Opinion
A113641
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. CHAD M. JACOBSEN, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Chad Jacobsen appeals his conviction by jury trial of unlawfully killing a living animal, which was the property of another. (Pen. Code, § 597, subd. (a).) He contends there was insufficient evidence to support his conviction and the court erroneously excluded evidence. We reject the contentions and affirm.
All undesignated section references are to the Penal Code.
The jury acquitted him of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)), assault with a deadly weapon (§ 245, subd, (a)(1)) and assault with means of force likely to produce great bodily injury (§ 245, subd. (a)(1)).
BACKGROUND
On August 6, 2005, Ruben "Kathy" Rivera first met defendant, who was homeless, outside Riveras Leavenworth Street apartment. Rivera invited defendant to stay with her and soon thereafter, they began a sexual relationship. At the time, Rivera had a 16-month-old Chihuahua named Cha Cha. Defendant played with Cha Cha, who seemed to like him.
At approximately 11:30 p.m., on August 31, 2005, Rivera left her apartment with Cha Cha inside. When Rivera left Cha Cha was fine. Rivera returned home at approximately 3:45 a.m., turned on the light, and Cha Cha was not there to greet her as usual. Rivera went into the bedroom where defendant was lying fully clothed on the bed, with his hands pressed together on his chest. Defendant appeared to be sleeping. Rivera saw that the light was on inside the closet, and she looked inside. Cha Cha was lying dead inside the closet and there was "a lot of blood."
When Rivera, who was upset, asked defendant what had happened, defendant replied that he did not know. Rivera and defendant argued, and Rivera continued to ask defendant what happened, since, at the time Rivera left the apartment, only defendant and Cha Cha remained. Defendant continued to deny any knowledge of what had happened to Cha Cha and he and Rivera continued to argue. After Rivera twice said she was going to call the police, defendant, who appeared angry and upset, hit Rivera in the face with a knife. After the two struggled, defendant left the apartment. Rivera said there was no possibility that Cha Cha was stepped on during Riveras scuffle with defendant. Rivera went to the police station to report the incident and defendant was arrested. He then spontaneously told police "`[t]he knife is in the room. " San Francisco Police Officer Joshua Phillips went to Riveras apartment. Inside the closet he found the deceased dog. A bloodstained knife was found on the dresser.
As we noted ante, defendant was acquitted of assault charges.
On September 1, 2005, Ruth Dilts, veterinarian for the City and County of San Francisco, performed a necropsy on Cha Cha to determine her cause of death. The dog had no external wounds. However, there was bruising under the dogs skin above both eyes, on top of the head, and on the left side of the back and abdomen, and the dog had a bloody right eye. Dr. Dilts opined that the dog had had repeated force trauma to its head and both eyes, and separate blows to its back and abdomen. In addition, the dogs left lung was bruised and its liver was fractured and pulverized in all lobes, resulting from massive trauma. Dr. Dilts opined that Cha Cha died from repeated blunt force trauma. She also opined that the liver injury was consistent with being kicked in the abdomen. Dr. Dilts said the liver injury was the fatal injury after which the dog would have survived a maximum of five minutes. Dr. Dilts said it was highly unlikely the dogs injuries were caused by accidentally being stepped on.
Defendant testified that on the night in question, Cha Cha was barking and running between him and Rivera while they struggled over a knife. He said he could feel the dog hopping on his leg. He denied intentionally kicking the dog and said he did not know how the dog sustained its injuries. Defendant said he was wearing leather mountain boots on the night of the incident.
The parties stipulated that San Francisco Police Officer Royer spoke to Rivera, who had difficulty expressing herself in English. However, Royer understood her to say that defendant told her he killed the dog.
DISCUSSION
I. Substantial Evidence Supports the Conviction
Defendant contends there was insufficient evidence to support his conviction. "The law applicable to a claim of insufficiency of the evidence is well settled: ` "In reviewing [a claim regarding] the sufficiency of the evidence, we must determine `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. [Citation.] `[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We ` "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." " [Citation.] If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of article I, section 15, of the California Constitution. " (People v. Carter (2005) 36 Cal.4th 1114, 1156, italics omitted.)
Section 597, subdivision (a) provides in relevant part: "[E]very person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of an offense . . . ."
Defendant argues that the "only evidence that [he] actually killed Cha Cha" was Riveras testimony that defendant was left alone with the dog for a few hours when Rivera left the apartment. He also appears to argue that the inconsistency between Riveras trial testimony that defendant said he did not know what happened to the dog, and Officer Royers stipulated statement that Rivera said defendant told her he killed the dog establishes there was no substantial evidence that defendant intentionally killed or injured the dog. Thus, he argues his conviction was based on speculation and conjecture. We disagree.
Based on the record before us, the jury could have found the stipulation regarding Riveras statement to Officer Royer more credible than Riveras trial testimony as to what defendant told her. Officer Royers statement alone provides evidentiary support that defendant admitted killing the dog. (See People v. Maxwell (1979) 94 Cal.App.3d 562, 577 & fn. 9 [testimony of a single witness may supply substantial evidence].) The jury could also have found Riveras testimony more credible than defendants and concluded that since the dog was fine before Rivera left it and defendant home alone, defendant had to have been responsible for the dogs injuries and/or death.
II. The Proffered Evidence Was Properly Excluded
Defendant also contends the trial court erroneously excluded evidence of a prior incident in which he was treated for knife wounds. He argues that the exclusion of this evidence denied him his constitutional right to present evidence critical to his defense in violation of the Fourteenth and Sixth Amendments.
Prior to defendants testifying, the prosecutor moved to preclude defendant from testifying that on August 6, 2005, the day before meeting Rivera, defendant was assaulted by three unknown men during which he was hit in the head with a baseball bat, cut on his arm and chest and divested of some of his personal property. The prosecutor argued the evidence was not relevant, had no probative value and was sought to elicit jury sympathy. Defense counsel rejoined that the prior head injury "could be relevant" as to how it affected defendants memory and to impeach Riveras testimony that she had a relationship with him. Defense counsel said a knife was involved in the prior incident and sought the testimony of the paramedic who treated defendant after the prior incident, and who would testify that the injuries occurred. He also claimed that defendant met Rivera the day after he left the hospital where he was treated for the prior incident.
In excluding evidence of the August 5, 2005 incident and the paramedics testimony, the court found that pursuant to Evidence Code section 352, the evidence was more "unduly prejudicial" than probative, was confusing to the jurors, would involve an unduly burdensome trial within a trial and was not relevant to the charged incident. However, the court agreed to permit defendant to testify that he sustained a head injury on August 5, that he went to the hospital and that the head injury affected his ability to recall the charged incident.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Thereafter, defense counsel argued that the August 5 incident was relevant in that it also involved a knife, and may have influenced how defendant reacted in the current incident to Riveras brandishing a knife. The court reserved ruling on the relevancy of the knife issue pending examination of defendant.
On cross-examination, the prosecutor questioned defendant about his decision to grab Riveras wrists when she was waving the knife. Defense counsel again asserted that the August 5 knife incident was relevant to explain defendants reaction to Riveras confronting him with a knife. The court ruled that defendant had testified he acted in the way he did because he was frightened, and that the door had not been opened to admit evidence about the August 5 knife incident. The court again ruled that the proffered evidence was not relevant under Evidence Code section 352.
The trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit evidence that is irrelevant. (People v. Heard (2003) 31 Cal.4th 946, 973.) Under Evidence Code section 352 the trial court has broad discretion in assessing whether the probative value of proffered evidence is substantially outweighed by the probability of undue prejudice, confusion or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The courts discretion will not be disturbed on appeal absent a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (Id. at pp. 1124-1125.)
Defendant makes several arguments for the first time on appeal. First, he argues that the fact that he had been attacked with a knife within 30 days of the charged incident "could very well have affected [his] ability to be aware of what was occurring to the dog during the time he was attempting to leave Riveras apartment; his focus could quite conceivably be on the large and sharp knife he was confronted with to the exclusion of everything else. Absent evidence of the prior knife attack, [defendants] testimony that he was not aware of what happened to the dog, if anything, during the altercation appears less plausible. . . . Thus the prior knife attack had considerable probative value as far as [defendants] awareness of and intentions towards Cha Cha were concerned."
Defendant also argues that the circumstances of the prior knife attack were relevant to whether the prior incident was sufficiently traumatic to render plausible his claim that he had no knowledge or memory of what happened to the dog. He argues that any possible confusion between the prior and charged incidents could have been remedied by an admonition by the court to consider the prior incident only as to its effect on defendants ability to remember the details of the charged incident.
A party is required to make a specific and timely offer of proof of the substance, purpose and relevance of excluded evidence to preserve an appeal of the courts ruling. (Evid. Code, § 354, subd. (a); People v. Morrison (2004) 34 Cal.4th 698, 711.) At no time during the hearings involving admission of evidence regarding the August 5 incident did defense counsel argue that the incident was relevant to the unlawful killing of the dog charge. Moreover, at no time did defendant request the admonition that it now asserts could remedy any juror confusion. Consequently, defendants evidentiary claim is waived. In addition, based on defense counsels argument below, the court acted within its discretion in precluding the proffered evidence under Evidence Code section 352.
DISPOSITION
The judgment is affirmed.
We concur.
GEMELLO, J.
NEEDHAM, J.