Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, No. SWF020582, Timothy F. Freer, Judge.
O'ROURKE, J.
A jury convicted Wade Griffin, III of first degree murder (Pen. Code, § 187, subd. (a)) and found true special circumstance allegations of lying in wait (§ 190.2, subd. (a)(15)) and attempted rape (§ 190.2, subd. (a)(17)). After the People declined to seek the death penalty, the trial court sentenced Griffin to life in prison without the possibility of parole. Griffin contends (1) admission of the testimony of an expert pathologist, who assertedly relied on the testimonial hearsay statements of another pathologist who had performed the autopsy on the victim and a paramedic/first responder, violated his Sixth Amendment confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 (Crawford); (2) a detective's testimony corroborating a witness violated his fair trial and Sixth Amendment confrontation rights; and (3) the court failed to fully instruct the jury on the special circumstance allegations, requiring that they be stricken. We conclude Griffin's Sixth Amendment rights were not infringed, and to the extent any violation occurred, it was either invited by Griffin or harmless beyond a reasonable doubt in view of the overwhelming evidence of Griffin's guilt. The remaining contentions are unavailing, and thus we affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On March 19, 2007, Ever Council was found dead in her apartment, unclothed except for a suit sleeve on her arm and brutally beaten, with Griffin unclothed lying face-to-face on top of her. Griffin was alive but unconscious. In an apparent suicide attempt, he had taken some of Council's prescription medication after he tore off her clothes, beat and strangled her to death. Griffin had a scratch on his finger and cuts on his right hand. Tests conducted that day showed a 0.11 percent alcohol level in Griffin's blood, which also tested positive for Lorazepam, Ibuprofen, Meprobamate, Carisoprodol, Soma and Acetominophen.
Council suffered lacerations, abrasions and contusions on her upper body, face, neck and head. She had cuts on and inside her mouth and a cut to her nose. She had bruises on the left side of her face and eye, upper chest, and left shoulder. There were scrapes on the surface of her neck and contusions underneath her scalp. She had pinpoint hemorrhages in her eyes and on her face indicative of strangulation.
Earlier that same morning, at about 2:20 a.m., Griffin had called Council and when she didn't answer left her a message, telling her in part, "I know you don't give a fuck about me and I don't give a fuck about you either." He told her he was drunk and lost and asked her to call him back. He closed the call by saying "I'm just calling an old friend. Other than that, I don't give a shit about you, you're garbage. Ha, ha, ha, ...." At 2:36 a.m., Griffin texted Council's phone, writing, "It's not ur fault u a hore gold digger. I was really lost, bitch."
That morning, Griffin spoke three times on the phone with his friend Warren Dodson, telling him during the first call he had been drinking and that he was going "to this broad's house to confront her because she had used him, " get an apology from her, and that he also planned to go by the house of Tony Council, Council's ex-husband. The first call occurred at about 3:30 a.m. The second call, in which Griffin said he was at home, was about an hour or hour and a half later. The third time defendant called Dodson was at 6:00 a.m., during which he told Dodson he was in front of "her house" (without specifying whose) and was going to jump out and scare her when she came out so he could see her face. Griffin let out a growling sound and he and Dodson both laughed. Dodson later testified that Griffin was agitated during the calls, and though he was concerned about Griffin's drinking and driving, he was not worried that Griffin was a danger or would hurt anyone.
Phone records established that Council had checked her voicemail that morning, but made no attempt to respond to Griffin's messages. At about 9:30 a.m., Jefferine Warthen, a man Council had been dating for about two and a half weeks and had spent her last weekend with, called Council. Council sounded happy, and told Warthen she was going to work. The call, however, ended abruptly with an ear piercing yell, and Council exclaiming, "Oh my God. Oh my God. Oh my God." Warthen tried to call her back about ten times, and when she did not answer, he drove 35 to 45 minutes from his workplace to her apartment, where he found the door locked and no signs of forced entry. He then drove to her workplace, learned she was not there, and returned to her apartment. Finally, Warthen inquired with the apartment manager's office, and thereafter Council's body was found by the manager and a maintenance supervisor, who called police.
At trial, the prosecution called Dr. Joseph Cohen, Riverside County's Chief Forensic Pathologist, to testify concerning Council's cause of death. He had reviewed a report, notes, and all of the photographs from an autopsy that had been performed on March 20, 2007, by another physician and ex-colleague, Aaron Gleckman. He also reviewed a transcript of Dr. Gleckman's preliminary hearing testimony. During his testimony, Dr. Cohen was presented with individual photographs and from them described Council's injuries and discoloration on her body indicating livor mortis, which he explained was the pooling of blood due to gravity after death. Based on his examination of those items, Dr. Cohen testified he had formed his own opinion as to Council's cause of death; that Council had died as a result of moderate to severe blunt force trauma and manual strangulation.
Before trial, the People submitted a bench memorandum asserting Dr. Cohen's testimony was not governed by the U.S. Supreme Court's opinion in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz)because Melendez-Diaz was limited to use of an out-of-court affidavit offered as substantive evidence. The trial court permitted argument on the issue and ultimately ruled Melendez-Diaz distinguishable and People v. Geier (2007) 41 Cal.4th 555 (Geier)controlling, rendering Dr. Cohen's testimony admissible.
"[Prosecutor:] Based on your examination of all of these items, the reports, Dr. Gleckman's notes, the photographs, and the... transcript of the preliminary hearing, do you, yourself, have an opinion as to the cause of death for Ever Council?" [¶] "[Dr. Cohen:] Yes, I do."
On cross-examination, when asked about the effect of the severity of the blunt force trauma on the perpetrator, Dr. Cohen testified there may or may not be injury to the perpetrator's fingers or knuckles, depending on the way the injury is inflicted. He was asked by defense counsel whether Dr. Gleckman had observed Council's internal and external genitalia and rectum were free from trauma, and agreed Dr. Gleckman made such a finding. Dr. Cohen addressed Council's time of death, explaining that the determination could be assisted by an assessment of the postmortem changes of rigor mortis (the progressive stiffening of the body after death) and livor mortis, and would also be assisted by the reports of the investigator, paramedics, first-responders, and deputy coroner.
On redirect examination, Dr. Cohen testified that the medical information contained in the autopsy report, photographs and paramedic's report, which assessed Council's lividity at 11:20 a.m. on the morning of her death, was consistent with a death that had occurred within a couple of hours. He stated that the only piece of information refuting his opinion was a conclusion of the deputy coroner, Elizabeth Denny, who stated in her report that livor mortis was fixed at the time of her observation at approximately 1:45 p.m. Dr. Cohen doubted the accuracy of Denny's conclusion because livor mortis would not be fixed if it had just started a couple of hours before. He also questioned her use of the term "fixed" with rigor mortis because the term is usually used for describing livor mortis. Dr. Cohen noted that the paramedic concluded in his report that Council had "beginning lividity" at her lower back area, but he believed the photograph demonstrated more livor mortis than what was described by the paramedic. Dr. Cohen ultimately could not pinpoint the time of death; he stated it could have been a half hour, an hour and a half, or longer before the paramedics arrived.
On the next trial day several days later, defense counsel moved for a mistrial based on Dr. Cohen's reliance on the paramedic's report on grounds his testimony was multiple hearsay, and violated Griffin's rights under the Sixth and Fourteenth Amendments under the state and federal Constitutions. The court denied the motion.
Deputy Coroner Denny testified, and clarified that though she had entered the crime scene at 1:45 p.m. on March 19, 2007, she actually made her observations about rigor and livor mortis between 6:25 p.m. and 6:55 p.m.
DISCUSSION
I. Claimed Sixth Amendment Violation
Griffin contends his Sixth Amendment right to confront witnesses was violated when the trial court permitted Dr. Cohen to provide expert testimony, including his opinion concerning Council's time of death, which Griffin characterizes as a "critical issue" in the case. He maintains Dr. Cohen was permitted to relate testimonial hearsay statements of the paramedic who observed Council's lividity and the pathologist who performed Council's autopsy, both nontestifying witnesses. As we explain, we conclude that with some exceptions, Griffin's Sixth Amendment rights were not implicated by Dr. Cohen's testimony. For the few instances of testimony from Dr. Cohen that arguably related testimonial hearsay from the autopsy report, the court's admission of that evidence was either invited error or harmless beyond a reasonable doubt.
A. Confrontation Clause Principles
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) The clause "guarantees a defendant's right to confront those 'who bear testimony' against him." (Melendez-Diaz, supra, 557 U.S. ___ [129 S.Ct. at p. 2531]; Michigan v. Bryant (2011) 562 U.S. ___ [131 S.Ct. 1143, 1152-1153].) " 'Testimony, ' in turn, is a ' " 'solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " ' " (People v. Blacksher (2011) 52 Cal.4th 769, 811, citing Bryant, 562 U.S. ___ [131 S.Ct. at p. 1153].)
In Crawford, supra, 541 U.S. 36, the United States Supreme Court held the Sixth Amendment right of confrontation is violated by the admission of testimonial statements of a witness who is not subject to cross-examination at trial unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. (Id. at pp. 53-54, 68.) It said: "Various formulations of this core class of 'testimonial' statements exist: 'ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, ' [citation]; 'extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, ' [citation]; [and] 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " (Crawford, 541 U.S. at pp. 51-52.) Based on Crawford and the ensuing decision in Davis v. Washington (2006) 547 U.S. 813, the California Supreme Court in Geier, supra, 41 Cal.4th 555, held an expert could testify about a DNA analysis, embodied in a DNA report, performed by another biologist who did not testify at trial. (Geier, 41 Cal.4th at pp. 593-596.) Geier decided a hearsay statement is "testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial." (Geier, supra, 41 Cal.4th at p. 605.) According to Geier, such "routine forensic reports" (id. at p. 606) are not testimonial within the meaning of Crawford and Davis because they "constitute a contemporaneous recordation of observable events rather than the documentation of past events" (id. at p. 605) and thus do not meet all of the criteria for testimonial statements.
The U.S. Supreme Court denied certiorari in Geier shortly after issuing its opinion in Melendez-Diaz. (See Geier v. California (2009) ___ U.S. ___ [129 S.Ct. 2856].) The issue of Melendez-Diaz's impact on Geier is pending before the California Supreme Court in numerous cases, including People v. Dungo, review granted December 2, 2009, S176886 and People v. Anunciation, review granted March 18, 2010, S179423, both ofwhich involve autopsy reports.
In June 2009, the court decided Melendez–Diaz, supra, 557 U.S. ___ [129 S.Ct.2527], and in a five-to-four decision applied Crawford to hold that affidavits from forensic analysts concerning tests of a substance for the presence of illegal drugs aretestimonial for Sixth Amendment purposes. (Melendez–Diaz, supra, 557 U.S. ___ [129S.Ct. at p. 2532].) In part, the plurality observed the affidavits were not only " ' "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" ' " but also had the sole purpose to provide " ' "prima facie evidence" ' " of the analyzed substance. (Melendez–Diaz, supra, 557 U.S. ___ [129 S.Ct. at p. 2532].)
Justice Thomas joined the majority in a separate concurrence, explaining that he did so because the documents at issue were " 'quite plainly affidavits'...." (Melendez-Diaz, supra, 557 U.S. ___ at p. ___ [129 S.Ct. at p. 2529].) Given this narrow concurrence, it is arguable the Melendez-Diaz plurality's formulation — that testimonial hearsay extends to all " 'statements... made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial' " — was not adopted by Justice Thomas and thus does not establish precedent. The California Supreme Court had previously suggested this is not the controlling test. (See People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14 [stating the proper focus is "not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial" but should be with "statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing or proving facts for possible use in a criminal trial"].)
Following Melendez-Diaz, and after Griffin's trial took place, the U.S. Supreme Court decided Bullcoming v. New Mexico (2011) 564U.S. ___ [131 S.Ct. 2705], involving a charge of driving while intoxicated, in which the state sought to admit a blood-alcohol analysis report through the testimony of a forensic analyst who did not perform, observe or certify the analysis. (Bullcoming, 564 U.S. ___ [131 S.Ct. at pp. 2710, 2711-2712].)The plurality in Bullcoming observed that the nontestifying analyst's certification "reported more than a machine-generated number" in that it also verified the lab had received the blood sample intact, the sample was in fact the defendant's, that the analyst performed a particular test adhering to a specific protocol, and the process had not beencompromised. (Bullcoming, 564 U.S. ___ [131 S.Ct. at p. 2714].) It held the report could not be introduced against the accused at trial under the "surrogate" testimony approach taken in the trial court. (Bullcoming, 564 U.S. ___ [131 S.Ct. at pp. 2710, 2713].) It further held the report was testimonial even though unsworn, because it was "created solely for an 'evidentiary purpose'... made in aid of a police investigation, " (Bullcoming, 564 U.S. ___ [131 S.Ct.at p. 2717])and was " 'formalized' in a signed document."(Ibid.)
Justice Sotomayor, who supplied the fifth vote of the five to four decision, wrote a separate concurring opinion as to her reasons for concluding the report was testimonial. (Bullcoming, supra, 564 U.S. ___ [ 131 S.Ct. at p. 2720].) The plurality and Justice Sotomayor both believed the evidentiary purpose of the certificates was a factor in determining whether they were testimonial. (See Bullcoming, 564 U.S. ___ [ 131 S.Ct. at pp. 2716, 2720].) But there was no majority support for Bullcoming's definition of "testimonial" as having a " ' "primary purpose" of "establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution." ' " (Bullcoming, 564 U.S. ___ [ 131 S.Ct. at p. 2714, fn. 6].) Thus the controlling definition of what is "testimonial" remains unsettled.
B. Autopsy Report
In the wake of Melendez-Diaz and Bullcoming, and pending clarification from the California Supreme Court concerning Geier's viability, we are compelled to conclude the contents of the autopsy report here are testimonial within the meaning of confrontation clause jurisprudence.(Melendez–Diaz, supra, 557 U.S. ___ at p. ___ [129 S.Ct. at pp. 2532-2542]; Bullcoming, supra, 564 U.S. ___ [ 131 S.Ct. at p. 2713].) The autopsy report was the functional equivalent of a statement by Dr. Gleckman prepared for use at a later trial. Its primary purpose was evidentiary: to record the nature of Council's injuries and opine as to her cause of death potentially for use in a criminal prosecution. (Accord, Bullcoming, 564 U.S. ___ [ 131 S.Ct. at p. 2717].)
But in this case, while Dr. Cohen stated he had based his opinion on the autopsy report in addition to the photographs, he did not merely relate the observations of the nontestifying pathologist or rely on the independent truth of the autopsy findings. At trial, he was presented with numerous autopsy photographs of Council's injuries and state of livor mortis as evidenced by areas of discoloration on her skin, and gave an independent opinion of Council's cause of death and his observations of the presence of livor mortis at the time of her autopsy. Dr. Cohen's testimony on direct examination constitutes approximately 22 pages of transcript, and was limited to his findings concerning Council's cause of death by manual strangulation and blunt force trauma, which he explained to the jury using the photographs. The cause of Council's death was not a pivotal issue, indeed defense counsel conceded in closing argument that "[n]obody is disputing the cause of death...."
Dr. Cohen did repeat direct findings from the autopsy report that Council had no genital trauma. However, the latter testimony was elicited by defense counsel on cross-examination over the prosecutor's hearsay objection. As to that testimony, any confrontation violation was invited error. (See, e.g., People v. Thompson (2010) 49 Cal.4th 79, 96; People v. Huggins (2006) 38 Cal.4th 175, 250 [instructional error claimed to be a violation of Fifth, Sixth, Eighth and Fourteenth Amendments was invited by defendant's proposal of instruction]; People v. Seaton (2001) 26 Cal.4th 598, 639 [claim of Fifth, Sixth, Eighth and Fourteenth Amendment violations based on dismissal of juror were invited by defense counsel's stipulation to juror's excuse].)
Thus, the circumstances here are distinguished from those where the testifying expert was a mere conduit for forensic information prepared and analyzed by someone else, as in Bullcoming. Because Dr. Cohen's testimony did not convey Dr. Gleckman's findings or detail the report's contents, but rather constituted conclusions from his own observations from photographs, and Council's cause of death was not challenged by Griffin, we conclude any confrontation clause violation in allowing certain details of the report into evidence were harmless beyond a reasonable doubt. (People v. Cage (2007) 40 Cal.4th 965, 991-992; Chapman v. California (1967) 386 U.S. 18, 24.)
C. Paramedic's Report
Griffin bases another confrontation clause challenge on Dr. Cohen's testimony on redirect examination based upon the paramedic's report from the morning in question, in which the paramedic observed at 11:20 a.m. Council had "beginning lividity at [her] lower lumbar." There is no evidence the paramedic's report was created at the behest of law enforcement or for litigation purposes, as opposed to one that was generated in the ordinary course of the paramedic's typical duties. Nor was there evidence demonstrating the report's primary purpose was to provide evidence at a criminal trial. Rather, the record shows paramedics were called to the scene by the apartment manager to evaluate the condition of what appeared to the manager to be two unconscious individuals. The fact paramedics arrived to deal with a present or ongoing emergency tends to show any statements in the report are not testimonial. (See Davis v. Washington, supra, 547 U.S. 813, 822; People v. Romero (2008) 44 Cal.4th 386, 421-422; People v. Cage, supra, 40 Cal.4th at pp. 984-985.)
It is unnecessary, in our view, to ultimately decide whether or not the paramedic's report is testimonial, because even assuming arguendo it is and a confrontation clause violation occurred, Dr. Cohen's brief testimony relating the single statement describing Council's lividity is inconsequential in view of the remaining evidence, including the overwhelming evidence of Griffin's guilt.
In arguing admission of Dr. Cohen's testimony was prejudicial, Griffin claims the "key issue" at trial was Council's time of death. He takes issue with Warthen's story, questioning why he failed to call police after hearing Council's screams over the phone; why Warthen did not call police when she failed to answer her door but drove to her office instead; and why he could remember with specificity his whereabouts when she was killed, but could not recall how many nights he had spent with her that weekend or where they had gone. Griffin points out the police never tested Warthen's DNA, the knife for DNA, or Council's phone for fingerprints, nor did they search Warthen's home for Council's missing shoe or any other incriminating evidence. According to Griffin, the fact the jury asked for a readback of both Warthen's and Dr. Cohen's testimony as to rigor and livor mortis shows it "was seeking corroboration of Warthen's testimony and the time of death...."
We do not agree the challenged evidence was essential to the People's case, or that Council's time of death was a critical, or even a disputed, issue. Cellular telephone records established Council was still alive at 9:30 a.m. when Warthen called her, and she had retrieved voice messages about a half hour earlier. Warthen himself testified he was at Camp Pendleton at 7:30 a.m. on the morning of the murder, and the prosecution admitted into evidence a sign-in sheet placing Warthen there for a 9:00 a.m. meeting that morning. Warthen's presence miles away at Camp Pendleton was further established by the fact he appeared at Council's apartment in military garb. Accordingly, apart from Council's state of rigor or livor mortis, there was overwhelming evidence Council was alive before Griffin arrived that morning. Griffin does not point to any evidence implicating Warthen or suggesting Council's death occurred earlier that morning between 3:00 a.m. and 7:00 a.m., as his trial counsel had argued below.
Notably, it was defense counsel on cross-examination who elicited the vast majority of Dr. Cohen's opinions concerning when or whether Council's level of rigor mortis had peaked or livor mortis was fixed. Even then, Dr. Cohen's testimony was based almost exclusively on the conclusions of Deputy Coroner Denny, who testified at trial and was subject to cross-examination.
Indeed, defense counsel's position below as to Council's time of death was based on the theory that Deputy Coroner Denny's observations of rigor and livor mortis occurred at 3:00 p.m. But Deputy Coroner Denny clarified at trial that her examination occurred between 6:25 p.m. and 6:55 p.m. that evening. Further, as the People point out, the condition of Council's body was primarily exhibited by defense exhibit M, a photograph taken of Council's deceased body with paramedics, from which Dr. Cohen testified that Council's lividity was slight to moderate. Ultimately Dr. Cohen disagreed with the paramedic's assessment in his report based on the appearance of Council's body in exhibit M.
Finally, the evidence of Griffin's guilt is overwhelming, consisting of his angry, expletive-filled telephone calls to Council earlier that morning; his admission to Dodson that he was in front of what turned out to be Council's house to confront or scare her; and his presence at the scene of the crime, locked inside the apartment, nude, on top of Council's dead body. Under these circumstances, we do not perceive prejudice stemming from Dr. Cohen's recitation of the finding of lividity from the paramedic's report.
II. Motion for Mistrial Relating to Detective Gomez's Testimony
Griffin contends the trial court prejudicially erred by admitting, over his counsel's objections, a police detective's testimony concerning the whereabouts of Warthen on the morning in question, as well as the detective's statement that he had corroborated Warthen's story. Griffin acknowledges the court eventually struck the challenged testimony and instructed the jury to disregard it, but he maintains it should have declared a mistrial because its admonishments were insufficient to cure the harm caused by the detective's statements. As we explain, we conclude Griffin was not prejudiced on this record but even assuming prejudice, it was cured by the trial court's admonishments to the jury. Accordingly, the court did not err in denying Griffin's mistrial motion.
A. Background
During the trial, the People called Murrieta Police Department Detective Phillip Gomez, who testified concerning search warrants he had served for the records of several cellular phones, including that of Warthen, Council's friend at the time of the murder. On cross-examination, the detective testified that while he had sent a search warrant, he had not actually received the records from the cellular phone provider. On redirect, the prosecutor asked Detective Gomez why he had sought the search warrants:
"[Prosecutor:] When you — when you served the search warrants on Mr. Warthen's cell phone, what was the purpose for that?
"[Detective Gomez:] It was just to corroborate his statement to us. Basically, he said that he was at work.
"[Defense counsel:] Objection. Hearsay.
"The Court: No. The portion — that portion of his statement where he says where he is, that portion will be stricken. The jury will be admonished to disregard it. The remaining portion of the answer will remain.
"[Prosecutor:] Well, tell us what — specifically what you were trying to corroborate.
"[Detective Gomez:] His whereabouts.
"[Prosecutor:] Okay. And after serving the — the search warrant, were you able to corroborate, to your satisfaction, that what he had told you about where he was the truth [sic]?.
"[Detective Gomez:] Yes.
"[Prosecutor:] And how did you do that?
"[Detective Gomez:] I actually spoke with someone on the phone.
"[Defense counsel:] Objection. Hearsay. Move to strike.
"The Court: No, not to that answer — that question.
"[Prosecutor:] You said you spoke to somebody on the phone from where from?
"[Detective Gomez:] From the — the phone company, AT&T.
"[Prosecutor:] And the purpose was to corroborate that he was where he said he was?
"[Detective Gomez:] At the — yes, the time — the phone call was on March 19th."
On recross-examination, defense counsel confirmed Detective Gomez had never received Warthen's cellular telephone records, and that he could not locate the cell tower information. The following questioning occurred:
"[Defense counsel:] So — okay. So you weren't actually able to corroborate Mr. Warthen's whereabouts because you weren't able to get the cell tower information?
"[Detective Gomez:] I was able to speak to someone at the phone company
"[Defense counsel:] Okay. I'm asking you about the — the records.
"[Prosecutor:] Your Honor, can he answer the question please?
"The Court: All right. The question was... 'So you weren't actually able to corroborate Mr. Warthen's information — whereabouts because you weren't able to get the cell tower information[?'] [¶] Can you answer that question?
"[Detective Gomez:] I could answer it, Your honor.
"The Court: Go ahead and answer the question.
"[Detective Gomez:] I was able to corroborate it.
"[Defense counsel:] I am going to — you were not able to obtain Mr. Warthen's cell phone record; is that correct?
"[Detective Gomez:] Correct.
"[Defense counsel:] You weren't able to obtain Mr. Warthen's cellular or other cell site information for his phone, is that correct?
"[Detective Gomez:] I wasn't able to physically obtain the documents.
"[Defense counsel:] So you never personally reviewed those records?
"[Detective Gomez:] I did — personally did not review the documents.
"[Defense counsel:] And you didn't — you didn't collect those documents as evidence?
"[Detective Gomez:] Correct.
"[Defense counsel:] So you were never able to personally look at those records to corroborate his statement?
"[Detective Gomez:] Correct."
The following Monday, March 8, 2010, trial resumed, and the trial court advised counsel that it had tentatively decided to order some of Detective Gomez's testimony concerning his "corroboration" of Warthen's cellular phone information stricken from the record under Evidence Code section 352. In response, defense counsel reiterated her hearsay and foundation objections, argued the testimony violated Griffin's Sixth Amendment and due process rights due to his inability to question the unnamed AT&T employee with whom the detective spoke, and moved for a mistrial based on the fact the jury had already heard all of the evidence.
In part, the court explained, "[W]hen you get into questions as to were you able to corroborate for his satisfaction, that question is improper when you consider it because then the jury doesn't have an idea as to what exactly is his corroboration. That's why it's improper — not necessarily — under [Evidence Code section] 352 — under hearsay grounds — but under [Evidence Code section] 352 grounds. So they were improper and I am going to strike them."
The court denied the motion. It noted there was other corroborating evidence placing Warthen at Camp Pendleton, where he claimed to be on the morning in question, and confirmed defense counsel had no offer of proof Warthen was elsewhere that morning.
Following the conclusion of the next witness's testimony, the court admonished the jury to disregard the questions and responses, going through each on a question by question basis and expressly striking them from the record. It then explained:
"All right. When I say, 'admonished, ' it means you are told that you cannot consider it as part of the instructions that I gave you earlier. If I strike a question and its response, you are ordered to disregard it. You are admonished that it's not part of the record, and you cannot consider that question and answer as evidence.
"Does everyone understand? Is there anybody here who does not understand the Court's admonition or directive at this point? If you do not understand what the Court is saying, please raise your hand. All right. The Court is not seeing anybody raise their hand."
B. Standard of Review
" '[A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident isincurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' " (People v. Alexander (2010) 49 Cal.4th 846, 915.) "A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged...." (People v. Bolden (2002) 29 Cal.4th 515, 555.)
C. Analysis
Because the court struck all of the challenged testimony from the record and instructed the jurors to disregard it, we limit our discussion to whether the court abused its discretion by declining to declare a mistrial, and whether its admonitions were sufficient to cure the prejudice, if any, caused by Detective Gomez's statements concerning his efforts to corroborate Warthen's location on the morning of Council's murder.
The trial court's decision to deny the mistrial was not an abuse of discretion. The premise of Griffin's motion for mistrial was his claim that the prejudice stemming from the detective's statements is incurable; that such prejudicial effects could not be overcome by a mere instruction to the jury to disregard the questions and answers. Griffin's appellate arguments are based on the same premise. But the trial court plainly perceived no incurable prejudice, and we likewise see none, stemming from the court's admission and then exclusion of Detective Gomez's testimony concerning his corroboration of Warthen's cellular telephone records. First, as we have explained, the evidence as a whole presents no real dispute over Warthen's involvement in Council's murder, including with respect to his location on the morning in question. The defense presented no evidence suggesting Warthen was elsewhere or had any involvement in Council's death. Rather, as recounted above, the evidence of Griffin's guilt is overwhelming. Under these circumstances, there is minimal, if any, prejudice stemming from the questions posed by the prosecution to Warthen.
Griffin refers us to back his arguments that the "key issue" at trial was Council's time of death. But we have explained above why we disagree with that position. According to Griffin, the fact the jury asked for a readback of Warthen's testimony shows it "was seeking corroboration of Warthen's testimony...." To the contrary, we perceive from the jury's readback that it carefully reviewed the record to determine whether the evidence presented a serious question concerning Council's time of death and any reasonable doubt as to Griffin's guilt.
Further, it is settled that under these circumstances, this court must presume the jurors understood and followed the trial court's admonition to disregard Warthen's testimony. (People v. Hinton (2006) 37 Cal.4th 839, 871.) " 'A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that "the improper subject matter is of such a character that its effect... cannot be removed by the court's admonitions." ' " (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.)
This is not such an exceptional case, particularly in view of the absence of any conflict in the evidence as to Warthen's location, and the strength of the incriminating evidence against Griffin. The trial court took pains to ask the jurors if they understood its admonitions, including by asking for a show of hands of any juror who did not comprehend them. There is nothing in the record to suggest the jury ignored this admonishment; we do not draw any such inference by the fact they asked for a read back of Warthen's testimony, and Griffin makes no argument convincing us such an inference is required. Accordingly, we presume the jurors did as they were told and entirely disregarded the delineated testimony. We do not believe the circumstances violated Griffin's right to a fair trial in any respect.
Griffin argues to the contrary that "[t]he testimony of a police detective presumably trained to ferret the truth had to sink indelibly into the jurors' minds and could not be erased with a simple admonition." He relies on cases such as People v. Aranda (1965) 63 Cal.2d 518 and People v. Antick (1975) 15 Cal.3d 79, disapproved on an unrelated ground in People v. McCoy (2001) 25 Cal.4th 1111, 1123, for what we consider an overly broad suggestion: that limiting instructions are ineffective because they call for " 'discrimination so subtle [as to be] a feat beyond the compass of ordinary minds.' " But Aranda involved joint trials and the admission of a co-defendant's confession implicating both defendants, and the court there was acknowledging criticism of the remedy of instructing the jury to disregard the confession for deciding guilt or innocence of the nondeclarant. (Aranda, 63 Cal.2d at p. 525.) Further, Aranda's abrogation was noted later in People v. Fletcher (1996) 13 Cal.4th 451, in which the court emphasized the adequacy of such admonitions must be analyzed on a case-by-case basis. (Id. at pp. 456, 465, 468-469.) Antick likewise does not support any such broad proposition. It addressed the boundaries of a trial court's discretion in admitting prior offenses for felony impeachment, and was within a long line of cases abrogated by constitutional provision as discussed in People v. Castro (1985) 38 Cal.3d 301 at pages 312-313. (See Robbins v. Wong (1994) 27 Cal.App.4th 261, 271.) The Antick court questioned the effectiveness of the court's instruction limiting use of a defendant's prior forgery conviction for impeachment purposes in that particular case, where the case was close, there was no direct evidence linking the defendant to the charged offenses, and the circumstantial evidence of guilt was "far from overwhelming." (Antick, 15 Cal.3d at p. 98.) Thus, the Antick court's comment is limited to its facts, and was made in a context limiting the discretion of the trial court that is no longer the law in California. (Robbins v. Wong, 27 Cal.App.4th at p. 271.) Neither Aranda nor Antick support the notion that trial court admonitions are ineffective in general, nor do they convince us that the trial court's admonitions to the jury in this case were insufficient to cure any minimal harm.
III. Cumulative Error
Griffin contends admission of both Dr. Cohen's and Detective Gomez's testimony amounts to cumulative error and cannot be deemed harmless. He points to the jury's questions during its deliberations, and argues the improper evidence could not be tested with cross-examination and "went to the core of [his] defense that he had arrived after Council was attacked...."
As we have concluded, any error as to admission of Dr. Cohen's testimony is harmless beyond a reasonable doubt, and the trial court did not err in handling Detective Gomez's testimony. There is no cumulative error warranting reversal.
IV. Claimed Instructional Error
Griffin contends the trial court prejudicially erred in connection with its instructions to the jury concerning the lying-in-wait and felony-murder special circumstances. (§ 190.2, subds. (a)(15), (a)(17).) Specifically, he argues the court did not adequately respond to the jury's request for clarification concerning CALCRIM No. 728 in that it should have told the jury that the intent to kill had to precede the surprise in order to prove the lying-in-wait special circumstance, and further refused to instruct the jury that to find true the special circumstance of felony murder based on attempted rape, the People had to prove he intended to commit rape independent from the killing. He maintains the errors deprived him of due process because the incomplete instructions essentially directed a guilty verdict, and were prejudicial because the jury could not resolve the omitted question through other jury instructions.
A. CALCRIM No. 728
1. Background
The trial court instructed the jury on the lying-in-wait special circumstance allegation with CALCRIM No. 728. In part, the court instructed: "The defendant is charged with the special circumstance of murder committed by means of lying in wait in violation of Penal Code section 190.2, subdivision (a), subsection (15). To prove this special circumstance is true, the People must prove that: 1) The defendant intentionally killed Ever Council; and, 2) The defendant committed the murder by means of lying in wait. [¶] A person commits a murder by means of lying in wait if: 1) He or she concealed his or her purpose from the person killed; 2) He or she waited and watched for an opportunity to act; 3) The [sic], he or she made a surprise attack on the person killed from a position of advantage; and, 4) He or she intended to kill the person by taking the person by surprise."
In addition, the court informed the jury via CALCRIM No. 728 that although the lying in wait need not continue for any particular time period, its duration must be substantial and show a state of mind equivalent to deliberation and premeditation. (CALCRIM No. 728.) The court further instructed that a person acts deliberately if he carefully weighs the considerations for or against his choice and decides to kill knowing the consequences, and a person acts with premeditation if he decides to kill before committing the act that caused death. (Ibid.) The court further instructed that a person could conceal his purpose even if the person killed is aware of the other's physical presence, and that concealment can be accomplished by ambush or some other secret plan. (Ibid.)
Finding CALCRIM No. 728 adequately stated the law, the court refused defense counsel's request for the following pinpoint instruction: "In order to prove the special circumstance allegation of 'lying in wait, ' the People must prove that the defendant intended to kill by means of lying in wait. [¶] The special circumstance of 'lying in wait' requires a specific intent to kill. [¶] This is an additional element to the first degree murder charge that must be proven."
During deliberations, the jury sent out the following note: "Clarify CALCRIM 728 #4 — Does the intent have to be prior to the surprise? Can there be several surprises, or is it a single surprise?
Defense counsel reiterated her request for her special instruction. After discussion on the matter, the court denied defense counsel's request, and responded to the jury's request by directing it back to the CALCRIM instruction and its element concerning intent to kill:
"In response to the first question, the Court will direct you to element four of CALCRIM 728, which states: [¶] '4. He or she intended to kill the person by taking the person by surprise.' [¶] See CALCRIM 728 element 4 (line 15).
"CALCRIM 728 is the special circumstance definition of 'lying in wait.' If you find the defendant guilty of first degree murder, either willful deliberate and premeditated murder, or that the murder was committed while lying in wait, you then consider whether the People have proved beyond a reasonable doubt one or more special circumstances have been proved [sic]. See CALCRIM 700.
"In the context of the instruction CALCRIM 728 the word 'surprise' is an adjective which precedes the word attack. 'Surprise' is the adjective, which describes the nature of the attack.
"As with all instructions, some words and phrases have legal meanings that are different from their meanings in everyday use. Words and phrases not specifically defined are to be applied using their ordinary everyday meanings. See CALCRIM 101."
2. Applicable Principles
Section 1138 states: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
This section "imposes upon the court a duty to provide the jury with information the jury desires on points of law." (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.; see also People v. Beardslee (1991) 53 Cal.3d 68, 97 [section 1138 is interpreted to mean the court "has a primary duty to help the jury understand the legal principles it is asked to apply"].) But "[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (Beardslee, 53 Cal.3d at p. 97.) This includes the discretion to refer the jury back to the standard instructions. (See People v. Noguera (1992) 4 Cal.4th 599, 642-643.)
"An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury." (People v. Waidla (2000) 22 Cal.4th 690, 746-747.)
3. The Trial Court Did Not Abuse its Discretion in Responding to the Jury's Question on Intent
Griffin contends the court's response to the jury's note referring them back to the instruction was insufficient; that the jury's confusion as to whether intent to kill had to precede the surprise would have been remedied with a simple "yes" answer to its question. According to Griffin, the response did not provide clarification because the jury was "clearly unable to make the inference from the instruction and the evidence supported a finding that the intent to kill came after the surprise." Griffin argues the evidence shows he did not come armed but obtained a knife from Council's kitchen, that he told Dodson he intended to only scare Council and then confront her, and that Dodson was not worried Griffin was a danger or was going to hurt anyone.
We conclude Griffin has not established error or prejudice in the court's response to the jury. We cannot say it was beyond all bounds of reason to direct the jury back to the language of the instruction. As we explained in People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 310 in the context of a vagueness challenge: "Section 190.2, subdivision (a)(15) provides a clear definition of what is required to satisfy its elements. In addition to the elements of lying in wait, which are now the same as for first degree murder, a person must specifically intend to kill 'by means of lying in wait.' Any reasonable person considering [the defendant's] conduct, or planning similar acts, would know that those acts constituted murder by means of lying in wait and that the special circumstance could be alleged if the person in addition specifically intended to kill his victim by such means." In our view, CALCRIM No. 728 as a whole, including its delineation of the various elements of lying in wait, adequately conveys that notion that a defendant having the intent to kill by a surprise attack necessarily forms that intent before the attack. Further, the court's direction that the word "surprise" within the instruction was an adjective describing the attack and that it should be given an ordinary, everyday meaning, sufficiently focused the jury's attention on the fact that the "surprise" is inextricably connected to the attack, and not some different or independent event than the "surprise attack" mentioned in the instruction. Following the court's response, the jury requested no further clarification.
On this record, therefore, there was no abuse of discretion. "The most that can be said of the trial court's response to the jury's query was that it represented an unwillingness to venture beyond the safety of standardized instructions. After hearing argument of counsel and considering the matter, the trial court exercised its discretion, electing not to risk diverging from the instruction by additional comment." (People v. Noguera, supra, 4 Cal.4th at pp. 642-643; see also People v. Briscoe (2001) 92 Cal.App.4th 568, 589 [comments that diverge from the standard jury instruction are often risky]; People v. Moore (1996) 44 Cal.App.4th 1323, 1331 ["Jury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury's inclination"].)
Nor has Griffin shown prejudice under the more stringent Chapman standard. (See People v. Prieto (2003) 30 Cal.4th 226, 256-257 [applying harmless beyond a reasonable doubt standard of Chapman v. California, supra, 386 U.S. at p. 36 to omission of an element of a special circumstance allegation]; People v. Carter (2005) 36 Cal.4th 1114, 1187.) " ' "[E]rror in failing to instruct that a special circumstance contains a requirement of the intent to kill is harmless [beyond a reasonable doubt] when 'the evidence of defendant's intent to kill... was overwhelming, and the jury could have had no reasonable doubt on that matter.' " ' " (Carter, at p. 1187; see People v. Williams (1997) 16 Cal.4th 635, 689 [under Chapman prejudice standard for erroneous instructions on intent for special circumstance allegations, an error is harmless only when, beyond a reasonable doubt, it did not contribute to the verdict].)
Here, Griffin first told Dodson he planned to confront Council, then said he would "jump out and scare her." He waited from approximately 6:00 a.m., when he told Dodson he was at her house, until 9:30 a.m., when he saw Council leaving for work. Council's reaction on the phone and the blood evidence, as well as the evidence of her strewn purse, earring, and torn pants button shows she was brutally attacked at the door. Police found a large amount of blood on the carpet and on the walls at different heights, as well as drag marks made in blood to the master bedroom. Griffin points to evidence that he did not come armed, but the knife to which he refers found in Council's apartment was not proven to be the murder instrument; in fact, Council died of blunt force trauma and manual strangulation. Furthermore, Griffin does not challenge the ample evidence supporting the intent element of the special circumstance. It is clear beyond a reasonable doubt any presumed error in failing to instruct the jury on the requirement that a defendant's intent must precede his or her surprise attack did not contribute to the jury's true finding on the special circumstance allegation.
B. Claimed Refusal to Instruct Jury Fully as to the Special Circumstance of Murder While Engaged in the Commission of Attempted Rape
1. Background
At both parties' request, the court read the attempted rape special circumstance instruction, CALCRIM No. 730, to the jury: "The defendant is charged with a special circumstance of murder committed while engaged in the commission of attempted rape in violation of Penal Code [s]ection 190.2, subdivision (a), subsection 17. To prove this special circumstance is true, the People must prove that: 1) The defendant attempted to commit forcible rape; [¶] 2) The defendant intended to commit forcible rape; [¶] 3) The defendant did an act that caused the death of another person; and [¶]
4) The act causing the death and attempted forcible rape were part of one continuous transaction."
The court declined defense counsel's request to give an additional bracketed portion of the instruction — the so-called "Green" instruction based on former CALJIC No. 8.81.17 (see People v. Clark (1990) 50 Cal.3d 583, 598, 606-607) — providing: "In addition, in order for this special circumstances [sic] to be found true, the People must prove the defendant intended to commit attempted rape independently of the killing.
If you find that the defendant only intended to commit murder and the commission of the... attempted rape was merely part of or incidental to the commission of that murder, then the special circumstances [sic] has not been proved." The court explained the evidence did not warrant that portion of the instruction because it showed the rape was not simply incidental, but that there was an independent felonious purpose.
The prosecutor argued that the evidence showed Griffin's ripping of Council's clothing was a prolonged event; that he had torn off Council's blouse in the back bedroom after having beaten her severely and torn off her pants and underwear. The court added: "Well, and also significant was that, again, the — the evidence that was found — at least what's on record at this point is the defendant [sic], when found or observed by individuals was unclothed on top of what was all but for a right or left sleeve. I can't recall off the top of my head if the decedent — she was unclothed as well with him on top of her, and he was naked, and his clothes were strewn at various locations, or the clothes that apparently he — he had been wearing were strewn about the apartment or condominium."
C. Legal Principles
A felony murder special circumstance is inapplicable in cases where the defendant intends to commit murder and only incidentally committed one of the specified felonies while doing so. (People v. Clark, supra, 50 Cal.3d at p. 608.) " 'In other words, if the felony is merely incidental to achieving the murder — the murder being the defendant's primary purpose — then the special circumstance is not present, but if the defendant has an "independent felonious purpose" (such as burglary or robbery) and commits the murder to advance that independent purpose, the special circumstance is present.' " (People v. D'Arcy (2010) 48 Cal.4th 257, 296.) A concurrent intent to kill and commit a felony also supports a felony-murder special circumstance finding. (People v. Prieto, supra, 30 Cal.4th at p. 257; People v. Mendoza (2000) 24 Cal.4th 130, 182; Clark, at pp. 608-609.)
Thus, instructing with the second paragraph of CALCRIM No. 730 is proper only " 'where the evidence suggests the defendant may have intended to murder his victim without having an independent intent to commit the felony that forms the basis of the special circumstance allegation.' " (People v. Taylor (2010) 48 Cal.4th 574, 629; see also People v. D'Arcy, supra, 48 Cal.4th at p. 297 [trial court has no duty to give Green instruction "unless the evidence supports an inference that the defendant might have intended to murder the victim without having had an independent intent to commit the specified felony, " italics added]; People v. Monterroso (2004) 34 Cal.4th 743, 767; People v. Navarette (2003) 30 Cal.4th 458, 505.)
D. Analysis
Griffin argues substantial evidence supports the theory that his attempted rape of Council was incidental to the murder, warranting the requested Green instruction. He points to evidence that he was angry at Council and left her angry voicemail and text messages. He points out he told Dodson he wanted to confront her and demand an apology, and also scare her; that he drove to her house, waited for her to leave work, and attacked her in the doorway. He points to evidence that anal and oral swabs taken from Council were negative for seminal fluid and there was an absence of trauma to her internal and external genitalia.
The People respond that the evidence overwhelmingly shows Griffin had the intent to both rape and murder Council, and that his attempted rape was not merely incidental to murder. They maintain Griffin's calls to Dodson show Griffin and Council were romantically involved; that Griffin was upset she would not speak with him and referred to as a "whore"; and that the nature of his attack, in which he ripped Council's clothes off and also took off his own, shows he sought to accomplish a rape. They argue the absence of sexual penetration simply shows he had more than one intent, not an absence of intent to rape. The People further argue any error in omitting the Green instruction is harmless because there is no reasonable likelihood the jury would misunderstand the instructions as not requiring a finding of an independent intent to rape Council.
The question from the foregoing cases is not whether the evidence is overwhelming that Griffin had separate, concurrent, intents, but whether the evidence may also support a reasonable inference that Griffin might have intended to murder Council without also having an independent intent to commit rape. (See generally, People v. Breverman (1998) 19 Cal.4th 142, 162 [addressing lesser included offenses]; see also People v. Taylor, 48 Cal.4th at p. 629; People v. Monterroso, 34 Cal.4th at p. 767.) The existence of " 'any evidence, no matter how weak' " will not justify such an instruction, but such instructions are required whenever the evidence is " 'substantial enough to merit consideration' by the jury." (Breverman, at p. 162.)In Taylor and Navarette, the court looked for "significant evidence" of some motive for the murders other than the felony. (People v. Navarette, supra, 30 Cal.4th at p. 505; Taylor, supra, 48 Cal.4th at p. 629.)
Applying this standard, we assess the evidence concerning Griffin's intent or purpose. Griffin in his phone calls before the murder expressed his feelings of being used, and referred to Council as a whore in text messages to her. Further, the evidence suggests Griffin began to tear Council's clothing as soon as he entered her apartment; a button from the inside of her dress pants was found at the entryway, as was an earring matching one Council was still wearing, her shoe, and the contents of her purse. Council's dress pants were found in the hallway torn from the waist to the knee. Blood marks indicated Council was dragged to the master bedroom, where she was unclothed except for her left arm within her suit jacket, and her underpants were found ripped and shredded from the front. Men's clothing was strewn around the apartment. Griffin was nude and laying on top of Council's deceased body.
Isolated evidence that Griffin was angry, or that he could not complete his attempted rape, is by itself weak evidence that Griffin intended to kill Council without also having an independent and concurrent intent to rape her. In our view, it does not constitute significant or substantial evidence to support giving the Green instruction. But even assuming error arguendo, given the absence of evidence that rationally suggests Griffin committed rape in order to carry out or further his killing of Council, we nevertheless conclude the error was harmless beyond a reasonable doubt. (People v. Prieto, supra, 30 Cal.4th at pp. 256-257 [Chapman standard applies in cases of CALJIC No. 8.81.17 instructional error]; People v. Harden (2003) 110 Cal.App.4th 848, 866.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., IRION, J.