Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA076214, Clifford L. Klein, Judge.
Waldemar D. Halka for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Defendant Valaria Garnett appeals from her conviction of second degree murder and arson of an inhabited structure. Defendant challenges the trial court’s refusal to suppress evidence and to exclude the results of experiments conducted by fire investigators. She claims that the court erred in allowing hearsay testimony and that her counsel was ineffective in not obtaining her medical records in a timely fashion. She contends that these claimed errors, individually or cumulatively, prejudiced her trial. We find no reversible error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
At about 3:00 a.m. on January 17, 2003, a fire broke out in the Long Beach apartment where the 46-year-old defendant lived with her 69-year-old mother, Margaret Garnett. Defendant alerted one of her neighbors that there was a fire. The neighbor saw defendant in the side yard, wearing a bathrobe and carrying a purse. Firefighters found Margaret’s charred body on the floor in one of the bedrooms. An autopsy revealed that Margaret had died of blunt force trauma to the chest that had fractured her sternum and several ribs, causing extensive internal bleeding. The extensive bleeding and the lack of smoke particles in Margaret’s air passages or elevated levels of carbon monoxide in her blood indicated that she had died before the fire. The carpet underneath the body had not burned, indicating that the body was already on the floor when the fire started. The origin of the fire was determined to be some clothing on the floor between the bedroom door and a roll-away bed. The clothing had been lit by a match or a lighter.
A three-pound dumbbell weight was found on the other bed in the bedroom, other dumbbells were on the floor. A satchel of jewelry was located on the couch in the living room. A neighbor had heard defendant raise her voice at Margaret. In 2007, defendant collected the proceeds of a $10,000 life insurance policy taken out on Margaret’s life in 1997.
At defendant’s 2009 jury trial, the prosecutor’s theory was that defendant had killed her mother and had set fire to the apartment to cover up the homicide. The defense’s theory was that defendant could not have committed the homicide because she was suffering from multiple sclerosis and blindness; the fire could have been started accidentally by a cigarette; and Margaret could have died of cardiac arrest, with the trauma to her chest having been caused by her falling from a bed or during rescue efforts.
The jury acquitted defendant of first degree murder but convicted her of second degree murder and arson of an inhabited structure. The trial court denied defendant’s motion for a new trial. Defendant received a 15-years-to-life sentence for the second degree murder conviction and a consecutive three-year sentence for the arson. She filed a timely appeal.
DISCUSSION
I
Defendant sought to suppress the bathrobe she had worn at the time of the fire, two cigarette lighters found in the bathrobe pocket, and firefighter Captain Wills’s testimony that the bathrobe did not smell of smoke. She argues the trial court should have suppressed this evidence because it was obtained in violation of the Fourth Amendment as Captain Wills lifted and smelled the bathrobe in defendant’s motel room.
When reviewing the trial court’s ruling on a motion to suppress evidence, we apply the substantial evidence test to the court’s factual findings but determine independently whether the search or seizure was reasonable under the Fourth Amendment to the United States Constitution. (People v. Glaser (1995) 11 Cal.4th 354, 362, 363.)
At the suppression hearing, Captain Wills testified he had observed defendant wearing a dark bathrobe at the time of the fire. Because she would not speak to him at that time, at 10:00 a.m. on the same day he went to the motel where she was staying. Her son let him into the motel room. Defendant was lying in bed. She told Captain Wills that she had talked to her mother about seeing smoke in the bedroom. Defendant had then gone to the kitchen to make coffee and heard the smoke detector go off. Back in the bedroom, she had felt heat on the right side of her body. She had told her mother to get out, had let the dog out of the bathroom, and had left through the back door. Captain Wills noticed a dark bathrobe on another bed in the motel room and was told that it was defendant’s. He picked up the robe and smelled it. It smelled of laundry detergent but not of smoke. Because the smell of the bathrobe was inconsistent with defendant’s alleged presence in the bedroom at the time of the fire, Captain Wills impounded it and searched its pockets, where he discovered two lighters.
Defendant argues that Captain Wills’s lifting of the robe was a seizure. A seizure of property interferes meaningfully with the individual’s possessory rights in that property. (United States v. Jacobsen (1984) 466 U.S. 109, 113.) The momentary lifting of the robe off the bed was not a seizure because it did not interfere meaningfully with defendant’s possessory interest in it. At the time defendant was lying on another bed in the same room. She was not wearing or otherwise using the robe, and the robe was not taken out of her immediate possession until after Captain Wills determined that it was evidence of a crime. Nor was picking up the robe a detention because it did not hinder defendant’s own freedom to move or her access to the robe. (Cf. United States v. Place (1983) 462 U.S. 696, 708-709 (Place) [90-minute detention of luggage at an airport]; United States v. Van Leeuwen (1970) 397 U.S. 249, 252 [29-hour detention of a mailed package].)
Defendant also argues that lifting and smelling the bathrobe was a search. A search interferes with an individual’s reasonable expectation of privacy, but since the observation of an item already in plain view does not implicate issues of privacy, it is not a search. (Horton v. California (1990) 496 U.S. 128, 133.) If the item’s incriminating character is immediately apparent to an officer in a lawful position to observe and access the item, the plain view doctrine allows the warrantless seizure of the item as evidence of a crime. (Id. at pp. 136-137.) The doctrine does not apply when the incriminating character of an object is not immediately apparent and “some further search of the object” is required. (Minnesota v. Dickerson (1993) 508 U.S. 366, 375.) Thus, manipulation of a lump in an individual’s pocket during a patdown for weapons was a search because the officer did not immediately recognize the lump as contraband. (Id. at p. 378.) Similarly, moving stereo equipment to see its otherwise concealed serial numbers was a search because it additionally invaded the privacy of an individual whose apartment was lawfully being searched for weapons. (Arizona v. Hicks (1987) 480 U.S. 321, 325.)
The trial court noted that Captain Wills could have smelled the bathrobe by “lower[ing] his nose” instead of lifting up the bathrobe. Thus, the lifting of the bathrobe would be inconsequential if, by lowering his nose, Captain Wills could have lawfully and inevitably discovered its odor. (See Nix v. Williams (1984) 467 U.S. 431, 448-450 [evidence held admissible under the inevitable discovery exception to the exclusionary rule].) The People argue that smelling the bathrobe was not a search because it was similar to a drug dog’s sniff. This argument is not well taken. A drug dog’s sniff reveals information limited to the presence of contraband, in which there is no reasonable expectation of privacy. (Place, supra, 462 U.S. at p. 707.) The same cannot be said of a human’s sense of smell, which may distinguish legitimately private odors that would subject an individual to embarrassment. Nor does this case involve the typical situation of a traveler who has a limited right of privacy in her luggage. (People v. Santana (1998) 63 Cal.App.4th 543, 548 [squeezing checked luggage to release odor was not a search].) In that context, an officer’s bending down to smell the odor of cocaine emanating from suitcases was held not to be a search on the rationale that there is no right to privacy where an odor has escaped into the surrounding area. (People v. Shandloff (1985) 170 Cal.App.3d 372, 377, 380, citing People v. Mayberry (1982) 31 Cal.3d 335, 342.) In this case, no evidence was adduced that the bathrobe’s odor was strong enough to have wafted into the surrounding air so as to be detectible without having to smell the bathrobe itself. Thus, while the bathrobe was in plain view, its incriminating odor was not plainly detectible in the motel room where Captain Wills was lawfully present. His lifting and smelling the bathrobe arguably was a search.
But even were Captain Wills’s testimony about the bathrobe’s odor and the lighters found in the bathrobe’s pocket a product of an unreasonable warrantless search, its admission at trial was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). That is the case here because the challenged evidence was cumulative. (See People v. Ratliff (1986) 41 Cal.3d 675, 688.) A paramedic who treated defendant testified that her lungs tested clear for smoke, and Captain Wills testified that he did not detect the smell of smoke on defendant at the fire scene. The prosecutor did not rely on the bathrobe’s odor at all, noting only that defendant did not smell like smoke or show signs of smoke inhalation at the fire scene. Thus, the bathrobe’s odor was not crucial to the verdict. Defendant admitted using lighters to light her cigarettes, and another lighter fashioned out of a Budweiser beer bottle was found in the living room of defendant’s apartment. The prosecutor mentioned all three lighters once altogether and did not identify which lighter started the fire. Defendant’s access to lighters was undisputed, so the verdict did not depend on the presence of the lighters in her bathrobe pocket.
Strong evidence of guilt additionally renders the failure to suppress this evidence harmless beyond a reasonable doubt. Based on the blunt force trauma to Margaret’s chest, the extensive internal bleeding, and the lack of smoke particles in her airways, the coroner concluded that Margaret was dead when the fire started. This evidence discredited defendant’s statement to Captain Wills that she talked to her mother after the fire had started, as well as the defense’s speculative theory that Margaret died of a heart attack or trauma inflicted during the fire suppression efforts. Even though defendant suffered from progressive multiple sclerosis, poor vision, and generalized aches and pains, there was no evidence that she lacked upper body strength or that she was unable to walk at the time of the fire. In addition, defendant’s body weight was twice that of her mother: 180 pounds to Margaret’s 96. The evidence did not support the defense’s theory that defendant was too feeble to kill her mother.
The fire investigation revealed that the fire was intentionally set with a match or an open flame device. Since it was undisputed that defendant and Margaret were alone in the apartment, the jury was entitled to infer that defendant inflicted the deadly blow to Margaret’s chest and then set the fire. Additional evidence pointing to motive and planning supported this inference. There was some testimony of defendant’s poor treatment of Margaret. Defendant had the presence of mind to carry a purse out of the apartment. She sent someone later in the day to collect jewelry that was gathered in a satchel on the living room sofa.
In light of the entire record, the verdict did not hinge on Captain Wills’s testimony about the bathrobe’s odor and the two lighters. Any error with regard to the admission of this testimony was harmless beyond a reasonable doubt.
II
Defendant unsuccessfully moved to exclude evidence of experimental simulations conducted by fire investigators with help from the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives. The trial court allowed the evidence, finding the conditions under which the experiments were conducted close enough to those at the fire scene. Two of 16 tests were shown to the jury. Based on the test results, Captain Wills testified that the fire could not have been started by an unattended cigarette at the top of the roll-away bed because that would have created a different burn pattern from the one found at the fire scene. He also concluded that the smoke detectors would have gone off early enough that Margaret would have had time to escape the fire had she been alive. The prosecutor referred to these conclusions in her closing.
Experimental evidence is admissible if the experiment was “conducted under at least substantially similar, although not necessarily absolutely identical, conditions as those of the actual occurrence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1326.) A trial court’s ruling regarding such evidence is reviewed for abuse of discretion. (People v. Skinner (1954) 123 Cal.App.2d 741, 752.) A wide range of judicial discretion is recognized under this standard, so long as it is within the bounds of reason. (See id. at 750-752 [testimony of out-of-court experiments of igniting monk’s cloth or dropping jars filled with water excluded because there were too many unknowns as to the original materials and conditions]; People v. Freeman (1951) 107 Cal.App.2d 44, 54 [evidence of experimental tossing of lit matches from jeep travelling at various speeds admitted where condition of grass similar but wind and temperature unknown].) An abuse of discretion may be found when the court admits experimental evidence without requiring the proponent to present proof that the experiment was conducted under substantially similar conditions. (People v. Bonin (1989) 47 Cal.3d 808, 847.)
Defendant argues the experiments were not conducted under conditions sufficiently similar to those in her apartment at the time of the fire. She argues in particular that, because the roll-away bed was completely destroyed in the fire, it was unknown whether its mattress was fire retardant and whether there was bedding on the mattress; the smoke detectors used in the tests were newer than those in the apartment; the temperature and humidity in the apartment were unknown; and only Marlboro cigarettes were used in the tests. The trial court conducted a hearing, where investigators testified to the extensive efforts they made to replicate the conditions in the bedroom. They bought a similar roll-away bed frame at the store where defendant had bought the roll-away bed, and they bought the only type of mattress that came along with the bed frame. The mattress had a smoldering cigarette retardant cover, but no fire retardant foam. Because the original mattress was completely consumed in the fire, the investigators assumed that it was flammable. The investigators used smoke detectors that had the same certification as those in defendant’s apartment. They used cigarettes consistent with those found at the scene. They set the test rooms at room temperature. They went to great lengths to replicate many other details in the bedroom that defendant does not challenge.
The trial court acted within its discretion in ruling that the prosecution had met its burden of laying a foundation for the experimental evidence based on the investigators’ extensive efforts to replicate the conditions in the bedroom. The dissimilarities defendant points out were a proper matter for argument, and her trial counsel argued them to the jury. (See People v. Freeman, supra, 107 Cal.App.2d at 54.) But they do not take the trial court’s discretionary decision outside the bounds of reason. Even were we to find an abuse of discretion, the error would be harmless. The experimental evidence was cumulative of Captain Wills’s independent determination of the source and origin of the fire and of the coroner’s conclusion that Margaret was already dead when the fire started. And in light of the evidence we recounted in section I, there was no reasonable probability the defendant would have received a better result. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III
Defendant contends the trial court erred in allowing Captain Wills to testify on cross-examination about out-of-court statements by the firefighters who found Margaret’s body. The firefighter who first found Margaret did not testify at the trial; only the second firefighter who entered the bedroom did. Captain Wills testified that he had noticed a red mark on Margaret’s chest and asked the firefighters whether they stepped on her body while putting out the fire; they denied having done so. The trial court granted defense counsel’s motion to strike as hearsay the testimony about the firefighters’ response. Defense counsel then asked whether the firefighters’ boots had been impounded, and Captain Wills responded that there was no reason to do so because the firefighters had denied stepping on Margaret’s body. The trial court denied defense counsel’s motion to strike this testimony as nonresponsive, and advised counsel that the witness should be allowed to explain his answer. When the questioning resumed, Captain Wills testified that the boots were not preserved for analysis because there was no trauma to Margaret’s body at the site of the red mark and because the firefighters had denied stepping on her.
Defendant contends that the firefighters’ statements were testimonial hearsay violating her constitutional right to confront adverse witnesses under Crawford v. Washington (2004) 541 U.S. 36, 60-62. The trial court’s evidentiary rulings, including those involving hearsay issues, are reviewed for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) Whether a statement implicates the constitutional right of confrontation is reviewed independently. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1478.) A statement is testimonial “when the circumstances objectively indicate that... the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822.)
The People argue initially that defendant has forfeited her hearsay claim because defense counsel moved to strike Captain Wills’s answer as nonresponsive rather than as containing hearsay. Defense counsel’s question whether the firefighters’ boots were preserved for analysis called for a yes or no answer, and Captain Wills’s statement of reasons for not preserving the boots could have been stricken as nonresponsive. In allowing the statement to stand, the trial court did not abuse its discretion to the extent that the witness was entitled to explain his answer. While defense counsel may not have been eager to elicit an explanation on cross-examination, the explanation could nevertheless have been elicited on redirect. (See People v. Penrice (1961) 195 Cal.App.2d 360, 364.) In addition to being nonresponsive, Captain Wills’s answer referenced the firefighters’ out-of-court statements that previously had been stricken as hearsay. Defense counsel did not ask for an instruction limiting the jury’s consideration of the firefighters’ statements for the nonhearsay purpose of explaining Captain Wills’s decision not to impound the firefighters’ boots. (See Evid. Code, §§ 350, 1200, subd. (a); People v. Smith (2007) 40 Cal.4th 483, 516 [trial court not required sua sponte to instruct on the limited admissibility of evidence].) And it was the defense’s persistent inquiry into the Captain’s failure to impound the boots that invited the Captain’s repeated testimony about the firefighters’ out-of-court statements, which had earlier been stricken as hearsay. Defendant cannot invite this testimony and then complain about it. (See People v. Harrison (2005) 35 Cal.4th 208, 237-238.)
Defendant argues, however, that we should address the hearsay claim of error in order to forestall a petition for writ of habeas corpus based on defense counsel’s ineffective assistance. A forfeited claim cannot be automatically transformed into a claim of ineffective assistance of counsel. (People v. Riel (2000) 22 Cal.4th 1153, 1202-1203.) But even were we to assume that defendant’s hearsay claim was preserved for review and that the firefighters’ out-of-court statements were testimonial hearsay, any error was harmless beyond a reasonable doubt under Chapman, supra, 386 U.S. at page 24, in light of the evidence of guilt recounted in section I. Defendant argues that the firefighters’ hearsay statements were prejudicial because they eliminated one potential cause of Margaret’s injuries that could have created reasonable doubt. We disagree. The defense’s theory that the red mark on Margaret’s chest was evidence that the firefighters had stepped on her body was contradicted by Captain Wills’s testimony that there was no trauma in the area of the mark. The prosecutor did not rely on the firefighters’ out-of-court statements in her closing argument. Rather, in her rebuttal to defense counsel’s insistence in closing that the first firefighter who found Margaret did not testify at trial to effectively deny stepping on her body, the prosecutor argued that whether the firefighters had stepped on the body was irrelevant. Indeed, in light of the coroner’s conclusion that the trauma which caused Margaret’s death occurred before the fire, the presence of the red mark on her chest was a collateral issue immaterial to the verdict.
IV
Defendant claims her counsel was ineffective in failing to timely obtain an emergency room report from November 1, 2002, reflecting her weakened condition two and a half months before the fire. The report was among records reviewed by defendant’s treating physician, Dr. Neer, who testified that the report was consistent with his general impression that defendant was suffering from multiple sclerosis and “generalized aches and pain, ” and it did not change his treatment plan for her. The trial court did not allow the medical records to be read into evidence at trial. After both sides had rested and the jury had been instructed, defense counsel asked the court to admit the report, which he had belatedly subpoenaed. The court declined to reopen the case because the report was cumulative to the treating physician’s testimony about defendant’s condition. It subsequently denied defendant’s motion for a new trial, which was based in part on counsel’s allegedly ineffective assistance regarding the report.
To establish a violation of her constitutional right to effective assistance of counsel, defendant must show that, in not obtaining the report earlier, her counsel failed to perform as a reasonably competent attorney, and it was reasonably probable that counsel’s deficient performance affected the outcome of the trial. (People v. Wader (1993) 5 Cal.4th 610, 636, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694 (Strickland).) Unless defendant establishes prejudice, we need not determine the competence of her counsel. (Id. at p. 687.)
Subpoenaed hospital records may be admissible under the business records exception to the hearsay rule. (Evid. Code, §§ 1271, 1560 et seq.; In re R.R. (2010) 187 Cal.App.4th 1264, 1279-1280.) But when these records are based on hearsay, an independent exception to the hearsay rule is required for each level of hearsay. (People v. Ayers (2005) 125 Cal.App.4th 988, 995.) Defendant cites to the “History of Present Illness” section in the emergency room report, which is based entirely on her own statements to the physician. It says she was experiencing weakness and decreased sensation in her legs and cramping pain in her hands and toes, needed help in dressing herself and used a walker and a wheelchair. Statements describing defendant’s then existing physical sensations, including pain and bodily health, are admissible under Evidence Code section 1250, subdivision (a)(1) to prove her “physical sensation at that time or at any other time when it is itself an issue in the action[.]” Statements as to her prior physical sensations, however, are inadmissible under section 1251 because as a nontestifying criminal defendant she is not unavailable as a witness, which is a requirement under that section. (People v. Edwards (1991) 54 Cal.3d 787, 819 [exercising the privilege against self-incrimination does not render a party unavailable].)
Even assuming that the report would have qualified as a business record and some of defendant’s statements to the emergency room physician would have been admissible as describing her then existing physical sensation, defendant cannot establish prejudice under Strickland, supra, 466 U.S. at p. 687. Defendant insists that the report proves she was too feeble to have committed the crimes with which she was charged. But her own witness, Dr. Neer, testified he had considered the report, and it had not changed his treatment of defendant or his impression that her condition was getting progressively worse. The report was thus cumulative. Because Dr. Neer had seen defendant after her visit to the emergency room, his impression of defendant’s condition was also more recent than that reflected in the report. Dr. Neer testified that defendant “had a fair amount of generalized aches and pains” and was on various medications. But his notes up to April 2003, three months after the fire, did not indicate that she could not walk, and he believed that he prescribed a wheelchair only in 2007. In fact, defendant admittedly walked around and out of the apartment on her own on the night of the fire. Similarly, Dr. Neer had not noted any loss of function and strength in her arms. In light of Dr. Neer’s testimony, defendant cannot establish it was reasonably probable that counsel’s failure to procure the emergency room report earlier would have changed the outcome of her trial.
V
Defendant argues that the cumulative effect of the alleged errors requires a reversal. We have not found any error that by itself or together with other errors affected the jury verdict.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.