explicit and lurid” content, we again disagree, explaining the relevance of each.
The notes written in the Far Side calendar documented the breakdown in the three-way relationship in the month before Jennifer was found dead, the importance of Claire to defendant, and the growing sexual closeness of Steele and Jennifer to the exclusion of defendant. For example, the notes stated Jennifer said she was willing to take the lead for “developing” defendant’s “feminine persona and helping to introduce this to [Steele], ” Steele and Jennifer were trying to have sex “privately, ” but defendant “interrupted, ” “things” were getting “weird, ” and defendant “worr[ied] what was coming “next.” This evidence was relevant to show defendant’s jealousy of the relationship between Steele and Jennifer and the loss he felt when those two ultimately rejected Claire, which contributed to defendant’s motive to murder Jennifer.
The covenant document was relevant to establish defendant’s domineering personality, which eventually was one of the reasons Jennifer decided to leave defendant.
The cooling document illustrated the breakdown of defendant’s relationship with Steele, Steele’s rejection of Claire, and Jennifer’s initial acceptance of defendant’s cross-dressing personality. This evidence was relevant to establish Claire’s importance to defendant and his eventual resentment when Jennifer and Steele rejected her.
The counseling document was relevant to show that only days before Jennifer was found dead, defendant was concerned about their sexual compatibility, felt resentful about their sex life, and was worried he was being pushed to be an “unreasonable, over-demanding, abusive spouse.” This evidence was relevant to defendant’s motive to murder Jennifer. To the extent defendant claims it violated the patient-psychotherapist privilege (Evid. Code, § 1014), that privilege does not apply because the note was not a “confidential communication between patient and psychotherapist.”
Defendant’s suicide note was relevant because it corroborated the testimony of witnesses that defendant mistreated Jennifer and was “cruel” to her. It also emphasized the importance of Claire and showed that in the month leading up to Jennifer’s death, defendant was losing control of himself.
Finally, defendant’s typewritten letter found in his car was relevant to defendant’s mindset. It confirmed defendant was jealous and insecure that Steele had begun an exclusive relationship with Jennifer and encouraged her to emotionally withdraw from defendant. This was motive for him to kill Jennifer.
As to defendant’s argument that this evidence was unduly prejudicial because it was “inflammatory, ” while we acknowledge the evidence was sexually graphic, the court did not abuse its discretion in allowing in the evidence. “‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors.’” (People v. Zapien (1993) 4 Cal.4th 929, 958.) Here, the People told the jury the evidence regarding “sexual issues” was not “brought up... for a titillating factor” but rather to prove motive in the case. It therefore was not used so that jurors would prejudge defendant based on extraneous factors, but rather, so they would understand why defendant killed his wife.
C
Due Process And Ineffective Assistance Of Counsel
Because this evidence was relevant and its probative value was not substantially outweighed by its prejudicial effect, we reject defendant’s contentions that the court deprived him of his due process right to a fair trial by its admission and his counsel was ineffective for failing to object.
II
There Was Sufficient Evidence Jennifer’s Death Was A Homicide
Defendant contends the evidence was insufficient Jennifer’s death was a homicide instead of a suicide. We disagree, because viewed in the light most favorable to the verdict as we must on a sufficiency-of-evidence review (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572), there was substantial evidence defendant murdered Jennifer by strangling her and then staged her death to look like suicide. As we explain, this evidence came in the form of defendant’s motive to murder Jennifer coupled with Jennifer’s mental state before she died and from the physical evidence surrounding Jennifer’s death.
Defendant had a motive to murder Jennifer because he had lost control over her, she had turned her affections toward Steele while rejecting defendant and his female persona, and she decided to divorce defendant, who had to move out of their house. At the beginning of their marriage, defendant was disrespectful, condescending, and dominating. Jennifer put up with his behavior and would “just kind of g[e]t smaller and, beaten down.” She accepted his cross-dressing personality and agreed to a three-way relationship with Steele. However, approximately two months before her death, Jennifer began falling in love with Steele. About that time, Steele and Jennifer rejected Claire, and the two had sex together a disproportionate amount of time while excluding defendant. Defendant became “really jealous and insecure” and realized he was “not needed in the relationship anymore.”
As a result of her relationship with Steele and her realization that somebody could treat her well, Jennifer started becoming more confident and assertive in the days before her death. She proclaimed she did not love defendant anymore, had decided to end the marriage, and wanted defendant to move out. Together, this evidence established defendant had a motive to kill Jennifer and Jennifer was in good spirits before her death so she would not have committed suicide.
In addition to evidence of defendant’s motive and Jennifer’s state of mind, there was evidence of the manner in which Jennifer died and defendant was injured, which tended to show her death was a homicide. Defendant’s admissions during the interview established that the evening before police found Jennifer dead, he and Jennifer had a physical altercation over a cassette tape of Jennifer’s astrological reading. He was “angry” at the time, was “trying to hurt her, ” and “grabbed... her neck.” While defendant’s statements to police downplayed the severity of the altercation, Jennifer’s corpse told another story. She had been severely beaten: she had three fractures in her neck, four hemorrhages on the inside of her scalp, and bruising on her chin, jaw, and all sides of her legs. These injuries were inconsistent with a suicidal hanging.
Evidence Jennifer did not hang herself also came from defendant’s injuries. He had scratches on his left hand, right arm, neck, and chin. He had bruising on his lower legs, thighs, biceps, and triceps. These injuries indicated a much more violent struggle than the one he recounted to police.
Finally, there was the evidence Jennifer’s death had been staged to look like a suicide. Her outer clothing appeared as though she had been dressed after she died: one of her socks was on upside down; her underwear had soil stains on the outside back portion (like she had been dragged) while her pants did not; her underwear had urine stains while her pants did not; and her bra (which had blood on it) was much dirtier than her sweater (which did not have any blood on it). And, the state of the rope used to hang Jennifer was not consistent with suicide: the tail of the noose was in between her bra and sweater, and the large knot on the beam from which she was hanged would have been difficult for someone of Jennifer’s size to secure.
Taken together, this was sufficient evidence Jennifer’s death was a homicide not suicide.
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J., DUARTE, J.