Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FSB057383 Michael A. Smith, Judge.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Ivy B. Fitzpatrick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant of second degree murder (Pen. Code, § 187, subd. (a)) and elder abuse (§ 368, subd. (b)(1)). She was sentenced to prison for 15 years to life and appeals claiming the evidence was insufficient to sustain the verdicts and jury instruction error occurred. We reject her contentions and affirm. The facts concerning these crimes will be described as part of our discussion of the sufficiency of the evidence.
All further references are to the Penal Code unless otherwise indicated.
Issues and Discussion
A. Sufficiency of the Evidence
The pathologist who performed the autopsy testified that the victim sustained the following injuries before his death due to what he termed was “an assault”: one to the inner lips, a blunt force injury to the right side of the face and above the left ear, hemorrhages to the back and chest, a bruise to the inner right forearm caused by blunt force trauma suggestive of a defensive wound, hemorrhage in the brain caused by blunt force injury, which would have given the victim a terrible headache, injury to the soft tissue of the head of the penis, bite on the left buttocks and hemorrhage/bruising on the back of both hands caused by blunt force trauma, also suggestive of defensive wounds. Defendant could not be excluded as the person who administered the bite mark. There were other bite marks on both of the victim’s shoulders. Although none of the blunt force injuries was fatal, it was probable and likely that the victim suffered a fatal arrhythmia due to the psychological stress and strain of the injuries. The pathologist opined that it was unlikely that the victim suffered the assault and later had a fatal heart event unrelated to it.
We say possible, not because the injury was possible, but because the pathologist could not say for certain whether it was inflicted before or after death.
The victim was 73 years old at the time of his death. He was the son of a former co-worker of defendant’s and defendant had known him since the 1980s. He was mildly mentally retarded, developmentally disabled, and had a history of faking seizures and heart attacks to get attention and engaging in fisticuffs with peers. He had diabetes and was a chronic paranoid schizophrenic. He was resistive to completing grooming and personal hygiene tasks and had to be directed to do so. He had a tendency to be verbally aggressive and confrontational and to either run away or wander off. At times, he suffered from incontinence. He spoke in grunts. The defendant once described the victim as “a handful.” Since 1989, the victim had received Social Security and SSI benefits, which were deposited into an account to which both he and defendant had access.
In fact, the victim had lived with defendant’s family after his father was no longer able to care for him and until defendant placed him in a residential facility when he was 59.
Defendant’s daughter testified that when defendant brought the victim to the home of her daughter or the daughter’s mother-in-law for holidays, the victim would wear adult diapers so as not to have an embarrassing accident in his pants.
Defendant was a licensed vocational nurse and had been the victim’s conservator since 1989. Before she moved the victim into her home in March, 2005, he had lived for over 14 years in a residential care facility. When defendant interacted with the staff at the facility, she was demanding, controlling and aggressive. Five months after defendant moved the victim into her home, he was seen in public well-groomed and well-dressed. When he was seen again on October 17, 2005, he was “spaced out,” did not seem like himself, was not well- groomed and he smelled. He did not recognize a worker from the facility where he had lived who had taken care of him for five years.
Before that, the victim had lived with defendant and her family beginning in the 1980s.
The victim did most of the work in keeping his room at defendant’s rented home neat and clean. The rest of the house was littered with clutter, with paths cut through it so one could go from room to room. According to defendant’s daughter, defendant’s house had smelled badly for years. In fact, defendant’s son-in-law had refused to set foot in the house for the two years because of the stench. Before the victim moved in, the defendant’s daughter and the latter’s friend, who worked for animal control, removed over twenty cats and several other assorted animals from the premises due to the presence of animal excrement, urine and their consequent odors. Defendant did not sleep on the bed in her bedroom, which was piled with clothes and other items. Rather, she slept on a patio chaise lounge in front of the television in the living room.
In July 2005, the victim’s case worker contacted defendant to set up an interview so she could author a quarterly report on the victim and determine whether his placement with defendant was appropriate. Although the case worker had, for eight years, personally visited the victim where he was living, in order to complete her quarterly reports, this time defendant told her that she and the victim preferred to see her at her office, not at their home. On October 19th and 20th, 2005, the case worker called defendant at least three times to set up an in-home visit, but each time got no answer and no response to her message to be called back by defendant. Previously, defendant had been very good about returning the case worker’s calls. When the case worker actually reached defendant during a call on October 24th, defendant explained that she had not returned the case worker’s previous calls because she and the victim had the flu. Defendant said she and the victim were still too ill to come to the caseworker’s office. When the caseworker offered to come to defendant’s home, defendant put her off, saying she would call her sometime the following month and set up a visit.
When the victim’s former caregiver saw him and defendant on October 17, defendant said that she was sick and they were out getting her medicine for her ailment.
On October 29th, defendant called the police to report that the victim had disappeared from her home sometime between midnight and 5:00 a.m. An officer who went to defendant’s home at 9:30 a.m. to speak to her asked to go inside, but defendant said no, that the house was dirty and her dogs might bite him (although they were in a gated side yard). The defendant was nervous, did not make eye contact with the officer, rubbed her hands, stuttered and talked fast. The officer asked defendant if she would drive around and try to locate defendant, knowing that he had a habit of wandering off. She said she had to take a shower, as she had been cleaning, and then she would look for the victim. Defendant told another officer that the victim had fallen and cut his head a couple of months before his disappearance and had fallen while ascending the stairs outside the home two weeks before. She claimed she and the victim were ill on October 20, 2005.
The victim’s blood was found in his bedroom—on a wall near a light switch, on a television and the base of a floor fan, on another wall—on a hacksaw blade in the kitchen and on the interior of the rear hatch and the front passenger seat of defendant’s vehicle. A chemical that reacts to blood, bleach and chlorine reacted in several other places in the victim’s room, including on the bed mattress, and in another room, which was used for storage, and a concrete patio slab outside it, as well as the bathtub drain, the bathroom sink and the top and inside of the washing machine. Only sheets remained on the victim’s bed. The victim’s head, arms and legs had been severed from his body and dumped at the side of Highway 138. His hands were clenched and looked as though they had been in water and there was a strong odor of bleach near the limbs. His torso was discovered approximately seventeen miles away in the parking lot of a dog run at a public park. It also had a strong odor of bleach about it and it appeared as though portions of skin had had contact with bleach. The body parts were discovered early on October 30th.
The blade had been cleaned, but apparently, not well enough.
The commencement ceremony for defendant’s graduation from vocational nursing school had taken place in the same park in 1987.
There was a tarp, a wheel barrow and a garden hose outside the storage room of defendant’s house and the ground underneath the tarp was damp. There was a strong odor of bleach and cleaning solvents in defendant’s house, especially in the victim’s bedroom and in the storage room through which one could exit the house from the victim’s bedroom. The carpeting in the victim’s bedroom and through the storage room was damp and had been bleached where there were reddish brown stains. The floor fan in the victim’s bedroom was on. The tub in the bathroom was the only clean surface in the house. There were saws in the workshop on the property. A knife was missing from a collection in the kitchen. A gallon bottle of bleach was on the kitchen floor. Recently washed clothes which had “soured” and had a strong odor of bleach were in the washing machine. Defendant had purchased bleach, vinegar and baking soda on October 30. There were no signs of forced entry into the house.
This was discovered on November 1.
Defendant contends the foregoing constituted insufficient evidence that she committed an act which resulted in the victim’s death. We disagree. As the prosecutor argued to the jury, the “act” was the assault on the victim, which was supported by substantial evidence as described above. The coroner opined that such an assault probably and likely caused the coronary episode that killed the victim. The jury was entitled to accept this opinion.
Defendant also asserts there was no evidence that the assault was committed with the requisite malice aforethought for murder or the willful infliction of unjustifiable pain or mental suffering necessary for elder abuse. However, the evidence outlined above showed defendant to be a troubled and less than mentally healthy person. She also had physical limitations atypical for a woman her age, was in some degree of pain and was on an antidepressant and a number of other medications, some of which made her tired. She had been out of work for about eighteen months when the crimes occurred and apparently felt she was no longer able to practice her profession. How someone in her situation could loose patience caring for a person such as the victim and lash out at him in fatigue, frustration and/or anger is no great mystery. The fact that up until a few months before the crime, defendant may have, for the most part, treated the victim well, even like family, is admirable, but it does not make an unraveling of her positive feelings towards him, due to the pressures of being a caretaker of a difficult charge under less than supportive circumstances, unlikely.
She was 53 years old at the time of the victim’s death.
She had engaged a lawyer to make a worker’s compensation claim for her.
Defendant asserts, without citing to anything specific, that evidence “indicated [that she] was likely physically incapable of overpowering [the victim], and the acts required for the dismemberment would have been quite difficult for her based on her physical disabilities.” We disagree. Defendant did not “overpower” the victim—she hit him. Someone half her size could have done the same. Moreover, the two doctors who had been employed to assist defendant in making a worker’s compensation claim testified that much of their opinions about her conditions were based on her reports to them. Even so, defendant continued to work as an LVN after the car accident that supposedly caused her disability. One of her doctors opined that she would be able to drive, clean her home, run errands and go shopping within reason. Indeed, according to her daughter, defendant drove her vehicle and shopped, often with the victim. The aforementioned doctor concluded that defendant’s condition did not preclude her from lifting at all, just lifting heavy things. In his opinion, defendant was, in April 2005, temporarily disabled from being an LVN, but not unable to pursue another profession. The other doctor opined that defendant could walk without a supportive device, although defendant was seen around the time of the crimes with a cane within reach. This doctor shared the other physician’s opinion that while defendant could not continue to work as an LVN, because of the possibility of having to repetitively lift over her head, she could do other work that did not require this. We note with interest that when the police entered defendant’s home to search for evidence, she did not hesitate in attempting to move the bookshelf that blocked the entry into the victim’s bedroom. This was surely not lost on the jury. Moreover, the fact that defendant had some physical limitations was a double-edged sword. While it could have, but ultimately, apparently, did not served as a basis to conclude that she was incapable of assaulting the victim and cutting up his body, it also served to explain why she had to cut up his body in order to get it out of her house. The fact that the parts were not buried or hidden in any way, but merely dumped out in the open where any passerby could easily see them further suggested that it was she and not someone who was both fully able-bodied and sufficiently clever to make discovery of the body more difficult who killed the victim. Despite defendant’s protests, the jury was free to utilize the beheading and dismemberment of the victim’s body to assist in determining that the victim had been killed and had not died of natural causes. One need only view the photos of the victim’s disjointed remains and recall that the victim was bitten and his penis injured to conclude that defendant possessed the necessary states of mind for both offenses.
Defendant overstates the evidence in her reply brief when she asserts that the evidence established that “it was medically impossible for [her] to lift more than ten to fifteen pounds.” Neither doctor testified that under no circumstances could defendant lift more than that amount of weight. Nor would they, given the fact that under the proper circumstances, people perform feats above and beyond what they, themselves, believe they are able to do.
Defendant concedes that there was “perhaps” sufficient evidence that defendant was involved in the beheading and dismemberment of the victim in her home.
B. Jury Instruction
Defendant contends that the trial court had a sua sponte duty to instruct on voluntary manslaughter, over the objection, based on strategy, of her trial counsel. Defendant’s argument is a repeat of the one she made as part of her motion for new trial. In that motion, defendant asserted that one of the jurors contacted her attorney after trial, reported that the other jurors “‘thought [defendant] may have acted in self defense and just gone overboard’[ and] [¶] . . . if the court had instructed on voluntary manslaughter they may have convicted her of it.” The trial court concluded that there was no evidence about the specific circumstances of the murder, and, therefore, no evidence to support the theory of sudden quarrel/heat of passion or imperfect self-defense. It agreed with the prosecutor’s assertion that defendant had no injuries that the police noticed, therefore, there was no evidence that the victim had attacked defendant. The trial court denied the motion.
Defendant presented a classis “SODDI” (Some Other Dude Did It) defense.
We note that in making its ruling, the court below ignored the assertion made by the juror. Although defendant here champions it as the reason the trial court should have instructed the jury on voluntary manslaughter, she cites no authority for us doing so. Moreover, she concedes that “there is no specific evidence adduced at trial demonstrating [that defendant] acted in the heat of passion after adequate provocation or in unreasonable self-defense.” This, then, should end the matter. Contrary to defendant’s assertion, the fact that the victim had defensive wounds does not create a reasonable inference that he attacked or provoked defendant. It creates only the reasonable inference that she attacked him.
Disposition
The judgment is affirmed.
We concur: RICHLI, J., MILLER, J.