Opinion
B287007
02-20-2020
THE PEOPLE, Plaintiff and Respondent, v. SHEHADEH KHALIL ISSA, Defendant and Appellant.
Dwyer + Kim and Jin H. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Pamela C. Hamanaka, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA086010) APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel B. Feldstern, Judge. Affirmed. Dwyer + Kim and Jin H. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Pamela C. Hamanaka, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Shehadeh Khalil Issa was convicted by a jury of two counts of first degree murder (Pen. Code, § 187, subd. (a)) for killing his wife, Rabihah Issa, and his bisexual son, Amir (Rocky) Issa. The jury found true the special circumstance that defendant murdered Rocky because of Rocky's sexual orientation (§ 190.03), and found true the allegation defendant personally used and intentionally discharged a firearm during the commission of the murder (§ 12022.53, subd. (d)). The jury found true the special circumstance that defendant committed multiple murders (§ 190.2, subd. (a)(3)) and that defendant personally used a knife during the commission of Rabihah's murder (§ 12022, subd. (b)(1)). The court sentenced defendant to an overall term of two life sentences without the possibility of parole, plus a consecutive term of 26 years to life.
Unspecified references to statutes are to the Penal Code. For ease of reading, the victims and family members will be referred to by their first names.
On appeal, defendant contends that: (1) the trial court improperly limited defense counsel's ability to comment on the evidence during closing argument; (2) the evidence of recorded phone conversations was inadmissible, and to the extent defense counsel failed to object, counsel was constitutionally ineffective; (3) the evidence was insufficient to support the hate-murder special circumstance; and (4) the court erred when awarding certain amounts in direct victim restitution. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution Evidence
Defendant and Rabihah were married for 50 years and had five adult children, Christine, Victor, Hellen, Amir (Rocky), and Roger. At trial, the children discussed defendant's lengthy history of verbal and physical abuse.
Hellen testified that for most of her life, she felt "very frighten[ed]" of defendant, who for decades had been "very explosive, very rageful [sic], and very violent" toward Rabihah.
Christine recalled an incident in 1991 where defendant cussed at Rabihah, slapped her in the face, and struck her head with a can opener. When Rocky jumped in to protect Rabihah, defendant punched Rocky "all over his body [and] on his head."
In 2001, defendant threatened Victor with a knife after Victor failed to follow defendant's command to engage in illegal conduct. Victor called the police and defused the situation by leaving the area.
According to Roger and Christine, defendant started using disparaging names to describe Rocky's sexual orientation after defendant learned Rocky was bisexual in 2008. Roger heard defendant call Rocky a "piece of shit sissy, that he's a faggot, that he's a no-good cocksucker."
In 2009, Victor overheard defendant scream at Rabihah, "I'm going to kill you" and saw defendant "smack my mom with a shoe. And he spit on her." Rabihah was "covered with spit."
After the 2009 assault, defendant abandoned Rabihah and their North Hills home for nine months. During that time, Roger lived with Rabihah in the home; Rabihah then lived in Victor's home for one month, stayed with Christine and Hellen for a short time, and moved back into the home with Rocky at the end of 2009. Rocky bought food and clothing for Rabihah, and he paid the mortgage and utilities. When defendant moved back into the home around 2010, Rocky moved into an attached rental unit behind the home.
Around 2015, defendant told Roger he wanted to sell the home because he was having cash flow issues. Defendant became increasingly frustrated with Rocky because he prevented defendant from making money by renting the back unit. He also complained to Roger that Rocky brought men over to the rental unit.
Between 2015 and 2016, defendant escalated his abuse of Rabihah. During that period, Christine thought defendant treated Rabihah "like a dog." She overheard Rabihah tell defendant she was not going to sell the home, and defendant responded by threatening to burn down the home with Rabihah and Rocky in it.
In 1996, defendant had purchased a $60,000 life insurance policy on Rabihah's life. He was the primary beneficiary. On the evening of March 27, 2016, defendant attacked Rabihah in a narrow bathroom in the home, stabbing and cutting her 45 times. A shower curtain and rod were left lying next to Rabihah's body. Partial bloody shoeprints were left inside the bathroom leading to the hallway and kitchen where plastic bags and clothing were spread on the floor. A blood stain taken from the hallway floor contained Rabihah's DNA as a major contributor and defendant's DNA as a minor contributor. An investigator estimated Rabihah died around 7:55 p.m. plus or minus eight hours.
After leaving Rabihah's body locked inside the home—accessible only by a slide bolt and combination padlock on the exterior front door—defendant drove through the night to Phoenix, Arizona to close out a bank account that was in his son Victor's name.
Defendant returned to California on March 28. By then, Christine was concerned for Rabihah's well-being, and she asked Rocky to see if Rabihah was home. Rocky responded that a padlock on the front door prevented him from getting inside. In another text message he sent to a sexual partner the same day, Rocky said defendant and Rabihah were "gone and a padlock [was] on the front door again." Defendant purchased and installed a padlock on the exterior front door and was the only person who knew its combination.
As a ruse to get a response from defendant, around 5:45 p.m. on March 28, Christine's husband left defendant a phone message saying he was in front of the North Hills home, that the door was padlocked, and that he was going inside because the family was worried about Rabihah. Sounding "kind of rushed," defendant called Christine's husband back five minutes later. After Christine's husband reiterated that a padlock prevented anyone from entering the home, defendant told him not to worry because Rabihah was with him.
Around 8:56 a.m. on March 29, 2016, two neighbors called the police after hearing screams and gunshots near the North Hills home. When one of the neighbors rushed over, he saw defendant, who appeared "very calm." Within minutes, officers arrived and saw defendant standing in the front yard near a 12-gauge shotgun that was leaning against a tree. The officers saw Rocky's body on the right side of the home lying on the ground against a locked gate. When an officer approached, he saw a hole in Rocky's face and could feel heat emanating from a gunshot wound. Rocky sustained four gunshot wounds to his head and torso from distances of between 2 and 15 feet.
When a detective arrived, he first noticed a slide lock on the outside of the front door, which he found unusual for a residential front door. The windows were locked and there were no signs of forced entry. The detective located a combination lock on top of a television inside the living room. Rabihah's body was found lying on the floor inside a narrow bathroom.
II. Defense Evidence
Defendant testified that he left Rabihah alive at home around 7:00 p.m. on March 27, 2016. He did not see Rocky when he left because Rocky had been driving for Uber between 3:00 and 7:55 p.m.
After driving through the night to Phoenix, defendant drove back to California on March 28. Throughout the day, defendant made a mortgage payment; unsuccessfully attempted to see his in-laws; visited a storage unit and a P.O. Box; and drove to Christine's home to eat dinner and sleep.
Defendant provided conflicting testimony on his attempts to see his in-laws. He first testified that nobody was home when he arrived at his in-laws' home. He later testified that he did not have the home address "so I circled the area that she probably lives in, and I don't know how long it took me."
Christine contradicted defendant's testimony that he ate dinner and slept at her house. She testified that defendant never came to her house on March 28, 2016.
After waking up on March 29, 2016, defendant hired a worker to move Rocky's belongings out of the rental unit. Defendant returned home around 8:00 a.m. and saw Rocky's car parked in the driveway. When he approached, defendant realized the front door was unlocked and the electricity had been cut off. Inside the home, defendant found Rabihah's body on the bathroom floor. He retrieved and loaded his shotgun.
After walking outside the home, defendant saw a man who was partially obscured near an electrical box. Defendant did not believe that person was Rocky. When the man turned, defendant saw a knife or screwdriver in the man's right hand. Fearing for his life, defendant racked the shotgun and fired a shot. He pumped the shotgun again and shot the man, later identified as Rocky, multiple times.
Defendant denied telling responding officers at the scene that he had just gotten back from Arizona that morning. He also denied telling officers that he believed Rabihah had fallen in the bathroom.
DISCUSSION
I. Limiting Defense Closing Arguments
Defendant contends the trial court abused its discretion by limiting defense counsel's ability to comment on the evidence, and by directing the jury to disregard a portion of closing argument suggesting that stab wounds to the right side of Rabihah's body were inflicted by Rocky because he was left-handed. Defendant contends the errors prevented counsel from rendering effective assistance and violated his right to a complete defense. We disagree but find any asserted error harmless beyond a reasonable doubt. A. Background
1. Pretrial Motion to Exclude Evidence and Argument
The prosecution filed a motion to exclude evidence and argument regarding Rocky's culpability in Rabihah's murder. Defendant opposed the motion, contending Rocky had the means, motive, presence, and opportunity to kill his mother, which was substantiated by Rocky's history of domestic violence against a former boyfriend and disturbing statements that Rocky made shortly before his death. Defendant argued Rocky's culpability related to his defense that there was a reasonable doubt defendant killed Rabihah.
In a March 19, 2016 Facebook post, Rocky said he would wake up "feeling like my sister or brother or mother or father is literally controlling me in my sleep. I have no free will. . . . If there is a devil or evil spirt, I truly believe it manifests itself in my family. . . . They have literally robbed my bank account, lied to courts and doctor to try and label me as mentally ill and failed in their attempts to have me falsely imprisoned and evicted." In a March 20, 2016 text message to a friend, Rocky stated: "Every morning I wake up feeling molested with severe depression. No pleasure. . . . I know my family is mind controlling me so I can't see or move but only feel and wake up after hours of being raped."
At the hearing on the motion, the parties clarified that the partial bloody shoeprint in Rabihah's blood could neither eliminate nor confirm Rocky or anyone else as a potential suspect, which defendant argued supported his theory that Rocky could have killed Rabihah. The court granted the motion precluding evidence and argument of Rocky's guilt, finding the evidence did not raise a reasonable doubt as to defendant's guilt, and the low probative value of the evidence was outweighed by the prejudice that would result by making the allegation.
2. Evidence of Rocky's Culpability at Trial
Victor and Christine testified that in 2008, Rocky hit his former partner with a car and cut his partner's face with a knife. Christine did not believe these incidents made Rocky a violent person, and Victor attributed the incidents to Rocky's "extremely abusive" partner.
Between March 27 and 29, 2016, cellphone records established that Rocky drove for Uber around the greater Los Angeles area and stopped around the home at 9:30 a.m. on March 28. Though Rocky sent hostile text messages to his siblings, he was never violent around the family.
In one text message, Rocky told Christine, "You and your kind can go to hell. . . . I feel like I'm being raped every day. I don't love of [sic] you anymore. Tell my immediate family and my cousins and aunts and uncles they are not welcome to be at my funeral when my time comes."
Hellen testified that Rocky was left-handed. Most of the wounds found on Rabihah's body were located on the right side of her body, primarily to the head, face, neck, back, and chest. The body also sustained wounds to the left neck, chest, and ring finger, as well as to the upper back and shoulder, and posterior neck and shoulder.
3. Closing Argument and Jury Instructions
Throughout closing argument, defense counsel argued there was insufficient evidence to prove defendant killed Rabihah. Counsel challenged the children's testimony that defendant was verbally abusive: "one of the key things I want you to look at is, in not one writing, in not one text, in not one voicemail did my client ever use the derogatory terms that have been used here." Counsel argued that the witnesses "said a lot of things, lot of things, none of which is true," and "the objective evidence contradicts everything they're saying. On paper it contradicts everything they're saying." Counsel argued, "This is the craziest case I ever [sic] seen. Every e-mail, every letter, every voicemail. . . . And I want you to listen. Please. . . . And when you listen to them, you'll see that this whole family was just dysfunctional. . . . This is madness. The family seems only consumed with finances."
Counsel requested that the jury "look on the stab wounds on [Rabihah]. A leopard doesn't change his spots. When you look at the stab wounds on [Rabihah], Rocky was left-handed." At this point, the prosecutor objected that counsel's statement violated the court's prior ruling excluding evidence of third-party culpability. The court overruled the objection, but instructed the jury that an attorney's argument is not evidence. Defense counsel continued, "I asked his sister, was Rocky left-handed. Stated there right on the stand. The wounds to [Rabihah] is on her right side." The prosecutor objected again and requested a sidebar, which the court denied.
Defense counsel then questioned whether defendant, "a 69-year-old man with multiple medical issues [could] get out of that tiny bathroom. . . . You'd have to be rather flexible. . . . How you [sic] going to get out of the bathroom, you're 69 years old?" After stating defendant did not have any issue with Rabihah except for her being overprotective of Rocky, counsel then questioned whether Hellen and Victor were "benevolent individuals," and he argued there were "ulterior motives here."
Counsel continued: "There's absolutely no evidence that my client killed Rabihah. Zero. It's all hypothesis. And that doesn't prove anything beyond a reasonable doubt. [¶] And the actual physicalness [sic] say that that didn't happen. There's no way he could have been in that bathroom and got out of that bathroom." In questioning whether defendant was the only person with a motive to kill Rabihah, counsel summarized Rocky's text messages as "a person signing off," and he suggested that Rocky had a motive to kill because Rocky was about to be removed from the rental unit. Counsel stopped argument and the court adjourned for the day.
Prior to continuing defense closing argument the next day, the court informed the parties that defense counsel's argument "crossed a line" by specifically referring to Rocky's left-handedness when discussing the wounds to Rabihah's body. Defense counsel argued he could comment on the evidence: "I just commented that the stab wound's on the left side [sic]. The evidence is also that Rocky's is [sic] left-handed and I made that statement. I didn't go beyond that." Nevertheless, the court gave defense counsel two choices—counsel could tell the jury he was "not implying that [Rocky] is responsible that they should consider him as a suspect in his mother's death," or the court could make the clarification to the jury.
When counsel resumed closing argument, he stated, "The facts are that we don't know who killed [Rabihah]. I have my own ideas, but we don't know. We don't know whose footprint that is that was in the blood. We don't know." After taking a break, the court found counsel "did not dispel the notion that [the killer] could be Rocky." The court stated it would strike counsel's argument or counsel could again try to correct it. Defense counsel objected to a further correction.
After the jury returned, the court gave the following instruction: "I just want to point out something to you. I'm going to strike some of [defense counsel's] argument and instruct you not to—to disregard it. . . . And that particular argument had to do with directing your attention to Rabihah's . . . stab wounds, and he even showed you a photograph, referencing that the stab wounds were on the right side of her body and that he noted that . . . Rocky was left-handed. So that part of the argument I am striking at this time. You are to disregard it." Following the instruction, defense counsel told the jury that "if I did something that was inappropriate, you charge it to me. Don't hold it against my client." Counsel finished his summation by asking the jury, "what is the evidence that my client killed her? And write that down. . . . When you do that, you'll see there is no evidence here." B. Analysis
A criminal defendant has a constitutional right to present a complete defense and have counsel present closing argument. (People v. Marshall (1996) 13 Cal.4th 799, 854-855 (Marshall).) The complete denial of an opportunity to make a closing argument is a violation of the defendant's right to counsel. (Herring v. New York (1975) 422 U.S. 853, 858-859.) The right to counsel is also denied when a trial court seriously limits defense closing argument, as by precluding reference to an entire theory of defense (Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739) or by not allowing counsel to argue the significance of evidence critical to a theory of the defense (U.S. v. Kellington (9th Cir. 2000) 217 F.3d 1084, 1099-1100.)
These rights are not unbounded however; "the trial court retains discretion to impose reasonable time limits and to ensure that argument does not stray unduly from the mark." (Marshall, supra, 13 Cal.4th at pp. 854-855; see § 1044.) Though defense counsel is "typically given wide latitude in its closing argument" (People v. Farmer (1989) 47 Cal.3d 888, 922, overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6), trial courts have a duty to "prohibit argument which is not supported by substantial evidence." (People v. Ponce (1996) 44 Cal.App.4th 1380, 1390 (Ponce); accord, People v. Beivelman (1968) 70 Cal.2d 60, 76-77 (Beivelman) ["'In the argument before the jury, any reasonable inference may be drawn from the evidence, and it is a matter within the discretion of the trial court to determine whether counsel stays within the permissible range of discussion'"], overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 33-34.)
We review a trial court's decision to limit defense counsel closing argument for an abuse of discretion. (People v. Simon (2016) 1 Cal.5th 98, 147.) Whenever a court abuses that discretion and infringes on a defendant's right to due process or effective counsel, we apply harmless error review under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (People v. Lenart (2004) 32 Cal.4th 1107, 1125 [due process]; People v. Hill (2013) 219 Cal.App.4th 646, 652-653 [effective assistance of counsel].)
In this case, no evidence reasonably supported the theory that Rocky was culpable in Rabihah's death. Rabihah was stabbed on the right, left, front, and back side of her body. There was no expert testimony suggesting Rabihah's assailant was either right- or left-handed. Nor was there testimony or evidence establishing that the partial bloody shoeprint was Rocky's. Rocky may have lived behind the home, but he could not get into the home (or the bathroom where Rabihah was killed)—the windows were locked and defendant's padlock prevented him from using the only accessible door to enter the home. There were no signs of forced entry, and there was no physical evidence placing Rocky inside the home. Without any evidence reasonably supporting the argument that Rocky was culpable in Rabihah's death, the court did not abuse its discretion by prohibiting defense counsel's speculative argument that Rocky killed Rabihah. (Beivelman, 70 Cal.2d at pp. 76-77; Ponce, supra, 44 Cal.App.4th at p. 1388.)
Defendant disagrees with Ponce and contends that under People v. Modesto (1967) 66 Cal.2d 695 (Modesto), defense counsel may make any closing argument that is supported by "any evidence." The Modesto court did not promulgate an "any evidence" standard. Instead, the court analyzed the specific facts in that case and upheld the trial court's prohibition on argument because "no evidence . . . might furnish support for the hypothetical argument constructed by defendant's attorney." (Id. at p. 708.) Even under Modesto, we conclude there was no evidence which might have furnished support for the speculative argument that Rocky was culpable in Rabihah's death.
The "any evidence" language simply appears in dicta: "If the record contained any evidence whatever tending to support such a theory of what transpired, we would of course conclude that the trial court committed gravely prejudicial error in depriving defendant of the opportunity to present that theory to the jury." (Modesto, supra, 66 Cal.2d at pp. 707-708.)
Even assuming the court's prohibition was erroneous, we find "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24; accord ibid. ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"].) We come to this conclusion for three reasons.
First, the defense presented an alibi defense on which the jury was instructed, and defense counsel was free to challenge, and did challenge, the strength of the prosecution's case that defendant was Rabihah's killer. Throughout his summation to the jury, counsel argued that no physical or "objective" evidence corroborated the prosecution's theory that defendant killed his wife. Based on the location of the murder in the bathroom, counsel continuously argued that only a younger, more nimble person could have murdered Rabihah. Counsel also questioned whether the family had ulterior motives when they testified about defendant's history of physically and emotionally abusing Rabihah.
The alibi instruction given to the jury states: "The People must prove that the defendant committed the murder of Rahibah [sic] Issa, as charged in Count 2. The defendant contends he did not commit this crime and that he was somewhere else when the crime was committed. The People must prove that the defendant was present and committed the crimes with which he is charged. The defendant does not need to prove he was elsewhere at the time of the crime. [¶] If you have a reasonable doubt about whether the defendant was present when the crime was committed, you must find him not guilty." (CALCRIM No. 3400.)
Second, as we have already discussed ante, the argument that Rocky was culpable in his mother's death was speculative and without evidentiary support.
Finally, the evidence of defendant's guilt was overwhelming. Defendant testified that he was home around the time Rabihah was murdered. A bloodstain on the hallway floor had a mixture of his DNA as a minor contributor and Rabihah's DNA as a major contributor. His fingerprints were collected at the scene. Defendant controlled access to the home through a padlock to which only he knew its combination. The padlock was placed on the front door after Rabihah was murdered. The only inference that can be reasonably drawn from this evidence was that defendant killed Rabihah and placed the padlock on the front door to prevent anyone from discovering the body. Another obvious inference to be drawn from the evidence was defendant's consciousness of guilt. As a ruse to get a response from defendant the day after Rabihah was murdered, Christine's husband lied to defendant and said he was about to enter the North Hills home to check in on Rabihah. In a rushed response, defendant assured Christine's husband that Rabihah, who had been dead for approximately one day, was with him and that the family need not worry. Further, defendant's alibi was undercut by Christine, who testified that defendant never came to her house on March 28 to eat dinner or sleep.
Thus, the trial court did not abuse its discretion in prohibiting closing argument on Rocky's third-party culpability, but assuming the prohibition was erroneous, it is clear beyond a reasonable doubt the error did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.)
II. The Court Properly Admitted Victor's Recorded Phone Calls with Defendant and Rabihah
Defendant contends the trial court abused its discretion by admitting seven phone conversations between Victor and defendant that were illegally recorded pursuant to section 632, subdivision (d). He also contends trial counsel was ineffective for failing to object to the admission of another illegally recorded phone conversation between Victor and Rabihah. In light of the Supreme Court's recent decision in People v. Guzman (2019) 8 Cal.5th 673 (Guzman), we disagree.
Section 632, subdivision (d), provides that "evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial . . . proceeding."
The briefing in this case was completed before the Supreme Court decided Guzman.
The jury heard the recordings taken by Victor between November 2015 and March 2016. In them defendant told Victor that Rocky needed to be out of the house by force; Rocky should kill himself; and Rocky "dated at least three hundred fifty people in this last five years." During her phone call with Victor, Rabihah said defendant threatened to kill her and called her a "whore" and "bitch."
Defendant contends the exclusionary provision in section 632, though initially abrogated in Proposition 8, has been revived from post-Proposition 8 amendments. (Guzman, supra, 8 Cal.5th at pp. 679-680; see Stats. 1985, ch. 909, § 2.5; Stats. 1990, ch. 696, § 3; Stats. 1992, ch. 298, § 3; Stats. 2016, ch. 855, § 1; Stats. 2017, ch. 191, § 1.) The Supreme Court has squarely rejected this argument in Guzman: "Nothing in the amendments suggests an intent by the Legislature to overrule the effect of Proposition 8 and render evidence obtained from surreptitious recordings once again inadmissible in criminal proceedings." (Guzman, supra, 8 Cal.5th at p. 691; for discussions of specific amendments, see pp. 687-689 [1985 amendment], pp. 689-691 [1990 and 1992 amendments], pp. 691-692 [1994 and 2016 amendments].) In light of that conclusion, the recorded phone conversations were admissible.
The Supreme Court did not address a 2017 amendment that defendant seeks to utilize here, and for good reason. That bill amended section 633.5 and 633.6 to "allow a party to a confidential communication to record the communication for the purpose of obtaining evidence reasonably believed to relate to domestic violence, as specified, and the evidence so obtained would not be rendered inadmissible in a prosecution against the perpetrator for domestic violence." (Assem. Bill No. 413 (2017-2018 Reg. Sess.).) The bill did not amend section 632.
III. Substantial Evidence Supports the Hate-Murder Special Circumstance
Defendant contends the evidence was insufficient to support the hate-murder special circumstance because it failed to prove that defendant was motivated by anti-gay bias when he killed Rocky. We disagree.
"When reviewing a challenge to the sufficiency of the evidence, we ask '"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' [Citations.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for '"substantial evidence—that is, evidence which is reasonable, credible, and of solid value"' that would support a finding beyond a reasonable doubt. [Citation.]" (People v. Banks (2015) 61 Cal.4th 788, 804 (Banks).) "'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.' [Citation.]" (People v. Brooks (2017) 3 Cal.5th 1, 57 (Brooks).) These standards apply to challenges to the evidence underlying a true finding on a special circumstance. (Ibid.; Banks, supra, at p. 804.) A. Background
When defendant learned Rocky was bisexual in 2008, defendant's attitude toward Rocky drastically changed. Defendant no longer referred to Rocky as a son, but referred to him as a disgrace and an embarrassment. In his own testimony at trial, defendant admitted he found it troublesome and disrespectful that Rocky dated and brought men to the rental unit.
Victor described defendant's verbal abuse of Rocky as "constant for years, almost like perseverating over this one issue. It was really . . . disturbing, because sometimes the language wasn't just, you know, I don't like my son being gay but like he deserved to die." Defendant and Victor had "many, many" conversations about Rocky's sexual orientation in which defendant referred to Rocky as "faggot and whore of Babylon and scum of the earth and he should be castrated." Hellen also heard defendant refer to Rocky as a "cocksucking whore" and "sissy."
Between 2013 and 2014, Rocky began dating more men, and he brought men to family gatherings. At that time, defendant started keeping track of Rocky's whereabouts and activities with men in the rental unit. Defendant remained obsessed with Rocky's movements and even forwarded Rocky's mail to his own P.O. Box beginning in 2015. Around February and March 2016, Hellen overheard defendant threaten Rabihah that he was going to "cut you and your son up bit by bit, piece by piece. He said, I'm going to split you in half. . . . I'm going to burn you and your cocksucking whore son in the house. I'm going to burn the house down with you and your cocksucking whore son in it." On March 29, 2016, defendant killed Rocky by shooting him four times with a shotgun. B. Analysis
The penalty for a defendant found guilty of committing first-degree murder that is a hate crime is imprisonment for life without the possibility of parole. (§ 190.03, subd. (a).) A "hate crime" is defined as a criminal act committed, "in whole or in part, because of" the actual or perceived characteristics of the victim, including sexual orientation. (§ 422.55, subd. (a)(6); see § 422.56, subd. (h) ["Sexual orientation" encompasses heterosexuality, homosexuality, or bisexuality].)
The phrase "in whole or in part, because of," means that the bias motivation "must be a cause in fact of the offense, whether or not other causes also exist. When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the particular result. There is no requirement that the bias be a main factor." (§ 422.56, subd. (d).) "'"The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical." [Citation.] Thus, "a force which plays only an 'infinitesimal' or 'theoretical' part in bringing about injury, damage, or loss is not a substantial factor" [citation], but a very minor force that does cause harm is a substantial factor [citation].' [Citations.]" (People v. Fromuth (2016) 2 Cal.App.5th 91, 105; accord, In re M.S. (1995) 10 Cal.4th 698, 716, 719.)
Here, defendant contends there is no direct evidence from which a jury could find that his bias against Rocky's sexuality was a motivating factor in the killing. Though he may be correct, he ignores the applicable standard of review. (Brooks, supra, 3 Cal.5th at p. 58.) On these facts (which we have summarized above and need not restate), a jury reasonably could infer that defendant killed Rocky because of his sexual orientation.
IV. Direct Victim Restitution
Defendant contends the court abused its discretion in awarding direct victim restitution to Roger and Victor because the requested amounts were not causally related to defendant's criminal conduct. We disagree. A. Background
At the victim restitution hearing, Roger testified that he lived in Northern California and had to travel to Los Angeles to testify at trial. He requested $4,000 for an unrecoverable security deposit for a rental home during the trial, and $50 in court costs he spent trying to recover the deposit in small claims court. Though he obtained a judgment for the security deposit, Roger never recouped the money because the civil defendant filed for bankruptcy. Roger also requested $9,980 for out-of-pocket expenses related to the care of an emotional support animal. The support animal was part of Roger's psychotherapy for the murders, and the associated costs were for dog walking and care when Roger was traveling or at work.
Victor requested $2,500 for the money defendant took out of his bank account on March 28, 2016. Victor established the money was his, and the prosecutor argued defendant's closing of the bank account was part of the commission of the murders.
The court awarded Roger $4,050 for living expenses and $9,980 for the support animal. It compared the living expenses to an estimated $6,000 for hotel costs for 30 days in Los Angeles, and noted Roger could not stay in a hotel because of his support animal. It found the amount was reasonably related to Roger's participation in the case. The court further found the $9,980 in the support animal expenses reasonably related to Roger's therapy for the murders.
The court awarded Victor $2,500, finding defendant's trip to Phoenix and closing of the account formed part of defendant's premeditation for Rocky's murder. Apart from the restitution hearing, the court also found that the trip to Phoenix was part of defendant's false alibi for Rabihah's murder. B. Analysis
"[A]n award of restitution is committed to the sound discretion of the trial court. No abuse of that discretion occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result." (People v. Giordano (2007) 42 Cal.4th 644, 665 (Giordano).) "'"When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court."' [Citation.]" (People v. Martinez (2017) 10 Cal.App.5th 686, 721.)
The goal of direct restitution is to restore the victim to "the economic status quo." (Giordano, supra, 42 Cal.4th at p. 658.) At the time of the murders, former section 1202.4 required courts to order restitution in cases "in which a victim has suffered economic loss as a result of the defendant's conduct." (Former § 1202.4, subd. (f).) The provision contains a causality requirement: a defendant sentenced to state prison may be obligated to pay restitution only for losses stemming from the criminal conduct of which he was convicted. (People v. Lai (2006) 138 Cal.App.4th 1227, 1247.) To determine causality, "California courts have adopted the 'substantial factor' test for analyzing proximate cause." (People v. Foalima (2015) 239 Cal.App.4th 1376, 1396 (Foalima).) "The substantial factor standard . . . has been embraced as a clearer rule of causation—one which subsumes the 'but for' test while reaching beyond it to satisfactorily address other situations, such as those involving independent or concurrent causes in fact. [Citations.]" (Ibid.)
"Victim" includes the "immediate surviving family of the actual victim." (Former § 1202.4, subd. (k)(1).) --------
Defendant contends his criminal conduct was not a substantial factor in causing $9,980 in damages to Roger for dog walking and boarding costs for his emotional support dog, and $2,500 he took out of Victor's bank account. Defendant applies the substantial factor test too narrowly. "The test, put simply, is whether [Roger and Victor] would have incurred damages had there been no murder[s]." (Foalima, supra, 239 Cal.App.4th at p. 1397.) The answer to both questions is clearly no.
Defendant withdrew $2,500 from a bank account in Victor's name as part of premeditating Rocky's murder and forming a false alibi for Rabihah's murder. The murder was certainly a substantial factor in defendant's $2,500 withdrawal.
As part of psychotherapy for coping with the murders, Roger obtained an emotional service animal and paid for services to care for and house the animal when he was not able to do so. Those expenses would not exist but for the murders.
Defendant also contends he was absolved of liability for restitution for the $4,000 security deposit and $50 court fee because Roger's landlord was an independent intervening cause of the damages. To absolve a defendant of liability, an independent intervening cause must be an unforeseeable, extraordinary, and abnormal occurrence "which rises to the level of an exonerating, superseding cause." (Foalima, supra, 239 Cal.App.4th at p. 1397, quoting People v. Jones (2010) 187 Cal.App.4th 418, 427, internal quotation marks omitted.) However, a defendant will remain liable even if there is another contributing cause that is "a normal and reasonably foreseeable result of defendant's original act. . . . The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. [ ] The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act." (Ibid., internal quotation marks omitted.)
Here, we cannot say the landlord's refusal to return a security deposit is so unforeseeable, extraordinary, or abnormal as to constitute an exonerating, superseding cause. (Foalima, supra, 239 Cal.App.5th at p. 1397.) Instead, living expenses for a temporarily relocated witness, in any form, is precisely the type of harm contemplated in criminal trials. The $4,050 award did not constitute a windfall for Roger, but restored him to "the economic status quo." (Giordano, supra, 42 Cal.4th at p. 658.) That is precisely what victim restitution is designed to achieve.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.