Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County Ct. No. FCH07871, Michael R. Libutti, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
RYLAARSDAM, ACTING P. J.
Defendant Oscar Gonzalez was charged with one count of attempted willful and premeditated murder (Pen. Code, §§ 187, subd. (a), 664; all further statutory references are to this code unless otherwise specified; count 1) and one count of kidnapping (§ 207, subd. (a); count 2). A jury convicted him of count 2 but was unable to reach a verdict on the attempted murder count. After a second trial defendant was convicted of attempted murder as charged. He was sentenced to seven years to life on count 1 and a consecutive five years on count 2.
He appeals on several grounds: 1) A violation of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]); 2) erroneous exclusion and admission of evidence; and 3) instructional error. We find no error and affirm.
FACTS
Defendant and Maria married in 1983 and had two daughters. After 20 years of marriage when Maria told defendant she wanted a divorce, he asked for “a second chance,” which she refused, asking him to leave their home. Maria could not afford to move out herself.
Thereafter, over a period of time, defendant told her five times he would kill her, including if she had a relationship with another man. Another time he told her he wanted to buy life insurance on both of their lives for their daughters and that they should kill themselves. On a different occasion he grabbed her neck and placed a plastic zip tie around her neck and tightened it, “[n]ot to the point of asphyxiating,” but tight enough to scare her and so she could not remove it herself; her daughter cut it off with a scissors. Defendant said “he was playing” but Maria was so scared she moved to her brother’s house while defendant was away. In a letter she left for her daughter she explained she was moving because of defendant’s threat to kill her; she did not reveal where she was going because she was afraid if defendant knew he would harm her.
At some point defendant discovered where Maria was living and visited her several times, asking that they reconcile. When she refused, defendant threatened that “many accidents happen... in the streets” and that he planned “to send someone to do something to [her].”
The parties hired lawyers but were unable to arrive at a property settlement because defendant would not agree to pay Maria what she thought she was entitled to receive. Thereafter defendant offered Maria $30,000 if she would “[g]o far away” and “[n]ot... see [her] daughters.” She refused.
Several months later, one morning when Maria finished her 3:30 p.m. to 2:00 a.m. shift at work, she got into her locked car and began driving to her brother’s home; her hair was clipped to the top of her head. She became afraid when she realized defendant was crawling from the trunk of the car into the backseat, saying he wanted to talk. She said she did not want to talk and told him, three times, to get out of the car, which he refused to do, even when she threatened to call the police. Defendant told Maria “he had already begged [her] a lot” and then put a rope around her neck, causing her to lose consciousness.
At about 2:30 that morning after police officer Jonathan Monroe saw Maria’s car run a stop sign he pulled it over. Defendant was in the driver’s seat. Monroe noticed a woman with long hair “slumped over the passenger seat” and not moving. When Monroe asked defendant what was wrong with her, defendant said “they had a fight.” Monroe asked, “What happened,” and defendant answered, “Nothing.” Monroe, worried about the passenger, asked defendant to get out of the car and sit on the curb, which he did. When Monroe again inquired, defendant said he had picked up his wife from work and they had had a fight. He then stood up and started shouting to Monroe, “Call an ambulance.... I hit her. I almost killed her.... You need to help her. Give her CPR.” Monroe again asked what had happened and defendant responded that he had strangled Maria in an attempt to kill her.
Two other officers, John Vega and Rodney Lombard, then arrived at the scene. Lombard handcuffed defendant and put him in the police car. Vega and Monroe went to assist Maria, who did not respond to their shouts. She did not seem to be breathing and had saliva and blood coming from her nose and mouth and her skin was blue. Vega believed she was dead. Her hair was down on her neck, but Monroe finally saw the rope around her neck and they took Maria out of the car to try to remove it. The rope was tight but they were finally able to cut it and Maria began breathing.
While waiting for the paramedics, Vega asked defendant what was wrong with Maria. Defendant explained about the divorce and that despite his “begg[ing],” Maria would not reconcile. In response to Vega’s questions about whether Maria had put the rope around her neck, defendant began explaining about the divorce and how he had begged her to reconcile, but she would not. He said “he was all Fd [sic] up.” He continued, “You see? You see what I did?” When Vega asked defendant if Maria had put the rope around her neck, defendant replied that he had done it. Vega asked, “You did?” to which defendant answered, “Yes. I was trying to kill her.” The physician who treated Maria in the emergency room testified that her symptoms were “classic” signs of ligature strangulation. He opined she would have died without receiving oxygen.
A search of defendant’s truck revealed rope similar to that around Maria’s neck. Also found were defendant’s passport and about $1,000 in cash. The alarm clock in defendant’s bedroom was found to be set to 12:50 a.m.; normally he rose for work at 3:00 or 4:00 a.m.
Iliana testified on behalf of defendant. She stated defendant was distraught when Maria asked for a divorce as well as when she moved from the house; she heard him beg her not to leave. She confirmed Maria’s testimony about defendant’s 15 to 20 pound weight loss, although he gained some of it back within seven or eight months. She had never heard defendant scream at or threaten Maria nor had she seen him hit her.
Defendant also called an expert witness, Dr. Annette Ermshar, with a Ph.D. in clinical psychology, specializing in neuropsychology and psychopharmacology, who had examined defendant for his emotional and mental states generally and at the time of the offense. She concluded that defendant exhibited symptoms of chronic major depressive disorder including psychotic and anxiety features. She testified that this disorder could interfere with a person’s ability to reason and make decisions, including a failure to evaluate the consequences of behavior.
Additional facts are set out in the discussion.
DISCUSSION
1. Miranda Claim
Defendant claims that statements he made to police after he was handcuffed in the back of the police car violated his Miranda rights. He contends the court erroneously relied on the so-called “rescue” exception to admit the statements.
The officer did not read defendant his Miranda rights before he questioned defendant about what had happened to Maria, and the prosecution acknowledged defendant was in custody at the time of questioning. Before the testimony was elicited, defense counsel objected on that ground. The court conducted an Evidence Code section 402 hearing. Vega testified he asked defendant what was wrong with Maria when she was still unconscious despite the fact they had cut the rope. He did not understand the cause, despite defendant’s prior statement he had tried to kill her. He wanted to know if she had taken drugs, tried to commit suicide, or engaged in autoerotic conduct.
The court overruled the objection on the ground the questions fell within the rescue exception to Miranda. It found the question “[w]hat’s wrong with her” to be “carefully crafted” to determine her condition, not to learn what, if anything, defendant had done to her.
“Under some narrow circumstances, sometimes called the ‘public safety’ or ‘rescue’ exceptions, compliance with Miranda is excused where the purpose of police questioning is to protect life or avoid serious injury and the statement is otherwise voluntary. [Citations.]” (People v. Panah (2005) 35 Cal.4th 395, 471.) In some instances, “‘“where the possibility of saving the life of a missing victim exists, noncoercive questions may be asked of a material witness in custody even though answers to the questions may incriminate the witness.”’” (People v. Davis (2009) 46 Cal.4th 539, 593-594.) In reviewing whether there was such an emergency and if a victim could be saved, we look at “objective facts known to law enforcement.” (Id. at p. 593.)
Defendant claims the rescue exception does not apply because “there was no urgency” when Vega questioned him. The officers had sufficient information to save Maria without questioning him further. He asserts Vega’s questions were “designed to elicit an incriminating response,” that is, to discover whether defendant had put the rope around her neck. We disagree.
Maria was in serious condition. Learning the cause would help the officers explain to the paramedics how to treat her. Further, as set out in Davis, it does not matter if Vega had another, subjective motive for the question; the test is an objective one. (People v. Davis, supra, 46 Cal.4th at p. 593.) The court properly admitted the statements.
2. Limitation of the Testimony of Defendant’s Expert Witness
Defendant contends the court erred when it barred Ermshar from testifying about statements he made to her when she examined him. In the first trial, in describing defendant’s “irrational thinking,” Ermshar recounted that he had a “genuine belief that if he scared [Maria], she would stay with him.... [H]e just began sobbing and said, ‘I thought that was my only way to keep her.’ He genuinely believed that scaring her was an effective tactic.” Pursuant to the prosecutor’s motion in the second trial, relying on Evidence Code section 352, the court prohibited Ermshar from testifying to any “specific statements” defendant made to her. Defendant claims this violated due process and denied him a fair trial by preventing him from presenting evidence as to his sole defense, that based on his mental state he was incapable of committing attempted premeditated murder.
Evidence Code section 801, subdivision (b) allows an expert to testify to an opinion based on material “of a type that reasonably may be relied upon by an expert in forming an opinion,” even if the material is otherwise inadmissible hearsay. The expert generally may testify as to that on which the opinion is based. (People v. Carpenter (1997) 15 Cal.4th 312, 403, overruled on another ground by statute as set out in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) But, as defendant acknowledges, the trial court has discretion to “exclude from the expert’s testimony ‘any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs it proper probative value.’ [Citation.]” (People v. Pollock (2004) 32 Cal.4th 1153, 1172.)
Defendant argues that the excluded evidence was more probative than prejudicial. He claims that because Ermshar relied on defendant’s statements she should have been allowed to testify about them to explain why she formed her opinion because without them, the “opinion was essentially worthless to the” jury and it appeared she had no basis for her conclusion. He asserts this was exacerbated by the fact that the prosecution, in cross-examination, focused on defendant’s unimpaired mental state at the time of Ermshar’s interview of him two or three years after the crime.
Ermshar was allowed to testify as to all the other underlying evidence forming the basis of her opinion, including tests results, defendant’s symptoms such as guilt, thoughts of suicide, weight loss, and insomnia, and what occurred in her interview of defendant, short of his actual statements. Moreover, defense counsel had the opportunity by his own questions and argument to the jury to shift the prosecution’s focus away from defendant’s mental state during the interview as opposed to when the crime was committed. That was the relevant time period.
Defendant also maintains his statements were reliable. He did not deny his actions but just tried to explain his lack of intent. His statements were consistent with what he told police shortly after the event. He could not have known of a defense based on his mental condition at that time.
But defendant’s characterization of his statements to Ermshar as consistent with what he told police is not accurate. He never told them he thought if he scared Maria she would reconcile. He did mention the divorce and that she would not come back to him despite his begging. But, in addition to him saying he was “all Fd [sic] up,” his only other statements were that he had tried to kill Maria. By the time he spoke to Ermshar two or three years later, he had had plenty of opportunity to learn of a defense based on his mental condition. Had the self-serving statements come in, the prosecution would not have had the opportunity to cross-examine him about them.
People v. Bordelon (2008) 162 Cal.App.4th 1311, on which defendant relies, does not persuade us otherwise. There a defense expert was not allowed to testify about statements the defendant made before he committed the crime to explain his lack of intent. In reversing, the appellate court determined excluding the evidence was error because when the statements were made the defendant “arguably [had] no motive for fabrication.” (Id. at p. 1325.)
Nor did exclusion of the evidence violate due process. Due process requires that a criminal defendant have “‘a meaningful opportunity to present a complete defense’ [citations].” (Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142, 90 L.Ed.2d 636].) But this right is not absolute. Courts “have long observed that, ‘[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [state or federal constitutional] right to present a defense.’ [Citations.]” (People v. Robinson (2005) 37 Cal.4th 592, 626-627, fn. omitted.) The United States Supreme Court has also recognized, “we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability—even if the defendant would prefer to see that evidence admitted. [Citation.]” (Crane v. Kentucky, supra, 476 U.S. at p. 690; accord, People v. Yeoman (2003) 31 Cal.4th 93, 141-142.) These principles apply where the trial court excludes inadmissible hearsay because the defendant has failed to establish the foundational requirements for introducing it under a recognized exception to the general rule of exclusion. (People v. Morrison (2004) 34 Cal.4th 698, 724-725.) The court did not abuse its discretion in excluding the evidence.
3. Admission of Photographs
Defendant claims he was prejudiced when the court admitted 11 color photographs of the injuries to Maria because they improperly inflamed the jury and were not relevant as to the only disputed issue, intent. The pictures showed closeups of injuries to Maria’s neck and head, taken at the hospital a few hours after the strangulation and later that same day; there were also a few showing the injuries several days thereafter. At trial, Detective Bjelland, the lead investigator, testified that the photographs depicted Maria’s condition when he saw her at the hospital, the next day, and a few days later. The treating physician referred to the photographs while testifying about how the injuries were inflicted.
The trial court has broad discretion about whether to admit or exclude graphic photographs on the grounds of relevance and undue prejudice. (People v. Bonilla (2007) 41 Cal.4th 313, 353-354.) Moreover, “prosecutors... are not obliged to prove their case with evidence solely from live witnesses....” (People v. Gurule (2002) 28 Cal.4th 557, 624.) They may use the “most probative and compelling evidence available,” and photographs are “concrete” and “persuasive.” (People v. Scheid (1997) 16 Cal.4th 1, 16-17.)
Nor does the fact that defendant did not dispute putting the rope around Maria’s neck, almost killing her, make the photographs irrelevant. Likewise his claim that the photographs do not relate to his only defense, his lack of intent based on his impaired mental status. (See People v. Scheid, supra, 16 Cal.4th at p. 17 [photograph not irrelevant because of the defendant’s failure to challenge testimony about its contents; “photograph served to clarify the[] testimony” of witnesses describing crime scene].) Further, courts “repeatedly have rejected the argument that victim photographs should have been excluded under Evidence Code section 352 simply because they were cumulative of other evidence [citation]” (People v. Smithey (1999) 20 Cal.4th 936, 974) or “if the photographs are offered to prove facts established by testimony [citation]” (People v. Cain (1995) 10 Cal.4th 1, 29).
Finally, defendant admits the photographs did not depict an autopsy and the record does not support his claim that they were “inflammatory” or shocking,” since the photographs were not provided to us. (People v. Roldan (2005) 35 Cal.4th 646, 713, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22] [no evidence photographs were “unduly bloody or gruesome”].)
Defendant challenges admission of evidence of the prior domestic violence incidents under Evidence Code section 1109, subdivision (a)(1). That statute provides that, except in instances not pertinent here, where a defendant is charged with domestic violence, evidence of prior acts of domestic violence may be admitted unless barred under Evidence Code section 352. He asserts the statute violates state and federal due process and equal protection rights.
As defendant concedes, this argument has been rejected by several courts in this state. (E.g., People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028; People v. Johnson (2000) 77 Cal.App.4th 410, 417-420.) He also acknowledges that, because the United States Supreme Court has not ruled on the matter, he is raising the issue to preserve his right to do so in federal court. We see no reason to disagree with the decisions cited above that Evidence Code section 1109, subdivision (a)(1) does not violate state or federal due process or equal protection rights.
5. CALCRIM No. 852
The relevant portion of CALCRIM No. 852 given to the jury states: “The People presented evidence that defendant committed domestic violence that was not charged in this case, specifically criminal threats and battery. [¶]... [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that defendant, in fact, committed the uncharged domestic violence.... [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that defendant committed the uncharged domestic violence, you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit attempted murder with premeditation and deliberation as charged here. [¶] If you conclude that defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of attempted murder with premeditation and deliberation. The People must still prove the charge and allegation beyond a reasonable doubt.”
Defendant contends giving this instruction violated due process because it arbitrarily allowed the jury to find he was guilty of willful, premeditated attempted murder solely because he had committed those other acts. He maintains that none of the prior acts were so similar to the attempted murder to suggest he had the same mental state when he committed the offense at issue and thus nothing about those acts would “necessarily support such an inference.”
A similar argument was rejected in People v. Pescador (2004) 119 Cal.App.4th 252, where the defendant challenged CALJIC No. 2.50.02, the predecessor to CALCRIM No. 852. In discussing inferred facts in the context of due process the court stated: “The United States Supreme Court found a due process violation when it cannot be said ‘“with substantial assurance”’ that the inferred fact is ‘“more likely than not to flow from the proved fact on which it is made to depend.”’ [Citation.] The Supreme Court has also held: ‘A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.’ [Citation.]” (People v. Prescado, supra, 119 Cal.App.4th at p. 259.)
Here, the willful, premeditated, and deliberate attempted murder was more likely than not to result from his prior acts of domestic violence. CALCRIM No. 852 defines domestic violence as “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury....” (Italics added.) There are strong similarities between the attempted strangulation of Maria and the prior incident where defendant placed the zip tie around her neck. He also threatened to kill her on more than one occasion.
We reject defendant’s additional claim that other jury instructions did not remedy this error and thus it is likely the jurors were misled, thereby lowering the prosecution’s burden of proof. First, CALCRIM No. 852 itself specifies that if the jury considered the evidence at all, it was only one factor and that the prosecution was still required to prove every element of attempted premeditated murder beyond a reasonable doubt. The jurors were instructed with CALCRIM No. 220, which defined reasonable doubt, CALCRIM No. 251, explaining that specific intent was required for a finding of premeditation and deliberation, CALCRIM No. 600, setting out the elements of attempted murder, and CALCRIM No. 601, which explained the necessary proof of willful and premeditated and deliberate attempted murder. “‘By telling jurors that evidence of prior offenses is insufficient to prove defendant’s guilt of the charged offenses beyond a reasonable doubt, jurors necessarily understand that they must consider all the other evidence before convicting defendant.’ [Citation.]” (People v. Pescador, supra, 119 Cal.App.4th at p. 261, quoting People v. Reliford (2003) 29 Cal.4th 1007, 1015 [rejecting similar claim to validity of CALJIC No. 2.50.01].)
6. Cumulative Error
Because we have concluded there were no errors, it logically follows there could not be any cumulative error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: IKOLA, J., O’LEARY, J.