Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 1100070 Hurl W. Johnson III, Judge.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Judy Kaida and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury found Erick Wayne Brush guilty of making criminal threats (Pen. Code, § 422), possession of a controlled substance (Health & Saf. Code, § 11377), and willful cruelty to animals (Pen. Code, § 597, subd. (a)). He argues (1) there was not substantial evidence to support the conviction for willful cruelty to animals; (2) the trial court improperly instructed the jury; (3) the prosecutor committed misconduct; and (4) the trial court erroneously admitted hearsay evidence. We agree only with Brush’s first contention and will reverse the conviction for willful cruelty to animals. We reject the remaining contentions and affirm the remainder of the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
Brush and Tammy Brush have been together for 19 years, and married for 16 years. At the time of trial, Brush, Tammy, and their two daughters lived together in Oregon.
We will refer to Tammy Brush by her first name to avoid confusion with the appellant.
Tammy testified at trial. She stated that Brush was the primary source of income for the family, and, without him, she might be homeless. Tammy denied ever being afraid of Brush, and denied that he had ever been violent towards her. She denied talking to Brush about the case in the preceding two years, although Brush told her that her dog was found dead on the road.
Tammy recounted the events leading up to the death of her dog. Tammy recalled having an argument with Brush about the children earlier that day when she was at work. They were separated at the time because Brush did not want Tammy doing drugs. After she got off work, Tammy and the children went to a friend’s house. She went to the Brush house first to pick up some drugs.
Tammy admitted she spoke with the emergency operator when she found out about the death of her dog. She told the operator that Brush had weapons at the house even though, to her knowledge, he did not. She may have told the operator that Brush threatened to beat up one of his daughters because the daughter was lying. Tammy told the operator that Brush was using methamphetamine, but he had stopped using drugs a few months before the incident. She lied to the operator because she was mad at Brush because he would not let her “get high” after she got off work.
She also lied to Deputy Troy Silcox about several things because she was mad at Brush. She told Silcox that Brush threatened to hunt her down and kill her. She also told the operator and Silcox that any drugs at the house would belong to Brush. Tammy told Silcox that she was afraid of Brush, and signed the application for a protective order. She also told Silcox that Brush had shot one of her dogs with a BB gun.
Brush never threatened to kill Tammy, and when she told the emergency operator he had threatened her it was a lie. Tammy claimed the drugs found on top of the refrigerator belonged to her even though she told the emergency operator they belonged to Brush.
On cross-examination, Tammy denied seeing Brush kill any animals, although she had been told that Brush killed all the dogs. Part of the reason she called the emergency operator was because she was mad at Brush for killing her dogs. Brush did not tell her he had killed the dogs.
Deputy Sheriff Casey Robert Hill testified that he was dispatched to the Brush residence on October 29, 2005. He observed several animals running around on the property, and ultimately located 10 dogs on the property.
Only one dog was dead. It was covered with a blanket. The dog’s rear legs had the skin pulled up, revealing bones and muscle. The dog’s right front leg appeared to be broken. An incision was made along the animal’s underbelly that appeared to be caused by a sharp instrument. There were 10 to 15 small holes on the left side of the animal, possibly caused by a shotgun. Hill did not attempt to remove any pellets from the holes. He could not tell how deep the objects that caused the holes went into the body of the animal. The animal’s ears were cut short, and it appeared they were cut recently. His search of the area did not locate a knife that may have been used on the animal.
Hill did not know how the animal died, nor did he know how the animal’s leg had been broken.
Along the south side of the residence, Hill observed a rope hanging from a tree. There was a broomstick attached to the rope and a significant amount of substance that appeared to be blood was on the ground. Hill, an avid hunter, explained that a pole is often used in the process of gutting an animal. Hill also observed a freshly dug hole in the ground near the house.
A shotgun was located under the bed in the master bedroom of the house. Hill did not know if the shotgun had been fired. He did not find any expended shotgun shells. Three small bags of methamphetamine, a useable amount, were located on top of the refrigerator.
Frank William Martin, a convicted felon, testified that he found the dog on the road and dragged it into the yard. Martin has known Brush for approximately 15 years and used to work for him. The dog appeared to have been run over by a car. Martin dug a hole in which he was going to bury the dog. Brush emerged from the residence just as Martin finished digging the hole to bury the dog. Brush told him not to bury the dog because it was his wife’s dog. Brush appeared upset and told Martin they would not be working that day because Brush had to tell his wife about the death of her dog.
Martin did not provide this information to the district attorney’s investigator because, with his criminal past, he was afraid to get involved.
Brush testified in his defense. He denied that he had threatened Tammy when she left. He denied shooting the animal. He believed the animal had been run over by a vehicle.
Brush was charged with violating Penal Code sections 422 (criminal threats), 597, subdivision (a) (willful cruelty to animals), and Health and Safety Code section 11377 (possession of a controlled substance). The jury convicted him of each offense. The trial court sentenced Brush to three years probation that included 300 days in custody.
DISCUSSION
I. Sufficiency of the Evidence
The prosecution’s theory in the count for willful cruelty to an animal was that Brush killed the animal. The jury was instructed that to find Brush guilty of this count, it must determine beyond a reasonable doubt that Brush killed the animal. Brush argues this verdict was not supported by substantial evidence because the prosecution failed to establish the cause of the animal’s death.
To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403.) The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Id. at p. 396.) In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.)
There was no direct or circumstantial evidence establishing the cause of death. The prosecution argued at trial, in essence, that it is not standard procedure to perform an autopsy on animals. It relied on the gruesome injuries to the dog (apparent shotgun wound and partial gutting of the animal). Without an autopsy to determine the cause of death, however, the jury could not conclude these injuries were the cause of death, or whether the injuries were inflicted before or after the animal’s death.
The prosecution was required to prove each element of the crime, including that Brush killed the animal. (In re Winship (1970) 397 U.S. 358, 364.) The prosecution’s burden is not reduced because the victim was an animal. Nor can the prosecution excuse its inability to prove the cause of death, as it argued at trial, by relying on insufficient investigatory procedures simply because the victim is an animal.
The only possible evidence to connect Brush to the animal’s death is if there was an admission by Brush that he killed the animal. To resolve this issue, we must resolve a second argument advanced by Brush who asserts that the trial court erred in admitting the conversation between Tammy and the emergency operator.
The prosecution sought to admit at trial the tape recording of the conversation that Tammy had with the emergency operator. As pertinent to this issue, Tammy told the emergency operator that “My husband killed my dogs and skinned ‘em (crying) and he just said he killed all the dogs and he wants to do that to me.” Tammy also said “He’s got a pile of hides out there by one of the vehicles in the yard, it’s the dogs … and we have a horse stayin’ on the property as well but I don’t know if the horse is hurt,.…” Tammy continued “So he said he had somebody nail ‘em to a fence and skin my dog out.” Brush allegedly “shot her with a three sixty seven … [¶] … [¶] … and then he had somebody hold her up whi’ he skinned ‘er.… And he has all the hides layin’ in the yard … in a pile.” Brush allegedly killed the animal a few hours before the phone call. According to Tammy, Brush “did a total of four dogs that I know of.” The trial court held an Evidence Code section 402 hearing before trial to determine the admissibility of this conversation. Tammy testified that she learned from Frank Martin, Debbie Yeary, and some other people that Brush had killed all their dogs. She denied speaking with Brush about the dogs before the phone conversation, and denied seeing the event take place. The trial court concluded that since Tammy did not speak with Brush about the death of the dogs, the phone conversation was inadmissible hearsay.
When Tammy testified at trial, she denied that Brush ever physically abused her, denied that she ever talked to Brush about how the animal died, stated that Brush denied killing the animal, admitted making the statements contained in the conversation with the emergency operator, but claimed the statements were not true and the result of her anger with Brush. Tammy admitted her testimony at the preliminary hearing was not truthful in some respects. Tammy also admitted providing the information used on the application for an emergency protective order, but claimed the information was provided out of anger, and was not true.
A conference was held outside the presence of the jury during the direct examination of Tammy. During the conference, the trial court changed its earlier ruling and held the recording of the emergency phone call was admissible and allowed it to be played for the jury. Outside the presence of the jury trial counsel reiterated his objection to the tape as hearsay. The trial court held that the statements carried an “indicia of trustworthiness” because they were made at the time of the event. The trial court explained its ruling:
“When I had this for [the Evidence Code section 402 hearing], you did not have the tape to listen to it. I did not have this at the trial. I’ve had an opportunity to listen to the tape, listen to the trial. It’s going to be up to the trier of fact as to what she’s saying on the stand today is true or what she’s saying with personal knowledge is true. That’s up to the jury to find out. [¶] It’s admissible under [Evidence Code section] 1240 and it’s also admissibility [sic] for impeachment.”
Later in the trial, Deputy Silcox confirmed that Tammy told him on the date of the incident “that she heard about one dog” that had been killed, confirming that Tammy did not see Brush kill the animal, nor did he tell her he had killed the animal. In addition, Debra Lee Yeary explained that she heard from either Frank Martin or Ron Coleman that Tammy’s dog had been shot. Later that day, Yeary told Tammy what she had heard and Tammy became upset. This conversation took place between 4 and 5 p.m. on October 29. Tammy called the emergency operator after speaking with Yeary.
The trial court erred in its ruling in two respects. The recording of the conversation between Tammy and the emergency operator was inadmissible hearsay, that is, it was an out-of-court statement offered to prove the truth of the matter stated, unless an exception to the hearsay rule applied. (Evid. Code, § 1200, subds. (a) & (b).)
The trial court’s first error was in finding the statement admissible pursuant to Evidence Code section 1240. This section creates an exception to the hearsay rule for spontaneous statements if the statement “(a) [p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) [w]as made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Italics added.) The italicized portions of this code section “make[] clear that a hearsay statement, even if otherwise spontaneous, is admissible only if it relates to an event the declarant perceived personally. Otherwise, the statement would be hearsay on hearsay and admissible only if each layer of hearsay separately met the requirements of an exception to the hearsay rule. [Citation.]” (People v. Phillips (2000) 22 Cal.4th 226, 235.)
Tammy repeatedly denied seeing Brush kill the dog. Silcox confirmed that Tammy told him she had heard from someone else that Brush killed the animal when he spoke with her, while Yeary testified that she informed Tammy that an animal had been killed before Tammy called the emergency operator. Since there was no evidence that Tammy saw Brush kill the dog, Tammy’s statements about the dog were not admissible pursuant to the spontaneous statement exception to the hearsay rule.
The trial court also erred in concluding the tape was admissible to impeach Tammy. Evidence Code section 1235 provides that a “statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770.” Tammy admitted calling the emergency operator, and admitted she made the statements attributed to her in the transcript. She also stated her statements to the emergency operator were lies. Tammy’s testimony does not implicate the prior inconsistent statement exception to the hearsay rule because she admitted making the statements to the emergency operator. Therefore, this exception was not applicable.
The People argue that the statements were admissible because they fall within the party admission exception to the hearsay rule. Evidence Code section 1220 provides that a statement is admissible despite its hearsay nature if it is offered against the declarant who is also a party to the action. The People emphasize that Tammy attributed several statements related to the death of the animal to Brush. We agree that one interpretation of the statements made by Tammy to the emergency operator is that she was merely repeating statements made to her by Brush. It is equally plausible, however, that Tammy was repeating what Brush allegedly told someone else.
If the conversation with the emergency operator was the only evidence available on the subject, perhaps the People’s argument would prevail. The statements, however, are not the only evidence on the issue. Tammy, Silcox, and Yeary all testified that the information about the death of the animal did not come from Brush. While Tammy’s credibility was highly questionable, there is no evidence that either Deputy Silcox or Yeary had any motive to lie.
The numerous embellishments Tammy made in her conversation with the emergency operator confirm that we cannot rely on the recording of the phone call. Tammy told the operator that Brush killed at least four dogs. Yeary stated that she only told Tammy that one dog had been killed, and the police confirmed that only one animal died. Tammy told the operator that dog hides were piled in the yard of Brush’s home. Investigating officers did not find any hides in the yard. Tammy told the operator that Brush had someone nail the numerous hides to the fence, but there was no evidence to support that assertion. Tammy claimed that Brush said he killed the dogs with a.367 firearm, but the only possible evidence of firearm use was limited to a shotgun. These numerous inconsistencies establish that Tammy was embellishing her claims when she spoke with the emergency operator. She did not repeat these inconsistencies when she spoke with Silcox a short while after the conversation with the emergency operator, but did tell Silcox that someone told her that Brush had shot her dog. These inconsistencies compel our conclusion that the ambiguous statements on which the People base their argument cannot be interpreted as admissions by Brush that he killed the animal.
Because the recording was hearsay and none of the exceptions to the hearsay rule applied, the trial court erred in admitting the tape as it related to the death of the animal. Without the tape, there is nothing in the record that could be considered an admission by Brush that he killed the animal. The lack of evidence establishing the cause of death of the animal, and the lack of an admission by Brush that he killed the animal, compels our conclusion that there was insufficient evidence to support the conviction for willful cruelty to animals. The jury only could speculate on how the dog died, and speculation is not substantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1133.) The conviction for willful cruelty to animals must be reversed.
II. Instruction Error
Brush contends the trial court had a sua sponte duty to instruct the jury that voluntary intoxication could negate the specific intent requirement required by count I, making criminal threats.
Brush also argues the instruction was required for the willful cruelty to animal cause of action. This argument is moot since we conclude in the preceding section that this conviction must be reversed.
Brush did not request such an instruction, nor did his theory of the defense (I did not do it) need such an instruction. The failure to request the instruction dooms this argument to failure. (People v. Bolden (2002) 29 Cal.4th 515, 559.) In Bolden, the Supreme Court explained that this instruction is a pinpoint instruction that the trial court is not required to give in the absence of a request (ibid), thereby rejecting Brush’s claim that voluntary intoxication is an affirmative defense that imposes a duty on the trial court to give the instruction sua sponte when supported by substantial evidence.
Even if we were to accept Brush’s premise, that the instruction was required if supported by substantial evidence, we would conclude there is no error in this case. Tammy made numerous references to threats Brush made against her. While there was testimony that Brush used drugs in the past and on the night he was arrested, there was no evidence that Brush was under the influence of drugs when the threats were made. Accordingly, there is not sufficient evidence to support any inference that Brush was under the influence of drugs when the threats were made.
For each of these reasons, the trial court did not err in failing to instruct the jury on the effects of voluntary intoxication.
III. Prosecutorial Misconduct
Finally, Brush argues the prosecutor committed misconduct during closing argument.
During his rebuttal, the prosecutor argued that the jury should believe the statements Tammy made to the emergency operator and to Deputy Silcox shortly thereafter. The prosecutor pointed out that Tammy stated she was in an abusive relationship with Brush in the past, and she remained in a relationship with Brush. According to the statements she made to the emergency operator and Silcox, she did not report the abuse because she was afraid of Brush. The prosecutor argued, therefore, that Tammy was probably truthful when she spoke with the emergency operator and Silcox because she was separated from Brush, and not fearful of retaliation. In making his argument, the prosecutor urged the jury to listen to the recording of Tammy’s conversation with the emergency operator.
“Look at the transcript. She didn’t change her story between Silcox and the 911 tape. She may have heard some things that didn’t turn out to be true. She may have heard [Brush] call her and tell her, ‘I just killed all the dogs.’ Or maybe she heard—who knows how she heard that four dogs were killed. But she knew police would be going out to check it. She wasn’t lying then because for the first time in years she was free of the person who was whacking her. She saw the light. She was free. She was at a safe house. But, again, unfortunately life took over, and she’s back. She got on that stand and told you the truth when the man with the hammer wasn’t sitting right there, like he wasn’t when she called the 911 operator, like he wasn’t when she talked to Silcox—if she told that truth that she told on October 29th, 2005, she would be exiting these doors and going home—”
At this point Brush’s counsel objected, pointing out that there was no evidence that Tammy was subject to abuse upon leaving the courtroom. The trial court overruled the objection, concluding the jury could infer that Tammy was still in fear of Brush. The prosecutor then concluded his argument.
“When she gets off this stand and she told what she told on October 29th, 2005, the truth, she would exit this courtroom and will be exiting this courtroom perhaps with [Brush], a man who, in her words, through her tears on the 911 tape, ‘I let him beat me for years. I ain’t done nothing to nobody.’ When you go back to the jury room, please, tell him ‘you did it.’”
Brush contends these comments were an appeal to the passion of the jury, an attempt to convince the jury to convict Brush so they could rescue Tammy from an abusive relationship.
“‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’ [Citation.]
“Regarding the scope of permissible prosecutorial argument, we recently noted ‘“‘a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.] ‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets....”’” [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819.)
There was no error in the prosecutor’s argument. The point he was trying to make was valid. The prosecutor and the jury could infer that Tammy was in an abusive relationship from the statements she made to the emergency operator and Deputy Silcox. The prosecutor was encouraging the jury to find these statements true because, at that time, she was living apart from Brush, and thus more likely to be truthful. The prosecutor could also ask the jury to conclude Tammy was lying at trial because of the past abuse and her dependence on Brush for the support of both herself and her children. Therefore, Tammy had an incentive to lie at trial, but no reason to lie to the emergency operator or to Deputy Silcox.
Although the point the prosecutor was trying to make was a valid one, it was, perhaps, not made as clearly as it could have been. The comments did not, however, rise to the level of deceptive or reprehensible methods, nor did the prosecutor infect the trial with unfairness. He was arguing his case vigorously, and his comments were a fair comment on the evidence.
DISPOSITION
The conviction for willful cruelty to animals is reversed. The remainder of the judgment is affirmed. The matter is remanded to the trial court for resentencing.
WE CONCUR: ARDAIZ, P. J., VARTABEDIAN, J.