Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FVI014787 Jon D. Ferguson, Judge. .
Gerald J. Miller, 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, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Charles William Braden and Pamela Bledsoe (Pamela) met in the summer of 2000 and began dating. When defendant started to act strangely by showing up at her house unannounced, Pamela decided to end their relationship. On February 23, 2002, Pamela and her daughter, Tiffany Bledsoe (Tiffany), went to defendant’s house to retrieve Pamela’s belongings. Pamela and defendant got into an argument, and she told him that she did not want to see him again. Defendant went to another room, where Tiffany was packing Pamela’s belongings, and shot Tiffany in the hand. Tiffany yelled to Pamela to call the police. Defendant then proceeded to shoot Tiffany at least five times. When Pamela rushed into the room where Tiffany had been shot, defendant told Pamela, “Now I’ve taken from you what you love the most.” Tiffany died as a result of the gunshot wounds.
Defendant was found guilty of the second degree murder, along with personal use of a firearm.
Defendant now contends:
1. The trial court erred by denying his motion pursuant to Code of Civil Procedure section 237 to release juror information in order to investigate possible juror misconduct during deliberations.
2. The trial court erred by admitting prior conduct committed by defendant.
3. Gruesome photographs admitted at trial were prejudicial.
4. He was prejudiced by the presence of a support person, appointed pursuant to Penal Code section 868.5, during Pamela’s testimony.
5. Cumulative errors occurring at trial mandate reversal.
6. Resentencing is required in order for the trial court to strike rather than stay the lesser firearm enhancements.
We find that no prejudicial errors occurred and affirm the judgment.
I
PROCEDURAL BACKGROUND
A jury found defendant guilty of second degree murder (Pen. Code, § 187, subd. (a)) and found true the allegations that he personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b), (c), and (d)). The trial court sentenced defendant to 15 years to life for the second degree murder, plus 25 years to life for the gun enhancement under section 12022.53, subdivision (d), for a total sentence of 40 years to life. The court stayed the remaining weapons use enhancements.
All further statutory references are to the Penal Code unless otherwise specified.
II
FACTUAL BACKGROUND
A. Prosecution
1. Pamela and defendant’s relationship
Defendant, who lived in Hesperia, and Pamela, who lived in Yorba Linda, started dating in September 2000. They got together often and kept their personal property at each other’s houses. Pamela had two children, one of whom was 27-year-old Tiffany, who had met defendant. Defendant also had children, whom Pamela had met.
In December 2000, defendant gave Pamela a handgun. Defendant told her he gave it to her because she lived alone. She put the gun in her safe and never used it; she did not know how to use a firearm.
In June 2001, while defendant was staying at Pamela’s house, he told her he received a phone call from his son that his home had been burglarized. An antique gas pump that Pamela had purchased and kept at defendant’s house was missing. Defendant filed an insurance claim and gave Pamela money from the award to cover the cost of the gas pump. Pamela eventually confronted defendant about the burglary, and defendant admitted he had lied about it. He never told her what had happened to the gas pump.
Between June and October 2001, Pamela started receiving frequent calls from defendant made from pay phones located within a two-mile radius of her home.
On October 20, 2001, defendant came to Pamela’s house and was very upset. He smashed Pamela’s things and was verbally abusive. Defendant asked for the gun back, but Pamela refused. Pamela filed a complaint with the Brea Police Department the following day. Defendant returned a few days later and apologized for his behavior, which he explained was due to his recent diagnosis of prostrate cancer. Defendant eventually paid her $500 for the items he broke.
On cross-examination, she admitted that she slapped defendant two or three times while he was at her house because he called her degrading names.
In December 2001 or January 2002, defendant called Pamela to come pick him up in Arizona, where he had been treated for his prostate cancer. Pamela felt sorry for defendant because her husband had died of cancer, so she went to pick him up. Defendant was angry the entire ride home. He told Pamela he needed someplace to stay, but she refused to let him stay with her.
On February 7, 2002, defendant drove up and down Pamela’s street in front of her house. Pamela left a message on defendant’s home phone telling him to leave her alone. Defendant returned her call about 3:00 a.m. the following morning and told her that she had better think about what she was doing if she valued the lives of her loved ones.
On February 10, 2002, Pamela contacted defendant and told him that she wanted to completely end their relationship. They met at a restaurant; Pamela told him she “just couldn’t stand this any more.” They agreed to return each other’s personal property. Defendant called Pamela several days later and told her that he had packed up her things. They agreed to meet on February 23 at a restaurant to exchange their belongings.
2. The shooting
On February 23, 2002, Pamela and Tiffany drove to the restaurant where Pamela and defendant planned to meet. Tiffany saw defendant parked in the parking lot, but he did not enter the restaurant. He then drove off. Pamela spent hours trying to locate defendant. Defendant finally called her around 5:00 p.m. to advise her that she could retrieve her belongings at his house.
Pamela and Tiffany arrived at defendant’s house around 5:30 p.m. Defendant was home. Pamela gave defendant all of his things that had been at her house. She started searching the house for her belongings, as defendant had not boxed them up. While she was loading her things, defendant followed her. At one point, he pushed her with his hand, and she fell. She did not know why he had pushed her.
While going through the house, Pamela saw the antique gas pump. Defendant told her that he was not going to jail because of the pump and that he had already paid her for it. Pamela told defendant she would write him a check for the pump. She told him that she could not believe that he would steal from her and that she did not want to be friends with him.
Defendant left the room. Pamela then heard what she thought was a firecracker coming from the living room. Pamela ran into the living room and found Tiffany on the couch. Tiffany was holding her hand and told Pamela that defendant had shot her in the hand. Tiffany told Pamela to call the police. Pamela got up and ran to the phone. As she ran, she heard approximately five gunshots coming from Tiffany’s direction.
Pamela did not recall saying to the police right after the incident that she saw the second shots; she only heard them.
Pamela tried to run back into the living room but was confronted by defendant in the hallway. He had a gun in his hand. Defendant told her, “Now I’ve taken from you what you love the most.” Pamela begged defendant to get Tiffany help. Defendant told Pamela that Tiffany was already dead. Pamela went into the living room and saw Tiffany lying on the floor. There was blood coming out of her mouth, and she was not moving. Defendant ripped the phone cord out of the wall.
Pamela tried to run out of the house, but defendant grabbed her. He ripped her shirt and caused a bruise on her arm. Pamela begged him to call 911. She told defendant that not calling the police was making it worse. He responded, “How much worse can it get? You’re not going to tell them that you shot her.” He finally called and told the dispatcher that he had “shot a young lady . . . .” Defendant then grabbed two long-barreled guns (rifles or shotguns) from the house and drove off. Pamela ran to a neighbor’s house to get help.
Pamela told the neighbor, Melissa Torres, that defendant had shot Tiffany. Pamela was hysterical. Torres called the police. Pamela talked to the dispatcher and told the person that defendant had shot Tiffany. The dispatcher told Pamela to go back and help Tiffany. Pamela was afraid to go back to the house because she believed that defendant was going to come back and hurt her.
The parties stipulated that defendant called 911 at 6:23 p.m., and Torres called at 6:32 p.m.
Torres and Pamela went back to defendant’s house. Torres checked Tiffany’s pulse, but she had none and was not breathing. Pamela ran around and locked all the doors in defendant’s house because she was afraid he would come back and kill her.
Paramedics arrived and attempted to resuscitate Tiffany, but they were unsuccessful. She was pronounced dead at 7:20 p.m. Tiffany died as a result of the multiple gunshot wounds. There were 15 exit and entry wounds. The entry wounds were toward her back. Photographs of the numerous bullet wounds were shown to the jury. Pamela advised the arriving officers that defendant had been the one who shot Tiffany.
Sometime later, a .22-caliber gun was found in a desk drawer; it matched casings found at the scene and bullets recovered from Tiffany’s body. Defendant was located on March 5, 2002, in Stockton, California, and was arrested.
Pamela had told police that defendant took the murder weapon with him.
B. Defense
Defendant presented evidence that Pamela was upset with Tiffany because Tiffany took money from her in an effort to show that Pamela had shot Tiffany. Defendant also presented evidence that he was receiving treatment for cancer at the time of the shooting, so he was too weak and tired to commit the shooting.
III
DISCLOSURE OF JUROR INFORMATION
Defendant contends that the trial court erred by denying his posttrial motion to disclose juror information filed under Code of Civil Procedure section 237. Such refusal to disclose names violated his rights to an untainted jury and a fair trial.
A. Additional Factual and Procedural Background
After the jury entered its verdict, defendant brought a motion to disclose jurors’ names and addresses pursuant to Code of Civil Procedure section 206, subdivision (g). Counsel submitted a declaration stating that she had spoken with two jurors after the case and were told that the “jurors” had discussed the subject of punishment during deliberations. A declaration from Juror No. 5 was also presented, which provided in pertinent part, “During the deliberations, the issue of punishment came up and was discussed amongst the jurors. It was stated during the deliberations that a ‘first’ carries ’25 to Life,’ that a ‘second’ carries ‘7 to 9 years’ and that a manslaughter carried less time. . . . [J]uror #11, and . . . juror #8 were involved in the conversations about punishment.”
At the hearing on the matter, defendant submitted on the motion and declarations. The People countered that the motion did not establish misconduct or, if there was misconduct, it was not prejudicial. The trial court reviewed the declaration from Juror No. 5 for the record. It believed that in order to obtain the information or for there to be a hearing, the defendant must show good cause for the release of the jurors’ names. It reviewed the case law regarding the inadmissibility of the jurors’ thought processes during deliberations and stated it was having a difficult time determining how “further inquiry into the prospective jurors by way of interview would undercover information outside of the 1150.” The trial court concluded that in reviewing the entire trial transcript, “ . . . I cannot find that that conduct is evidence demonstrating a strong possibility that prejudicial misconduct occurred.” Defendant did not file a motion for new trial.
B. Analysis
Code of Civil Procedure section 206, subdivision (g) provides: “Pursuant to [Code of Civil Procedure] Section 237, a defendant or defendant’s counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court’s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.”
Upon the recording of a jury verdict in a criminal case, the court’s record of the jurors’ personal identifying information is to be sealed. (Code Civ. Proc., § 237, subd. (a)(2).) Any person may petition the court for disclosure of the identifying information, and the petition must be supported by a declaration establishing good cause for the disclosure. (Id., subd. (b)); Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1098, fn. 7; People v. Granish (1996) 41 Cal.App.4th 1117, 1131.)
Code of Civil Procedure section 237 provides, in pertinent part: “The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information . . . .” (Id., subd. (b).)
Good cause, in the context of a petition for disclosure to support a motion for a new trial based on juror misconduct, requires “a sufficient showing to support a reasonable belief that jury misconduct occurred . . . .” (People v. Rhodes (1989) 212 Cal.App.3d 541, 552; accord, People v. Wilson (1996) 43 Cal.App.4th 839, 850-852.) Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. (See Wilson, at p. 852.) We review the denial of a petition for disclosure for an abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
Although Code of Civil Procedure section 206 was amended after Rhodes, supra, 212 Cal.App.3d 541 was decided, our Supreme Court has expressly accepted that the 1992 amendment of Code of Civil Procedure section 206 did not disturb the holding requiring good cause for disclosure. (Townsel, supra, 20 Cal.4th at p. 1094, fn. 4.)
Under the circumstances of this case, Juror No. 5’s sworn declaration presented a possibility that juror misconduct occurred. The jurors had been instructed not to discuss penalty or punishment during deliberations. (CALJIC No. 17.42.) “[D]isregard[ing] the trial court’s instruction not to discuss penalty or punishment . . . constitute[s] juror misconduct.” (People v. Hill (1992) 3 Cal.App.4th 16, 34, overruled on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5; see also People v. Perez (1992) 4 Cal.App.4th 893, 908 [disregarding instruction not to discuss or consider defendant’s failure to testify was juror misconduct].)
CALJIC No. 17.42 provides, “In your deliberations do not discuss or consider the subject of penalty or punishment. That subject must not in any way affect your verdict.”
However, despite Juror No. 5’s declaration that the jurors had discussed punishment during deliberations, the trial court did not necessarily have to disclose other jurors’ names and addresses under Code of Civil Procedure section 237. Presuming that the misconduct described by Juror No. 5 occurred, defendant did not establish that there was any misconduct beyond that which was already reported. In fact, other declarations provided by defendant’s attorney and by investigators employed by the defense, who claimed to have spoken with Juror No. 11, provided the same information regarding discussions of punishment as attested to by Juror No. 5. Thus, this is not a case where further investigation was required in order to discover misconduct. Defendant simply did not show what further information was required from other jurors in order to file his motion for new trial on the ground of juror misconduct.
Moreover, defendant failed to establish what efforts were made to contact the other jurors. (See People v. Rhodes, supra, 212 Cal.App.3d at pp. 551-552 [requiring that defendant show efforts to contact jurors prior to granting petition to disclose jurors’ names and addresses]; Townsel v. Superior Court, supra, 20 Cal.4th at p. 1093 [citing the test in Rhodes after the enactment Code of Civ. Proc, § 237].) Defendant clearly was aware which jurors were involved, i.e., Juror Nos. 8 and 11, but did not indicate what efforts he made to find the jurors or why he failed to obtain declarations from the other jurors, at least one of whom he admitted he had spoken to.
Finally, defendant failed to show that the discussion of punishment for the various degrees of murder was “of such a character as is likely to have influenced the verdict improperly.” (Evid. Code, § 1150, subd. (a); see also People v. Jefflo (1998)63 Cal.App.4th 1314, 1322.) Initially, defendant did not explain how this brief (and erroneous) discussion of punishment for the degrees of murder was such that it could have influenced the verdict improperly. The jurors were instructed that they were not to let penalty or punishment enter into deciding their verdict. The jurors may have immediately disregarded the comments and moved on, which certainly would not influence the verdict. Furthermore, the jury had to choose between first degree murder, second degree murder, and voluntary manslaughter. Defendant’s sole defense was that Pamela shot Tiffany. Hence, the fact that there was mention of the punishment attached to the degrees of murder could not have influenced the jury’s verdict rejecting defendant’s sole defense.
Although one of the jurors stated that the punishment for second degree murder was 7 to 9 years, the punishment is 15 years to life (§ 190, subd. (a)).
The People argue that even if misconduct is presumed, it was not prejudicial. Defendant contends that prejudice is presumed when misconduct occurs, and that presumption has not been rebutted by the People.
“It is well settled that a presumption of prejudice arises from any juror misconduct.” (People v. Honeycutt (1977) 20 Cal.3d 150, 156.) “We assess prejudice by a review of the entire record. ‘The verdict will be set aside only if there appears a substantial likelihood of juror bias. . . . [W]e look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.]’” (People v. Tafoya (2007) 42 Cal.4th 147, 192.) When the evidence of the defendant’s guilt is overwhelming, the risk that juror misconduct “will prejudicially influence a juror is minimized. [Citation.]” (Ibid.)
It is clear based on the jury’s verdict that there was no actual bias against defendant. Despite clear evidence of premeditated and deliberate first degree murder, the jury chose to convict defendant of second degree murder. Despite defendant’s claim on appeal that the jurors would “choose the verdict that would result in the highest possible punishment,” they did not choose that verdict. Further, as stated, ante, the sole defense before the jury was that Pamela shot Tiffany. Voluntary manslaughter was not a viable theory in this case. The verdict in this case clearly establishes that the jury was not biased against defendant based on the discussion of punishment. The evidence supporting the verdict was overwhelming.
The evidence established that defendant and Pamela were ending their relationship and that it came to a head on the night of February 23, 2002. Defendant first shot Tiffany in the hand and waited, having time to deliberate over what he was going to do next. When Pamela ran to the phone, defendant shot Tiffany five times, clearly intending to kill her. His intent was also evidenced by his telling Pamela that he had killed the one thing that she loved the most. Defendant admitted to the 911 dispatcher that he had shot Tiffany. This clearly supported a conviction of premediated and deliberate first degree murder.
We therefore conclude that the trial court did not error by failing to disclose the jurors’ names and addresses.
IV
ADMISSION OF PRIOR CONDUCT
Defendant contends that the trial court erroneously introduced evidence of his prior conduct, specifically (1) his insurance fraud with respect to the antique gas pump purchased by Pamela; (2) the fact that he gave Pamela a handgun as a present; and (3) his prior incidents of “stalking,” including destroying Pamela’s personal property.
A. Additional Factual Background
Defendant brought a motion prior to trial to exclude evidence of his prior conduct, including the insurance fraud involved in the taking of the antique gas pump, the stalking of Pamela, and destruction of property belonging to Pamela. Defendant argued the evidence should be excluded pursuant to Evidence Code section 352.
During a hearing on the motion, the People indicated that they sought to introduce the stalking evidence to show that defendant harassed Pamela throughout their relationship. It showed the defendant’s motive to kill Tiffany in order to get back at Pamela. Defendant argued this evidence was more an effort to show that he was a bad person, rather than his motive to kill Tiffany. The trial court found the stalking not to be “particularly prejudicial.”
Defendant contended the fact of insurance fraud was an entirely different issue from the instant case, and the details would be prejudicial. The People argued that Pamela was taking the pump, and defendant may have believed that she would expose him for insurance fraud, which provided another motive for the crime. The trial court believed that this had some relevance of motive. It was potentially more prejudicial because it was another criminal act. However, the background of the pump had “significant probative value.” The trial court offered to give a limiting instruction.
Although the trial court included a limiting instruction for the prior acts in the proposed jury instructions, defendant did not want them so instructed.
Defendant also sought to exclude evidence of his damaging of Pamela’s property. The People felt it was relevant to show defendant’s intent; the shooting was intentional and not an accident, as he was upset with Pamela. Defendant argued that the incident was remote in time and did little to show motive. The trial court reserved ruling until Pamela testified. There was no further ruling.
As set forth in part II, ante, Pamela testified regarding the gas pump, stalking, destruction of property, and that defendant had given her a gun as a present.
B. Analysis
Initially, as noted by the People, defendant never objected in the lower court to the admission of evidence that he gave Pamela a gun as a present. The failure to object to the evidence waives any claim on appeal that the evidence was improperly admitted. (See People v. Demetrulias (2006) 39 Cal.4th 1, 20-21 [failure to object to admission of evidence in the lower court waives issue on appeal]; People v. Hinton (2006) 37 Cal.4th 839, 893, fn. 19 [failure to object to evidence under Evidence code section 352 waives claim on appeal].)
Regardless, the prior conduct evidence was relevant. Evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant and admissible. (Evid. Code, §§ 210, 351; People v. Garceau (1993) 6 Cal.4th 140, 177.) The trial court is vested with wide discretion in determining the relevancy of evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Here, the evidence regarding the progression of the relationship between Pamela and defendant was highly relevant to how the shooting came about and to show defendant’s intent and motive in committing the shooting. The fact that defendant gave Pamela a gun was relevant to show his familiarity and use of guns. Furthermore, the fact that defendant was stalking Pamela and that he destroyed her property showed his obsession with her and that he was capable of being violent. Finally, the fact that defendant set up the false burglary of her antique gas pump, and her discovery of his act, was extremely relevant in showing both that Pamela finally told defendant that their relationship was completely over and to show that defendant may have been concerned that Pamela was going to expose his insurance fraud. By killing Tiffany, he was able to both punish her for rejecting him and scare her into not exposing his act of insurance fraud.
Further, the evidence of stalking and insurance fraud was not inadmissible propensity evidence as argued by defendant, but rather was admissible under Evidence Code section 1101, subdivision (b). Evidence Code section 1101, subdivision (a), generally prohibits the admission of evidence of a person’s character or a trait of his or her character when offered to prove his or her conduct on a specified occasion. Evidence Code section 1101, subdivision (b), however, provides that evidence of a person’s prior criminal act is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .) other than his or her disposition to commit such an act.”
All of the evidence was properly admitted to show intent and motive under Evidence Code section 1101, subdivision (b). Here, defendant was essentially accused of stalking and insurance fraud. These acts were relevant to defendant’s motive to commit the instant murder. Defendant’s entire defense was that Pamela killed Tiffany. The People were entitled to present evidence that defendant had been stalking Pamela, had destroyed her property, and had taken a gas pump from her to show that defendant, not Pamela, had a motive to kill Tiffany.
In addition, the evidence was not made inadmissible under Evidence Code Section 352. “‘Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]’ [Citation.] A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 374.) Prejudicial evidence is evidence that tends to evoke an emotional bias against the defendant. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) Once again, “[a] trial court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
Here, as set forth, ante, the prior conduct and gun evidence was probative to contested issues in this case. None of the evidence was more prejudicial than the facts of the instant case. Defendant shot Tiffany, an innocent party, in order to punish Pamela. The facts that defendant previously stalked Pamela, destroyed her property, and committed insurance fraud clearly were not more prejudicial than the facts involving the shooting of Tiffany.
Even if we were to assume that the trial court erred by admitting evidence of stalking and destruction of property, the antique gas pump, and the gifting of the gun, any error was harmless because it is not reasonably probable that the jury would have reached a more favorable result had the challenged evidence been excluded. (People v. Carter (2005) 36 Cal.4th 1114, 1152; People v. Malone (1988) 47 Cal.3d 1, 22; People v. Watson (1956) 46 Cal.2d 818, 836.)
The evidence that defendant shot Tiffany was overwhelming. It is undisputed that Pamela and defendant were in a tumultuous relationship that came to a head on the night of February 23, 2002. Defendant admitted to the 911 dispatcher that he had shot Tiffany. Finally, rather than stay and explain to the police what had occurred, he fled and was found hundreds of miles away. Defendant’s claim that it was Pamela who shot and killed Tiffany was truly unbelievable. Hence, even had the prior conduct been excluded, it is not reasonably probably that a more favorable verdict would have been reached by the jury.
V
ADMISSION OF VICTIM PHOTOGRAPHS
Defendant contends that the admission of photographs of Tiffany both at the scene and during the autopsy should have been excluded as prejudicial under Evidence Code section 352 because they were irrelevant to any issue in the case and were unduly gruesome causing prejudice.
A. Additional Factual and Procedural Background
Defendant sought to exclude photographs of Tiffany taken postmortem, which were admitted as exhibit Nos. 14, 15, 17, 52 through 61, 86 through 98, 102, 169, 171, 173 and 176. Defendant argued the autopsy photos were not relevant because the cause of death was not at issue. The trial court reviewed all of the photographs. It concluded that they all depicted different wounds suffered by Tiffany. It found the photographs were probative and not overly prejudicial. The People were entitled to bring in evidence of the crime scene. The autopsy photographs showed the bullet wounds, and did not show her cut open, so they were not particularly graphic.
San Bernardino County Sheriff’s Sergeant Joe Palomino testified at trial regarding exhibit Nos. 14 and 15, which showed how Tiffany appeared when he arrived at the house and showed the various evidence found in relation to her body. He also testified regarding exhibit Nos. 52 through 61, that showed her at the house and the various wounds that she received. During trial, defendant made an objection to exhibit Nos. 169 through 173, which depicted Tiffany in clothes and then her nude body. Defendant again objected pursuant to Evidence Code section 352. The People responded that during cross-examination of one of the People’s witnesses, defendant had insinuated that the crime scene had been disturbed by the police. The trial court felt that the photographs gave a sense of the size of the crime scene. Further, there had been discussions about crime scene disturbances. The photographs were probative to show the crime scene. Moreover, the photographs were not particularly graphic.
San Bernardino County Sheriff’s Deputy Michael Gilley testified regarding exhibit Nos. 169 through 173. A paramedic who responded also identified the crime scene from the photographs in exhibit Nos. 169 through171.
The coroner identified the bullet wounds from exhibit Nos. 88, 89, 91 through 98 and 102, during his trial testimony.
B. Analysis
“‘The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory.’” (People v. Scheid (1997) 16 Cal.4th 1, 18, quoting People v. Crittenden (1994) 9 Cal.4th 83, 133.) “The court’s exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect.” (Crittenden, at p. 134.)
Contrary to defendant’s claim, the photographs introduced here were highly relevant to the People’s case. The photographs showed the nature and placement of Tiffany’s injuries. Exhibit Nos. 14, 15 and 17 are photographs of Tiffany covered in a white sheet. They show various evidence placards and blood evidence. These pictures were relevant to show the crime scene and were not unduly gruesome.
There is only one photograph of Tiffany’s entire body in exhibit Nos. 52 through 61, and the remainder show the individual wounds that had not been cleaned. This includes photographs of her hands, which were relevant to corroborate Pamela’s testimony. Exhibit No. 61 shows her back and how she was turned over, which was relevant due to defendant’s attempts to show disturbances at the crime scene.
The autopsy photographs in exhibit Nos. 88 through 98, 102, and 176 depict photographs of the various bullet wounds. These photographs include close-up photographs of her hand, again corroborating Pamela’s testimony, and assisted the coroner in showing the jurors the injuries that caused her death.
Finally, exhibit Nos. 169, 171, and 173 show the crime scene, including paramedics working at the scene. There is only one photograph of Tiffany’s body, one of her covered in a white sheet, and another of just her arm. The People were entitled to show the crime scene and to dispute any claims by defendant that it had been disturbed.
Moreover, having examined the exhibits in question, we also reject defendant’s claim that the nature of the photographs rendered them more prejudicial than probative. While the photographs are unpleasant because they depict numerous bullet wounds, they cannot be accurately described as gruesome. The autopsy photographs as a whole show close-up bullet wounds. In several of the photographs, Tiffany is covered in a sheet. Certainly, these photographs would not have invoked the kind of prejudicial effect that is the particular concern of Evidence Code section 352. (People v. Jablonski (2006) 37 Cal.4th 774, 805 [“‘[e]vidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome”’”].)
True, there were numerous photographs admitted to show Tiffany’s wounds. However, Tiffany suffered 15 exit and entry wounds, and the People were entitled to show her injuries. (People v. Gurule (2002) 28 Cal.4th 557, 624 [“prosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims’ bodies to determine if the evidence supports the prosecution’s theory of the case”].) Further, the People were entitled to show photographs of the crime scene, especially in light of an attempt by defendant to show the crime scene had been disturbed. We cannot conclude that the trial court abused its discretion in admitting the photographs in this case.
Furthermore, even if the trial court erred, any error was harmless. (People v. Heard (2003) 31 Cal.4th 946, 978 [admission of photographs subject to Watson standard of review].) As indicated, the photographs admitted here were not unduly gruesome. Also, as set forth, ante, in part IV.B, the evidence of defendant’s guilt was overwhelming, and had some or all of the photographs been excluded, the result would have been the same.
VI
SUPPORT PERSON PRESENT DURING PAMELA’S TESTIMONY
Defendant contends that his rights to due process and a fair trial were violated by the presence of a support person during Pamela’s testimony appointed pursuant to section 868.5.
A. Additional Background
Prior to Pamela testifying, the prosecution indicated that there was going to be a request for a support person for her pursuant to section 868.5. The support person was a victim/witness advocate employed by the district attorney’s office and would not be testifying.
Section 868.5 provides in pertinent part as follows: “(a) Notwithstanding any other law, a prosecuting witness in a case involving a violation of Section 187. . . shall be entitled, for support, to the attendance of up to two persons of his or her own choosing, one of whom may be a witness, . . . at the trial . . . during the testimony of the prosecuting witness. . . . [¶] (b) If the person or persons so chosen are also prosecuting witnesses, the prosecution shall present evidence that the person’s attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness. Upon that showing, the court shall grant the request unless information presented by the defendant or noticed by the court establishes that the support person’s attendance during the testimony of the prosecuting witness would pose a substantial risk of influencing or affecting the content of that testimony.”
Defendant objected on the ground that this was not a domestic violence case, and it violated his constitutional right to confront the witnesses against him and his right to cross-examination. The trial court believed the statute was clear that a support person could be appointed in a case involving a violation of section 187. The trial court overruled the objection and allowed the advocate to be present. The trial court admonished the People that the advocate was not to assist, coach, or otherwise affect the testimony of the witness. No further evidence of the support person’s presence is found in the record.
B. Analysis
Defendant claims section 868.5 requires a showing of need prior to appointment of the support person. He additionally contends that since the support person was allowed to be with Pamela at the stand, which bolstered her credibility, his constitutional rights to due process and a fair trial were violated.
People v. Adams (1993) 19 Cal.App.4th 412 involved a rape prosecution where the trial court allowed the father of the 16-year-old victim, who was also a witness at trial, to sit next to her during her testimony. (Id., at p. 434.) Although rejecting that the presence of a support person is “inherently prejudicial,” the court in Adams concluded that “the support person’s presence at the witness stand actually affects confrontation clause guarantees” (id., at p. 439) because it “affects the presentation of demeanor evidence . . . .” (Id., at p. 438; see also id., at pp. 437, 441.) It therefore held the allowance of a support person “must be based on a showing of the need of the individual witness.” (Id., at p. 443.) It further held that, to preserve its constitutionality, section 868.5 must be construed as implicitly requiring such a showing. (Adams, at pp. 443-444.)
We reject defendant’s reliance on Adams. First, to the extent he claims he was denied a determination of particularized need, he has waived the claim by failing to raise in the trial court below that a showing of need was required. Defendant failed to object on any grounds that would have suggested he was demanding either an evidentiary hearing or a determination of necessity. (See People v. Lord (1994) 30 Cal.App.4th 1718, 1722.) As such, he cannot now claim error on this ground on appeal.
In his reply brief, defendant claims that the People have “mischaracterized” his argument as an attack on the application of section 868.5. We think inherent in defendant’s argument made in the opening brief is that the trial court erred by failing to find need and therefore will address the issue by finding it has been waived.
Regardless, Adams has since been questioned, including by this court. (People v. Johns (1997) 56 Cal.App.4th 550, 554-555 [Fourth Dist., Div. Two]; People v. Lord, supra, 30 Cal.App.4th at pp. 1721-1722.) In Johns, this court distinguished Adams on the ground that it involved factors not present in the Johns case. Adams involved a support person who was also testifying and who could potentially have an impact on the verdict based on issues of credibility. However, as in Johns, here, the support person was not testifying and did not have any involvement in the case. Hence, the attendant possibility of prejudice from a testifying witness being with the witness is not present. Also, it was reasonable here for Pamela to have a support person given that she was facing the man who had stalked her and killed her daughter.
The plain language of the statute dictates against finding that need be found. Section 868.5, subdivision (b) specifically states that if the support person is also a testifying witness, need must be shown. No such requirement is present for a non-testifying support person. (§ 868.5, subd. (a).)
Furthermore, in Johns, the court rejected that the absence of a need requirement rendered the statute unconstitutional. (People v. Johns, supra, 56 Cal.App.4that pp. 553-554.) We obviously agree with the reasoning in Johns and follow it here. As such, we conclude there is no showing that defendant’s constitutional rights were infringed by the appointment of the support person without the trial court first making a specific finding of need.
Defendant relies upon State v. Suka (Hawaii 1989) 777 P.2d 240 to support his claim that the statute requires that need be shown. Obviously, this court need not follow that case, and regardless, it involved a different statutory scheme and is factually distinguishable.
More importantly, we cannot conclude that defendant was prejudiced by the appointment of the support person. Defendant contends that he was prejudiced by the fact the support person accompanied Pamela to the stand. However, the record is devoid of any evidence of the location of the support person during Pamela’s testimony. Defendant’s claim that the support person was with Pamela on the stand is based on pure speculation and is not supported by the record. It is possible the person sat in the audience. Further, even if we were to presume that the support person accompanied Pamela to the stand, there was also evidence that Pamela was in a wheelchair, and the jury may have believed that she was there to help her due to her injuries. Defendant has completely failed to show how he was prejudiced by the appointment of a support person. In sum, as fully set forth in part IV.B, ante, the evidence defendant shot Tiffany was overwhelming.
VII
CUMULATIVE ERROR
Defendant asserts that reversal is required due to cumulative errors which deprived him of a fair trial. We do not agree, as we have found that no trial errors occurred. Therefore, we reject defendant’s argument that cumulative trial errors deprived him of a fair trial or warrants reversal. Defendant is entitled to a fair trial, not a perfect one. (People v. Houston (2005) 130 Cal.App.4th 279, 320.)
VIII
STAYING OF GUN ENHANCEMENTS
We allowed defendant the opportunity to file a supplemental brief in which he claims the trial court erred by staying rather than striking the additional firearm enhancements. The jury found that defendant personally used a firearm with the meaning of sections 12022.5, subdivision (a)(10) and 12022.53, subdivisions (b), (c),and (d). Defendant was sentenced to a 25-years-to-life term on the section 12022.53, subdivision (d) enhancement. The trial court imposed sentences on the remaining enhancements and stayed them pursuant to section 654.
As noted by defendant and the People in their briefs, the issue of whether the trial court must strike such aforementioned additional firearm enhancements, rather than stay them, was pending before the California Supreme Court. On June 2, 2008, our Supreme Court determined that such enhancements are properly imposed and stayed. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130 [construing enhancements under §§ 12022.5 and 12022.53].) Accordingly, defendant was properly sentenced.
IX
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.