Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. FVA018285, Raymond L. Haight, Judge.
BENKE, Acting P. J.
Following a jury trial, defendant Victor Manuel Jimenez was convicted of first degree murder (Pen. Code, § 187, subd. (a)). The jury further found that Jimenez had used a dangerous weapon in the commission of the offense (Pen. Code, § 12022, subd. (b)(1)). The trial court sentenced Jimenez to an indeterminate term of 25 years to life, plus one additional year for the weapon enhancement.
On appeal, Jimenez raises three claims. First, he argues the trial court abused its discretion when it admitted testimony of his previous acts of domestic violence. Second, he argues the trial court abused its discretion when it admitted expert testimony on the religious cult of Santeria. Third, he argues his confession, made while in police custody, should have been suppressed because it was involuntary and obtained in violation of Miranda v. Arizona.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602] (Miranda).
For the reasons discussed below, we reject Jimenez's claims and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment of conviction. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1427.) Certain portions of the factual and procedural history related to Jimenez's claims of errors are discussed post, in connection with those issues.
A. Leading up to the Murder
Several years before the crime in question, Jimenez and his wife Martha Varela lived with their three children in Long Beach, California. Jimenez physically abused Varela in front of their children on a regular basis.
After the family moved to Rialto, California, the physical abuse continued less frequently. However, Jimenez often verbally abused Varela. While drunk, Jimenez once told his daughter Marlin he was going to kill Varela because he hated Varela.
On two occasions, Jimenez told his neighbor Florence Becerra that it would be easy to kill someone in the United States, including Varela, and flee to the mountains of Mexico. Jimenez also twice said to Varela, in front of a neighbor, that if she ever left him he would kill her and then "just play crazy and go two, three years to jail, get out, get my kids back, and I get my life."
In the weeks leading up to Varela's murder, Jimenez called her derogatory names every day. Jimenez refused to eat dinner with the family and broke several of Varela's favorite crystal glasses. Varela spent most of her time in the garage or outside the house and slept in her daughter's bedroom at night.
Varela operated a business from her home garage selling herbs and vitamins and offering masseuse services.
One week before Varela was killed, she took two suitcases filled with papers and family photographs to her sister's house. Also around this time, Varela dropped off the children's birth certificates and immunization records and a receipt related to divorce proceedings at a friend's house in Fontana, California. Varela told her friend Francisca Perez that Jimenez had been acting violent in their house and that she was afraid Jimenez was going to kill her. Perez called the Fontana police department to report Jimenez's conduct, but the police replied they could not do anything because the alleged abused was occurring in Rialto, not Fontana.
About a week before her death, Varela went to Mundo Latino, a business in Rialto that offers document preparation services for people who do not speak English, and asked for information about filling out divorce papers.
On the night of September 22, 2002, the day before Varela was killed, Jimenez went to his neighbor's house and asked her to pray for his marriage. Also on that night, Jimenez stood outside the garage and watched Varela through the window. Hours later, around 1:00 a.m., Jimenez paced around his front yard.
B. The Murder
On the morning of September 23, 2002, Varela told Jimenez that she was having an affair with a younger man. She told him that she and her children were going to leave and that he would have to continue making the payments on their home.
Around 7:30 a.m., Varela drove her children to school. Varela spoke with a neighbor and asked for the address of a shelter for abused women.
Sometime around 8:30 a.m., Varela walked across the street to Becerra's house. Varela asked Becerra to go with her to see an attorney, so that Varela could get a restraining order and divorce from Jimenez. While Varela and Becerra were talking, Jimenez stood in his driveway and watched them. Jimenez was scheduled to work on Monday mornings and it was unusual for him to be home. Becerra told Varela that she needed 15 minutes to change clothes and that after she changed, she would accompany Varela to see the attorney. Despite Becerra's warning that it was unsafe, Varela returned home. Becerra said she would walk over to Varela's house in 15 minutes.
Around 9:00 a.m. Becerra walked across the street to Varela's house. Jimenez's truck was no longer in the driveway. Although Varela normally kept the doors to the house unlocked during the day, the doors were closed and locked. Becerra knocked on the door and screamed Varela's name. Becerra could hear music and gargling noises coming from inside the house. Becerra called 911.
Officer Mike Morales of the Rialto police department was dispatched to the scene. Morales knocked on the door and rang the doorbell, but received no response. After entering the home through a bedroom window, Morales found Varela lying on the living room couch. Jimenez had stabbed Varela 37 times throughout her body, including 9 times in her neck, and had bitten her on her arm.
At trial, a forensic odontologist testified that the pattern of the bite mark on Varela's arm was consistent with Jimenez's dental signature.
C. After the Murder
After leaving his house, Jimenez withdrew several hundred dollars from a bank in Rialto, left his truck in Tijuana and fled to a suburb outside of Guadalajara, Jalisco, Mexico.
A week after killing Varela, while still in Mexico, Jimenez called his neighbor and told her that Varela had confessed to having an affair. Jimenez told the neighbor that he had been offended by this but was now "repenting" for what he had done. Jimenez also contacted Varela's sister-in-law, asked her about his children and told her he wanted to turn himself in to the police.
In October 2002, while still in Mexico, Jimenez called Officer Hector Santana of the Rialto police department. He told the officer he wanted to turn himself in to the police because he had stabbed his wife with a kitchen knife. Jimenez and Santana spoke over the phone almost daily between October 2002 and January 2003. Santana encouraged Jimenez to return to the United States.
Finally, on January 22, 2003, Santana arranged for Jimenez's return to the United States through the Otay Mesa port of entry. Santana met Jimenez at the border, brought him to the Rialto police station and conducted an interview. During the interview, Jimenez told Santana he knew Varela was planning on divorcing him. Jimenez did not deny stabbing his wife, but claimed he "did not feel responsible for doing that." Jimenez told Santana he had used a small steak knife and that Varela had died on the couch. He claimed he could not remember any details, including how many times he stabbed her and admitted he had not called the paramedics before leaving the house. He also admitted to placing two crucifixes beneath the couch a few days before killing Varela. After Varela's death, her daughter discovered receipts for witchcraft items in Jimenez's bedroom.
Respondent has correctly pointed out the typographical error in the reporter's transcript. While the transcript reads Jimenez crossed the border on "12/2/03," the date of crossing should read "1/22/03."
The jury convicted Jimenez of first degree murder. The jury also found true that Jimenez had personally used a dangerous weapon in the commission of the offense. The trial court sentenced him to a prison term of 25 years to life plus an additional year for the weapon enhancement.
DISCUSSION
I
Evidence Code Section 1009
Jimenez argues the trial court abused its discretion when it admitted under Evidence Code sections 1101, 1109 and 352 testimony regarding his previous acts of domestic violence. We reject this argument. The charged crime fits within the meaning of domestic violence, therefore permitting evidence of prior domestic violence under Evidence Code section 1009, and the court properly exercised its discretion in determining that the prejudice of the prior acts did not substantially outweigh their probative value.
A. Procedural Background
During trial, the prosecution requested an Evidence Code section 402 hearing to admit testimony related to Jimenez's prior uncharged acts of domestic violence. At the hearing, Marlin testified that from a very young age until she was about seven or eight, she lived with her mother and father in Long Beach, California, and that she had witnessed Jimenez abuse Varela. Specifically, Marlin stated Jimenez often hit Varela, grabbed her hair and called her names. Marin testified that Jimenez's abuse caused her mother to bleed and bruise. Marlin stated that although she and her brothers called 911, police only arrested her father once.
After Marlin's testimony, the prosecution argued that Evidence Code section 1109 was specifically designed for admitting prior domestic violence incidents such as those here. The prosecution argued that because Marlin was able to recount specific instances of abuse during a several-year period, the prior acts should be admitted under Evidence Code section 1109 and that, additionally, it was admissible within the court's discretion under Evidence Code section 352.
Jimenez countered that the prior domestic violence acts were merely inadmissible propensity evidence. Jimenez also argued the prejudicial effect of the prior acts would greatly outweigh their probative value, given the remoteness in time of the acts.
Applying the test under Evidence Code section 1109 for the admissibility of prior domestic violence acts, the trial court found the prior acts admissible. "First of all the incidents here do fit within the definition of domestic violence and the statute. I have no problem with that." Second, applying an Evidence Code section 352 analysis, the trial court found that it was "already before the jury in this case that there was domestic violence in the relationship before the actual killing" and thus admission of the prior acts was not unduly prejudicial. Additionally, the prior acts were "very probative as to [Jimenez's] state of mind," which was a key issue in the case. The court concluded, therefore, that the prior acts were admissible under Evidence Code section 352.
B. Standard of Review
Jimenez's evidentiary challenge is reviewed under an abuse of discretion standard. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138 ["The admissibility of evidence of domestic violence is subject to the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of an abuse of discretion."]) "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
C. Governing Law—Evidence Code Sections 1101 and 1109
Although evidence of prior bad acts is generally barred by Evidence Code section 1101, subdivision (a), Evidence Code section 1109, subdivision (a)(1), provides an exception to this rule and states in pertinent part: "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."
"Domestic violence," for purposes of Evidence Code section 1109, is broadly defined as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (Pen. Code, § 13700, subd. (b); see also Evid. Code, § 1109, subd. (c)(3).) " 'Abuse' [is defined as] intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Pen. Code, § 13700, subd. (a).)
As the trial court concluded, the charged crime here, murder, fits within the statutory definition of "domestic violence." Accordingly, Evidence Code section 1109 applied and permitted admission of Marlin's testimony regarding Jimenez's previous acts of domestic violence subject only to the requirements of Evidence Code section 352.
D. Governing Law—Evidence Code Section 352
Under Evidence Code section 352, we "examine whether the probative value of the evidence of defendant's uncharged offenses is 'substantially outweighed by the probability that its admission [would]... create substantial danger of undue prejudice, of confusing the issues, or misleading the jury.' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 404.)
Here, the principal issue at trial was Jimenez's state of mind when he killed Varela. Jimenez did not dispute that he stabbed his wife 37 times. Instead, he attempted to show at trial he had been provoked by Varela's admission she was divorcing him, he killed her in the heat of passion and therefore he was guilty only of voluntary manslaughter. To counter this argument, the prosecution proffered Marlin's testimony regarding Jimenez's history of abusive behavior. This pattern of abusive behavior directed at his wife, whom he eventually killed, is certainly probative as to Jimenez's intent, motive and premeditation. (See People v. Haylock (1980) 113 Cal.App.3d 146, 150 [finding that instances of prior misconduct directed at the specific victim of the charged crime were "highly probative on the issues of intent, motive, and premeditation, and were properly admissible notwithstanding that they also involved criminal conduct"].) Previous abuse of his wife would tend to demonstrate that Jimenez did not kill his wife in the heat of passion and that the act was willful, premeditated and deliberate. (See People v. Knoller (2007) 41 Cal.4th 139, 151 [willfulness, premeditation and deliberation are required elements to support a first degree murder conviction].)
Notwithstanding its probative value, we must also consider whether the prior acts of domestic violence were unduly prejudicial. Generally, when evidence of uncharged prior bad acts is no stronger and no more inflammatory than evidence presented on the charged offense, the potential for prejudice is decreased because these circumstances make it unlikely a jury's passions would be inflamed by the uncharged prior bad acts. (People v. Ewoldt, supra, 7 Cal.4th at p. 405.) Here, Marlin's testimony related to Jimenez's prior bad acts, specifically that her father regularly hit Varela, pulled her hair and called her names, pales in comparison to the evidence presented as to the charged crime, including the nature of the crime and photographs of Varela's body stabbed 37 times.
Jimenez nonetheless argues that Marlin's testimony of Jimenez's prior acts of domestic violence were remote in time because they occurred when she was a child. We disagree. According to Marlin's testimony, Jimenez's prior domestic violence acts began approximately eight or nine years prior to Varela's death and, thus, fell within the 10-year presumption under Evidence Code section 1109, subdivision (e). In any event, "[r]emoteness of the prior offense has been held to affect only the weight of the evidence, and not its relevancy or admissibility." (People v. Burns (1952) 109 Cal.App.2d 524, 538.)
Jimenez's additional arguments on appeal, that Marlin's testimony lacked specificity, was general in nature, and lacked corroboration, similarly goes to the credibility of Marlin's testimony and not its admissibility. As "[q]uestions as to the credibility of witnesses and the weight to be given their testimony are for the trier of facts," (People v. Maxwell (1979) 94 Cal.App.3d 562, 576) we are not permitted to "reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412.)
In sum, given the probative value of the prior domestic violence incidents and the absence of undue prejudice, the trial court acted well within its discretion in allowing Marlin's testimony.
In any event, assuming arguendo that the trial court abused its discretion in admitting evidence of Jimenez's prior bad acts, reversal is not required because the evidence of guilt was strong. Accordingly, a result more favorable to defendant was not reasonably probable absent admission of the prior bad acts evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II
Expert Testimony
Jimenez next claims the trial court abused its discretion when it admitted expert testimony about the religious cult of Santeria because it was not relevant, the witness Humberto Rios was not qualified to offer such expert testimony and the lack of written material on the subject precluded Jimenez from effectively cross-examining the expert. We reject each of these claims.
A. Procedural Background
Before trial, the prosecution made an offer of proof that its proposed expert witness, Humberto Rios, would explain the significance of the crosses Jimenez admitted placing underneath the couch—where Valera's body was found—a few days before he killed Valera. Jimenez objected, arguing Rio's testimony regarding the crosses and the religious cult of Santeria "would require a [Kelly Frye] analysis, if it's going to be submitted as expert testimony, not subject to any scientific evaluation because of its sociological nature, and therefore should not be in it."
At an Evidence Code section 402 hearing, the prosecution asked Rios about his educational and employment background, his educational training and his familiarity with Santeria. Rios testified that he had served as a religious educator for the Catholic diocese of San Bernardino County from 1999 to 2006 and held a three-year degree in theology and various ministerial certifications. Rios also testified that he was familiar with the religious cult Santeria, a religion closely related to Catholicism that originated in West Africa.
On cross-examination, Rios testified he knew about Santeria from his involvement with religious cultures and from a one-day course in San Antonio, Texas. Rios admitted, however, that a full initiation into Santeria would be required to understand the religion fully.
Following Rios's testimony, the prosecution argued that based on Rios's background in theology, there was a sufficient foundation for him to render an opinion. Jimenez argued that based on the lack of scientific or sociological studies about Santeria, the lack of written material on it and Rios's sparse exposure to the cult, the expert testimony should be excluded. Jimenez did not argue, however, the testimony was irrelevant or unduly prejudicial, nor did he argue he was not a member of this cult, had never heard of it, or that the relationship of the crosses he placed under the couch to the location where the body was discovered was mere coincidence.
The trial court found Rios qualified to testify as an expert witness. While conceding Santeria was "really not an area of scientific expertise," the court found Rios had "enough education, training, and experience in the field to qualify as an expert." The court further found Rios's testimony would be "relevant to the defendant's motive and state of mind at the time of the alleged crime."
At trial, Rios's testimony largely paralleled his testimony at the Evidence Code section 402 hearing. Rios testified that he had a three-year degree in theology and had attended several continuing education conferences on various religions, including Santeria. He explained that Santeria was a cult closely related to Catholicism in which followers worshipped the saints, practiced rituals and utilized "good and bad spells." Rios testified that he had viewed a photograph of crucifixes found beneath Varela's body and that the positioning of the two crucifixes placed by Jimenez, one facing up and one facing down, indicated the Santeria ritual of "condemnation or damnation of the soul."
On cross-examination, Rios testified that Santeria was a very secretive religion and that initiation into the religion was required for a full understanding of its practices. Rios also testified that he had not been initiated into the religion.
In closing argument, Jimenez argued: "The crucifixes are another matter to make a big deal of. [Jimenez] claims he did that because she [Valera] was taking things of significance, of sentimental value. [Valera] brought suitcases of photos to her sister's house and others. She was taking stuff. Maybe they were important to him. Maybe there was no Santeria or any of that mumbo-jumbo, hocus-pocus witchcraft stuff. That's something that again we just don't know, but it's not significant."
B. Relevance
A failure to object to the admission of evidence on a specific ground below is waived on appellate review. (Evid. Code, § 353; People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) An objection on one ground will not preserve the objection on other grounds. (People v. Barnett (1998) 17 Cal.4th 1044, 1130 [relevance objection does not preserve a challenge under Evidence Code section 352].)
"The general rule confining parties upon appeal to the theory advanced below is based on the rationale that the opposing party should not be required to defend for the first time on appeal against a new theory that 'contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial.' [Citation.]" (Ward v. Taggart (1959) 51 Cal.2d 736, 742.) However, "no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal." (People v. Yeoman (2003) 31 Cal.4th 93, 117.)
Here, despite Jimenez's contention at oral argument before this court, Jimenez's objection to the admission of Rios's testimony did not include a relevance objection, but was limited to the expert's qualifications to, and the lack of scientific evidence available on, Santeria. Indeed, the questions asked by both the prosecutor and Jimenez at the evidentiary hearing pertained to the extent of Rio's religious training and exposure to Santeria. In his final argument to the trial court on the issue, Jimenez again attacked the lack of scientific data available on Santeria and Rios's inadequate knowledge about the religion. The trial court ultimately ruled Rios was indeed qualified to serve as an expert witness on Santeria.
Accordingly, it is clear Jimenez did not object to the testimony on relevance grounds. Whether testimony is relevant entails a far different fact-finding process and analysis than whether an expert is qualified to testify. Had Jimenez objected on relevance grounds to the evidence of Santeria, the prosecution would have had to prove the preliminary fact of Jimenez's connection to the cult.
However, because Jimenez objected only to the foundation of the proposed expert, the prosecution was required only to prove the witness's qualifications. To permit Jimenez to attack the relevance of the testimony for the first time on appeal, despite the fact he argued during closing argument such evidence was insignificant and "mumbo-jumbo, hocus-pocus witchcraft stuff," particularly when he admitted to placing the crosses beneath the couch a few days before he killed Valera and when her body was found on that same couch, would be unfair to the prosecution, who did not have the opportunity to defend the claim at the trial court.
Moreover, it is plausible Jimenez refrained from a relevance objection at the trial court for tactical reasons. (See People v. Roldan (2005) 35 Cal.4th 646, 730 ["By declining to object, a defense attorney might believe the additional information is favorable to his or her client" and "There being the possibility counsel made a considered decision not to object, we should not now give defendant a second bite at the apple"], disapproved on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Even if the trial court abused its discretion in permitting Rios to testify as an expert on Santeria, reversal is not required. Rios's testimony regarding the positioning of the crosses found beneath Varela's body was offered to prove Jimenez acted with premeditation. However, even if this evidence was excluded, there was other evidence indicating Jimenez acted with premeditation. Jimenez had a history of physically and emotionally abusing his wife and on several occasions expressed his desire to kill her. Jimenez once told a neighbor that it would be easy to kill someone, including his wife, and flee to Mexico. The night before he killed her, Jimenez asked his neighbor to pray for his marriage and was later seen pacing about his yard. Based on this evidence, there is no reasonable probability the jury would have returned a more favorable verdict, i.e. that Jimenez did not act with premeditation when he killed his wife, absent testimony about the positioning of the crosses. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
C. Qualifications as an Expert
The standard of review for a trial court's decision admitting or excluding the testimony of an expert witness, and ruling on an expert's qualifications, is abuse of discretion. (People v. Davenport (1995) 11 Cal.4th 1171, 1207, overruled on another ground as stated in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Mickey (1991) 54 Cal.3d 612, 687-688.) Error regarding a witness's qualifications as an expert exists only if the evidence shows the witness clearly lacks qualification as an expert. (People v. Robinson (2005) 37 Cal.4th 592, 632.)
" 'A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.' " (People v. Catlin (2001) 26 Cal.4th 81, 131, quoting Evid. Code, § 720, subd. (a).) Expertise is " 'relative to the subject,' and not subject to rigid classification according to formal education or certification. [Citation.]" (People v. Ojeda (1990) 225 Cal.App.3d 404, 408.) The test in each case is whether the witness has sufficient skill or experience in the particular field so that his testimony would be likely to "assist the jury in the search for the truth." (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.) Once this threshold has been met, "the question of the degree of knowledge goes more to the weight of the evidence than its admissibility. [Citation.]" (Ibid.)
Of course, if the witness is qualified to testify as an expert, he or she is also subject to cross-examination by opposing counsel. (Brown v. Colm (1974) 11 Cal.3d 639, 646.) An expert witness may be cross-examined to the same extent as any other witness, including as to the expert's qualifications, the subject to which the testimony relates and the matter upon which the expert has based his or her opinion. (Evid. Code, § 721, subd. (a).)
Here, it cannot be said that Rios clearly lacked qualification as an expert witness. (See People v. Robinson, supra, 37 Cal.4th at p. 632.) Rios held a degree in religious studies and had worked for the Catholic diocese of San Bernardino for over 10 years, during which time he studied the differences between Catholicism and other religions, including Santeria. Additionally, he had taken a course focusing specifically on Santeria. We thus conclude the trial court did not abuse its discretion when it determined that Rios's training was sufficient to qualify him as an expert on Santeria.
Jimenez argues without legal authority that Rios did not qualify as an expert because "[h]e had not read anything on the subject because there is nothing written about it." Although reading about the subject is not required for a witness to qualify as an expert (see Evid. Code, § 720, subd. (a)), this argument, in any event, misstates Rios's testimony. While Rios stated at trial that "there's nothing written about Santeria's practices," Rios's testimony as a whole conveyed that Santeria was based on an oral history and tradition, unlike other "book-based theologies" like Judaism and Christianity. Rios also testified that he was unable to recall specific books he had read about Santeria, just as he was unable to remember on the stand any specific books he read in conjunction with his study of Judaism or Islam. Rios's inability to name a written work on Santeria is not dispositive of his expert witness qualification.
Jimenez also argues that full initiation into the Santeria cult is essential to understand its practices and since Rios had not been initiated, he was not qualified to testify as to its practices. We disagree. The extent of Rios's exposure to Santeria was explained to the jury and the jurors were free to accord their own weight, if any, to his testimony. On appeal, we are not permitted to "reweigh the evidence or redetermine issues of credibility." (People v. Martinez, supra, 113 Cal.App.4th at p. 412.)
Accordingly, we conclude the trial court did not abuse its discretion when it permitted Rios to testify as an expert witness.
D. Confrontation Clause
It is well established that in forming their opinions, experts may rely on any matter "whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates," including hearsay. (People v. Gardeley (1996) 14 Cal.4th 605, 617-619; Evid. Code, § 801, subd. (b).) An expert may also rely on out-of-court statements for the purpose of establishing his or her knowledge on the subject without violating a defendant's Sixth Amendment right of confrontation as the confrontation clause " 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' " (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210, quoting Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 [124 S.Ct. 1354].)
Rios testified that the positioning of the crucifixes beneath Varela's body indicated a damning of the soul in the Santeria religion, basing his opinion on information he received from a course on Santeria and discussions with people that practiced the religion. Notwithstanding that experts may rely on hearsay in their testimony, the out-of-court statements here were not hearsay because they were not offered for the truth of the matter asserted, but rather to bolster Rios's familiarity with Santeria. (See People v. Jurado (2006) 38 Cal.4th 72, 117; Evid. Code, § 1200.) Similarly, because the statements were not relied on for the truth of the matter asserted, Rios's reliance on these statements did not violate Jimenez's right of confrontation.
Even if the trial court abused its discretion in permitting Rios to testify as an expert on Santeria, reversal is not required. Rios's testimony regarding the positioning of the crosses found beneath Varela's body was offered to prove Jimenez acted with premeditation. However, even if this evidence was excluded, there was overwhelming evidence that Jimenez acted with premeditation. Jimenez had a history of physically and emotionally abusing his wife and, on several occasions, expressed his desire to kill her. Jimenez once told a neighbor that it would be easy to kill someone, including his wife, and flee to Mexico. The night before he killed her, Jimenez asked his neighbor to pray for his marriage and was later seen pacing about his yard. Based on this evidence, there is no reasonable probability the jury would have returned a more favorable verdict, i.e. that Jimenez did not act with premeditation when he killed his wife, absent testimony about the positioning of the crosses. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
III
Admissibility of Confession to Officer Santana
Lastly, Jimenez claims the trial court erred in denying his motion to suppress his confession to Officer Santana at the Rialto police station following his return from Mexico. Jimenez argues that based on the totality of the circumstances, it is clear that he did not understand his Miranda rights and that his confession was involuntary. We reject these arguments because the record shows Jimenez validly waived his Miranda rights and there is nothing to indicate that his confession was involuntary.
A. Procedural Background
Prior to trial, Jimenez sought to exclude statements made to Hector Santana, who served as a police officer with the Rialto police department and was assigned in 2002 to the murder investigation. After meeting Jimenez at the Otay Mesa border crossing, Santana brought him to the Rialto police station and interviewed him. Santana testified that prior to questioning, he read Jimenez his rights from a Miranda rights card translated into Spanish. During questioning by the prosecution, Santana read to the court the following part of the transcript pertaining to this interaction:
Santana testified that he was fluent in Spanish and had been certified as an interpreter through the Rialto police department.
"A [Santana/witness]: 'Okay. Now, I'm going to read you your rights. Okay. You have the right to remain silent. Do you understand? I need you to tell me yes or no.'
"Q [Prosecutor]: How did he respond?
"A: Um basically.
"Q: And then what did you do?
"A: I said, 'Okay. I'm going to read it again. You have the right to remain silent. Do you understand? If you understand, tell me yes.'
"Q: What did he say?
"A: 'To remain silent in what way?'
"Q: Keep going.
"A: 'That you will talk to me. Okay. Do you -- I'm going to say it again. You have the right to remain silent. Do you understand?' And he responded yes.
"Q: And then what did you say?
"A: 'Okay. Everything -- everything you say can and will be used against you in a court of law. Do you understand? I need you to say yes or no.'
"He clears his throat, 'Yes. But how -- no, I'm going to tell you the truth about everything that --'
" 'Okay. But we need to --'
" 'Yes but --'
" 'I -- I -- I have to read you these rights because they are your rights and because you're here in the United States.'
" 'Yes.'
" 'Okay.'
" 'But, for example, do you have to mention a lawyer or something like that when you will appoint one or something?'
" 'Yes. You will have an attorney appointed to you, but if you do not wish to speak to me, then you don't have to. I would like for you to talk to me, so that we can find out what happened. Okay. But if you don't want to talk to me, then you don't have to. Okay. Okay. We're going to start over again.'
"He replied, 'Yes.'
" 'And I need -- I need you to say yes or no. Okay. You have the right to remain silent. Do you understand?'
"He kind of mumbled something.
"And then I said, 'And you have to say it.'
"He replied, 'Yes. Yes.'
" 'Anything you say can and will be used against you in court. Do you understand?'
" 'Yes. '
" 'You have the right to an attorney present before and during questioning. Do you understand?'
" 'Yes.'
" 'If you cannot afford an attorney, one will be appointed to you free of charge before questioning. Do you understand?'
" 'Uh-huh.'
" 'Yes or no?'
" 'Yes. That before questioning? I've never been in this.'
" 'Okay. Okay. Do you want to speak to me without an attorney, or do you want an attorney present?'
" 'I don't know --'
" 'Okay.'
" '-- what that would be.'
" 'Did you understand the rights I have explained to you?'
" 'Yes. Yes.'
" 'Okay. Well, what I -- do you want to speak to me [about] what happened between you and Martha that day?'
"There was a sigh.
" 'Do you want to speak to me?'
" 'Well, everything that, yes, about what happened that day. Why not, you know. Okay. But what I wish, like, I need you to promise me that you'll take me to the cemetery right -- right now.' "
Following Santana's testimony, the prosecution argued Santana had read Jimenez his [Miranda] rights several times and ensured that Jimenez understood. Jimenez argued that, based on the frequent interruptions, the "uh-huhs" and "huh-uhs," Jimenez's Mexican nationality, and his "questionable mental state," a valid [Miranda] waiver had not been given and any statements made by Jimenez thereafter should be suppressed.
The court found Santana's recitation of Miranda rights and Jimenez'swaiver sufficient, stating: "Admittedly it was an ugly [Miranda] waiver, but I think the advisal was sufficient under the law, and there is a sufficient waiver that satisfies the requirements of [Miranda]."
Jimenez frames his third claim on appeal as primarily a Miranda issue, namely, that Jimenez did not understand his Miranda rights and did not voluntarily waive them. Respondent responds to the issue in the same manner. However, in reading his opening brief, it appears that Jimenez also is arguing that his confession was obtained involuntarily. To be thorough, this court has responded to both claims of error.
"An appellate court applies the independent or de novo standard of review, which by its nature is nondeferential, to a trial court's granting or denial of a motion to suppress a statement under Miranda insofar as the trial court's underlying decision entails a measurement of facts against the law." (People v. Waidla (2000) 22 Cal.4th 690, 730.) In doing so, however, " 'we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.' [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1092-1093.)
Jimenez argues that he did not understand his rights during his interview at the Rialto police station and that Officer Santana had not obtained a valid Miranda waiver, considering that the officer was unaware of Jimenez's education level, suspected Jimenez had mental problems and could not recall at the Evidence Code section 402 hearing the exact Spanish advisals he read. A valid Miranda waiver must be both "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception" and "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." (Moran v. Burbine (1986) 475 U.S. 412, 421 [106 S.Ct. 1135].) Whether a Miranda waiver is knowing and voluntary is determined under the totality of the circumstances. (People v. Cruz (2008) 44 Cal.4th 636, 668.)
In considering the totality of the circumstances surrounding the interview with Officer Santana, we conclude that Jimenez's responses to Officer Santana's recitation of his Miranda rights reflect a voluntary and intelligent understanding of his rights. Officer Santana read Jimenez his rights several times, interrupting often to ensure that Jimenez understood and answered each question clearly. Although a valid waiver need not be explicit and may be implied from a suspect's conduct (see People v. Medina (1995) 11 Cal.4th 694, 752), Jimenez affirmatively responded "yes" when Officer Santana asked if he understood his rights and declared that he wanted to talk to Officer Santana "about what happened that day." In addition to his express waiver, Jimenez's willingness to respond to Officer Santana's questioning constitutes an implied waiver of his rights. (See Ibid.) Jimenez makes no claim, and there is no indication in the record, of any police coercion. Jimenez had voluntarily returned to the U.S. and turned himself in to police custody. The Miranda waiver was valid.
C. Involuntary
As an initial matter, Jimenez has forfeited this claim on appeal for failing to raise it at the trial level. (See People v. Cruz, supra, 44 Cal.4th at p. 669 [holding that a defendant's motion to suppress a confession based on a Miranda violation does not preserve on appeal a claim that the confession was also involuntary]; People v. Ray (1996) 13 Cal.4th 313, 339 [same].) The record does not indicate any extreme circumstances that would render Jimenez's confession involuntary by law, which would be subject to appellate review despite the absence of an objection at trial. (See In re Cameron (1968) 68 Cal.2d 487, 503 [finding a defendant's confession made while under the influence of a psychiatric drug was involuntary as a matter of law and the defendant's failure to object at the trial level did not preclude raising the issue on appeal].)
Even if Jimenez did not forfeit this claim on appeal, we conclude it lacks merit. In reviewing whether a confession is voluntary, the ultimate question " 'is whether defendant's choice to confess was not "essentially free" because his will was overborne.' " (People v. Massie (1998) 19 Cal.4th 550, 576.) An involuntary confession is predicated upon a finding of coercive police activity, which may be in the form of threats, violence, direct or implied promises, or the exertion of improper influence. (People v. Maury (2003) 30 Cal.4th 342, 404.) This determination is based on the totality of the circumstances, considering " 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' " (People v. Williams (1997) 16 Cal.4th 635, 660.)
Here, Jimenez makes no claim of coercion by Officer Santana. Given Jimenez's almost daily talks by telephone with Officer Santana over a period of several months, Jimenez's voluntary return to the United States, and the conversational nature of the interview, it appears their interaction was cordial. In any event, there is nothing in the record to indicate that the location of the interview was coercive in nature. The interview was also relatively short, lasting only 30 to 40 minutes.
Furthermore, while Jimenez broadly asserts that Officer Santana knew of Jimenez's unfamiliarity with the legal system, occupation, and possible mental problems, he does not explain how these factors rendered the confession involuntary. (See People v. Boyette (2002) 29 Cal.4th 381, 412 [concluding that while a defendant's age, education, literacy, and familiarity with the legal system were relevant to the voluntariness of a confession, a claim that a confession was involuntary will fail absent a link between the factors and procurement of the confession]; People v. Maury, supra, 30 Cal.4th at p. 405 [concluding that coercive police activity and a defendant's statement must be causally linked to render the confession involuntary].) He does not, for instance, claim that Officer Santana attempted to take advantage of Jimenez's possible mental problems or lack of legal sophistication. Instead, he claims only that the totality of the circumstances clearly indicate that the confession was involuntary.
A review of the record indicates that there was no police coercion and no other factors that would have overborne Jimenez's will. We thus conclude his confession to Officer Santana at the Rialto police station was not involuntary.
D. Harmless Error
Even if Jimenez's confession was elicited in violation of Miranda or was involuntary, its admission was harmless beyond a reasonable doubt. (See People v. Cunningham (2001) 25 Cal.4th 926, 994, citing Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824] [harmless error standard applied to statements admitted in violation of Miranda]; Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1246] [harmless error standard applied to admission of involuntary confession].) An error is harmless if there is no reasonable probability that the error contributed to the verdict. (People v. Fulminante, supra, 499 U.S. at p. 310.) " 'To say that an error did not contribute to the ensuing verdict is... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is 'whether the... verdict actually rendered in this trial was surely unattributable to the error.' [Citation.]" (People v. Neal (2003) 31 Cal.4th 63, 86.)
Contrary to Jimenez's argument, we conclude any error in connection to his confession to Officer Santana at the Rialto police station was harmless beyond a reasonable doubt. Jimenez concedes that "[o]ther evidence was introduced to prove what he acknowledged" to Officer Santana, but refers to the confession as an "evidentiary bombshell" that had an "indelible impact" on the jurors. However, Jimenez fails to mention that before his interview at the Rialto police station, he had already confessed to Officer Santana that he killed Varela, and told several friends and family members that he wanted to turn himself in for what he had done. Thus, considering all the other evidence presented by the prosecution and the confessions Jimenez made while in Mexico, Jimenez's conviction was not attributable to his confession to Officer Santana at the Rialto police station.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: HUFFMAN, J., McINTYRE, J.