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People v. Anderson

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 21, 2003
No. D039911 (Cal. Ct. App. Nov. 21, 2003)

Opinion

D039911.

11-21-2003

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANDERSON, Defendant and Appellant.


A jury convicted Joseph Anderson of first degree murder in the killing of his ex-girlfriend Nancy McInnis (Nancy). (Pen. Code, §§ 187, subd. (a), 189.) The trial court sentenced him to prison for an indeterminate term of 25 years to life.

The record identifies the victim as both McGinnis and McInnis. For ease of reference, and not out of disrespect, we refer to the victim by her first name.

All statutory references are to the Penal Code unless otherwise specified.

Anderson appeals, contending there was insufficient evidence of premeditation and deliberation to support the first degree murder verdict. He also asserts the trial court abused its discretion in admitting prior bad acts under Evidence Code section 1109, in unduly limiting evidence sought to be elicited during cross-examination of prosecution witnesses or from defense witnesses, and in admitting unnecessary and irrelevant but gruesome photographs and a videotape of the crime scene. Anderson further claims the court violated his constitutional rights by admitting the photographs and videotape, and by limiting his ability to elicit evidence from witnesses. We find no error and affirm.

DISCUSSION

Rather than include our usual "Factual Background," we recite the pertinent facts for each issue with its discussion.

I

SUFFICIENCY OF THE EVIDENCE

Because Anderson challenges the sufficiency of the evidence to support his conviction for first degree murder, we have viewed the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment. (People v. Silva (1988) 45 Cal.3d 604, 625; People v. Johnson (1980) 26 Cal.3d 557, 576 (Johnson).) We resolve the issue based upon the entire record and determine whether there is substantial direct or circumstantial evidence of the convicted offense. (People v. Towler (1982) 31 Cal.3d 105, 118; Johnson, supra, 26 Cal.3d at p. 577.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jurys conclusion. (People v. Arcega (1982) 32 Cal.3d 504, 518.)

In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether ""any rational trier of fact could have found the essential elements of [Andersons] crime beyond a reasonable doubt." [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [jurys] verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

Here the record before the jury, viewed in accordance with these rules, showed that Anderson had started dating Nancy in the summer of 1998 and had moved into her house in Oceanside near the end of that year where Nancy lived with her two minor children and an adult daughter Jennifer Soto and Sotos infant son. After an up and down, year and a half relationship, Nancy asked Anderson to move out in early August 2000 due to his drinking problem. In late September 2000, Anderson discovered that Nancy was dating another man. In early October 2000, Anderson began calling Nancy, as well as her friends and relatives, for details of her new relationship, and confronted Nancy and the new boyfriend on several occasions before her younger children returned home from school on Friday, October 13, 2002 to discover Nancys dead body lying on the floor in the family room by the entryway step.

Based on information received from Nancys children and a friend, police responding to Nancys home to investigate her murder, identified Anderson as a suspect and informed dispatch to be on the lookout for him, his car and Nancys car, in which Anderson had been seen driving away from Nancys home at about 4:00 p.m. that day. Andersons empty, parked car was located in a cul-de-sac near Nancys home and police officers set up surveillance of Andersons apartment in Escondido. Anderson was arrested at about 11:30 p.m. that night when he returned to his apartment driving Nancys car. At that time, Anderson had a fresh scab on his nose, cuts and both fresh and dry blood on his hands, including a cut on his left thumb and an open wound to his left forearm or wrist. Anderson also had dried blood on his sweatshirt, shirt, pants, socks, and shoes, and coffee stains on both of his socks.

After police collected evidence from Anderson, two detectives took him to a hospital for treatment, advised him of his Miranda rights, and audiotaped their interview with him in a treatment room. After Anderson received treatment for his self-inflicted wrist and thumb cuts, the detectives returned him to the police station and continued their interview, recording it on videotape. During the interviews, Anderson openly discussed his relationship with Nancy, noting she had recently obtained a restraining order against him after he had cut her cars brake line, she had broken up with him several weeks before her death, they had not had sex for weeks and that she had met her new boyfriend Robert Leeks after their breakup. He also described several incidents in which he thought Nancy had lied to him about their relationship. The night before she met Leeks, she had told Anderson she could not see him because she was going to take a nap, but after Anderson repeatedly called her to check on her she did not answer.

Miranda v. Arizona (1966) 384 U.S. 436.

Later, after he discovered Nancy was dating Leeks, Anderson repeatedly called Leeks and Nancys best friend Maribell (Mary) Johnson, whose telephone numbers he had surreptitiously obtained from papers in Nancys car and pager, to inquire about the nature of Nancys relationship with Leeks. Anderson told Leeks Nancy was "playing both of us," and Johnson told him Nancy was confused about whom she wanted to be with and that he should move on with his life. Anderson also called Nancys home numerous times during this period, but hung up when Nancys oldest daughter answered the telephone. Anderson basically thought everyone was lying to him about Leeks relationship with Nancy.

Anderson further described incidents where he had recently confronted Nancy and Leeks about their relationship. He discussed having broken into Nancys house to confront her when she returned from a date with Leeks, claiming he and Nancy had made-up after the incident. Anderson also described going to a Chuck E. Cheese restaurant where he thought Nancy had gone with Johnson and her children. When he saw Leeks at the restaurant with the others, he confronted Nancy and Leeks, but Nancy would not say she was just friends with Leeks in front of him. Rather, she asked Anderson to leave. The next day Nancy told Anderson she did not want to be with him, but the following day she asked if she could come over to his place.

Two days before her death, Nancy declined to stay at Andersons apartment when she came to pick up her younger children whom he had picked up after school. Anderson did not believe Nancy when she told him Johnson was coming to visit her that night. He thought she was going to see Leeks instead. The next day, Anderson followed Nancy to work at a house she cleaned. At one point he said she had told him she did not know whether she wanted to be with him and would let him know the next day, and another time he claimed they kissed and made-up.

Anderson admitted to the detectives he had killed Nancy and explained what had happened the morning of her death. He had parked his car that day down the street, walked to the house and sat in the backyard waiting for her oldest daughter to leave. After she left, Anderson hid in the garage, gaining entry through a side door he had broken months earlier. Shortly thereafter he saw Nancy come into the garage and put a cell phone in her car. When she went back inside the house, he checked the phone and saw that she had called Leeks the night before. Anderson then believed Nancy was still seeing Leeks and lying to him. He waited until the younger children left for school to go inside the house, hoping Nancy would believe the alarm chirp heard when the door opened was caused by one of the children returning to the house. When Nancy came downstairs and out to the garage to investigate the noise, Anderson hid in a bathroom.

Anderson confronted Nancy about still seeing Leeks when she returned from the garage. Although Nancy denied it, Anderson felt she was lying. Anderson made himself a cup of coffee and the couple argued. Nancy threatened him about his job and told him she did not want to see him anymore because he had resumed drinking. Because Anderson thought the real reason Nancy did not want to see him was that she was still seeing Leeks, he "just lost it." Pretending he needed sugar for his coffee, he went back to the kitchen, took a knife from a knife block, walked up behind Nancy and stated, "You dont want to be with me? You dont," and using his right hand, reached over her and stabbed her in the chest. When Nancy immediately fell to the floor, and the knife broke, Anderson retrieved a second knife from the kitchen. He could not remember how many times he stabbed her, but remembered that he stabbed her one time in the jaw and another time in the chest, hitting her pager and breaking the second knife. At some point he also accidentally cut his thumb.

Afterwards, Anderson took Nancys pager out of the clip attached to her bra to check whether Leeks number was there. Discovering the pager was broken, Anderson put it back on Nancys chest. He also put a towel over her face so he would not have to see or hear her coughing up blood. He then went to a liquor store, bought a 12-pack of beer, returned to Nancys house, started drinking, tried to commit suicide by cutting his wrist, but fell asleep. He woke up when the younger children returned home from school, went into the garage and left in Nancys car.

Anderson told the detectives he loved Nancy, but she played games with him and his emotions. Although Nancy had not cheated on him while they were together, Anderson believed Nancy should not have slept with Leeks or introduced him to her children after knowing him for only a couple of weeks. Anderson could not believe what he had done, had had no intention of doing what he had done, but maintained that Nancy should not have been "juggling us both."

Anderson repeatedly told the detectives he could not "stand [Nancy] to be with anybody else but me," and that he was the "type of person that if you fuck with me, Im going to fuck with you. You scratched my car, Im gonna burn your fucking car. I dont fuckin play. You be real with me, Ill be real with you. You fuck me, Im the last person youre gonna fuck with period." Anderson also said he "couldnt go through with just not calling [Nancy] anymore[, n]ot being with her anymore," "figured shes not going to be able to do this to anybody," and "it would be hard for me knowing that she was seeing someone else, knowing how much I love her."

Anderson was charged with the willful, deliberate, premeditated murder of Nancy. At trial, in addition to the above facts and Andersons taped interviews that were played for the jury, the prosecution presented the following evidence. Nancys son testified about coming home from school with his sister and some friends on October 13, 2000, and finding his mother lying on the ground in the family room with a bloody cloth on her face and blood on the carpet. As his sister ran away screaming, he removed the towel and saw a slit on his mothers right cheek and part of a knife nearby. He then sought help.

Several neighbors next testified about calling the police and checking on Nancy and the children while waiting for help to arrive at the scene. Shortly after the rescue and law enforcement personnel arrived, Nancys son along with neighbors outside saw the garage door open and Nancys car back out and drive away. Although Nancys son told friends and police at the scene that the driver was Anderson, at the time of trial he could not remember who was driving his mothers car because it was going too fast. A postal carrier confirmed that a man backing out of Nancys driveway at about that time almost hit her.

Rescue and law enforcement personnel who went into the house testified about finding Nancys body and the evidence in the house. There was a pool of blood around her head, blood spatter on the tile near her body, blood soaking the upper portion of her shirt, a bloodstain on her right hip area, and her stomach was exposed, revealing an empty pager holder clipped to her bra and a smashed pager laying on her stomach. Rescue workers estimated Nancy had been dead for some time because the blood was not fresh, her body was cool to the touch, her pupils were dilated, and rigor mortis had set in.

Police investigators found two steak knives with their blades broken off at the handles on or near Nancys body, and a spilled coffee cup, a cigarette butt and lighter near her body. Coffee stains were found on the carpet and on the back of a nearby sofa. Police also found blood leading from the family room to the kitchen and blood drops on an ottoman in the family room, on a coffee mug in the kitchen, on the kitchen floor, counter and rug, in a downstairs bathroom and in the garage. The knives were determined to match the remaining knives in the knife blocks in Nancys kitchen, and the blood found around the house was later determined to have come from Anderson.

In addition, the police noted the towel on Nancys face matched towels in the downstairs bathroom and they found several beer cans in the family room, in a kitchen trash can and one beer can in the garage where Andersons insurance identification card was also found. Fingerprints found on several of the beer cans were later determined to belong to Anderson. A clerk from a liquor store near Nancys home confirmed that a man matching Andersons general description with blood on his left hand had bought beer sometime before 11:00 a.m. on October 13, 2000.

The forensic pathologist, who as a deputy medical examiner had performed the autopsy, testified Nancy had bled to death after being intentionally stabbed. He described three major stab wounds to Nancys chest that were fatal, a stab wound to her left cheek, and defensive lacerations to her fingers, thumb webbing and back of her left hand. The medical examiner opined the wounds were made by a single-edged blade, were deep, cutting the pulmonary artery and extending to the back of the right lung, causing it to collapse and fill with blood. He noted the laceration of the pulmonary artery was itself fatal and with the other chest wounds would cause Nancy to cough up blood through her mouth and nose from her lungs as if she were drowning. He opined that two of the stab wounds had been inflicted with such "a large amount of force" that they cut through Nancys ribs and broke off a piece of the bone from one rib.

During the testimony of an evidence technician and blood stain expert, the jury was shown a videotape of the crime scene and the evidence found, including views of Nancys body and the remaining rooms of her house and garage. Based on the evidence at the scene and the autopsy results, the expert opined that Anderson had approached Nancy from behind as she stood in the family room holding a cup of coffee, had reached over her shoulder and had stabbed her in the right chest, breaking the knife blade and causing her to immediately fall forward. Then while Nancy was on her back, Anderson had used another knife to inflict the remaining wounds until it also had broken after hitting the pager clipped to her bra. When she began coughing up the blood found around her face and head, Anderson had covered her head with the towel. A DNA expert also testified and confirmed that the blood samples taken from the ottoman, a coffee cup in the kitchen and another of Nancys kitchen knives later found in her car that Anderson had driven away from her home matched Andersons genetic profile.

Numerous witnesses also testified in the prosecution case regarding Nancys relationship with Anderson and certain events leading up to her murder. Although Soto had moved out of her mothers home in July 1999, as she objected to her mothers relationship with Anderson because she thought he did not want her mother to have any friends, he tried to control who she could see, he caused arguments between her mother and her family and friends and he drank around the younger children, Soto and her son moved back into her mothers house in March 2000 due to financial problems even though Anderson was still living there. Soto related that Nancy and Anderson argued often, that Nancy had called the police one time when he had threatened her, that Anderson had broken the garage side door lock to gain access to the house one time, and that Nancy had told Anderson on August 7, 2000, to move out and not to come back until he stopped drinking.

Soto further testified that after he had been kicked out, Anderson had gained access to the garage at Nancys home and had cut Nancys cars brake lines. The next day, when Nancy discovered her brakes would not work, she had the brakes repaired, reported the incident to the police, and obtained a restraining order against Anderson, who then moved to Escondido.

Testimony from the person who fixed Nancys brakes and the police officer who helped Nancy obtain the restraining order due to the cut brakes confirmed Sotos testimony regarding the incident.

According to Soto, in spite of the restraining order, Anderson continued to have contact with Nancy in September and October 2000. In late September, he approached Nancy while she was at a gas station with Soto and the younger children near their home and was later discovered by Soto to be inside the home talking with Nancy. In early October, after Nancy had started dating Leeks, Anderson had called Nancys home several times while she was out on a date and spoke with Soto, claiming he was still seeing Nancy and asking for details of her new relationship. When Anderson asked one time whether he could come over to the house to confront Nancy and Leeks upon their return from a date, Soto said no. The next morning, after Soto found her mothers briefcase had been moved and suspected Anderson had broken into the house, she became frightened and waited outside the house with the children for her mother to return. When her mother came home later that morning with Leeks, Soto told her she believed Anderson was inside the house. After Nancy found Anderson hiding in her upstairs bedroom closet, she walked with him downstairs. Although Nancy appeared to have a nervous smile on her face, Anderson was upset and asked Leeks whether he knew he was Nancys boyfriend. Sometime after this incident, Anderson called Soto at work, stating he loved her mother, wanted to resume their relationship and wanted Soto to convince her mother to call him. Soto had last seen Anderson on October 12, 2000, at a gas station near her mothers home on her way to work.

On the day of her mothers killing, Soto and her son left the family home at about 7:15 or 7:20 a.m. Because Soto thought her mother was going out of town with Leeks that weekend, she tried to contact her mother numerous times by telephone and pager to make arrangements concerning the younger children. Her mother never called her back, which was unusual as she always returned Sotos calls and pages.

Johnson, who had worked several months for Nancys house cleaning business and had become her best friend, also testified that Anderson had called her at least nine times in the two weeks before Nancys death. Anderson told her he knew Nancy was dating Leeks and wanted to know whether they were sleeping together. He also told Johnson he still loved Nancy and wanted to resume his relationship with her. Although Johnson told Anderson she did not know the extent of Nancys new relationship and whether she had slept with Leeks, he continued to pressure her about any details of that relationship.

Johnson was also with Nancy and Leeks on October 7 or 8, 2000, dining at Chuck E. Cheese with Johnsons and Nancys younger children, when Anderson paged Nancy several times. After Nancy came back to their booth from using a pay telephone, Johnson saw Anderson walk by their booth. He wanted Leeks to come outside, but Nancy told him to stay and she went outside to speak with Anderson. Johnson followed them outside. After Nancy argued with him about why he was at the restaurant, she went back inside. Upset, Anderson talked with Johnson about his love for Nancy and his desire to resume their relationship.

Johnson said that after the Chuck E. Cheese incident, she felt Nancy still had a relationship with Anderson and told her to leave him and to stop playing games with the men in her life. On the night before Nancy was killed, Anderson called Johnson while she was on the telephone with Nancy. When Nancy learned Anderson was on the other line, she asked Johnson to tell him Leeks had asked her to marry him. Johnson did not do so, but only told Anderson she could not talk to him at that time. The next day, Nancy called her at about 8:00 a.m. Shortly after Nancys two younger children left for school at about 8:15 a.m., Nancys voice changed and she insisted Johnson call her later. Johnson forgot to call. When she went by Nancys house at 7:30 p.m. that night, police officers were there and the yellow caution tape was blocking entrance into the home. Johnson gave the police Andersons name and telephone number.

On cross-examination, Johnson conceded that Nancy sometimes lied. Nancy had lied to Johnson about things that had happened in a relationship Nancy had had with a man named Maynard Williams whom she had dated before dating Anderson. Johnson added, however, that both Nancy and Anderson were controlling of each other in their relationship.

Leeks, a United States Marine stationed in South Carolina at the time of trial, testified about his short relationship with Nancy before he was transferred out of California. After dating Nancy a few times, he stayed out all night with her. When they returned to her home to find her children outside and Soto saying someone had broken in, Nancy checked upstairs and accompanied Anderson outside. Until Anderson advised him of the fact, Leeks had not known that Nancy had a boyfriend. Leeks left the house telling Nancy and Anderson they had some things to talk about. Following this encounter, Leeks received about 15 calls from Anderson, who asked about the nature of Leekss relationship with Nancy and specifically whether he had slept with her. Leeks refused to tell him, stating only that he would be leaving the state soon.

Leeks also confirmed the Chuck E. Cheese incident, noting Anderson had called him several times afterwards, leaving messages on his phone to not answer Nancys telephone calls and messages. Anderson also left messages saying he knew Leeks was still seeing Nancy, accusing Leeks of lying about his relationship with her, and demanding that Leeks call him back. An audiotape of these messages was played for the jury.

Michelle Baca, a good friend of Andersons, testified that Anderson had been upset when he called her on October 6, 2000, and told her his girlfriend had met a Marine who had asked her to marry him and move away. Although Anderson seemed sad, he also told Baca his girlfriend was only going to date the Marine for a couple of weeks and then "get back with" him. Baca next heard from Anderson on October 14, 2000, when he called her from jail and told her he had killed his girlfriend. Anderson said he had gone to his girlfriends house to talk to her about getting back together, but she had told him she no longer wanted to see him. He told Baca he had then gone to the garage to cool off and wait for her daughter to leave before going back inside to talk with his girlfriend again. When Baca told Anderson she did not want to hear any more, he explained he loved his girlfriend, was upset because she had broken up with him, and "if she wasnt going to be with him, he didnt want her to be with anyone else."

Pete Oviedo, a coworker of Andersons, testified that on October 10, 2000, Anderson had told him at work that he was mad at his girlfriend. In discussing his anger about his girlfriend with Oviedo, Anderson said, "Fuck that bitch," "screw that bitch," "I hate her," "Im going to fuck her up," and "you might not be seeing me for a long time." Oviedo had never heard Anderson talk about his girlfriend in such a manner. When Oviedo asked him what he was going to do, Anderson responded, "Nothing. Dont worry about it." The next day, Anderson still appeared depressed or upset , but told Oviedo he had been "joking about everything."

Records from Andersons employment showed he took vacation days and did not work on October 12 and 13, 2000, and that Nancy had been designated the beneficiary of his life insurance with the company in July 2000.

Finally, the prosecution introduced evidence at trial of Andersons prior acts of domestic violence against his former girlfriend Amelia Kushneruk. Kushneruk, who currently lives in Indiana, testified that her over six-year relationship with Anderson in California, including living together for five years, was good "for the most part," but there had been certain instances of domestic violence during that time. She recalled that on December 1, 1994, when she tried to prevent Anderson from driving under the influence by jumping in the bed of his truck, he drove away with her in the back. When he finally stopped at a lake, he pulled her out of the back against her will and then threw six or seven wooden shingles at her, hitting her on the back of her leg and above the eye before driving off and leaving her alone at the lake. She reported the incident to the police.

Another incident occurred on October 14, 1994, when Kushneruk tried to call the police during an argument about Andersons drinking and they struggled as he pulled the telephone cord from the wall. Kushneruk injured her knee when Anderson knocked her over a bicycle during the struggle. Both she and Anderson were arrested when the police arrived because he falsely claimed she had stabbed him in the arm with a pair of scissors.

Kushneruk also remembered another incident in January 1994 when Anderson hit her in the head, injuring her eardrum and causing a loss of hearing. Kushneruk downplayed the incident, saying Anderson had merely tried to slap his checkbook away from her during an argument and she had leaned forward inadvertently getting in the way. She did not recall calling the police about the incident.

Nor did Kushneruk remember calling the police another time when Anderson had been drinking and had grabbed her arm, causing a bruise, and forcing her out of the car. A review of the police report concerning such incident did not refresh her memory. She ended her relationship with Anderson after his drinking "just got to be too much."

Kushneruk did not remember contacting the Oceanside Police Department or the District Attorneys office about her former relationship with Anderson. She specifically did not recall talking to a Detective Williams Robards of the Oceanside Police Department over the telephone about Andersons abuse during their relationship. She said someone had refreshed her memory about being in a car and speaking with Robards over the phone, but claimed she did not remember the conversation because she was "highly intoxicated" when she talked with Robards that day.

On cross-examination, Kushneruk said that when Anderson was not drinking, he was a "man that anyone would be lucky to be in a relationship with." On redirect, she testified she did not recall telling Robards that she had obtained a restraining order against Anderson at some point in their relationship or that she had moved to Indiana to get away from Anderson. Nor did she recall telling Robards that after she had broken up with Anderson, he had spied on her and her date during one of their evenings together. Kushneruk did recall Anderson showing up on one occasion at that mans house, demanding to see her.

Robards, the lead investigator of Nancys murder, testified, among other things, that around March 8, 2001, he telephoned Kushneruk at a number she had left with the Oceanside Police Department to call regarding information about Anderson. At that time Kushneruk was very cooperative, sounded coherent and was not slurring her words. Kushneruk told Robards there had been some violence in her relationship with Anderson which caused her to obtain a restraining order and kick Anderson out of the house, and that she later moved to Indiana to get away from him. During her interview with Robards, Kushneruk described the 1994 incident that injured her eardrum, but did not claim it was inadvertent. She also told Robards about the encounter with Anderson after she had ended their relationship when he described for her everything she and her date had done during an evening together. Anderson had been able to do so because he had "snuck through the garage into the [mans] house and had viewed them . . . during their evenings activities."

At the conclusion of the prosecution case, the trial court denied Andersons section 1118.1 motion alleging there was insufficient evidence of premeditation at that point to support a first degree murder conviction.

Andersons defense was that he killed Nancy in a heat of passion caused by her "game playing." In support of such defense he called witnesses to show he was a good person and that he had been provoked into committing the murder. Kushneruk testified in his defense that Anderson was an unconditional friend who she continued to keep in touch with through letters. Although several witnesses also testified that Nancy kept pictures of Anderson with her younger children and allowed him to pick them up from a local Boys and Girls Club for her, a club employee recalled that Nancy had withdrawn her authorization for Anderson to pick the children up and had informed the club she had obtained a restraining order against him.

Additionally, various detectives testified about statements made to them describing Nancys relationship with Anderson. The detective who interviewed Soto on the evening of her mothers death testified Soto, who was completely distraught at that time, believed her mother played a lot of games with Anderson and was not truthful about continuing to see him. Soto told the detective her mother found the incident where Anderson had hid in her closet to be funny and that her mother was ambivalent about being with him. Based on statements Soto had heard Anderson make during his telephone conversations with her and the messages he had left for her mother, she believed her mother was still seeing Anderson at the time of her death.

One detective who interviewed Johnson after the murder testified Johnson told her that during the Chuck E. Cheese incident, Nancy had said, "Wow, two guys fighting over me." Johnson described Nancy as controlling with regard to Anderson doing work around the house, picking up her children, and sex, and Anderson as controlling with regard to Nancy. Anderson had to know where Nancy was at all times and had called Johnson every day during the week before Nancys death to obtain information about Nancys relationship with Leeks. Johnson told another police officer that she had spoken with Anderson and Nancy on the telephone the night before Nancys death during a "three-way hook up." At that time, Johnson did not tell Anderson that Nancy was engaged to someone else like she wanted her to do because she thought it might cause trouble for Nancy.

A police officer who had questioned Nancys ex-husband, Carlton McInnis, testified McInnis said he had told Anderson that Nancy was playing games with him and she was just leading him along. McInnis, who continued to have a platonic relationship with Nancy, also told the police he had told Anderson that Nancy was to blame for his discharge from the United States Marines. McInnis further told the officer he had overheard Nancy ask Johnson to tell Anderson she was engaged or to be married to Leeks.

McInnis also testified as a defense witness, claiming he had not told Anderson Nancy had cost him his job, but rather Anderson had merely overheard an argument he had had with Nancy about a year before her death in which he had blamed her for losing his job in the Marines. In October 2000, McInnis was at the house when Anderson called asking for information about Leeks and about McInniss current relationship with Nancy.

The gist of the defense closing argument was that Anderson was guilty at most of voluntary manslaughter for killing Nancy because he acted in the heat of passion after the many weeks of provocation caused by her game playing with his emotions. The prosecution stressed that the defense of heat of passion and adequate provocation must be viewed under an ordinary reasonable person standard, not by Andersons own subjective standard, and that when the totality of the evidence was considered in this case, it would show that Nancys killing was premeditated first degree murder.

After due deliberation, during which the jury requested rereads of Oviedos, Bacas, Johnsons and Leekss testimony, the jury returned its verdict finding Anderson guilty of first degree murder.

On appeal, Anderson contends there was insufficient evidence of premeditation and deliberation and his conviction must be reduced to voluntary manslaughter because any malice was negated by a heat of passion caused by substantial provocation. Citing People v. Anderson (1968) 70 Cal.2d 15, 27 (Anderson ), Anderson specifically argues there was insufficient evidence of planning, motive, and manner of killing to show premeditated, deliberate murder. He claims the jurys finding of premeditation was "pure speculation" because the evidence showed he only went to Nancys house to talk, did not bring a weapon and later cooperated with law enforcement, admitting he had killed her after he "spontaneously lost it" when she refused to get back together with him. We conclude substantial evidence supports the jurys finding of premeditated, deliberate first degree murder in this case.

As the People note in their respondents brief, Andersons additional claim the trial court erred in denying his section 1118.1 motion to acquit for insufficient evidence is not supported by separate analysis or discussion and is therefore deemed abandoned. (People v. Barrera (1993) 14 Cal.App.4th 1555, 1563, fn. 5.)

As our Supreme Court noted in People v. Bolin (1998) 18 Cal.4th 297 (Bolin), in Anderson, supra, 70 Cal.2d 15, it had "identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing." (Bolin, supra, 18 Cal.4th at p. 331.) The court in Bolin further noted it had subsequently explained in later cases that ""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 courts assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]" Thus, while premeditation and deliberation must result from "careful thought and weighing of considerations" [citation], we continue to apply the principle that [t]he 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. . . . [Citation.]" (Bolin, supra , 18 Cal.4th at pp. 331-332.)

Moreover, although the Anderson factors "provide a synthesis of prior case law, . . . they are not a definitive statement of the prerequisites for proving premeditation and deliberation in every case. [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 768.) "In particular, they are not well adapted to a case [such as this] one in which the defendants postoffense statements provide substantial insight into the defendants thought processes in the crucial moments before the act of killing." (Ibid.)

Nevertheless, we conclude there was ample evidence supporting each of the Anderson categories of evidence to find Andersons killing of Nancy was premeditated and deliberate. As for motive, the jury could have easily found from Andersons statements to police in his interview after the killing and the statements of his coworker Oviedo and his friend Baca, both before and after the killing, that he had committed the crime consistent with his anger to "fuck up" Nancy for ending their relationship and being with another man. In addition, those statements together with the evidence of Andersons numerous telephone calls to Soto, Johnson and Leeks, and the evidence of Andersons prior behavior of cutting Nancys brake lines, breaking into her house and garage when he was angry regarding the break-up of their relationship, and his following her and Leeks to a restaurant further support a finding his motive was to preclude her from being with anyone else and to exact revenge for what he perceived as a wrong to him. As we have found before, the exacting of revenge is sufficient motive to support a finding of deliberate, premeditated murder. (People v. Hyde (1985) 166 Cal.App.3d 463, 478.)

As for planning activity, the facts show that Anderson parked in a nearby cul-de-sac, hid in Nancys backyard and garage to wait for her children to leave the home so she would be alone, checked her cell phone and confirmed she was still in contact with Leeks, entered the house when Nancy would think one of her children had returned home, and hid in the bathroom so she would come downstairs where he could confront her about their relationship. Although Anderson claimed in his interview that he "lost it" before stabbing Nancy with a kitchen knife, the jury could have reasonably disbelieved such self-serving comment in light of the evidence he also admitted he had gone into the kitchen and retrieved a knife pretending to get sugar for his coffee so as not to arouse her suspicions after Nancy had told him she did not want to get back together with him. The mere fact Anderson may not have had much time to "deliberate" does not show he could not have done so. (See People v. Wright (1985) 39 Cal.3d 576, 593.) All of the above facts were indicative of Andersons planning to murder Nancy and that he had time to reflect on his actions before killing her.

Moreover, rather than the result of a rash, impulsive act as Anderson claims, the manner of killing in this case also indicated the murder was deliberate and premeditated. After returning from the kitchen with the knife, Anderson approached Nancy from behind, confirmed she wanted to break up with him and immediately reached over her shoulder before she could turn around and stabbed her with such force that it severed her pulmonary artery, broke through ribs and broke the knife blade from its handle. After Nancy immediately fell to the floor, Anderson walked back into the kitchen, retrieved another knife, and returned to further stab Nancy as she lay on her back. The physical evidence in this case corroborates Andersons admission he returned to the kitchen for a second knife. "That [Anderson] went searching for another knife is indicative of a reasoned decision to kill." (People v. Perez (1992) 2 Cal.4th 1117, 1129 (Perez).)

Further, a trier of fact could have reasonably concluded Andersons conduct after the murder, i.e., Anderson did not immediately try to flee the scene or render aid to Nancy, but instead had checked her pager to see if Leeks had tried to reach her, had covered her face with a towel so he would not have to hear her choking and see her coughing up blood as she bled to death, and had purchased beer to drink in the home afterwards, was more consistent with his planned, intentional killing of Nancy than with his self-serving explanation he "just lost it." (See Perez, supra, 2 Cal.4th at p. 1128.)

Anderson ignores this evidence, relying instead on cases finding sufficient evidence to support a manslaughter conviction based on a heat of passion theory. His reliance is misplaced. Even if an appellate court could make contrary factual findings or draw different inferences from the evidence in a case, the court is "not permitted to reverse the judgment if the circumstances reasonably justify those found by the jury." (Perez, supra , 2 Cal.4th at p. 1126.) In other words, we do not reweigh the evidence.

Regardless, in order to negate the malice necessary for first degree murder, a defendant must act "upon a sudden quarrel or heat of passion on sufficient provocation [citation]." (People v. Lee (1999) 20 Cal.4th 47, 59.) "[T]he [victims] conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Ibid.) The trial court here instructed the jury on such law, giving it instructions on voluntary manslaughter, heat of passion and provocation, including an instruction requested by Anderson further explaining provocation. The jury rejected Andersons theory that he had been sufficiently provoked by Nancy. Based on the totality of the record, which showed Nancy had broken up with Anderson in early August 2000, she was not back with him while she dated Leeks, they had not had sex in weeks, she had not taunted him about dating Leeks, Anderson had continually called Nancys best friend, older daughter and Leeks to obtain information about Nancys new relationship, he had cut her car brakes, had broken into and hid in her home, and had angrily confronted Nancy and the new boyfriend at a restaurant, a jury could have reasonably found beyond a reasonable doubt that Nancys alleged game playing was insufficient evidence of the type of conduct that would provoke an ordinarily reasonable person to commit murder. (See People v. Lujan (2001) 92 Cal.App.4th 1389, 1414.)

Simply put, the jury was not required to accept Andersons version of the events and could have easily rejected his claim he acted on impulse. That they did so is reasonably justified by the evidence. In sum, ample evidence supported the jurys finding Anderson committed deliberate, premeditated murder. Therefore, Andersons additional claim his first degree murder conviction also violated his right to due process under the state and federal Constitutions fails. (See People v. Kipp (2001) 26 Cal.4th 1100, 1129.)

II

LIMITATION OF EVIDENCE FROM VARIOUS WITNESSES

Anderson next contends the trial court erred and violated his Fifth, Sixth and Fourteenth Amendment rights by excluding evidence regarding several of Nancys prior relationships and the results of an autopsy toxicology test. He argues such evidence was relevant to his state of mind as it would have shown that Nancy acted erratically with the men in her life who then reacted violently toward her, and therefore would have shown why he was provoked into killing her. Anderson also argues the exclusion of such evidence violated his rights to due process, to present a defense and to confront witnesses against him.

As we explain, the record shows Anderson has waived any federal constitutional claim and any state claim regarding limitation of testimony regarding Williams, McInnis, and the toxicology results.

A. Background Facts

1. Regarding Williamss Testimony

In limine, the prosecution moved to exclude the testimony of Maynard Williams, a former boyfriend of Nancys who was tried and acquitted of attempting to murder her in 1997. The prosecutor opined the only reason the defense could call Williams would be to testify that Nancy was a bad person whose behavior "would make you want to kill her for some reason." The prosecutor argued such evidence was irrelevant as the events between Nancy and Williams occurred before she had met Anderson, and its probative value was substantially outweighed by its prejudicial effect.

After discussing the matter with defense counsel, the trial court noted that what was being argued on behalf of Anderson was essentially that "there were a series of things that happened over time that as time went by when combined resulted in such a heat of passion that Mr. Anderson committed . . . an offense in this case." Without knowing all the specifics pretrial, the trial judge commented that, "[I]t seems to me that such evidence might be admissible but only if it can really relate to Mr. Andersons frame of mind at the time of commission of the offense. In other words, was he aware of these things? Were these things that contributed to an ongoing dispute that the two of them had in their relationship? And I see those as the bases for the relevancy of such evidence in this case."

When the court inquired whether defense counsel was going to call Williams as a witness, she noted he was under subpoena, but that she honestly did not know whether he was going to be called yet. Counsel did not have a problem with having an Evidence Code section 402 hearing before Williams testified should she decide to call him, to determine whether his testimony would be relevant. The court reserved ruling on the prosecution motion until after the Peoples case-in-chief and defense counsel determined whether she was going to call Williams.

During cross-examination of Johnson in the prosecution case, the prosecutor objected to defense counsel asking her whether Nancy lied to Johnson about her relationship with Williams, whom she had dated before Anderson. At side-bar, counsel explained she was not asking for information about Williams, but only asking whether Nancy had lied to her best friend. Counsel argued Nancys credibility was in issue because she was unavailable and other statements by Nancy had been admitted via the testimony of other people. The prosecutor objected to counsel questioning Johnson about the nature of the lie (Nancy had apparently blamed someone other than Williams who was responsible for beating her and putting her in a car trunk), arguing the evidence was hearsay, as Johnson had no knowledge about the incident except through others or from Williamss trial, not from Nancy.

After defense counsel confirmed she intended to limit her questioning and not ask Johnson about the facts of that case or about whether Williams had tried to kill Nancy, the trial judge ruled:

"Well, I will allow you to explore that area with this witness with the limitations I think I have expressed. Lets not get into details regarding the relationship, regarding specific acts that may have been perpetrated upon the victim by Maynard Williams. I think that at that point that information becomes irrelevant. Also, you questioned whether it could come out in any event given this witness may not have personal knowledge. So I think you understand the parameters."

Defense counsel then resumed questioning Johnson, asking her whether Nancy had lied to her about things that had happened in her relationship with Williams.

Later during the defense case, outside the jurys presence, the court conducted Evidence Code section 402 hearings with regard to the proposed testimony of Williams and Nancys ex-husband McInnis. With regard to Williams, defense counsel briefly questioned him about his relationship with Nancy, specifically asking whether Nancy had ever threatened to have him fired from his job and had ever told him she had gotten her husband fired from the Marines. Not receiving affirmative answers to either question, defense counsel said she had no more questions before apprising the court she did not intend to call Williams as a witness.

2. Regarding McInniss Testimony

During the Evidence Code section 402 questioning of McInnis, he denied verbally threatening Nancy or telling Anderson that Nancy had lied and cheated during their marriage and was currently playing games with Anderson. McInnis admitted he told Anderson Nancy had caused him to be fired from the Marines. Although the trial court agreed with the defense position that whatever McInnis had told Anderson about his relationship with Nancy might be relevant to Andersons state of mind and provocation defense, it asked defense counsel whether she intended to call McInnis to deny those other things had been said and then call someone to impeach him. Counsel replied that her intention was to show that McGinnis had spoken with Anderson a week before Nancys death and had told him he had been fired from the Marines because of Nancy.

After hearing the prosecutions argument that the evidence was inadmissible "bad" character evidence, and noting any matter outside of Andersons knowledge would be irrelevant, the court opined it would be appropriate for defense counsel to limit her questioning of McInnis before the jury to those matters within Andersons knowledge or that could be verified that he knew. The trial judge stated that "to the extent that inquiries are made regarding perhaps bad acts of the victim that have no impact on this case and that in no way would impact your clients frame of mind, those issues, it seems to me, are so far afield that they are just not relevant. And I guess that we will deal with this on a question by question basis during the course of any anticipated testimony."

When McInnis subsequently testified, he conceded he had talked with Anderson the week before Nancy was murdered. He denied, however, that he had told an investigating officer that he had told Anderson that Nancy was playing games with him. McGinnis acknowledged he had talked with numerous police officers on the day Nancy was murdered. He denied telling an officer he had spoken to Anderson about losing his job in the Marines, saying Anderson had merely overheard him blame Nancy during an argument for the loss of his Marine Corp job. Afterwards, the defense called a police officer who had interviewed McInnis after Nancys death. The officer impeached McInniss testimony by relating that McInnis had told him he had told Anderson Nancy was playing games with Anderson and leading him along as well as that she had caused McInnis to be discharged from the Marines.

3. Regarding the Toxicology Test Results

During cross-examination of the pathologist who had performed Nancys autopsy, he confirmed the toxicology lab at the medical examiners office had done toxicology testing on Nancy. When defense counsel asked whether a controlled substance was found, the prosecutor objected on relevancy grounds and asked for a sidebar hearing. Defense counsel argued that because Nancys mental state was at issue for Andersons provocation defense, what may have been in Nancys system at the time of her death was relevant. Noting the issue of whether Nancy was under the influence of any substance had not been addressed in pretrial motions or during Andersons lengthy interviews with police regarding the circumstances surrounding his killing of Nancy, the court asked defense counsel what evidence there was in the record "to suggest that somehow [Nancy] was under the influence and did something on top of what your client said during his interviews to provoke your client?" Counsel replied that the only evidence was the toxicology test results which revealed Nancy had Vicodin in her system.

The court sustained the objection, ruling that "anything this witness has to say with respect to the toxicology analysis and results is inadmissible hearsay. He is not a toxicologist. He did not do the investigation himself of these laboratory results and, as a result, really cant testify as to them." The court noted that it would be up to defense counsel to call the toxicologist as a witness and at that time the court could address further argument regarding the relevance of such evidence and how the evidence might relate to Andersons defense. Defense counsel did not subsequently call the toxicologist as a witness.

B. Applicable Law

Generally, a defendant waives a federal constitutional claim on appeal if he did not argue for or against the exclusion of evidence based on that constitutional provision at the trial level. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3 (Sanders); People v. Davis (1995) 10 Cal.4th 463, 501, fn. 1.) Moreover, bare references to broad constitutional provisions such as due process without presenting the substance of such claim are insufficient to alert a trial court that a defendant is asserting a claim under the United States Constitution. (See Gray v. Netherland (1996) 518 U.S. 152, 162-163 (Gray); Duncan v. Henry (1995) 513 U.S. 364, 365-366.)

With regard to state evidentiary claims, such will be waived where a court defers ruling on the matter and the defendant either does not later press for a ruling or withdraws the objection. (See People v. Jones (2003) 29 Cal.4th 1229, 1255-1256 (Jones); Bolin, supra, 18 Cal.4th at pp. 312-313.) Moreover, a matter will usually be waived on appeal where the trial court did not rule on the merits in denying or commenting on the motion and instead ruled what the proper procedure or motion to present the matter would be and the defendant fails to follow that procedure or file another motion on the matter. (See People v. Kraft (2000) 23 Cal.4th 978, 1050 (Kraft); People v. McPeters (1992) 2 Cal.4th 1148, 1178-1179.)

As to evidentiary claims, a trial court is vested with wide discretion in determining the relevance of evidence, but has no discretion to admit irrelevant evidence. (Evid. Code, § 350; People v. Babbitt (1988) 45 Cal.3d 660, 681 (Babbitt ).) "Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "[E]vidence which produces only speculative inferences is irrelevant evidence. [Citation.]" (Babbitt, supra, 45 Cal.3d at p. 682.) Moreover, "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" is hearsay evidence and it is inadmissible "[e]xcept as provided by law." (Evid. Code, § 1200, subds. (a) & (b).)

On appeal, we will not disturb a trial courts exercise of discretion in admitting or excluding evidence, including on hearsay grounds, unless it is shown that the trial court abused its discretion by exercising such "in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Rowland (1992) 4 Cal.4th 238, 264.)

C. Analysis

Here, as the People correctly note in their respondents brief, Anderson did not specifically cite the Fifth, Sixth and/or Fourteenth Amendments to the United States Constitution in arguing against the exclusion of any of the evidence for which he now complains violated his rights to due process, to present a defense and to confront witnesses by precluding him from examining Williams and McInnis about their prior relationships with Nancy, from cross-examining Johnson about the Williams relationship, and from cross-examining the pathologist about the toxicology test results. Although he briefly referenced "due process," and being denied a defense with regard to Williamss possible testimony, these naked references were insufficient to alert the trial court that he was asserting claims under the United States Constitution. (See Gray, supra, 518 U.S. at pp. 162-163; Sanders, supra, 11 Cal.4th at p. 510, fn. 3.)

In addition, Anderson has waived any claim the trial court erroneously excluded evidence regarding Nancys relationship with Williams and McInnis, and the toxicology test results as irrelevant bad character evidence under state law by failing to properly preserve them for appeal.

As noted above, the court reserved ruling on the Williamss matter until after the People presented their case and the defense determined it would call Williams as a witness. Later, defense counsel did not seek to cross-examine Johnson concerning the details of Nancys and Williamss relationship, conceding the evidence would be hearsay. Counsel also subsequently decided not to call Williams as a witness after an evidentiary hearing. Therefore, on this record, Anderson has abandoned and waived the issues regarding Williamss relationship with Nancy on appeal. (See Jones, supra, 29 Cal.4th at pp. 1255-1256; Bolin, supra, 18 Cal.4th at pp. 312-313.)

Similarly, we believe Anderson has not preserved for appeal his assertion the trial court unduly limited McInniss testimony by its evidentiary ruling below. A careful read of the record regarding the courts consideration of the prosecutors motion to limit McInniss testimony to relevant evidence, shows the court did not definitively rule at that time, but left the matter open for objection question by question when McInnis testified. When McInnis later testified, the court overruled the three relevancy objections made by the prosecutor to questions posed to McInnis regarding what he had told a police officer about his October conversation with Anderson regarding his relationship with Nancy. Thus Andersons basic premise that the court unduly precluded his questioning of McInnis by its relevancy ruling is refuted by the record. Rather the record reflects the limitation of McInniss testimony was caused by his own hostility to the defense and not to any court ruling. Because defense counsel did not further pursue any relevancy ruling with regard to McInniss testimony, no claim that his testimony had been erroneously limited on such ground has been preserved. (See Jones, supra, 29 Cal.4th at pp. 1255-1256; Bolin, supra, 18 Cal.4th at pp. 312-313.)

With regard to the toxicology test results, the trial court did not preclude the defense from seeking to admit the evidence by calling the toxicologist who conducted the test to testify. At that time, the court would have considered the relevancy issue raised by the prosecutors objection to such evidence. Counsel did not further pursue the matter and, therefore, has waived any claim the court erroneously excluded such evidence as irrelevant. (See Kraft, supra, 23 Cal.4th at p. 1050.)

In sum, contrary to Andersons assertions otherwise, the record shows he was not precluded by the trial courts rulings regarding Williams, McInnis or the toxicology test results from presenting a provocation defense. In addition to the trial court having admitted his confessions, in which he contended Nancy had provoked him into killing her by lying and playing games, defense counsel also introduced evidence of the same through other witnesses and emphasized Nancys alleged provocative conduct, characterizing Andersons attack on her as an outburst of rage rather than a premeditated act, in closing argument. That defense counsel did not further pursue avenues left open to her by the courts complained of rulings simply does not support trial court evidentiary or constitutional error.

III

EVIDENCE CODE SECTIONS 1101 AND 1109

In limine, Anderson moved to exclude evidence of his prior acts of domestic violence against Kushneruk, arguing the admission of any Evidence Code sections 1101 and 1109 acts were too remote and dissimilar from the current crime, would confuse the jury, would consume undue time, and would violate his due process rights. The prosecutor opposed the motion, arguing the acts did not need to rise to the same level of violence, they clearly involved domestic violence within the time limits of the statute, they were documented by police reports filed at those times, they would not confuse the jury because of the required jury instructions for such offenses, and they would be used only for a limited purpose.

In denying the motion, the court recognized its duty "to balance the probative value versus any prejudice in this case under 352 of the Evidence Code." The court also noted Evidence Code section 1109 provides for the admission of the domestic violence acts against Kushneruk if they occurred within the 10-year time frame subject to the courts Evidence Code section 352 analysis and that specific instructions would be provided to clarify the burden of proof regarding such evidence. The trial judge then stated that:

"Engaging in an Evidence Code [s]ection 352 analysis in this case, it certainly seems to me that the [Evidence Code section] 1109 evidence the prosecutor seeks to admit is probative, indeed a propensity for violence and violence in this case obviously is an issue. The events occurred . . . within the [10]-year time frame, so I do not find that the events are so old as to have little relevancy. I dont believe that under the circumstances that the proposed testimony would necessitate undue consumption of time or would create a substantial danger of undue prejudice to the defendant. I dont believe that the jurors would be confused as to the issues or be misled as a result of the introduction of the evidence. [¶] Legislature has provided that the evidence is admissible in the appropriate circumstances. I think this to be such a circumstance. This clearly is a domestic violence related case, and clearly the evidence as relates to that specific individual, . . . Kushner[]uk, was domestic violence related."

The court ruled "the specific instances of domestic violence as set forth in the Peoples . . . papers" would be admitted "subject to further objection by the defense should the prosecution endeavor to address [other] areas through [Kushneruk.]"

After addressing several other defense motions, the court turned to those brought by the prosecution, noting the People were seeking admission of "[e]vidence of defendants prior acts of domestic violence and other acts against Nancy . . . under Evidence Code Section[s] 1109, 1101[, subdivision (b)], and 1370." Defense counsel noted, that in light of the courts ruling regarding Kushneruk, she would submit on any documented events regarding the cutting of Nancys brake lines. Counsels concern was "the fabrication potential and the veracity of . . . statements" by Nancys daughter Soto or her former husband McInnis concerning an incident where Anderson purportedly had broken into Nancys home, because no police report had documented such event. The court asked the prosecutor to clarify what evidence was specifically sought regarding prior instances of domestic violence between Anderson and Nancy.

The prosecutor outlined and gave offers of proof for three separate instances the People sought to admit: 1) the brake line incident for which Nancy had called the police and had ultimately obtained a restraining order against Anderson could be shown by police testimony and certified documents; 2) the incident where Anderson was found hiding in Nancys closet when she had returned from an overnight with Leeks could be shown through testimony from Soto, Leeks and Nancys two younger children; and 3) the Chuck E. Cheese incident where Anderson showed up and confronted Leeks and Nancy about their relationship could be shown through the testimony of Johnson, Leeks, another adult who was present, as well as by Nancys younger children.

Defense counsel submitted the matter as to the first two incidents, but objected that the third incident could not be considered domestic violence because there was no allegation of any conduct other than verbal. The prosecutors position was that Andersons conduct in the third incident two weeks before Nancys death rose to a level of "stalking kind of behavior . . . , and it all goes to his course of conduct and to his knowledge and intent, to motive as to what he was doing [there] which led up to the ultimate event. So its a course of conduct which indicates that he is gaining as much information about them as possible and trying to track them down . . . together."

The trial judge ruled each of the three incidents was admissible, stating:

"Two of the incidents certainly very much involve a level of domestic violence, threats to the welfare of the victim. The third, whether viewed a direct threat or not, certainly is reflective of Mr. Andersons level of concern that [ Nancy] has this relationship with another individual. And it seems to me as relevan[t] as a result and, therefore, I believe is admissible. . . . [¶] The incidents one and two certainly rise to the level of [Evidence Code section] 1109 evidence and engaging in [an Evidence Code section] 352 analysis I believe the evidence is indeed more probative than prejudicial, and I dont believe it would result in an undue consumption of time with the jurors, that it would prejudice the defendant. I think it would be clear why the evidence was being offered, and I think that it would be properly admitted then for the reasons articulated. . . ."

As noted earlier, the prosecution during its case-in-chief introduced evidence Anderson had cut Nancys brake lines, he had broken into her house and had hid in her closet while she was on a date with Leeks, and he had verbally confronted Leeks and Nancy at Chuck E. Cheese two weeks before her death. The prosecution also introduced evidence that in 1994, Anderson had slapped Kushneruk on the head, rupturing an eardrum and causing loss of hearing; had forcibly removed her from a truck and thrown wooden shingles at her, hitting her on her leg and above her eye; and had knocked her over a bicycle during an argument.

Later during trial, the court denied the prosecutors motion to admit Nancys statements made in her declaration for obtaining a restraining order against Anderson, including the statement that Anderson had said, "I wish I could kill you because you dont listen to me." In doing so, the court reiterated it had earlier admitted evidence of domestic violence under Evidence Code section 1109 because given the facts and circumstances in this case, "the prior incidents were more probative than prejudicial, showing the defendants propensity for violence against domestic partners." The court noted it had found significant in its balancing process that Kushneruk was available for cross-examination regarding the prior incidents of domestic violence against her. It also commented in regard to the statements made in Nancys declaration, that the bulk of her statements were corroborated by and cumulative of evidence that had already come in regarding the brake line incident, whereas the statement regarding Andersons threat to kill her had not been corroborated by any other evidence. The court, therefore, found the Evidence Code section 352 balance weighed in favor of Andersons position the declaration was more prejudicial than probative.

The court subsequently instructed the jury on the use of the admitted prior acts evidence under CALJIC Nos. 2.50, 2.50.1 and 2.50.2.

On appeal, Anderson contends the trial court abused its discretion and violated his due process rights by admitting evidence of his acts of domestic violence and other acts against Nancy and Kushneruk. Essentially Anderson argues the three prior acts he had committed against Nancy and the prior abusive acts he had committed against Kushneruk were improperly admitted under either Evidence Code sections 1101 or 1109 because the record does not reveal the trial court carefully weighed and analyzed all the required factors identified in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta) for the admission of such evidence. He also argues his acts committed against Nancy and Kushneruk did not constitute acts of domestic violence to qualify for admission under Evidence Code section 1109. In addition to waiving certain issues, Anderson has failed to show the court abused its discretion in admitting the complained of evidence.

A. The Pertinent Law

Evidence Code section 1101, subdivision (b) permits admission of evidence of other acts when relevant to prove "some fact (such as motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or accident . . . ) other than [the defendants] disposition to commit such an act." In making the determination of whether other acts are admissible under subdivision (b) of Evidence Code section 1101, a court must consider: "(1) the materiality of the fact to be proved or disproved, (2) the probative value of the other [act] evidence to prove or disprove the fact, and (3) the existence of a rule or policy requiring exclusion even if the evidence is relevant." (People v. Daniels (1991) 52 Cal.3d 815, 856 (Daniels).) "As long as there is a direct relationship between the prior [act] and an element of the charged offense, introduction of that evidence is proper." (Id. at p. 857.)

Evidence Code section 1109 provides:

"(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by [Evidence Code s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code s]ection 352. [¶] . . . [¶] (b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, . . . . [¶] (c) This section shall not be construed to limit or preclude the admission or consideration of evidence under any other statute or case law. [¶] (d) As used in this section, domestic violence has the meaning set forth in Section 13700 of the Penal Code.[] . . . [¶] (e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice."

Penal Code section 13700 provides in pertinent part: "(a) Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. [¶] (b) Domestic violence means abuse committed against an adult who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship."

This section permits a jury to consider prior incidents of domestic violence for the purpose of showing a defendants propensity to commit offenses of the same type and essentially permits such evidence to be used in determining whether the defendant is guilty of a current charge of domestic violence.

As the parties recognize, in Falsetta, supra, 21 Cal.4th 903, the California Supreme Court rejected the argument the Legislature may not constitutionally permit a jury to consider the defendants propensity to commit a particular type of crime in deciding the defendants guilt of a current offense of the same type of crime. "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair. [Citations.]" (Id. at p. 913.)

Although the Supreme Court in Falsetta, supra, 21 Cal.4th 903 was addressing the constitutionality of Evidence Code section 1108 (prior sex acts) rather than Evidence Code section 1109 (prior domestic violence), we agree with the decisions in People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310 (Jennings), People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097 (Escobar ), People v. Brown (2000) 77 Cal.App.4th 1324, 1334-1338 (Brown), People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1030, and People v. Johnson (2000) 77 Cal.App.4th 410, 417-420 that the Supreme Courts reasoning in Falsetta applies equally to Evidence Code section 1109. (See also People v. Fitch (197) 55 Cal.App.4th 172.) We therefore believe the procedure established by Evidence Code section 1109 is within constitutional limits, and need not revisit the question of the basic validity of such evidentiary scheme.

The language of both Evidence Code sections 1108 and 1109 is essentially the same, and both are specifically omitted from Evidence Code section 1101, which in general excludes evidence of prior bad acts to prove a defendants criminal disposition. (Evid. Code, § 1101, subd. (a).)

However, because Evidence Code section 1109 conditions the introduction of prior domestic violence evidence on whether it is admissible under Evidence Code section 352, Andersons specific due process assertion necessarily depends on whether the trial court here sufficiently evaluated the proffered evidence under that section. "A careful weighing of prejudice against probative value under [Evidence Code section 352] is essential to protect a defendants due process right to a fundamentally fair trial. [Citations.]" (Jennings, supra, 81 Cal.App.4th at p. 1314.) As the Supreme Court stated in Falsetta, "trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Falsetta, supra, 21 Cal.4th at p. 917.)

Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

On appeal, we review the admission of other acts or crimes evidence under either Evidence Code sections 1101 or 1109 for an abuse of the trial courts discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp).) Further, the determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is "entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.]" (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) The weighing process under Evidence Code section 352 "depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.]" (Jennings, supra, 81 Cal.App.4th at p. 1314.)

Moreover, in ruling on the Evidence Code section 352 portion of the motion, "a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . [Evidence Code] section 352." (People v. Williams (1997) 16 Cal.4th 153, 214, citing People v. Lucas (1995) 12 Cal.4th 415, 449.) Thus, we may "infer an implicit weighing by the trial court on the basis of record indications well short of an express statement." (People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823.) We will not find that a court abuses its discretion in admitting such other acts evidence unless its ruling "falls outside the bounds of reason. [Citation.]" (Kipp, supra, 18 Cal.4th at p. 371.)

B. Application of Law to Facts

Applying these rules with regard to Kushneruk, we conclude the trial courts analysis in this case was sufficient to indicate it properly weighed prejudice against probative value before admitting the proffered evidence regarding Andersons acts against her under Evidence Code section 1109. Not only did the court explain its responsibility to conduct such a balancing, it expressly stated it had done so and gave lengthy reasons for admitting the evidence. Further, before the admission of such evidence, the court had read the parties briefing on the issue and had heard lengthy argument on the matter. The incidents against Kushneruk were "extremely probative, showing [Andersons] propensity for violence against domestic partners," as well as tending to show he acted with malice aforethought. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1139; Smith v. Roe (C.D. Cal. 2002) 232 F.Supp.2d 1073, 1088, fn. 12.) The past acts involving Kushneruk were within the permissible statutory limits of Evidence Code section 1109, were not inflammatory, did not consume an undue amount of time, and there was little risk of confusion because the past acts were less serious than the charged murder. In addition, the courts later colloquy during trial regarding why it had found the acts of domestic violence against Kushneruk more probative than prejudicial further supports our finding the court carefully weighed such evidence before its admission. No abuse of discretion is shown with regard to the admission of the Evidence Code section 1109 evidence regarding Kushneruk.

Contrary to Andersons assertion otherwise, Falsetta does not require a trial court to specifically articulate on the record its consideration of each of the factors listed in that case for possible consideration in determining under Evidence Code section 352 whether to admit prior acts. (Falsetta, supra , 21 Cal.4th at p. 917; see People v. Catlin (2001) 26 Cal.4th 81, 122 (Catlin).) Andersons claim the court violated his due process rights by failing to expressly address each of the factors listed in Falsetta, therefore, also fails. (See Jennings, supra, 81 Cal.App.4th at pp. 1314-1315.)

Additionally, Anderson has waived any contention on appeal the prior acts regarding Kushneruk did not constitute domestic violence because he did not raise such objection below. (Evid. Code, § 353.) Likewise, with the exception of the third Chuck E. Cheese incident regarding Nancy, Anderson has waived any assertion the evidence admitted under Evidence Code section 1109 did not constitute domestic violence because such was not raised at trial. As for the Chuck E. Cheese incident, the record reflects the trial court admitted it under Evidence Code section 1101, subdivision (b) rather than Evidence Code section 1109. From our review of the record, we conclude the court properly exercised its discretion in admitting the evidence regarding the Chuck E. Cheese incident as well as the other two incidents under Evidence Code section 1109 involving Nancy.

With regard to the latter two incidents, each was highly probative of Andersons motive, intent and on the issue of premeditation and deliberation with regard to Nancy. By cutting her cars brake line, Anderson could have easily caused Nancys death or caused her to suffer serious injury. By breaking into her home and hiding in her closet to confront her when she returned, it could be inferred that Anderson placed Nancy "in reasonable apprehension of imminent serious bodily injury" to herself and her family. (Pen. Code, § 13700.) On this record the court could have properly found such threats to Nancys welfare and that of her family outweighed any prejudicial effect of such probative evidence. The two incidents were recent, within months of Nancys murder. As with those involving Kushneruk, they were not inflammatory and there was no risk of confusion because they were less serious or violent than that charged. Nor did the testimony regarding the two prior domestic violence acts consume too much additional time or unduly lengthen the testimony of Soto, Johnson or Leeks.

Moreover, as with the evidence regarding Kushneruk, the court had reviewed the motion papers, had heard argument on the matter, and had fully recognized its duty to weigh the probative versus any prejudice in this case under Evidence Code section 352 before exercising its discretion under Evidence Code section 1109 to admit the evidence regarding the two incidents involving Nancy. Again, no abuse of discretion is shown in this regard.

As to the admission of the evidence regarding the Chuck E. Cheese incident, the trial courts ruling expressed how it was highly probative to Andersons concern or knowledge about Nancy and Leeks relationship, which in turn was relevant to the issues of Andersons intent and motive regarding his actions toward Nancy in this case. Thus, as in Daniels, supra, 52 Cal.3d 815, the prior acts evidence regarding the Chuck E. Cheese incident provided "a direct relationship" to at least the elements of intent, premeditation and deliberation for the charged murder. (Id. at p. 857; see People v. Cummings (1993) 4 Cal.4th 1233, 1289.) These issues were material because Anderson contended he killed Nancy in a heat of passion provoked by her conduct rather than deliberately with premeditation. The prior acts illustrated Andersons jealousy, obsession and attempts to control Nancy, as well as his reactions to the break-up of their relationship. Even though it is arguable whether the court then exercised its discretion under Evidence Code section 352 regarding such evidence, the failure to do so on this record would clearly be harmless error in light of Andersons own admissions in his interview regarding the Chuck E. Cheese incident and the courts instructions limiting the use of such evidence. (Watson, supra , 46 Cal.2d at p. 836.)

Andersons additional due process claims regarding the admission of the other acts and domestic violence acts evidence regarding Nancy are waived as he failed to raise them in the trial court. (Catlin, supra , 26 Cal.4th at p. 122.)

In sum, no abuse of discretion has been shown in the admission of the other acts and prior domestic violence evidence.

II

ADMISSION OF PHOTOGRAPHS AND VIDEOTAPE

Anderson finally asserts the trial court prejudicially abused its discretion and violated his due process rights in admitting a videotape of the crime scene (Exhibit 30) and a photograph of Nancy (Exhibit 5) that were not relevant to any contested issue in the case and were unduly prejudicial. Although generally in reviewing the trial courts admission of photographic and videotape evidence, we must first determine whether such "satisfied the relevancy requirement set forth in Evidence Code section 210, and [if so, then we determine] whether the trial court abused its discretion under Evidence Code section 352 in finding that the probative value of the photograph [or videotape were] not substantially outweighed by the probability that [their] admission would create a substantial danger of undue prejudice" (People v. Schied (1997) 16 Cal.4th 1, 13), where as here, the defendant failed to object on relevancy grounds below (See In re Avena (1996) 12 Cal.4th 694, 721: [relevancy claims waived for failure to object on that ground in the trial court]), only objecting to their prejudicial effect under Evidence Code section 352, we merely determine whether the trial abused its discretion in admitting such evidence as more probative than prejudicial. (See People v. Wilson (1992) 3 Cal.4th 926, 938; People v. Price (1991) 1 Cal.4th 324, 441 (Price).) Unless it is shown that " the probative value of the photograph[ and/or videotape] clearly [were] outweighed by their prejudicial effect[,]" we will not disturb the trial courts exercise of its broad discretion in admitting such evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 133-134.) No abuse of discretion is shown on this record.

In limine, Anderson moved to exclude certain crime scene and autopsy photographs, which included the subject crime scene photograph marked Exhibit 5, as cumulative, too prejudicial and inflammatory. Exhibit 5 showed Nancy lying on the family room carpet as she was found by police, with her shirt up revealing her pager clipped to her bra, her blood soaked shirt, and blood pooled on the carpet by her head and upper chest. The prosecutor opposed the motion, arguing, among other things, that the crime scene photographs were relevant to prove malice and the facts and circumstances surrounding the killing, Exhibit 5 was not cumulative because it showed another view and different evidence not clearly shown in other photographs, and the photographs were not unduly prejudicial. The court granted the motion with regard to two photographs, but denied the motion as to Exhibit 5, stating:

"[The crime scene photographs] show the scene at the time law enforcement first investigated the matter, the way the victim was found and from different perspectives. The particular photograph[, Exhibit 5,] that the People seek to admit . . . best depicts the victims condition as she was found at the time law enforcement responded, and as a result has a great deal of probative value. And because [the court] believe[s] the jurors can put aside the gruesomeness of the photographs and appropriately deal with the unpleasantness of the photographs[,] the probative value outweighs any prejudice to Mr. Anderson."

Also, in limine, the prosecutor sought the admission of Exhibit 30, an 18-minute crime scene videotape, which showed the physical layout and condition of Nancys house and garage, the location of the physical evidence and less than four minutes showing her bodys location in relation to the other physical evidence. (Exh. 30.) Anderson opposed that portion of the videotape showing Nancys body, arguing it was gory and gruesome because Nancys body had not been cleaned up and the witnesses could testify with the photographs regarding the crime scene. The court reserved ruling to view the videotape and to do an Evidence Code section 352 analysis. Later, during a short recess, the court noted it had reviewed the videotape and believed it should be admitted in this case. The court explained that the videotape "represents the condition of the crime scene at the time that law enforcement first responded. It would give the jurors a good perspective of the scene so that during the course of any testimony they would have a better understanding of where the various events took place and what the witness was referencing."

During trial, the first police officer to arrive at the crime scene and the evidence technician who documented the scene used Exhibit 5 to corroborate their respective descriptions of Nancys body as it was initially found in her home. The evidence technician further used it to opine the manner in which Nancy had been killed, to explain how one of the knife blades broke, and to illustrate her testimony as an expert regarding blood spatters, drops and pooling. The evidence technician also used the videotape to illuminate her testimony regarding other evidence found at the scene in relation to Nancys body, and to support her opinions as to how the killing occurred. At the conclusion of the prosecution case, the trial court admitted the exhibits without further objection.

Here, the record shows the court was well aware of its duty to weigh the respective probative values of Exhibits 5 and 30 against their potential prejudicial effect before admitting them. That they may have been in part cumulative of testimony or other photographic evidence did not mandate their exclusion. (See Price, supra, 1 Cal.4th at p. 441.) Using a photograph or videotape to explain testimony of a witness does not make it prejudicially cumulative, "since the photographic [or videotaped] evidence could assist the jury in understanding and evaluating the testimony. [Citations.] Indeed, . . . testimony may have made little sense without appropriate illustration." (Bolin, supra, 18 Cal.4th at p. 319.)

Moreover, Exhibits 5 and 30 were highly probative on the issues of intent, premeditation and deliberation and thus relevant to the prosecution theory of the manner in which the murder had been committed. (See Bolin, supra, 18 Cal.4th at p. 319; People v. Sanders (1990) 51 Cal.3d 471, 514.) Neither Exhibit 5 or 30 showed any gaping wounds on Nancys body, internal organs, or dismemberment. Although they may have been unpleasant to view, as with all photographs and videotapes of murder victims, on this record it has not been shown that the trial court abused its discretion in determining those exhibits had sufficient probative value to warrant their admission. (See Price, supra, 1 Cal.4th at p. 441.) As requested by the parties, we have examined Exhibits 5 and 30 in light of Exhibits 3 and 4, and each other, and also find they are not unduly cumulative, gruesome or prejudicial. No abuse of discretion has been demonstrated.

As for Andersons due process claim raised for the first time on appeal regarding the trial courts admission of Exhibits 5 and 30, such is not preserved for failure to object on such ground at trial. (People v. Ramos (1997) 15 Cal.4th 1133, 1170.) Additionally, because such constitutional claim was merely perfunctorily asserted in an issue caption without supporting argument, it is also not properly raised for our review.

DISPOSITION

The judgment is affirmed.

WE CONCUR: NARES, J., McDONALD, J.


Summaries of

People v. Anderson

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 21, 2003
No. D039911 (Cal. Ct. App. Nov. 21, 2003)
Case details for

People v. Anderson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANDERSON, Defendant and…

Court:Court of Appeals of California, Fourth Appellate District, Division One.

Date published: Nov 21, 2003

Citations

No. D039911 (Cal. Ct. App. Nov. 21, 2003)