Opinion
A100190.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DIMARCO, Defendant and Appellant.
A jury convicted appellant of two felony counts: (1) attempted murder (Pen. Code, §§ 664, 187), and (2) assault with a deadly weapon (knife) (Pen. Code, § 245, subd. (a)(1)), and found true personal weapon use (Pen. Code, § 12022, subd. (b)(1)) and great bodily injury enhancements (Pen. Code, § 12022.7, subd. (a)). Appellant claims evidentiary and instructional error. We reject those claims and affirm the judgment of conviction.
STATEMENT OF FACTS
On January 18, 2002, appellant and his wife, Yvette, entered the South San Francisco home of Gordon Vigil. At the time, appellant and his wife were guests of Gordons mother and were living in a recreational vehicle (RV) parked in the driveway of the house. Gordons mother, Mary Vigil, owned and occupied the house. Gordons nephew, Todd Vlk, also resided at the house.
House rules were set by Mary and Gordon. Specifically, appellant and his wife were not to use the kitchen without permission, and were not to be in the house unless someone else was home. On the night of the incident, Gordon had asked Yvette whether she had permission from his mother to be in the house and to use the kitchen. Appellant appeared agitated as he listened to the conversation. Appellants agitation was evident by his posture, the look in his eye, and the manner in which he was grinding his teeth. He seemed to be having a rough night or possibly drinking.
After watching the conversation between Gordon and Yvette, appellant said, "[t]his is bullshit," and went outside. He returned within two to three minutes, with his right hand concealed behind his back. After a few moments of mumbling and pushing up against Gordons chest, appellant clearly stated, "Ill show you who youre really messing with. Ill show you who I really am." Appellant then came at Gordon with a knife. Fearing appellant was going to stab him in the eye, Gordon leaned back and turned his head. The knife sliced Gordons throat from under his chin all the way to the top of his ear.
Gordon, who takes a blood thinner (Coumadin), began to bleed profusely. Because he is a Coumadin patient, Gordon feared he would bleed to death. Gordon told his nephew Todd to call the police and ambulance. He wrapped a towel around his neck and also called 911.
Officer Ken Chetcuti, of the South San Francisco Police Department, was one of the first officers to arrive at the scene. He was given a description of the suspect. As Officer Chetcuti approached, he observed a male crossing a street about 500 feet from Gordons home. This man (appellant) matched the description of the suspect. Officer Chetcuti approached appellant and ordered him to lay face down on the ground. Appellant complied. He admitted to being involved in the altercation at Gordons home.
Officer Chetcuti testified that appellant appeared to be under the influence of alcohol, but not to the point where he felt that appellants decisions or responses were impaired.
South San Francisco Police Officer Fred Camacho was also dispatched to the scene. He was assigned to collect evidence. He took photographs of the RV in front of the house, and of the interior of the house, including the blood trail that started in the kitchen and continued through the back living room and bathroom to Gordons bedroom. Officer Camacho took a photograph of the kitchen area showing the start of the blood trail, and Gordons t-shirt and towel on the floor. He measured and photographed the blood in the kitchen near the sink. He photographed the blood trail to Gordons bedroom. Another photograph displayed a table and telephone base, both with blood on them. Several other photographs depicted the blood trail in and around the bathroom. The bloody t-shirt and towel found on the kitchen floor were taken to the police station and placed in a drying area. Two photographs were taken in the drying area, one of the towel and one of the t-shirt.
Gordon arrived at the emergency room of San Francisco General Hospital with blood actively oozing from his wound. The wound was near the jugular vein and was about 7 to 8 inches in length. In the operating room, Gordon lost about 100 milliliters of blood. Taking into consideration the estimated blood loss prior to surgery, and how actively blood was oozing from his neck, medical staff estimated he lost at least 500 milliliters of blood.
DISCUSSION
Appellant appeals on the grounds that (1) the court abused its discretion in admitting two photographs depicting blood loss of the victim; (2) the court erred in not instructing the jury that it must consider voluntary intoxication in connection with the attempted murder charge; (3) the court erred in failing to instruct the jury that it must find appellant actually fled before considering flight as relevant to consciousness of guilt; and (4) the cumulative impact of the errors requires reversal.
A. The Trial Court Did Not Abuse its Discretion in Admitting Photographs of the Victims Blood-stained Shirt and Towel
Appellant contends that the trial court abused its discretion under Evidence Code section 352 by allowing two photographs into evidence, one showing the victims blood-stained t-shirt and one showing the blood-stained towel he had held to his neck. A trial court has broad discretion in determining the admissibility of gruesome photographs. (People v. Crittenden (1994) 9 Cal.4th 83, 133.) The courts discretion will not be disturbed on appeal unless the probative value of the photographs is substantially outweighed by their prejudicial effect. (Id. at 134.)
Evidence Code section 352 states: "The court in its discretion may exclude 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."
The prosecutor offered into evidence a series of photographs depicting the bloody crime scene and Gordons blood-soaked clothing. Defense counsel objected to only two photographs, specifically the photos of the t-shirt and towel. On appeal, appellant argues that the photographs were more prejudicial than probative.
The photographs were not made a part of the record on appeal. We ordered that all of the photographs admitted into evidence be transmitted to this court and have reviewed them.
The photographs are probative of the issue of serious or great bodily injury, in regard to the amount of blood Gordon lost. The t-shirt and towel are neutrally displayed on hangers in the photographs. Our independent review of the photographs confirms that they were not unduly shocking or inflammatory: they depict neither corpses nor injuries; shown are merely a blood-stained t-shirt and towel.
The jury was well aware that Gordon had his throat cut with a knife and heard descriptions of his injury and his substantial blood loss. The word "prejudice" in section 352 refers to an emotional bias against the party that has little to do with the issues. (People v. Crittenden, supra, 9 Cal.4th at p. 134.) The admission of the photos posed no danger that the jurors would lose their ability to be rational about the case and would respond from some emotional reaction rather than reason.
The record confirms the trial court properly weighed the probative value of the photographs against their prejudicial impact before admitting them. There was no abuse of discretion.
B. Intoxication Instruction Properly Given
Appellant, who was charged with both general and specific intent offenses, offered evidence that he was voluntarily intoxicated in an attempt to raise a reasonable doubt with respect to the element of specific intent in the offense of attempted murder. At appellants request, the trial court gave standard CALJIC No. 4.21.1, which states that, as a general rule, voluntary intoxication is not a defense to a general intent crime such as assault with a deadly weapon. An exception to that rule exists where "a specific intent is an essential element of the crime. In that event, you should consider the defendants voluntary intoxication in deciding whether the defendant possessed the requested specific intent." The court further instructed the jury that specific intent is a necessary element of the crime of attempted murder, and that, "[i]f the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not the defendant had the required specific intent."
In People v. Aguirre (1995) 31 Cal.App.4th 391, 395-402, the court held, among other things, that CALJIC No. 4.21.1 was a correct statement of the law. Appellant nevertheless contends that CALJIC No. 4.21.1 is misleading. He argues that, by using the phrase "you should consider," instead of "you must consider," the instruction implies that jury need not consider evidence of voluntary intoxication, even when it is relevant in determining whether defendant had the specific intent necessary to commit the crime of attempted murder.
The instruction was not confusing or misleading. The phrase "you should consider" must be understood in the context of the entire instruction. CALJIC No. 4.21.1 begins with the statement of the general rule that voluntary intoxication does not make an act less criminal, and then states an exception to that general rule where an element of the offense is specific intent. The phrase "you should consider" is contrasted with the general rule that evidence of intoxication is not relevant to determination of criminal liability, and should not be considered. Read as a whole, there is no likelihood reasonable jurors would view the use of the word should rather than the word must in the sentence as authorizing them to arbitrarily ignore evidence of appellants voluntary intoxication and the bearing it may have on specific intent.
Appellant also accuses the prosecutor of inviting the jury in his rebuttal argument not to consider seriously whether intoxication negated his ability to form the specific intent. However, there was no objection below to the prosecutors statement. As such the point is waived. (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) In any event, we find nothing in the prosecutors rebuttal argument suggesting that voluntary intoxication was irrelevant to the element of specific intent, and should not be considered. Rather, the prosecutor acknowledged the relevance of intoxication to specific intent, but questioned the appellants evidence concerning the degree of his intoxication. (See People v. Kelly (1992) 1 Cal.4th 495, 526 [arguments of counsel may be considered in assessing the likelihood that jurors would misunderstand an instruction].) The prosecutor argued that the intoxication evidence was so weak that it should not delay the jurors deliberations for very long, particularly since appellants actions after the attack and his testimony demonstrated he had specific intent.
There was no reasonable likelihood that the jury would misunderstand the clear directive to consider evidence of voluntary intoxication on the issue of specific intent with respect to the attempted murder offense. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Clair (1992) 2 Cal.4th 629, 663.)
C. Flight Instruction Properly Given
A flight instruction is appropriate where the circumstances suggest that the defendants behavior was motivated by a consciousness of guilt. (Pen. Code, § 1127c; People v. Smithey (1999) 20 Cal.4th 936, 982.) The evidence showed that after he slit Gordons throat, appellant threw the knife in the sink, left Gordons home without rendering or summoning aid, and was apprehended by police, shortly after the crime, about 500 feet away. The trial court gave standard CALJIC No. 2.52, which states: "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact, which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide." (Italics added.)
Appellant argues that the trial court had a sua sponte duty to modify CALJIC No. 2.52 to require the jury to find the predicate fact of flight before it considered whether appellants actions showed consciousness of guilt. Appellant testified that he was walking to a friends house to call the police because there was no phone immediately available.
Appellant claims the trial court had a duty to add the following language to CALJIC NO. 2.52: "Before considering the evidence of flight you must determine that the following preliminary fact has been proven: The defendant fled with the intent to avoid observation or arrest. You must disregard the evidence of flight unless you find that the above preliminary fact has been proved."
Before addressing the substance of appellants contention, we note that the instruction as given did not assume that flight was established. Rather, it advised the jury that flight immediately after the commission or accusation of a crime may be considered "if proved, . . . in light of all other proved facts." As such, this left the factual issue of flight and its significance to the jury. (People v. Visciotti (1992) 2 Cal.4th 1, 61-62.) It is not reasonably likely the jury misunderstood the law regarding flight. (Estelle v. McGuire, supra, 502 U.S. at p. 72; People v. Clair, supra, 2 Cal.4th at p. 663.)
Appellants purported "predicate fact of flight" language turns CALJIC No. 2.52 on its head, in that it requires the jury to find he had a guilty conscience before considering the evidence of flight. The court in People v. Navarette (2003) 30 Cal.4th 458, 502 rejected a similar contention. There, the defendant argued that CALJIC No. 2.52 was improper where the evidence suggested reasons for flight other than consciousness of guilt. The defendant argued that the court was required to instruct the jury that it must determine whether the evidence in fact showed a consciousness of guilt. (Navarette, at p. 502.) Rejecting the defendants assertion, the court found: "The purpose of presenting evidence of flight is to establish consciousness of guilt, but defendant argues the jury should first have found that defendant had a guilty conscience before considering the evidence of flight." (Ibid. )
Appellants attempt to distinguish Navarette is without merit. Appellant argues that Navarette is not applicable to the instant case because, here, the modification directs the jurys attention to the need to decide whether his actions were in fact flight. We find this to be a distinction without a difference. The predicate fact determination proffered by appellant requires the jury to make a preliminary determination as to his guilty conscience: "Before considering the evidence of flight you must determine that the following preliminary fact has been proven: The defendant fled with the intent to avoid observation or arrest." (Italics added.) As such, we find support in People v. Navarette, supra, 30 Cal.4th at page 502 for concluding that appellants proposed modification is improper.
Even if appellants proposed modification were proper, the trial court did not have a sua sponte duty to modify CALJIC No. 2.52. (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1438-1439.) In Gutierrez, the defendant argued that the trial court had a sua sponte duty to modify the last sentence of CALJIC No. 2.52 to read: " `Whether or not evidence of flight shows a consciousness of guilt, and the significance to be attached to such circumstance, are matters for your determination. " (Gutierrez, at p. 1439.) There, the court found that CALJIC No. 2.52 incorporates the instruction language of Penal Code section 1127c, which provides, " `No further instruction on the subject of flight need be given. " (Ibid.) The Gutierrez court further stated that if defendant sought a modification of a correct instruction it was his duty to request the modification. (Ibid.) Contrary to appellants assertion, Gutierrez is applicable to the instant appeal. Appellant contends thatGutierrez is not applicable because he seeks a different modification from the one sought in that case. This argument misses the mark, in that Gutierrez did not discuss the merits of the modification sought. Rather, Gutierrez held that a trial court has no sua sponte duty to modify the flight instruction. Instead, any duty to modify the flight instruction rests with the defendant. (Ibid.)
D. Cumulative Error Claim is Without Merit
Appellants final contention that cumulative error requires reversal is without merit. The foregoing establishes that appellants final contention is based on a faulty predicate—that there was multiple error. Our review has found no error.
The judgment of conviction is affirmed.
Reardon, Acting P.J., Rivera, J. concur.