Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07907355. Wayne R. Ellison, Judge.
Diane E. Berley, 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, Senior Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION
On July 11, 2007, appellant Scott Brian Burch beat Leross Jenkins to death with his fists. He was charged with second degree murder and voluntary manslaughter. Jury trial was held in March 2008. Appellant’s defense was based on the theory that Jenkins sexually assaulted him and he acted in self-defense. The jury found him guilty of involuntary manslaughter. He was sentenced to the low term of two years’ imprisonment and awarded 438 presentence credits.
Appellant argues that the court erred in failing to give CALCRIM No. 620 sua sponte. Also, he contends that a statement he gave to a police officer who was investigating an unrelated incident should have been excluded pursuant to Evidence Code section 352 and that his trial counsel was ineffective because he failed to object on this ground. None of these arguments is convincing; we will affirm.
Unless otherwise specified, all statutory references are to the Evidence Code.
FACTS
Appellant and Jenkins were hired by Foods Co. On July 6, 2007, they traveled together from Sacramento to Fresno for training. They stayed at the Piccadilly Inn Express in Fresno. They met two other new hires, Chris Crump and Ray Quintana, during their training.
The four men went to lunch together and went out to dinner three or four times. Jenkins was friendly and offered to buy the others alcohol. Crump saw Jenkins drink beer and hard alcohol. He saw appellant drink beer and, on one occasion, shots of hard liquor mixed with soda. Appellant did not complain to Crump about the effects of alcohol or appear adversely affected by it. One day, appellant told Crump that he and Jenkins got drunk together the evening before. Appellant did not seem hung over or smell of alcohol.
The last day of training occurred on July 11, 2007. Afterward, Crump and Quintana drove home. Jenkins suggested that he and appellant spend another night at the hotel because their employer would pay for it. He asked appellant if he wanted to drink again and appellant agreed. Between 5:00 and 6:00 p.m., they drove to a store to purchase a bottle of gin and then went back to the hotel. After going to his room to get some CDs, Jenkins entered appellant’s room, which was located on the second floor and numbered 213.
Peggy and William Johnson were staying nearby in room 217. At approximately 7:45 p.m., William went to a vending machine on the first floor. He did not observe anything unusual on the way. After William left the room, Peggy heard a thumping noise that lasted 15 to 20 seconds. When William returned to the second floor about five minutes later, he saw two people lying side-by-side on the ground in the hallway. He heard a sound and saw that Jenkins was now on top of appellant. William opened the door to his room and told Peggy there was something happening that she needed to see. When Peggy went into the hallway, she saw two people lying perpendicular to the hallway. Jenkins was on top of appellant. Peggy told a police officer that it looked like Jenkins was choking appellant. Then she saw one of appellant’s arms go straight up into the air. There was blood on it. Peggy pushed William inside the room and called the front desk.
Solely to enhance readability, some witnesses have been referenced by their first names. No disrespect is intended or implied.
Hotel employee Rebecca Huerta received Peggy’s call at approximately 8:00 p.m. She went to the east entrance of the second floor hallway and observed two people on the floor, one on top of the other. She radioed another employee that assistance was needed. She ran down to the front desk, retrieved her cell phone and went to the west entrance of the second floor. She looked over at the people in the hallway for a second. They appeared to be in the same position they were in when she last observed them. She noticed that appellant was on top of Jenkins. Appellant was low to the ground; either he was propped up by his knees or his legs were extended. Appellant was breathing heavily and he had Jenkins in a head lock. Huerta walked halfway down the staircase and radioed an employee to tell her to call 911. Then she used her cell phone to call the police non-emergency number and ran to the east entrance of the hallway to ensure no one entered it until assistance arrived. During this time, she did not see the men change positions and did not detect any movement from Jenkins.
Two other hotel employees, Raymond Rodriguez and Donald Herring, responded to Huerta’s call. They entered the east entrance of the hallway and saw appellant and Jenkins. Rodriguez saw that appellant was on his knees and Jenkins was lying on the floor. Rodriguez saw appellant punch Jenkins four to six times. As he got closer to the men, Rodriguez saw that appellant was punching Jenkins with his right hand in a closed fist. They were tired but forceful punches. At first Jenkins appeared to be struggling or shaking as if he was in pain but then he stopped moving and appeared to be unconscious. Herring saw appellant forcefully punch Jenkins in the face at least three times. Herring did not see Jenkins move at all or respond to any of the punches.
Either Rodriguez or Herring yelled at appellant to stop. Appellant backed away from Jenkins. Appellant reached into a pocket of Jenkins’s shorts and pulled out his wallet. Rodriguez saw money from Jenkins’s wallet fall to the floor but did not see what happened to it afterward. Herring saw appellant take money out of Jenkins’s wallet and put it in his shorts. Then Herring saw appellant look at Jenkins, punch him and say that “it’s a good thing we’re not in the hood, otherwise I’d kill you.” Appellant took Jenkins’s identification and tossed it toward Rodriguez and Herring.
Appellant sat down by the west exit door. Herring checked Jenkins’s pulse and did not find one. About one to two minutes later, appellant suddenly jumped up and forcefully punched Jenkins in the face. Rodriguez saw appellant punch Jenkins two to three times; Herring saw appellant punch him one time. Hotel employees Joaquin Rivera and Reza Chohan arrived in time to see appellant approach and punch Jenkins in the face one time; they testified that Jenkins was lying on the ground motionless when appellant punched him.
All of them yelled at appellant to stop and he sat back down by the exit door. Herring heard appellant say “that him and [Jenkins] had been out drinking. And that the young man was allergic to alcohol. And that he had passed out. And when he came to that [Jenkins] was on top of him naked [and] trying to rape him.” Rodriguez heard appellant say that he attempted to push Jenkins off of him and they had an altercation that started in the hotel room and continued in the hallway.
Police officers arrived and performed CPR on Jenkins. Jenkins was taken by ambulance to the hospital, where he was ultimately pronounced dead. Jenkins sustained numerous contusions, abrasions, hemorrhaging in the neck muscles and a laceration about the eyes and eyelids. There were three areas of subgleal hemorrhaging (bleeding below the scalp). The head injuries were in different areas and places, indicating at least three or four areas of blunt impact to the head and face. The cause of death was cerebral edema with tonsillar herniation due to multiple blunt impacts.
Appellant was wearing a pair of boxer shorts and a tank top; they were collected for examination. A set of keys and $49 dollars were secured in the waistband of the shorts. Appellant said the keys and money belonged to him. Appellant had some scrapes on his neck, shoulders and back. He had abrasions on his knees, legs and feet. He was not bleeding anywhere. Appellant refused medical treatment.
Appellant was interviewed by Fresno police officer Shepard Stuart and his statement was recorded. Appellant said that he had two drinks and passed out. When he awoke, he found that he was naked. Jenkins was also naked. Jenkins was on top of him, trying to sodomize him. He hit Jenkins. Jenkins attempted to choke him so he tried to put Jenkins in a headlock. A physical altercation ensued. They stopped fighting and the two men got dressed. Jenkins began going through appellant’s wallet. Appellant moved toward the door and Jenkins moved forward, either trying to kiss him or grab his neck. Another fight ensued. Appellant opened the door and attempted to push Jenkins out of his room. Jenkins grabbed his wrist and pulled him into the hallway. Appellant put Jenkins in a wristlock and then in a headlock. He saw security approaching. He hit Jenkins and then he let him go and backed away from him.
Appellant was transported to a hospital for a sexual assault examination and a blood test. Swabs taken from appellant’s penis and scrotum showed the presence of Jenkins’s DNA. Also, Jenkins’s DNA was found on appellant’s boxer shorts and tank top. Swabs taken from Jenkins’s penis and scrotum did not show the presence of appellant’s DNA. Appellant’s blood showed an alcohol content of .10 percent. This result could only be obtained if appellant consumed a minimum of a pint of hard liquor before 8:00 p.m.
Fresno detective Mark Yee observed two drops of blood in the sink area of appellant’s hotel room, which is located next to the door. There were many blood stains in the hallway, indicating that a struggle occurred in a 35- to 40-foot area. Appellant’s room key was found in Jenkins’s car. A half-empty bottle of gin, glasses containing juice and alcohol, an empty pizza box and heterosexual pornographic DVDs were found in appellant’s room; one of the DVDs was inside the player.
Appellant telephoned Yee on July 18, 2007. The call was recorded. Appellant said that he and Jenkins shared a pizza and he had a little drink. He was drinking a second drink when he felt sick and passed out on the bed. When he awoke, his pants and boxers were off and Jenkins was attempting to lie on top of him. Jenkins was wearing his shirt but no pants or underwear. Appellant said Jenkins did not penetrate him. Appellant pushed Jenkins off of him. Then he put on his boxer shorts and went to the sink area. He took his money out of his wallet and put it in his boxers because he feared that Jenkins might rob him. Jenkins walked swiftly toward appellant with his arms outstretched. Appellant punched him in the face and Jenkins punched him once or twice in the face and once in the body. Appellant opened the door and tried to push Jenkins out of the room. Jenkins grabbed his arm and pulled him out into the hallway. The door shut. Appellant’s room key was in his pants and therefore he could not get back into his room. They punched each other. Jenkins threw him on the ground and tried to tackle him. He kneed Jenkins a few times in the face to try and get him off of him. He hit Jenkins on the side and Jenkins tried to squeeze his testicles. He put Jenkins in a headlock and hit him. Nevertheless, Jenkins still struggled with appellant and bit and hit him. Then Jenkins started to breathe heavy and he said to appellant, “Let me go, dog, let me go, dog.” Appellant hit Jenkins one more time and pushed him back. Jenkins lay down on his back. Jenkins was “sitting there breathing” when hotel staff came in. Appellant said he got up and struck Jenkins one time when he saw Jenkins move his shoulder. Appellant denied taking money out of Jenkins’s wallet. He took Jenkins’s keys because he was scared that Jenkins would get up and try to flee. Appellant said he had some self-defense training but did not train in the martial arts and was not a professional fighter. Appellant told Yee that he was allergic to alcohol and that alcohol made it difficult for him to breathe and caused his skin to break out.
On July 19, 2007, Elk Grove police officer Christopher Diaz contacted appellant at a residence. Appellant told Diaz that he killed a man in Fresno. Appellant said that he was training to work at Kohl’s department store. He was drinking with some of his fellow trainees. He passed out in the back of the business. When he awoke, his pants were down by his ankles and a fellow employee was lying beside him. He went to the bathroom to clean up. The person beside him got up and walked into the bathroom. The person made eye contact and moved toward him. He “got freaked out” and started hitting the person. Appellant said “he went a little bit too much UFC on his ass.” Diaz prepared a written report about this contact and provided a copy of it to the Fresno Police Department.
At the time of the homicide, appellant was 20 years old; he was approximately six feet one inch tall and weighed approximately 180 pounds. Jenkins was 45 to 50 years old; he was six feet one inch tall and weighed 233 pounds.
Appellant and Jenkins have different racial heritages. Some witnesses identified them by their ethnicity or skin color. Since it is undisputed on appeal that these witnesses were referring to appellant and Jenkins, it is not necessary to identify their racial heritages.
Jenkins had a criminal record. In 1983, he pled guilty to armed robbery with a firearm and was sentenced to 10 years imprisonment. In 2000, he pled guilty to misdemeanor use of unlawful force or violence on a police officer engaged in the course of his duties.
Jenkins married his wife, Sheila, in 1989. Sheila testified that, in her experience, Jenkins was not physically aggressive toward people and he did not have any homosexual tendencies. In recent years, Jenkins “drank a little more than he should have.”
The defense rested on the state of the evidence and did not call any witnesses. During his closing argument, defense counsel contended that all of appellant’s blows were struck in self-defense.
DISCUSSION
I. The court was not obligated to give CALJCRIM No. 620 sua sponte.
The jury was instructed on involuntary manslaughter with CALCRIM No. 580. In relevant part, it provides: “There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.” The jury was instructed on reasonable doubt with CALCRIM No. 220, which provides: “Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
CALCRIM No. 620 is an additional instruction to be given when special issues related to causation are present. It contains three subparts addressing: (1) negligence of a third party, (2) negligence of medical personnel and (3) victims who suffered from conditions making them more likely to die. At the conclusion of the third subpart, CALCRIM No. 620 provides, “If you have a reasonable doubt whether the defendant’s act caused the death, you must find (him/her) not guilty.” (1 Judicial Council of Cal., Crim. Jury Instructions, Spring 2008 ed., pp. 361-362.)
Appellant argues the court had a sua sponte obligation to give CALCRIM No. 620. Appellant does not state which of the three subparts was relevant. Rather, he focuses exclusively on the concluding sentence quoted above. Appellant argues that it is not clear exactly which blows caused Jenkins’s death. He reasons that if the jury had been instructed with the final sentence of CALCRIM No. 620, it would have been informed “that in order to find appellant guilty it had to conclude beyond a reasonable doubt that appellant’s final punches were a proximate cause of Jenkins’ death.” Appellant argues that because this instruction was not given, the jury lacked “guidance as to how it should evaluate the underlying facts as to what occurred during the fight between appellant and Jenkins and what actually caused Jenkins’ death.” We are not convinced.
The trial court has a sua sponte obligation to instruct on general principles of law that are commonly or closely connected to the facts and are necessary for the jury’s understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The trial court is not required to instruct on specific points or special theories which may be applicable to a particular case unless such instruction is requested. (People v. Owen (1991) 226 Cal.App.3d 996, 1004-1005; People v. Henry (1972) 22 Cal.App.3d 951, 957.) “Alternatively expressed, ‘[i]f an instruction relates “particular facts to the elements of the offense charged,” it is a pinpoint instruction and the court does not have a sua sponte duty to instruct.’ [Citation.]” (People v. Garvin (2003) 110 Cal.App.4th 484, 489.) If the defendant believes that an instruction is incomplete or needs elaboration, then he is obligated to request an additional or clarifying instruction. (People v. Maury (2003) 30 Cal.4th 342, 426.) “The long-standing general rule is that the failure to request clarification of an instruction that is otherwise a correct statement of law forfeits an appellate claim of error based upon the instruction given.” (People v. Rundle (2008) 43 Cal.4th 76, 151.)
Here, the jury was instructed on the elements of voluntary manslaughter, causation and on reasonable doubt. These instructions adequately informed the jury of the general principles of law that were commonly or closely connected to the facts before it. The court did not omit or withdrawn an element from the jury’s determination. It did not fail to instruct on a defense on which appellant relied or a defense that was supported by substantial evidence. If appellant wanted amplification or elaboration on proximate causation, he was obliged to request such an instruction. He did not do so. Therefore, the instructional claim was forfeited. (People v. Rundle, supra, 43 Cal.4th at p. at p. 151 [appellate claim forfeited where defendant failed to request instruction defining the term “sexual intercourse”]; People v. Maury, supra, 30 Cal.4th at p. 426 [appellate claim forfeited where defendant failed to request instruction that fear of injury must be reasonable].)
In any event, the claimed instructional omission is harmless because it could not have affected the outcome. The coroner did not specify which blows caused Jenkins’s death; he only concluded that death resulted from multiple blunt force traumas to the head. During defense counsel’s closing argument, he contended that appellant acted in self-defense at all times and that all of appellant’s blows were thrown in self-defense. Defense counsel did not argue that appellant’s final punches were superfluous because Jenkins’s death was caused by earlier blows. Appellant advances this theory for the first time on appeal. The sentence in CALJCRIM No. 620 that appellant contends should have been given does not make any distinction between appellant’s final punches and any earlier blows. Rather, it simply states that the jurors must find the accused not guilty if they have a reasonable doubt whether his act caused the death. The jury could not have divined this belatedly raised defense theory solely from CALJIC No. 620. Therefore, the omission of this instruction did not affect the verdict.
II. Appellant’s statement to Diaz was properly admitted; a section 352 objection would have failed.
During the pretrial conference, the court and counsel discussed admission of appellant’s statement to Diaz. The prosecutor argued the statement was relevant and admissible because it was an admission and was inconsistent with appellant’s prior statements to police. Defense counsel argued that the statement was taken in violation of appellant’s Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) After an evidentiary hearing, the court ruled that the statement was made during a temporary detention and that it was voluntary. At defense counsel’s request, the court sanitized the statement to exclude any reference to gangs or to the fact that it was obtained in connection with investigation of a stolen vehicle.
Diaz was investigating an unrelated matter when appellant made this statement. Charges were filed in this case after appellant made this statement. Therefore, it was not obtained in violation of appellant’s right to counsel. A Sixth Amendment claim was not raised at trial or on appeal.
Appellant contends his statement to Diaz should have been excluded pursuant to section 352 as unfairly prejudicial and that defense counsel was ineffective because he did not object on this ground at trial. We are not persuaded.
Appellant forfeited direct review of this point because he failed to object on this ground at trial. It is undisputed that defense counsel did not object to admission of his statement to Diaz on the ground that it was unfairly prejudicial. It is a well-established principle that only points that were raised and ruled on in the trial court are reviewable on appeal. (§ 353; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.) To preserve an evidentiary issue for appellate review, timely objection must have been interposed on the same ground during trial. (People v. Hill (1992) 3 Cal.4th 959, 989.) “Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence. [Citations.]” (People v. Mattson (1990) 50 Cal.3d 826, 854.) A section 352 claim is not preserved by a relevance objection. (People v. Kirkpatrick (1994) 7 Cal.4th 998, 1014-1015.)
We turn to the ineffective assistance claim. The applicable principles of law are well-known. To prevail on an ineffective assistance claim, appellant bears the burden of showing both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.)
As will be explained, the ineffective assistance claim fails because a section 352 objection would not have been successful. “‘Counsel is not required to make futile objections or motions merely to create a record impregnable to assault for claimed inadequacy of counsel.’ [Citations.]” (People v. Harpool (1984) 155 Cal.App.3d 877, 886.)
Appellant’s statement to Diaz was relevant because it contained admissions and was inconsistent with appellant’s prior statements to police officers. Appellant’s statement to Diaz contained a version of events that was substantially different than his prior statements to police. Since appellant elected not to testify, there is no basis in evidence for appellant’s claim that the differences between appellant’s statement to Diaz and his earlier statements are attributable to the fact that “[he] was in the presence of a group of friends when he recounted it and likely was too embarrassed to explain the whole awful story ….” The fact that appellant gave a third statement which differed substantially from either of his prior statements was relevant to an assessment of appellant’s credibility and believability. Appellant’s comment to Diaz that he went “a little bit too much UFC on his ass” was relevant both because it is an admission that he thought that his reaction was excessive and because it impliedly contradicts appellant’s statement to Yee that he did not have any martial arts training. The court protected against unfair prejudice by sanitizing the statement to exclude any reference to gangs or to the nature of Diaz’s investigation. Thus, a section 352 objection to admission of appellant’s sanitized statement to Diaz would have failed. Therefore, appellant has not established deficient performance or prejudice.
Appellant also raised a claim of cumulative error. Since we have determined that no error occurred, this contention is moot.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Hill, J., Kane, J.