Opinion
E072093
08-31-2020
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW DAMIEN COTTER, et al., Defendants and Appellants.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant, Matthew Damien Cotter. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant, Blake Don Austin Beach. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BLF1600008) OPINION APPEAL from the Superior Court of Riverside County. Russell L. Moore, Judge. Affirmed. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant, Matthew Damien Cotter. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant, Blake Don Austin Beach. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants Matthew Damien Cotter and Blake Don Austin Beach, together with codefendant Cody Winn, who was tried separately and is not a party to this appeal, beat and stabbed William Barbour to death. Cotter and Beach do not dispute that they participated in the murder; the only issue at trial was their level of culpability. In a joint trial with two separate juries, both Cotter and Beach were convicted of first degree murder, among other charges, and sentenced to 26 years to life in prison.
In this appeal, defendants contend the trial court erred by admitting into evidence an autopsy photograph of the victim that was unduly prejudicial and lacked probative value, and by imposing various fines and fees without determining ability to pay as required under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Additionally, Beach contends that the trial court erred by admitting toxicology evidence—specifically, the results of drug and alcohol tests performed on a sample of his blood, and supporting expert testimony—during the prosecution's rebuttal case, arguing that the evidence was irrelevant, and that he was denied the opportunity to challenge it with a surrebuttal expert.
We reject each of these contentions and affirm the judgments.
I. BACKGROUND
On January 17, 2016, Barbour spent the day, and into the evening, drinking alcohol and smoking marijuana while sitting on a wall outside a gas station in Blythe, California, accompanied by a friend and fellow resident of a nearby homeless encampment. By about 9:00 p.m., Barbour had passed out from excessive alcohol, and the friend left him for a time. Around 1:00 a.m., however, the friend returned and spoke briefly to Barbour, who was "just waking up from his nap." The friend then returned to camp to sleep.
The next morning, at about 7:00 a.m., Barbour's friend observed that Barbour had not returned to camp overnight, and went to check on him. He found Barbour next to his wheelchair, unconscious and lying in a pool of blood. A responding paramedic determined Barbour was dead. Forensic examination later found that Barbour had suffered 36 stab wounds ("sharp force injuries"), including 11 to the head and face, 23 to the trunk of body, and two to the extremities. Barbour had also suffered numerous blunt force injuries to his face and body.
Investigation quickly led police to suspect Beach, Cotter, and Winn in the murder. When interviewed by police, Beach and Cotter admitted to beating and stabbing Barbour, along with Winn. Barbour had not done anything to provoke the attack. Beach, Cotter, and Winn had been drinking near the gas station, after purchasing beer and snacks there shortly after midnight. According to Beach and Cotter, Winn proposed that they attack Barbour, and Winn struck the first blows.
Cotter indicated that the attack on Barbour was carried out in two separate waves. As Cotter described events to police, Winn struck Barbour with a blackjack several times, knocking him out of his wheelchair, and Cotter punched him. Beach then interrupted the attack, reluctant to follow through once he realized Barbour was in a wheelchair. The men then helped Barbour back into his wheelchair, apologized, and claimed they had been looking for someone else. Shortly thereafter, however, as Barbour was walking away pushing his wheelchair, Winn declared "no, I'm not done," and attacked Barbour again, with Cotter and Beach both joining in.
Beach described the motive for the attack as follows: "we just wanted to be a bunch of dicks." He also admitted to "curiosity" about what it would be like to kill someone. Cotter told police that Winn was the one who wanted to kill someone, and that he (Cotter) and Beach "didn't really want to do anything," but went along as a kind of "bluff" or out of "peer pressure."
Beach and Cotter were charged with first degree murder (Pen. Code, § 187, subd. (a), count 1) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4), count 2). The information alleged with respect to count 1 that Beach and Cotter had both personally used a deadly weapon, a knife (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). Count 2 specified that it related to the "beating incident prior to [the] stabbing." Beach was also charged with a misdemeanor count of unlawful possession of a switchblade knife with a blade longer than two inches (§ 21510, count 4).
Further undesignated statutory references are to the Penal Code.
Winn was also charged under count 1 and its weapons enhancement. The information alleged that in committing the assault alleged as count 2 Winn personally used a deadly weapon, a blackjack. Count 3 was a felony charge of unlawfully possessing a blackjack (§ 22210), asserted only against Winn.
After a joint trial conducted before two separate juries, Beach and Cotter were both found guilty as charged. The court sentenced each defendant to 26 years to life in prison, consisting of 25 years to life on count 1, a consecutive one-year term for the weapon enhancement, and concurrent terms on counts 2 and 4. The trial court also imposed on each a $300 restitution fine (§ 1202.4, subd. (b)), a $300 suspended parole revocation fine (§ 1202.45), a $120 court operations assessment (§ 1465.8, subd. (a)(1)), and a $90 conviction assessment (Gov. Code, § 70373).
II. DISCUSSION
A. Autopsy Photograph
Beach and Cotter contend that an autopsy photograph, which the trial court admitted into evidence over defense objection, should instead have been excluded as unduly prejudicial. We find no abuse of the trial court's discretion.
"Autopsy photographs of a murder victim 'are always relevant at trial to prove how the crime occurred; the prosecution need not prove these details solely through witness testimony.'" (People v. Sattiewhite (2014) 59 Cal.4th 446, 471.) Moreover, our Supreme Court has "often rejected the argument that photographs of the murder victim must be excluded merely because they are cumulative to other evidence in the case." (People v. Medina (1995) 11 Cal.4th 694, 754.) Evidence Code section 352 provides that the court "in its discretion" may exclude otherwise admissible evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence is "'substantially'" more prejudicial than probative only if it "'poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome."'" (People v. Lindberg (2008) 45 Cal.4th 1, 49.) "Undue prejudice" in this context is not the prejudice or damage to a defense that naturally flows from probative evidence; rather, it is evidence that "'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'" (People v. Karis (1988) 46 Cal.3d 612, 638.)
We review the trial court's evidentiary rulings under the deferential abuse of discretion standard. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1366-1367.) We will disturb the trial court's ruling only if the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Clark (2016) 63 Cal.4th 522, 572.) Further, we assess the trial court's ruling, not its reasoning, and affirm if it is correct on any ground. (People v. Brooks (2017) 3 Cal.5th 1, 39; see also People v. Zapien (1993) 4 Cal.4th 929, 976 ["'"No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion."'"].)
The autopsy photograph at issue, admitted as People's exhibit 163, depicts Barbour's body lying face down, with the skin of the left side of the back peeled off in a large flap and laid to the side, exposing the underlying tissues. As the forensic pathologist explained to the jury, she "reflected the most superficial layer of the skin" to be able to see "the wounds and wound paths as they continue through the body," and to assess the amount of bleeding caused by each of the wounds. The pathologist stated that this technique is often used during autopsies.
We have examined People's exhibit 163 and find no abuse of discretion. The photograph is, as the trial court observed, "not a pretty picture," but we find nothing about it unduly inflammatory. By depicting the left side of Barbour's back in its entirety, People's exhibit 163 aids in understanding other photographic evidence, not challenged on appeal, showing more close-up images of his wounds to that area, and the pathologist's process of analyzing the wounds. The jury was informed that the removal of skin was not a result of the attack on Barbour, but rather part of a routine autopsy procedure. (See People v. Medina, supra, 11 Cal.4th at pp. 754-755 [no abuse of discretion in admitting autopsy photo, depicting top of victim's head with skin, bone, and brain removed and rod inserted to show trajectory of bullet, in part because "the jurors were aware that the gruesome nature of the photo in question was more a result of routine autopsy procedures than a direct product of defendant's bullet"].) We find nothing about exhibit 163 that "uniquely tends to invoke an emotional bias" against the defendants as individuals (People v. Karis, supra, 46 Cal.3d at p. 638), particularly since the photograph was published to the jury only briefly during the pathologist's testimony and appropriately placed into its clinical context. The trial court acted well within its discretion by admitting it over defense objections. B. Blood Test Results
Over defense objection, the trial court permitted the prosecution to introduce on rebuttal toxicology evidence that included the results of drug and alcohol tests performed on a blood sample taken from Beach after his arrest, and supporting expert testimony. Beach contends the blood sample was taken too long after the murder to "provide any insight as to [his] blood alcohol level or his level of benzodiazepines at the time of [the] incident," so the evidence should have been excluded as irrelevant. Beach also contends that his counsel was unfairly surprised by the prosecution's decision to present the evidence during rebuttal, and that he was denied the opportunity to challenge the evidence with a surrebuttal expert witness. We are not persuaded by either of these arguments.
1. Additional Background
At trial, Beach raised his intoxication during the killing as his primary defense to the charge of first degree murder. (See People v. Castillo (1997) 16 Cal.4th 1009, 1016 [evidence of intoxication relevant to whether defendant acted with required specific intent]; CALCRIM No. 625.) His counsel also argued during closing that Beach "was still being influenced by alcohol" during his interviews with police, so the jury should not "believe everything he said." (See People v. Anderson (2018) 5 Cal.5th 372, 399 [intoxication is a basis for impeaching a witness's credibility].)
Beach's jury heard evidence he had been drinking before the murder, and that he consumed more alcohol and took Xanax pills afterwards. At least one prosecution witness testified that, although Beach had been drinking in the period immediately preceding the murder, he did not seem particularly drunk. The defense's case in chief, however, included Beach's roommate's testimony that he had observed Beach highly intoxicated on the night of the murder. According to the roommate, he and Beach had a beer together at their home between 8:00 p.m. and 9:00 p.m. on January 17, 2016. Beach left around 9:00 p.m., saying that he was going to go out to a bar with friends. When Beach returned at about 3:30 a.m. the next morning, he smelled of alcohol, and he was slurring his speech and stumbling as he walked. The roommate estimated that, on a scale of 1 to 10, with one being sober and 10 being extremely intoxicated, Beach was a 7.5 or 8 when he returned home. Shortly after arriving home, Beach told his roommate that he had been involved in beating up and killing a "bum." Beach then drank another half bottle of scotch, took multiple Xanax pills, and passed out. Beach was asleep within 20 or 30 minutes of arriving home.
Beach told police he had begun drinking even earlier in the day, by about 2:00 or 3:00 p.m.
On cross examination, Beach's roommate admitted that he had not mentioned these details of Beach's intoxication when police interviewed him.
To respond to Beach's roommate's testimony that Beach had been highly intoxicated, the prosecution introduced on rebuttal, over a defense relevance objection, toxicology evidence that had not been offered during the prosecution's case in chief. A blood sample had been taken from Beach at 10:21 p.m. on January 18, 2016, after his arrest and near the end of his interviews with police. The sample tested negative for both alcohol and benzodiazepines (such as Xanax). A toxicologist testified that alcohol is eliminated from the body of an average person at an average rate of .017 percent per hour, with a range between .010 percent and .020 percent per hour. Thus, the expert testified, even if Beach's blood-alcohol level had been more than twice the legal limit for driving, it would likely have been completely out of his system by 11 hours later. The expert testified generally that benzodiazepines have a "relatively long half-life, meaning it stays in the blood for a long period of time." She testified, however, that the rate at which benzodiazepines are eliminated from the blood is "not steady like blood alcohol is," and did not offer any estimate of how long it would take for them to be eliminated from the body. Rather, she conceded that she could say only that Beach had none in his blood at the time the sample was taken from him.
Before the expert's testimony, the prosecution's offer of proof regarding relevance included the assertion by counsel that the "outside tail end of half-life of benzodiazepines is a 24 hour period." The expert's testimony, however, did not include this information.
After the prosecution had presented its rebuttal evidence, out of the presence of the jury, Beach's counsel stated: "Your Honor, I am unable to provide a surrebuttal witness in this short notice. I didn't know that [the prosecutor] was going to bring up the toxicology report and consequences and whatever effects of it. And so that was another basis for my objecting to the presentation of the toxicologist. I don't know if I put that on the record before, but that was one of the reasons why, because I didn't have time to go get an expert to offer surrebuttal testimony." Beach's counsel conceded, however, that the defense had long been aware of the test results.
2. Analysis
The prosecution's rebuttal toxicology evidence had no relevance to Beach's state of intoxication at the time of Barbour's murder. (See Evid. Code, § 210 [defining "'relevant evidence'" as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action"].) Based on the expert's testimony regarding the rate alcohol is eliminated from the body after ingestion, the blood sample was taken from Beach too long after the murder for the negative result to have any significance on that issue; indeed, even the alcohol his roommate reported that he drank after the murder had been metabolized. Also, there was no evidence that Beach was under the influence of benzodiazepines during the murder; his roommate testified that he took Xanax pills afterwards.
The negative test results were of some relevance, however, as to whether Beach was under the influence of benzodiazepines or alcohol during his interviews with police. Beach's roommate testified that Beach had taken multiple Xanax pills in the morning hours, which arguably provided the defense support for a closing argument that Beach was intoxicated for his interviews later that day, undermining the credibility of his admissions of involvement in the murder. Indeed, as noted, Beach's defense counsel would later argue during closing that Beach "was still being influenced by alcohol" during his interviews with police, so the jury should not "believe everything he said." Given the prosecution's reliance on Beach's admissions, evidence tending to support the credibility of Beach's statements was relevant. (Evid. Code, § 210.) By demonstrating that any alcohol was out of Beach's system before his interviews with police, and that any benzodiazepines had been completely metabolized by the end of the interviews, the prosecution's toxicology evidence tended undermine an otherwise (at least arguably) plausible defense attack on the prosecution's case. (See People v. Anderson, supra, 5 Cal.5th at p. 399.)
In context, counsel's comment apparently is more of a reference to Beach's hangover than an argument that he was still drunk during the interviews. That context, however, includes discussion of the prosecution's toxicology evidence.
Beach was arrested at about 4:00 p.m. on January 18, 2016. His initial interview with police was completed at 5:33 p.m. The discussion that the police interviewer refers to as their "second" interview was completed at 10:07 p.m., just before the blood sample was taken from Beach. A third recorded discussion between Beach and the interviewer—apparently conducted outside as Beach smoked a cigarette, rather than in an interview room, and occurring between the two formal interviews—also was introduced into evidence.
Beach proposes that it is likely the jury used the evidence not just in considering the credibility of his statements to police, but also whether he was intoxicated at the time of the murder. We find no likelihood that the jury was confused in that manner. The toxicologist's testimony, as discussed above, was not reasonably open to being understood as bearing on the issue of whether Beach was intoxicated at the time of the murder, and the prosecution did not suggest it was. The defense, in closing argument, expressly argued that the test results had no bearing on whether Beach was intoxicated during the murder; the prosecution did not disagree, citing instead to other evidence that, although Beach had been drinking, he was not so drunk during the killing as to be unable to form the requisite specific intent for first degree murder.
Thus, the prosecution's rebuttal toxicology evidence had some relevance, and there was little or no likelihood that admitting it would confuse the issues or mislead the jury. The trial court's ruling admitting the evidence over defense objection was not an abuse of its discretion under Evidence Code section 352.
Only after the prosecution's rebuttal evidence did Beach raise the issue of having insufficient time to obtain a surrebuttal expert. By failing to timely raise the issue, Beach forfeited an argument on that basis. We therefore decline to discuss that argument in detail. We note that the trial court would not have erred in overruling an objection to the evidence made on this basis, given that the defense had long known of the test results, and the defense's presentation of evidence in its case-in-chief opened the door to the prosecution introducing the rebuttal evidence. Beach was not unfairly surprised or otherwise denied the opportunity to present a defense. C. Dueñas Error
Beach and Cotter both argue, based on Dueñas, supra, 30 Cal.App.5th at p. 1157, that the trial court violated their constitutional rights by imposing the $300 restitution fine, $300 suspended parole revocation fine, $120 court operations assessment, and $90 conviction assessment without considering their ability to pay those amounts. We find any error harmless.
In Dueñas, supra, 30 Cal.App.5th at p. 1157, decided while this appeal was pending, the Court of Appeal held that it violates due process under the federal and state Constitutions to impose the court operations and facilities fees without first determining the convicted defendant's ability to pay them. (Id. at pp. 1168-1169.) In addition, "to avoid serious constitutional questions" raised by the statutory restitution scheme, the Dueñas court decided execution of the mandatory restitution fine must be stayed unless the trial court determines that the defendant has the ability to pay it. (Id. at p. 1172.) Later cases have held that, at the ability to pay hearing, the defendant bears the burden of showing his or her inability to pay, and the court "must consider all relevant factors," including "potential prison pay during the period of incarceration to be served by the defendant." (People v. Castellano (2019) 33 Cal.App.5th 485, 490 [remanding for an ability to pay hearing]; accord People v. Santos (2019) 38 Cal.App.5th 923, 934 [on remand, defendant must show inability to pay, and court may consider potential prison pay]; People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp), review granted Nov. 13, 2019, S257844 [same].) There is a split of authority in the Court of Appeal as to whether Dueñas was correctly decided. (E.g., People v. Hicks (2019) 40 Cal.App.5th 320, 322, 327-329, review granted Nov. 26, 2019, S258946 [holding that Dueñas was wrongly decided].) The California Supreme Court has granted review in Kopp to decide whether courts must "consider a defendant's ability to pay before imposing or executing fines, fees, and assessments" and if so, "which party bears the burden of proof regarding defendant's inability to pay." (Kopp, review granted, Nov. 13, 2019, S257844 .)
Here, however, any error arising from failure to determine Beach's and Cotter's ability to pay the imposed fines and fees is harmless. Beach and Cotter were 24 and 27 years old, respectively, at the time of sentencing. Both were, according to their probation reports, in good physical and mental health, and both worked prior to their arrests. Even assuming they lack the present ability to pay the imposed fines and fees, there is no reasonable doubt regarding their future ability to pay. We reject the proposition that either Beach or Cotter will be unable to pay fines and fees totaling $510 (excluding the suspended parole revocation fine) during the decades of incarceration mandated by their sentences. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139 ["The idea that [defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable"].) On that basis, we find any error under Dueñas and its progeny harmless beyond a reasonable doubt.
III. DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: RAMIREZ
P. J. MCKINSTER
J.