Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Paul A. Bacigalupo, Judge. Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Appellant Alejandro Ayala appeals from his conviction of second degree murder, with a sentence enhancement for personal use of a firearm. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) His sole contention is that the trial court committed prejudicial error in ruling that evidence of an unrelated incident in which he made a death threat was admissible as evidence of motive for the present crime. We conclude that while the trial court erred in this evidentiary ruling, the error was harmless.
FACTUAL AND PROCEDURAL SUMMARY
On Monday, March 27, 2006, law enforcement officers discovered the body of Sergio Pulido near railroad tracks along Lanzit Avenue. The body was hidden inside a blue trash can with a brown trash can placed on top. A maroon bed sheet and an orange blanket were wrapped around the body and secured with electrical tape. An autopsy showed Pulido died as a result of a single gunshot wound to the head at contact range, oriented from right-to-left, front-to-back, and upward. No gunshot residue was detected on Pulido’s hands. Blood analysis revealed the presence of tetrahydrocannabinol (the active ingredient in marijuana) and a significant amount of methamphetamine. The medical examiner who conducted the autopsy concluded that Pulido’s death was the result of homicide, not suicide. A defense pathologist opined that the death was a suicide.
Appellant and Pulido met approximately eight or nine years before Pulido’s death. When they met, appellant had recently purchased a building that he intended to use as a shop for his appliance repair business and as a part-time residence (the shop). Pulido needed work, so appellant hired him to assist with remodeling the building. Two or three months later, Pulido was arrested, and appellant did not see or hear from him for a few years. When they reconnected, appellant was still working out of the same shop, but had changed his business from appliance repairs to car repairs. He hired Pulido to assist with the repair work.
Pulido was a methamphetamine addict and long-time gang member. Until a week or two before his death, Pulido lived with family members. After an altercation with a rival gang, he feared for his life and began wearing a bulletproof vest and carrying a gun. He was concerned that continuing to live with his family would put them in danger, so appellant gave him permission to stay at the shop. The shop consisted of four rooms located above an open patio which appellant used as a garage for his auto repair business. Appellant used one of the rooms as an office and another as a part-time residence when not staying at his girlfriend’s house. He allowed Pulido to sleep in one of the remaining rooms.
The day Pulido’s body was discovered, detectives interviewed appellant at the police station. Appellant was under the influence of methamphetamine at the time. Detective Samuel Marullo questioned him concerning Pulido’s whereabouts, but did not initially reveal that the police knew Pulido was dead. Appellant said he had asked Pulido to move out of the shop and had last seen him driving away the previous Friday. Appellant claimed to have spent the weekend at his girlfriend’s house in Long Beach, and said he had not been to the shop on Saturday or Sunday.
Most of the recorded interview was played for the jury.
After Marullo revealed that Pulido’s body had been found, and accused appellant of killing him, appellant admitted he already knew Pulido was dead. According to appellant, he discovered Pulido’s lifeless body early Saturday morning in the room used as an office. It appeared Pulido had shot himself. Appellant was afraid he would be blamed, so he wrapped the body in a sheet and a blanket and hid it in a trashcan. On Sunday morning, appellant paid a local drug addict to take the trashcan away, but the drug addict only moved it as far as a nearby corner. Appellant then loaded the trashcan into his truck and dumped it near the railroad tracks. He drove Pulido’s car to another location and abandoned it.
Chemical testing revealed the presence of blood on the wall and floor of the office, where appellant said he found Pulido’s body. A search of the shop revealed two firearms and some ammunition behind a ceiling panel in the kitchen. One of the firearms was a.22-caliber handgun, which could have fired the fatal bullet. According to appellant, both guns belonged to Pulido.
Appellant was charged with Pulido’s murder (Pen. Code, § 187, subd. (a)). It also was alleged that appellant personally used a firearm, within the meaning of Penal Code section 12022.53, subdivisions (b) through (d). Appellant pled not guilty. At trial, he testified in his own defense. His testimony was consistent in most respects with what he told the detectives the day Pulido’s body was discovered: he found Pulido after he was already dead, and he was afraid to call the police; the presence of firearms and drug paraphernalia in the shop would violate his probation; and he thought police would blame him since he had a criminal record. He hid Pulido’s body in a trashcan, which he dumped by the railroad tracks, but he left Pulido’s wallet with the body so that he could be identified and his family notified.
A jury found appellant guilty of murder in the second degree and found the firearm allegations to be true. The court imposed a sentence of 40 years to life, consisting of a base term of 15 years to life, plus 25 years to life for the firearm enhancement, and appellant was ordered to pay restitution. This timely appeal followed.
DISCUSSION
I
Under the evidence presented, only two hypotheses are tenable: either Pulido took his own life or he was killed by appellant. No other theory was proffered at trial. Appellant’s sole contention is that the trial court erred in admitting evidence of an unrelated incident in which he made a death threat. He asserts this error was a prejudicial abuse of discretion under California law, and a denial of his federal constitutional right to due process. In particular, he argues that the court abused its discretion under Evidence Code sections 1101 and 352.
All unspecified statutory references are to the Evidence Code.
Prior to trial, the prosecutor moved to admit evidence that appellant previously threatened to kill a man in a quarrel over a parking space. She argued this was admissible to show motive in the present case, pursuant to section 1101, subdivision (b). According to her offer of proof, approximately one month before Pulido’s death, Juan Mendoza made a police report concerning appellant. Mendoza reported that he and appellant had a telephonic argument regarding where appellant parked his car when visiting his children. When Mendoza told appellant he was tired of his behavior, appellant replied, “‘I don’t care. I will kill you.’” After the prosecutor pointed out that the defense’s theory was that Pulido had committed suicide, the following exchange occurred:
“[Prosecutor]: So this would be to rebutt [sic] that, not necessarily to show—not to show the victim [sic] had a character for violence, but rather to show in this case as part of his motive, that he’s quick to anger, that he had previously made threats.
“The Court: Okay.
“[Defense Counsel]: Well, I just think that’s thoroughly excludable. It’s a prior bad act. Its probative value is outweighed by its prejudicial effect. It’s not relevant, and I’ll submit on that.
“...
“The Court: Why don’t you articulate again what you believe the motive and relevance and materiality is of that fact.
“[Prosecutor]:... Obviously, if we were admitting it just to show his character for violent behavior, then clearly it’s excludable. The reason why the people think—or are even asking the court in the chance you might let it in or based on the particular facts of this case where the defendant is alleging that he had absolutely no confrontations whatsoever with the victim
“...
“[Prosecutor]:... The people believe that this is probative into the defendant’s motive in that there are various places throughout the DVD [of his interview with police] where he indicates when he’s talking, there are things that obviously irritated him or annoyed him that the victim had done. So the People believe that this would provide the jurors insight into the defendant’s motive.
“[Defense Counsel]: In other words, that’s just another way of saying he has a propensity for violence. I mean, that’s the same thing.
“The Court: The court finds that the offer of proof regarding the prior act may be utilized to show the motive of the accused.
“[Defense Counsel]: Your Honor, I’d like to provide more argument on that.
“The Court: It’s been submitted sufficiently, but I will let you do it for the record, nonetheless, and that in conducting a 352 analysis, the probative value of the other act is not substantially outweighed by any dangers or undue prejudice.
“[Defense Counsel]: And, naturally, I object to that. I think that’s a gross lowering of the standard of introducing prior bad acts just because it’s a bad act. I don’t think the fact that he made, apparently, a threat which he didn’t carry out is not [sic] probative of the actual allegation that he actually used violence. All it is is saying, ‘Hey, this guy said something threatening,’ so it’s not part of his signature of behavior. It’s not part of a pattern of conduct. It’s just saying, ‘Hey, this guy is a violent person.’
“The Court: So noted.”
During direct examination, appellant admitted he had a bad temper, but denied he had ever used physical violence. On cross-examination, the prosecutor asked appellant how his temper showed itself. Appellant answered that he got upset when people lied to him or did not do what he told them to do. He admitted to raising his voice when angry. The prosecutor then turned to the issue of threats:
“[Prosecutor]:... Do you ever threaten people?
“[Appellant]: No.
“[Prosecutor]: You never threaten people?
“[Appellant]: Never threaten people like in the way that I’m going to do something to them, no.
“...
“[Prosecutor]:.... [Y]ou said, I’ve got a bad temper. What I want to find out is what is it?
“[Appellant]: I can’t explain it. I mean, I—I just get upset about little stuff sometimes.
“[Prosecutor]: How upset do you get?
“[Appellant]: Not to the point that I want to kill nobody. I don’t think so.
“[Prosecutor]: So you might threaten to kill somebody but you don’t do it?
“[Appellant]: I don’t have the heart to kill nobody.
“...
“[Prosecutor]:... Do you know a gentleman by the name of Juan Mendoza?
“[Appellant]: Yes, I do.
“[Prosecutor]: What happened with Juan Mendoza?
“[Appellant]: He—he had a phone in my own house. He picked up the phone and he started calling me names and started harassing me and stuff, so I told him, you know, ‘People can get killed for less than that.’ That’s the only thing I told him, and then he called the cops and made a report that I told him that I want to kill him. See how it changes from one word to another?
“[Prosecutor]: So when you told him that—you said, ‘People get killed for less than that’ after he called you names; is that right?
“...
“[Appellant]: He called me, ‘Hey, you motherfucker. You got to move the car out of driveway.’ It’s still my house, just because he wants to park his [sic]. That’s when I got real upset. And I told him, you know, ‘People can get killed for less than that’ is what I told him. I never told him, ‘I’m going to go and kill you.’
“[Prosecutor]: Okay. So if he were to come in and say that you said, you know, ‘I’m going to kill you’
“[Appellant]: Well, he called the cops and made a report like that. You might have that.
“[Prosecutor]: But that wouldn’t be accurate. What would be accurate—or what you would tell us is that you said, ‘People get killed for less than that’ in an argument over a parking spot?
“[Appellant]: Because he’s using my phone and everything, yes. I was real upset, but I never threatened nobody.
“[Prosecutor]: All you said was, ‘People get killed for less than that’?
“[Appellant]: Yeah.”
In opening summation, the prosecutor argued that appellant’s threat to Mendoza shed light on his motive to kill Pulido: “We don’t know what his motivation was. Was it the money? Was it the drugs? Was it even something more simple, as in the defendant’s words when he argued with the other gentleman over the parking space? People get killed for less than that. We don’t know the exact motive here.” In her closing summation, the prosecutor said, “I can’t say what the motive is because there’s the one person who knows why he killed Mr. Pulido, and that’s the defendant. But what we do know that [sic] they were having problems. They were having these small kind of things, and he admits to that.... He admits to this temper, but he still wants you to believe that absolutely nothing happened between them. Nothing at all. Everything was great. And this is coming from the man who had an argument over a parking space, says to the other guy, ‘People get killed for less.’ And that’s in an argument over where he parks his car.”
II
“[E]vidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion,” subject to certain exceptions. (§ 1101, subd. (a).) A nonexclusive list of exceptions appears in subdivision (b) of section 1101: evidence of a prior bad act is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident other than the defendant’s disposition to commit such an act. (§ 1101, subd. (b); see also People v. Whisenhunt (2008) 44 Cal.4th 174, 203.)
The mere assertion of a permissible purpose does not justify admission of evidence of unrelated misconduct. (People v. Guerrero (1976) 16 Cal.3d 719, 724.) “Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis.’” (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Thus, the admissibility of such evidence “‘depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’” (People v. Kelly (2007) 42 Cal.4th 763, 783.) We review the trial court’s resolution of this issue for abuse of discretion. (People v. Whisenhunt, supra, 44 Cal.4th at p. 203.)
According to the prosecutor, the fact she sought to prove with evidence of appellant’s prior threat was his motive to kill Pulido. Because this purpose is permissible under section 1101, subdivision (b), the evidence was admissible subject to consideration of undue prejudice under section 352, if (1) motive was a material issue, (2) evidence of the prior threat tended to prove appellant’s motive in the present case, and (3) evidence of the prior threat had substantial probative value which was not outweighed by its inherent prejudicial effect. (See People v. Kelly, supra, 42 Cal.4th at p. 783.)
No issue was raised as to the admissibility of this evidence on any theory other than motive, either in the trial court or on appeal.
Unlike the identity of the perpetrator or the elements of the charged crime, motive is not an ultimate fact the prosecution must prove to sustain a conviction. (People v. Thompson (1980) 27 Cal.3d 303, 315, fns. 13-14, disapproved on other grounds in People v. Rowland (1992) 4 Cal.4th 238, 260.) Motive is an intermediate fact, and it satisfies the materiality requirement only if it tends to prove a disputed ultimate fact. (Ibid.; see also People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1018.) In the present case, a disputed ultimate fact was whether an unlawful killing had occurred or whether Pulido’s death was a suicide. If the prosecution proved appellant had a motive to kill Pulido, that intermediate fact would tend to prove that Pulido’s death was a murder rather than a suicide. (See People v. Towler (1982) 31 Cal.3d 105, 119-120.) Thus, the requirement of materiality was met with respect to the issue of motive.
The next question is whether evidence of appellant’s prior threat tends to prove appellant had a motive to kill Pulido. For evidence of prior misconduct to tend to prove motive, “there must be a nexus or direct link between the commission of the prior misconduct and the charged crime.” (People v. Scheer, supra, 68 Cal.App.4th at p. 1019.)
The degree of similarity which must exist between the charged crime and prior misconduct depends on the People’s theory of the case. It may be the very fact or circumstance of the commission of the prior misconduct that gives rise to the motive for the charged crime. (People v. Scheer, supra, 68 Cal.App.4th at p. 1018; see, e.g., People v. Daniels (1991) 52 Cal.3d 815, 857 [defendant’s involvement in prior bank robbery, which led to his being shot by police and rendered paraplegic, relevant to show retributive motive for charged murders of police officers].) In such a case, the required nexus does not depend on similarity between the offenses. (People v. Scheer, supra, 68 Cal.App.4th at p. 1018.) In other cases, “‘[t]he presence of the same motive in both instances may be a contributing factor in finding a common plan or design.’ [Citation.] In such cases, the offenses must ‘share common features.’” (People v. Walker (2006) 139 Cal.App.4th 782, 804-805 [since motive for charged murder of prostitute was believed to be animus toward prostitutes, evidence of defendant’s similar prior attacks on prostitutes shared nexus with charged crime, but evidence of his prior sexual assault of a nonprostitute did not].)
No argument is made that the circumstances of appellant’s threat against Mendoza gave rise to appellant’s motive to kill Pulido. Consequently, for the prior threat to tend to prove a motive for the charged crime, the offenses must share similar features from which a common motive can be inferred. Respondent argues, “Although the uncharged crime and the charged offense were dissimilar in many respects, the Mendoza incident demonstrated appellant’s short temper in response to a minor irritation concerning his home—a likely motive for the murder of his roommate, Pulido.” Respondent points out that appellant became upset with Mendoza for complaining about where appellant parked and for calling from a phone in a house appellant owned. Respondent argues that appellant’s admitted annoyance with Pulido over such matters as Pulido inviting women to the shop, keeping guns in the shop, and giving out appellant’s phone number was likely to trigger a similarly angry response.
There are not enough similarities between the two incidents to support a reasonable inference of a common motive. The confrontation between appellant and Mendoza appears to have been spontaneous and heated. Appellant perceived Mendoza as the initiator of the confrontation: “He picked up the phone and he started calling me names and started harassing me and stuff.” And appellant apparently made the threat after Mendoza used a vulgar epithet toward him. By way of contrast, there is no evidence that appellant and Pulido had a heated confrontation, either immediately before Pulido’s death or at any earlier time. Rather, the evidence shows that appellant become annoyed with Pulido and asked him to find another place to stay. This encounter occurred long enough before Pulido’s death for Pulido to pack some of his belongings into his car. The difficulty in perceiving a nexus between the two cases is compounded by the lack of context for appellant’s dispute with Mendoza. The evidence showed only that Mendoza was in a house appellant owned when they spoke on the phone. No evidence showed whether, prior to the phone call, Mendoza was a friend, an enemy, a stranger, or a romantic rival. But prior to Pulido’s death, appellant was sufficiently friendly with Pulido to offer him lodging and employment in his car repair shop.
Respondent characterizes the motive supposedly common to these incidents as appellant’s “motive to kill anyone who crossed him.” Yet, if appellant did harbor an inclination to kill anyone who crossed him, such an inclination would be a propensity, not a motive. In fact, the prosecutor admitted as much when she offered the evidence for the purpose of showing “that he’s quick to anger, that he had previously made threats.”
Thus, the court’s ruling that the evidence of the Mendoza incident was admissible to prove motive was error. Nevertheless, the prosecutor did not explicitly argue to the jury that it was motive; her argument was more nuanced. In her opening summation, she acknowledged: “To be honest, do we really know exactly what the motive for this was? No. We have some indications, but because of the way the defendant talked in his, the way that he answers his questions here, you know what, he’s not saying. He’s not going to give us any idea. Oh, no problems, everything was great. And then the next thing out of his mouth is, ‘yeah, I was really mad,’ you know, ‘when he didn’t bring back the keys,’ ‘Yeah, I was really mad when he gave out my cell phone.’ We don’t know what his motivation was. Was it the money? Was it the drugs? Was it even something more simple, as in the defendant’s words when he argued with the other gentleman over the parking space? People get killed for less than that. We don’t know the exact motive here.”
The prosecutor’s reference to the Mendoza incident on closing summation was similar: “We’re talking about motive.... I can’t say what the motive is because there’s the one person who knows why he killed Mr. Pulido, and that’s the defendant. But what we do know [is] that they were having problems. They were having these small kind of things, and he admits to that. He admits to misleading the police on purpose, right, when he’s talking about, you know, not knowing them and everything is fine. He admits to all of that. He admits to this temper, but he still wants you to believe that absolutely nothing happened between them. Nothing at all. Everything was great. And this is coming from the man who had an argument over a parking space, says to the other guy, ‘people get killed for less.’ And that’s in an argument over where he parks his car.”
While not expressly saying that the Mendoza incident proves defendant’s motive to kill Pulido, the prosecutor implied it in her statements that while she does not know defendant’s motive, she was offering his quick temper as an example. Yet evidence of his short temper already was before the jury, and while it was not a motive for homicide, it tended to explain how a homicide may have occurred and undercut the credibility of defendant’s version of why he hid the body and other evidence that Pulido died defendant’s shop, and why he lied to police. This would have been a proper use of the evidence. (See § 1101, subd. (c) [nothing in § 1101 “affects the admissibility of evidence offered to support or attack the credibility of a witness”].) And, in fact, it was used to attack the veracity of defendant’s testimony. The prosecutor already had argued that defendant’s explanation was not credible, and returned to that theme shortly after the last passage we have quoted.
“The inference of a criminal disposition may not be used to establish any link in the chain of logic connecting the uncharged offense with a material fact. If no theory of relevancy can be established without this pitfall, the evidence of the uncharged offense is simply inadmissible.” (People v. Thompson, supra, 27 Cal.3d at p. 317.) Because the threat against Mendoza tends to show not motive, but a general propensity for violence, it was an abuse of discretion for the trial court to admit evidence of the prior misconduct as proof of appellant’s motive to kill Pulido.
III
Having concluded that the trial court erred in ruling that the Mendoza incident was admissible as motive and in permitting the prosecutor to argue that theory, we turn to whether the error required reversal. “[T]he application of ordinary rules of evidence does not implicate the federal Constitution, and thus we review allegations of error under the ‘reasonable probability’ standard of People v. Watson (1956) 46 Cal.2d 818, 836 [(Watson)].” (People v. Harris (2005) 37 Cal.4th 310, 336.)
Appellate review under Watson “focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (People v. Breverman (1998) 19 Cal.4th 142, 177.) Other considerations under the Watson standard have to do with the impact of the erroneously admitted evidence, and include the nature of the evidence (see People v. Guerrero, supra, 16 Cal.3d at p. 730), whether the evidence provided something otherwise missing from the prosecution’s case (see People v. Page (2008) 44 Cal.4th 1, 46), and the extent to which the prosecution emphasized the evidence (see People v. Pantoja, supra, 122 Cal.App.4th at pp. 14-15).
The evidence supporting the judgment against appellant is strong. The most damaging evidence is, of course, appellant’s effort to hide Pulido’s death by disposing of Pulido’s body, cleaning and rearranging the room where Pulido died, hiding Pulido’s firearms, and making false statements to law enforcement. Such acts indicate consciousness of guilt. (See, e.g., People v. Schmeck (2005) 37 Cal.4th 240, 291.) The testimony of the medical examiner that Pulido did not kill himself but was killed by someone else also supports that conclusion. Apart from appellant’s highly suspicious behavior after Pulido’s death, the prosecution’s case relied on appellant’s admission that he was sufficiently unhappy about Pulido keeping firearms and inviting women to the shop that he asked him to move.
To be sure, substantial evidence also was admitted to support the theory that Pulido committed suicide. Although three witnesses, including appellant, testified that Pulido did not appear depressed, at the time of his death Pulido was facing serious personal difficulties, including drug addiction, death threats from a rival gang, and tenuous employment and housing options. Both the defense’s forensic pathologist, David Posey, and the deputy medical examiner from the Los Angeles County Coroner’s office testified that contact wounds to the right temple have a statistical probability of resulting from suicide rather than homicide. Though the nature of the wound required the shooter to be at very close range, Pulido lacked defensive wounds. The trajectory of the bullet path was consistent with a self-inflicted wound. And appellant explained his attempt to conceal Pulido’s death as motivated by fear of being discovered in violation of the terms of his probation.
No suicide note was discovered, but defense expert Posey testified that notes are left in only one-third of suicides. No usable fingerprints were recovered from the gun believed to have killed Pulido. Though no gunshot residue was recovered from Pulido’s hand, discharge of a firearm, particularly of small caliber, does not always leave residue. Recovery of gunshot residue from a deceased body may not be possible more than six hours after death, and the wrapping and disposal of Pulido’s body could have wiped away gunshot residue.
Viewing all the evidence presented to the jury, we conclude that it is not reasonably probable that appellant would have had a better outcome but for the trial court error. Evidence of appellant’s bad temper already was before the jury and, arguably, the Mendoza incident also was admissible because of appellant’s denial or ambiguity in answering the question, on cross-examination, whether he had threatened to kill anyone. In any event, it was not incendiary and, at most, illustrated that appellant was easily angered, even by minor things. The prosecutor implied that it went to motive, but did not explain how. And the prosecutor’s references to the incident occupy only three of the 61 pages of transcript which report the opening and closing prosecutorial summation.. The bulk of her argument is devoted to defendant’s story, the police investigation, and the forensics of the crime.
DISPOSITION
The judgment of conviction is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.