Opinion
D047296
12-12-2006
THE PEOPLE, Plaintiff and Respondent, v. WARDELL NELSON JOINER, JR., Defendant and Appellant.
On April 22, 2005, a jury convicted Wardell Nelson Joiner, Jr. of first degree murder and found true the special circumstance of intentional infliction of torture. (Penal Code, §§ 187, subd. (a); 190.2, subd. (a)(18).) On September 23, 2005, the court sentenced him to a term of life without the possibility of parole and imposed a parole revocation restitution fine under section 1202.45. On September 30, 2005, he brought a motion for a new trial based on alleged prosecutorial misconduct, and sought dismissal of the special allegation because of insufficient evidence. (§§ 1181, subds. (5), (6).) The court ruled that there was no misconduct, and sufficient evidence supported the special circumstance finding; accordingly, it denied the motion.
All Statutory references are to the Penal Code unless otherwise stated.
Joiner contends his conviction should be reversed because the prosecutor committed prejudicial misconduct during closing argument; the court erred in instructing with CALJIC No. 2.50.02 regarding his uncharged acts of domestic violence; the special circumstance finding should be reversed because trial counsel provided ineffective assistance of counsel by failing to object to a hearsay statement regarding the water temperature in the bathtub at Messners apartment during a videotaped experiment simulating the circumstances of the murder; and, the trial court erred when it imposed a parole revocation restitution fine. We affirm the judgment, but remand to the trial court with instructions to strike the parole revocation restitution fine and correct the abstract of judgment.
FACTUAL AND PROCEDURAL SUMMARY
I.
Wardell Nelson Joiner, Jr. and Vanessa Messner, both enlisted personnel in the Marine Corps, dated when they were deployed to Kuwait and Iraq during 2003. They became engaged to get married while stationed in Iraq. Messner returned to the United States in August or September 2003, and lived with Joiner in an apartment in Fallbrook. By February, 2004, however, their relationship was ending.
On February 11, 2004, Messner did not show up for a 6:00 p.m. appointment to attend a party with some friends — including Timothy Nolan, the enlisted marine she was then dating — despite having confirmed an hour earlier that she would meet them at a designated place. The friends repeatedly telephoned Messner, but got no response.
Records and photographs from a Bank of America branch in Oceanside showed that Joiner used Messners A.T.M. card to withdraw money from her credit union account at approximately 7:30 that evening. According to a waitress at McCabes Beach Club in Oceanside, Joiner went to the club that evening, and she first saw him "after happy hour, so approximately anywhere from 6:00 to 7:30." He stayed there having drinks and watching television until between 10:00 p.m. and 10:45 p.m. Joiner seemed depressed, stressed and preoccupied. He told the waitress that he and his girlfriend were breaking up because she was seeing someone else; and, during a fight earlier that evening, she had stabbed his leg. The waitress told Joiner he should seek medical attention and report the incident to the police. Joiner nodded, but did not say anything.
Afterwards, Joiner went to the home of a friend, Marine Sergeant Ron Current, and they played video games. Joiner also told Current that at about 6:00 p.m., he had fought with Messner and she stabbed him because he had taken away the keys to her truck so that she would not drive while drunk, given that she was 19 years old and therefore underage. Current urged Joiner to report the incident to the police, but Joiner refused. Eventually, Current telephoned 911 and started to report the incident. The dispatcher asked to speak to Joiner, who spoke only briefly because he had difficulty speaking. Current took over and finished filing the report. The dispatcher advised Current that a police officer would contact Joiner at Currents home.
In related testimony, Detective William Altenhof testified that when he spoke to Current the day after Messners murder, Current reported that Joiner had said he pushed Messner down in the hallway and she was still lying on the floor when he left the apartment the previous evening.
At approximately 11:30 that night, Sheriffs Deputy Daniel Perkins received a phone call requesting that he contact Joiner. Perkins telephoned Currents house and spoke to Joiner, who told him that between 5:30 p.m. and 6:00 p.m., Messner had stabbed him with a steak knife when he had stood in the doorway to stop her from going out. She had said she would spend the night elsewhere, and went to get her clothes from inside the apartment. Joiner stated Messner had left the apartment and he had left afterwards. Perkins asked Joiner to come to the police station to have pictures taken of his wound, but Joiner said he could not do so that night. Perkins tried calling Messner a couple of times, but received no response. Perkins also drove to her apartment and knocked on the door, but no one answered. He testified that the lights were not on in the apartment.
When Messner did not show up to work on February 12, 2004, Messners friend, Ashley Kaszniak, and her platoon sergeant, Perry Finzel, went to Messners apartment to check on her. Her truck was on the premises. The apartment door was locked, and no one answered their calls. They peered through a window, and it appeared that a bathroom light was on. They called the police.
At approximately 10:15 a.m. that day, Deputy Sheriff Jeffrey Schmidt and other sheriffs deputies responded to a call to check on Messners welfare at her apartment. They met Finzel there, knocked on the apartment doors and windows, but received no response; therefore, they obtained a pass key to the unit from the apartment manager. In the bathroom, they discovered Messners body submerged in water in the bathtub. Her face was covered by a small, circular-shaped film of foam. Her hands were wrinkled, indicating she had been in the water for a considerable time. There was no water on the floor, and no signs of a struggle.
At approximately 11:00 oclock that morning, Detective Patrick Gardner was called to Messners apartment to investigate the circumstances of her death. A search warrant was obtained and investigation of the crime scene began at approximately 6:49 p.m. The team of detectives found that the home telephone was working, and there was no sign the apartment had been forcibly entered. They searched inside Joiners car and found several of Messners identification cards, including her drivers license and a Marine Corps ordnance card.
That same day, Detective James Walker, as part of his investigation, performed a physical examination of Joiner. He did not find what he would call a "stab wound," but rather what he described as a "very tiny, just a little scrape" on Joiners left thigh. There were no defensive marks anywhere on Joiners hands or body, which was contrary to the detectives expectation given Joiners claim Messner had stabbed him. Walker testified Joiner had on his person the keys to Messners truck, her A.T.M. card and $43.86 in cash.
Dr. Glenn Wagner, the Chief Medical Examiner for San Diego County, received a call regarding Messners death at approximately 1:00 p.m. the same day. He arrived at the crime scene to perform the autopsy at approximately 9:30 that night. When Wagner removed the body from the tub, he noticed that although Messners body was in rigor mortis, there was great mobility in her neck, which was broken. He found bruises on her neck that were consistent with strangulation and wringing of the neck. He also found other bruises on her wrist, both biceps, and right hip; and lacerations on her lips. He testified the broken neck would have produced instantaneous paralysis, but not death. As Dr. Wagner put it, "In the absence of anything else, we would fuse that area, and, eventually, sensation would return to the spinal cord. This injury, itself, isnt a fatal injury." Dr. Wagner could not ascertain whether Messner was awake or conscious when she was placed in the tub.
Dr. Wagner testified that Messner subsequently died by drowning, as evidenced by, among other things, the pulmonary edema or foam in the bathtub, indicating she was still alive when placed in the tub of water. He also testified that death by drowning involves "a period of panic and gasping, which can be quite long, a minute and a half or longer, followed by an area of quietness and then convulsions followed by death. In most cases . . . unconsciousness takes anywhere from three to ten minutes, and death occurs in 13 minutes." He estimated Messners death "most likely, occurred either late in the evening of [February 11] or possibly in the morning hours of the 12th of February." He added, "It could certainly be three or four hours on either side" of that time estimate.
II.
The People filed a motion in limine to admit into evidence Joiners prior uncharged acts of domestic violence under Evidence Code section 1109. Joiner opposed the motion, but the trial court granted it. Accordingly, the jury heard testimony from Messners friends, Ashley Kaszniak and Christine Barliani, that Joiner did not like it when Messner dressed in tight jeans, short skirts and tank tops to go out dancing. One night, after Messner had returned to California from Iraq, Messner was dressed in a short skirt and tank top, and was about to leave the apartment that she and Joiner shared to attend a party. Joiner grabbed her arm and told her he did not want her wearing such clothing. However, Messner did not change her clothes when she left the apartment with her friends. Joiner told Messner, "Fuck you, then," and followed them, holding a baseball bat in his hand. Messner and her friends did not go to the party, but instead stayed at one of the friends apartment, and locked the doors. The next day, the friends discovered that overnight one of the windows of Messners truck had been smashed.
Approximately one week before Messner was killed, she attended a party that was held at a marines off-base residence for some friends who were being deployed to Iraq. She and other marines participated in a drinking game called "body shots," in which some members of one gender lay on their backs in a row on the floor. An alcoholic drink was poured on their navels or in a glass placed on their navels and marines from the opposite sex drank the alcohol. Messner took a "body shot" from a males body, and afterwards got on the floor with other women, and alcohol was placed on the womens bodies. When a man was about to take a "body shot" from Messners body, Joiner became angry and violently grabbed her from the floor and took her outside. An argument ensued between Joiner and Messner. Several of her friends observed Joiner grab her arm while they argued.
Christopher Elmore, a marine who was outside, witnessed the argument off and on for approximately forty minutes. Joiner appeared a lot angrier than usual, and whenever Messner said something Joiner did not like, he held her arm behind her back and squeezed it harder and moved it to the center of her back. This upset Messner, who made it obvious to Elmore she did not want to be there. Messner asked Elmore for a ride three or four times. Elmore agreed to take her home, but Joiner insisted he would take her home, despite Messners refusal to leave with Joiner. Eventually, Elmore told Messner he would wait for twenty minutes in his car in case she still needed a ride. After that time elapsed, Elmore rejoined them and asked Messner if she was going to be alright. Joiner said "yes," and that he was going to take her home. Elmore left them and drove away.
Messner also approached two other marines, Carlo Valle and Elba Estremera, who were in the same vehicle, and asked them for a ride. However, they had no room in the vehicle. To them, Messner appeared frightened as she sought to get away from Joiner, who grabbed her arm and pulled her away from Valles vehicle. Joiner firmly told Valle and Estremera to leave because it was none of their business. As Valle drove off, Estremera saw Joiner again grab Messners arm when Messner tried to break away from him.
At some time after the party, Joiner questioned Lance Corporal Cunningham about Messner, asking whether she was seeing anyone; if she spoke of Joiner; if she still loved Joiner; and whether Joiner had cause to be jealous of her. In February 2004, Messners friends understood that her relationship with Joiner was over, and that she was making preparations to move out of the apartment she shared with him.
III.
During rebuttal argument, the prosecutor characterized the defenses theory — as presented in its closing argument — this way: "[W]hen the defendant left the apartment, he left her still on the floor, in the hall, and after he left, someone must have come in, choked her or broke her neck or something and then put her in the bathtub. It must have been somebody else that came into the apartment afterwards."
The following exchange occurred.
"[Prosecutor:] One final thing: Somebody else in that apartment? [Joiners] got her car keys. He took them. He told Ron Current that, and Detective Walker recovered them. Hes driving his car. Thats at Ron Currents house, on base. [¶] "Thats a deadbolt, can only be locked from the outside.
"[Joiners counsel:] Objection. Theres no evidence of that.
"The court: Sustained.
[Prosecutor:] Thats in evidence, marked Peoples exhibit 2. Peoples 2 shows it. If the court will allow the jurors to take a magnifying glass that I provided back with them, they can look right there at the doorknob. Theres a deadbolt above it.
Joiner requested that we view this and two other exhibits pursuant to California Rules of Court, rule 18. We have done so.
"He had all the keys, no signs of forced entry to the apartment. The game is over. The blinds were shut. The time line fits. The domestic violence evidence shows solidly that it was him. He acted cold as ice, and that fit the crime, using her A.T.M. card so he could go down and have cocktails and watch the basketball game, have some beers at Ron Currents and play videos with his friends.
"The door was deadbolted. Thats what Peoples exhibit 2 shows. Identity is not an issue here. He, alone, had the motive and opportunity to commit this crime. No one else had the motive, the opportunity."
During deliberations, the jury sent the court a message that stated, "Request use of magnifying glass to help them in identifying pictures." In a discussion in chambers regarding the request, Joiners counsel stated, "It was not suggested during the presentation of evidence, when you had the deputies here to say, `I noticed it was a deadbolt, or when you have people saying, `I looked around for signs of forced entry, and I noticed the lock was a deadbolt lock, but [the prosecutor] is now characterizing in a way that I dont think is proper because there was no testimony to that effect.
"He could have asked any of the deputies or detectives that were present in this case whether it was a deadbolt lock, what that means, and they could have explained. Hes characterized it, and there wasnt any testimony to that effect.
"Thats all Im requesting, that the note that there was no testimony to describe the type of lock on the door at apartment 63. Im not asking them to refute his argument, just to say what the state of the evidence was. Its not what he said in his argument, that its a deadbolt." (Emphasis added.)
The prosecutor responded that by sending the magnifying glass, in effect "the court sends a message back that says, `well, here, you can look at it, but theres nothing that says what the prosecutor says it is. It is what it is. Let the jurors determine that.
"Deadbolt locks are not locks on door knobs. That looks like a deadbolt lock. Whether they think it is or not is up to them. They can agree with me, or they can disagree with me. Thats interfering with the fact-finding function of the jury."
The court denied the defenses request for the additional instruction by stating, "Well, I dont think at this point, without a question from the jury, that it would be the courts position to send in a note and discuss argument. Argument is just that." (Emphasis added.)
IV.
The People filed a motion in limine to introduce into evidence a videotape of an experiment that was conducted nine months after the murder, and described the experiment as follows: "The prosecution enlisted the help of Special Agent Lucy Harris of the Naval Criminal Investigative Service for a reenactment of Messners drowning. Agent Harris, at 56" and 135 pounds is a near body-double for Messner in terms of her height and weight as measured at the time of her death by the Medical Examiner. On November 11, 2005, Agent Harris, Detective Gardner, and a team of Sheriffs Crime Laboratory forensic technicians returned to the same apartment and determined the minimum amount of time it took for the defendant to submerge his victim. The water level as measured at the crime scene was marked on the tub and Agent Harris (equipped with a snorkel and nose plugs) was placed and positioned in the tub exactly as Messner was found, using photos from the crime scene. The water spigot was originally found to be in the 11 oclock position, but it was too hot for Harris, so it was turned slightly. The water was then turned all the way on and the filling of the tub was videotaped. The water level reached Agent Harriss nose and mouth at approximately five minutes and the tub reached its maximum capacity as found by the detectives at six minutes, 31 seconds."
At trial, Detective Patrick Gardner, who participated in setting up and directing the experiment, gave similar testimony regarding the way it was conducted. He reiterated that the detectives sought to determine the fastest speed with which the tub would be filled. On cross-examination, Joiners counsel at length challenged the way the experiment was conducted. He elicited testimony that it never was duplicated or recreated to see if there were any variables regarding the time it took to fill the tub.
The following is part of the relevant transcript of the cross-examination of Detective Gardner:
"Q. On [the day of the experiment] did anybody turn the water on in the tub after [detective Harriss] body was removed to see the flow of water that day?
"A. No.
"Q. Did anybody conduct any type of experiment or reenactment regarding the tub and the water on that day?
"A No.
"Q. In the reenactment, the video we were shown earlier, would you describe the water flow from that tub as weak?
"A. Yes.
"Q. And when you use that term, describing it as weak, is that less than what you would expect from a tub with the water turned on full?
"A. Yes, sir, thats correct.
"Q. If the water would have come out of a faucet at a rate that you would call stronger than weak, maybe normal, would it take more time to fill up the tub or less time?
"A. Less time."
During the hearing on the in limine motion, Joiners counsel explained his understanding of the probative value of the videotape as follows, "[I]t allows the prosecution to display for the jury the simple issue of displacement in time. By choosing someone who is the same size and the same general physical dimensions, they have satisfied their requirement that the person in the tub is going to have roughly the same displacement as Ms. Messner; and as a result, when they filled that tub with water in November, showing that will graphically represent to the jury the reality of how long it took for Mr. Joiner to fill the tub with Ms. Messner involved.
"Thats crucial to their case as part of their proof that they put on to the jury rather than just being able to say its six and a half minutes. They can show what six and a half minutes looks like with a person of the same dimensions as Ms. Messner, and thats valuable to them, and I agree."
However, Joiners counsel objected that the videotape would have the prejudicial effect of substituting in the jurors minds the video of the reenactment, specifically how the victim came to assume the final position in which she was found approximately twelve hours after her death, for the reality of what happened to her from the moment she was placed in the bathtub until she died.
As a compromise, Joiners attorney proposed, and the prosecutor agreed, that during trial the jury would watch in silence while the video player was in pause mode for five minutes. Afterwards, they would start watching the videotape in play mode for the remaining minutes that Dr. Wagner had estimated it took for Messner to die. The point of the compromise was to capture the time it took to fill the tub, and see the detectives body in the tub during the final moments of the experiment, but without seeing the complete experiment from the start because there was no evidence regarding Messners actual reactions or movements during her final minutes of life. The court agreed in part with Joiners counsel regarding prejudice, and accepted the compromise.
DISCUSSION
I.
Joiner contends his conviction must be reversed because of prosecutorial misconduct. We disagree. According to Joiner, "The prosecutor committed misconduct at [the] trial by making his argument about the deadbolt after it was too late for [Joiner] to respond. The prosecutor authoritatively asserted that a photograph of the apartment door depicted just one lock — a deadbolt that could only be operated from outside the apartment. The timing of the prosecutors argument denied [Joiner] the opportunity to present evidence or argument in rebuttal." " `It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] There are, indeed, certain exceptions. For example, the rule is inapplicable when the harm could not have been cured. [Citation.] But there is no exception for capital trials as such." (People v. Rowland (1992) 4 Cal.4th 238, 274.) A defendants claim of prosecutorial misconduct is barred in its entirety when the defense counsel, in the trial court, did not object to comments that on appeal defendant claims constituted prejudicial misconduct, and furthermore, the record does not disclose grounds for applying any exception to the general rule requiring both an objection and a request for a curative instruction. (People v. Fry (1998) 18 Cal.4th 894, 970.)
Here, Joiner did not timely assign error on the specific basis of misconduct. When the prosecutor made the statement regarding the deadbolt, Joiner objected only that no evidence supported the claim. The trial court sustained the objection. Joiner made no motion to strike, and did not request a jury admonition. There is no reason to believe an admonition would have been ineffective in this case.
In any event, Joiners claim fails on the merits because he cannot show prejudice. He claims, "The defense in this case was alibi, coupled with a theory that an unidentified individual entered the Fallbrook apartment after [Joiner] left and committed the homicide." "The applicable federal and state standards regarding prosecutorial misconduct are well established." A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct `so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves `"`the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" (People v. Hill (1998) 17 Cal.4th 800, 819.)
The prosecutors comments should be considered in context and must be evaluated in light of the defense argument that preceded it. (People v. Loustanau (1986) 181 Cal.App.3d 163, 175.) A prosecutor is given wide latitude during argument, which may be vigorous as long as it amounts to a fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. During summation, counsel may also state matters not in evidence, but which are common knowledge or are illustrations drawn from experience, history or literature. (Ibid.) Here, the context for the rebuttal argument was the insinuation by Joiners attorney that Nolan — more than Joiner — had the opportunity and motive to kill Messner.
The defense attorney argued, "[T]here was only one witness that seemed to feel pressed by the questions that were put to him. Its a witness that said hes the type of guy that if he thinks something is wrong, hes going to go beat somebody up. Hes the witness that says when his feelings are hurt, he gets pissed and hell blow people off.
"This is a witness that other witnesses said on the night of February 11th was in Fallbrook. Its a witness that other witnesses said was dating Vanessa Messner at the time, Sergeant Timothy Nolan. When I asked him about confronting Mr. Joiner, he asked me what I would do if someone was beating on my wife. This was a woman that, he says, he only had one date with, and the comparison he made was, `Well, what would you do if someone was beating on your wife? Wouldnt you do something?
"If theres evidence that someone has anger issues, wants to act violently, we heard it from someone who took the stand. If theres evidence that someone was in Fallbrook on the night of February 11 and had a relationship with Vanessa Messner, we heard it from the stand.
"You know, I dont have to prove anything here. I dont have to prove who did it. I dont have to prove how it happened. But my fear is that youll look at all this and youll say, `certainly, Mr. [Defense Attorney], between Sergeant Nolan and Mr. Joiner, Id have to convict that guy. Thats not the way its supposed to work."
Even if Joiner had assigned prosecutorial error at trial, and the trial court found the prosecutors comment regarding the deadbolt was improper because it referred to evidence outside the record, it was not reversible misconduct because any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Based on the totality of the evidence, we conclude there was overwhelming evidence of Joiners guilt. Joiner admitted to several individuals that he had fought with Messner around 6:00 p.m. on the day she was killed. He even told an officer that he had left her on the floor in the hallway. He used Messners A.T.M. card to withdraw money. Despite prompting from the waitress at the club, he did not call the police earlier in the evening of February 11th. Also, when he was being investigated on February 12th, he had in his possession Messners identification cards, including a drivers license; her A.T.M. card; and her truck keys.
Although different witnesses placed Joiner at specific locations during the evening of February 11, they did not account for the entire time period covered by Dr. Wagners testimony regarding the time of Messners death. Dr. Wagner did not give a specific time of death, but stated it could have occurred three or four hours before "late evening," on February 11th. Therefore, the murder could have taken place as early as 6:00 p.m., when Joiner admitted he fought with Messner.
Upon analysis of the overwhelming evidence of guilt, Joiners alibi proves to be a flimsy construct. No trial evidence recorded Joiners whereabouts during the crucial time between 6:00 p.m., when he claims he and Messner fought, and 7:30 p.m., when he used her bank card. The logical inference is that he was with her. Notwithstanding the defenses insinuation that someone else — in particular Nolan — had committed the crime, when defense counsel had an opportunity to cross-examine Nolan, he never asked him regarding his whereabouts at any hour on the evening of Messners death; whether he had a key to her apartment; or whether he had any motive or opportunity to kill her.
Similarly, although Joiner makes much of the disputed testimony regarding whether the light was on in the apartment the night of February 11 and the morning of February 12, that difference in testimony was not sufficient to substantiate an alibi defense, especially considering the overwhelming evidence of Joiners guilt, discussed above.
II.
Although Joiner opposed the Peoples motion in limine to introduce evidence related to his prior uncharged acts of domestic violence, the court ruled the evidence admissible. At trial, Joiner never objected to instruction with CALJIC No. 2.50.02, or sought modification of the instruction. His failure to do so bars review of this contention on appeal. Joiner does not object to any specific testimony regarding his prior uncharged acts of domestic violence. Instead, he contends the instruction was erroneous, and, furthermore, "Because the evidence of uncharged acts involved a uniformly low level of violence or threatened violence, the trial court needed to carefully tailor its instruction that told the jury how evidence of the uncharged acts could be used to resolve the murder charge."
The trial court ruled, "Pursuant to [Evidence Code, section] 1109, it would seem to the court that the balancing the court must do under [Evidence Code, section 352] is such that the proffered domestic violence acts evidence is not more prejudicial than probative; the fact that it will take some additional time in presenting the evidence does not convince this court that it is more time-consuming than it is probative; and finally, inasmuch as the relationship between the parties was approximately a one-year relationship, anything remote in time is, by any standard, not very remote. So the [Evidence Code, section 1109] evidence will come in."
"Defendants failure to request such clarifications at trial bars appellate review of the issue." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.) Joiner was required to request amplification of the instruction if he considered it was necessary. "A defendant is not entitled remain mute at trial and scream foul on appeal for the courts failure to expand, modify, and refine standardized jury instructions." (People v. Daya (1994) 29 Cal.App.4th 697, 714.)
At any rate, addressed on the merits, Joiners claim fails. Contrary to his contentions, the instruction did not violate his due process rights or "create an illogical inference" that because he committed acts of domestic violence he also committed murder. "CALJIC Nos. 2.50.01 and 2.50.02 are virtually identical in defining permissible use(s) of, respectively, evidence of a prior `sexual offense or a prior `offense involving domestic violence as proof of the defendants propensity to commit a similar offense as charged in the current case. Because there is no material difference between CALJIC No. 2.50.01 and 2.50.02, cases decided with respect to these instructions are — at least for present purposes — unchangeable." (People v. Escobar (2000) 82 Cal.App.4th 1085, 1097, fn. 7.) "The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under . . . [Evidence Code,] section 1101, otherwise . . . [Evidence Code,] section [1109] would serve no purpose." (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.) Joiner argues, "It would have probably been appropriate for the court to instruct that, if it found the uncharged events occurred, it could infer that [he] had a disposition to commit offenses involving domestic violence." It is logical that prior uncharged incidents of domestic violence would lead to an inference of culpability for murder, precisely because murder is a crime that often is the ultimate example of domestic violence.
CALJIC No. 2.50.01 instructs regarding evidence of other sexual offenses based on Evidence Code, section 1108. CALJIC No. 2.50.02 instructs regarding evidence of other domestic violence based on Evidence Code, section 1109.
CALJIC No. 2.50.02 expressly states, "However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offense." The instruction also includes this cautionary statement, "If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime." As the California Supreme Court has stated approvingly, this language "provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof for a conviction of the charged offenses." (People v. Reliford (2003) 29 Cal.4th 1007, 1016.)
On appeal, Joiner contends, as he did in similar language in closing argument, "There was no evidence, however, that Messner sustained any significant injury as a result of [Joiners prior uncharged acts of domestic violence]. Although many people observed these events at different times and in various contexts, there was no evidence that anyone reported it to law enforcement." CALJIC No. 2.50.02 instructed the jury to decide what weight, if any, to ascribe to the testimony regarding the uncharged domestic violence incidents. The trial court applied the safeguard of Evidence Code, section 352 to determine that the probative value of this type of evidence exceeded its potential for prejudice. "This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of [evidence of prior uncharged acts of domestic violence]," Joiners due process rights were protected. (People v. Falsetta (1999) 21 Cal.4th 903, 917-918.) The Falsetta court also found that Evidence Code, section 1108 survived the defendants due process challenge. (Falsetta, at p. 922.) Moreover, the jury was separately instructed in the language of CALJIC No. 2.90 regarding the presumption of innocence and the reasonable doubt burden of proof. The trial court did not err by instructing in the language of CALJIC No. 2.50.02.
III.
We reject Joiners contention he received ineffective assistance of counsel because his trial counsel failed "to object to evidence derived from a law enforcement experiment that suggested [Joiner] tortured Messner by filling the tub with hot water," and therefore the special circumstance allegation of torture should be set aside and the case remanded for retrial of that allegation. Joiner explains, the "testimony the water temperature was too hot for Agent Harris to stay in the tub . . . was inadmissible for two reasons. First, it was hearsay not subject to any hearsay exception. Second, it was the product of an experiment that lacked a proper foundation."
Based on the deferential scrutiny that we apply to the trial counsels performance, Joiner has not established prejudice, which he must affirmatively prove. (People v. Ledesma (1987) 43 Cal.3d 171, 216; 217.) The familiar two-prong test for claims of ineffective assistance of counsel, outlined in Strickland v. Washington (1984) 466 U.S. 668, 686-687, requires a defendant to demonstrate the attorneys deficient performance and resulting prejudice. If the second prong is not established, the reviewing court should reject the claim without analyzing the first prong. (People v. Kipp (1998) 18 Cal.4th 349, 366-367.) Here, we have no need to analyze the first prong.
The Prosecutor, during rebuttal argument, specifically disavowed that the torture allegation related to the water temperature. He stated, "Scalding is not the torture theory. Dr. Wagner didnt talk about scalding from hot water. All the testimony from Dr. Wagner was about drowning. Its not a scalding death. There was no testimony from Dr. Wagner that she suffered any type of burns on her body. He testified she suffered pain, indicative to malice, added indifference to life. That is the torture we are alleging." Furthermore, Dr. Wagner provided substantial evidence regarding the special circumstance that "[t]he murder was intentional and involved the infliction of torture." (§190.2, subd. (18).) His testimony regarding drowning as a form of torture was not predicated on the use of hot water. He testified drowning involves "a period of panic and gasping, which can be quite long, a minute and a half or longer, followed by an area of quietness and then convulsions followed by death. In most cases . . . unconsciousness takes anywhere from three to ten minutes, and death occurs in 13 minutes."
We recognize, as Joiner points out in his reply brief, that the Prosecutor also stated in closing argument that, "The fact that the water was hot goes to show that the defendant was cold in his treatment of her. Who said the water was hot? Agent Harris, the naval criminal investigative services agent. She said, "Turn the water down." Thats who said the water was too hot." Again, this statement was essentially a comment on the conditions that obtained during the experiment, not at the time of Messners death. The reference to Joiners state of mind did not relate to the torture allegation, but to the claim Joiner was cold in his treatment of Messner.
Joiners decision to place Messner in a bathtub full of water, after he had strangled her, broken her neck and immobilized her, demonstrated his intent to inflict on her extreme pain. Under the language of CALJIC No. 8.81.18, regarding the special circumstance, "Awareness of pain by the deceased is not a necessary element of torture." Accordingly, we reject Joiners contention that "the strongest evidence of intent to torture was evidence that [he] filled the bathtub with unreasonably hot water."
Although Joiner contends in his opening brief that the evidence related to the experiment was excludable because no proper foundation was laid, he concedes in his reply brief, "Appellant does not claim trial counsel was ineffective because he agreed the prosecutor could use the experiment to show how long it took for the bathtub to fill, and agreed to let the prosecutor play a portion of the video for the jury." He also concedes that he, "does not believe he could show prejudice from the redacted video of the bathtub filling with water." We agree.
IV.
The People concede, and we agree, a parole revocation restitution fine is inappropriate when the defendants overall sentence does not anticipate a period of parole. (People v. Petznick (2003) 114 Cal.App.4th 663, 687.) This error must be corrected on remand.
DISPOSITION
The judgment is affirmed. The matter is remanded and the trial court is directed to amend the abstract of judgment to strike the parole revocation restitution fine under Penal Code, section 1202.45, and forward the amended abstract to the Department of Corrections and Rehabilitation.
We Concur:
HUFFMAN, Acting P. J.
NARES, J.