Opinion
G044151 Super. Ct. No. 07HF1539
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. WESTON SCOTT KRUGER, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed as modified.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Weston Scott Kruger of murder based on a felony murder theory. He appeals on two grounds: his constitutional right to confrontation was violated when the supervising forensic pathologist testified based on the autopsy report of another pathologist who did not testify and the court erred in instructing the jury as to one continuous transaction.
Although the court sentenced defendant to 25 years to life in prison, the minute order and abstract show defendant was sentenced to 15 years to life. We remand for the court to amend the abstract to reflect the correct 25-years-to-life sentence. Otherwise we affirm.
FACTS
After entering a liquor store owned by Catherine Tran and Hao Huynh defendant picked up an adult magazine, rolled it up, and put it in his pocket. When he went to the counter Huynh accused him of taking it. Defendant denied it and they argued. Defendant then took a red shirt from his pocket and threw it at Huynh before leaving the store. Huynh followed him and in his attempt to retrieve the magazine he tore a piece from a page. Defendant then rushed Huynh, "'floor[ing]'" him and pushing him to the ground, where Huynh fell on his back and hit his head on the concrete.
William Mecham witnessed the events beginning from the time defendant threw something at Huynh. Although he did not see defendant push Huynh, he did see Huynh "come flying through the air and hit his head on the pavement . . . ." Defendant then stood over Huynh "taunting and yelling at him."
Thereafter, Dylan Taylor, a friend of defendant's, came out of a nearby bar, told defendant "get out of here," and went to help Huynh. Defendant left the scene. When police later searched his house they found the magazine he had taken with part of a page torn off.
Huynh was taken to the hospital where he died two days later of blunt force head trauma.
Defendant took the stand in his own defense. Among other things, he admitted that, while in the liquor store, he put the magazine in his pants and intended to take it without paying for it. After denying Huynh's accusation of theft, he left the store with the magazine; Huynh followed him out. Defendant claimed he then threw the magazine at Huynh and started to walk away, intending to return the magazine. When defendant ran away after pushing Huynh, he had the magazine in his hand. But he did not recall picking it up. When he returned home he hid the magazine because his girlfriend hates adult magazines.
DISCUSSION
1. Pathologist's Testimony
Dr. Halka, a forensic pathologist, performed the autopsy on Huynh and prepared a report. By the time of trial he had retired and his supervisor, Dr. Anthony Juguilon, the chief forensic pathologist who has performed more than 5,000 autopsies and supervised an additional 600, testified as to the cause of death. Juguilon reviewed the autopsy report, including the summary of the police reports, photographs, and diagrams contained within it and, based on his review of the documents, testified the cause of death was blunt head trauma.
Specifically, he stated there was a 4 by 1.2 centimeter bruise on the scalp. The brain was removed from the skull and when weighed was heavier than normal showing there had been subdural bleeding and bleeding near its surface. There were bruises on the front, middle and back of the brain. These all support a finding of blunt head trauma. There was no evidence of other illnesses, disease, or other causes of Huynh's death, including alcohol or drug use. There were puncture marks from needles on the wrist caused by care from paramedics.
Although the report did not mention it, Juguilon testified the photographs showed bruises and scrapes on Huynh's elbows but it was not possible to tell how old they were based on pictures. The report did not mention bruising on the back.
The autopsy report was not admitted into evidence, although three diagrams, one showing a diagram of Huynh's body and two with different views of his skull, came in.
Defendant argues that because Halka did not testify, defendant was denied his Sixth Amendment constitutional right to confront the witness and Juguilon's testimony was hearsay. Further, he claims, there was evidence of intervening medical care between the time of Huynh's fall and death, and defendant was unable to cross-examine Halka as to any alternative cause of death. He points to the injured elbows, complaining the report did not specify their appearance or their age.
"The Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" (Crawford v. Washington (2004) 541 U.S. 36, 42 [124 S.Ct. 1354, 152 L.Ed.2d 177].) In Crawford the court ruled the confrontation clause prohibits admission of out of court "testimonial" statements unless the witness testifies or is unavailable, the defense having had an opportunity for cross-examination. (Id. at pp. 53-54, 68.) Although the court did not define testimonial statements, it explained the term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Id. at p. 68.)
In People v. Geier (2007) 41 Cal.4th 555, our Supreme Court held a laboratory director could testify as to a DNA match based on a report prepared by a different analyst, ruling that a DNA report is not testimonial. (Id. at pp. 594-596, 605, 607.)
Subsequently the United States Supreme Court handed down Melendez-Diaz v. Massachusetts (2009) 557 U.S. _ [129 S.Ct. 2527, 174 L.Ed.2d 314], which held that sworn statements of chemical analysts who performed tests of suspected illegal substances at the direction of police were testimonial statements "rendering the affiants 'witness' subject to the defendant's right of confrontation under the Sixth Amendment." (Id. at p. _, 129 S.Ct. at p. 2530.)
After completion of briefing in our case the United States Supreme Court decided Bullcoming v. New Mexico (2011) ____ U.S. ____ [131 S.Ct. 2705, 180 L.Ed.2d 610] where it held that a testimonial out-of-court statement is not admissible unless the preparer of the statement testifies or is unavailable and the defendant has had the opportunity for questioning. (Id. at pp. _ - _, 131 S.Ct. at pp. 2716-2717.) The out-of-court statement was a report of the defendant's blood alcohol level, which was admitted under the business records hearsay exception. The witness testified merely as to the report's contents and had no personal opinion as to the blood alcohol content. In the matter before us the parties did not request supplemental briefing on Bullcoming and none is necessary since we do not decide the case based on it.
The record shows the autopsy report was not admitted and defendant did not object to the diagrams that did come in. Therefore there is no testimonial statement. Rather, Juguilon testified as to the cause of death relying on evidence from the autopsy. There is no case interpreting Crawford that prohibits an expert from testifying in reliance on evidence contained in another scientist's report. Geier rejected the claim that results of testing could be admitted only through testimony of the party who conducted the test. (People v. Geier, supra, 41 Cal.4th at p. 607.) Defendant was free to cross-examine Juguilon as to his conclusions about the cause of death, including the needle marks and the bruised elbows, which he did.
Moreover, even if Juguilon's testimony was improper, error, if any, was harmless. Confrontation clause violations are subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. (People v. Geier, supra, 41 Cal.4th at p. 608.)
Contrary to defendant's argument there was no dispute about the cause of death. The only thing in the record defendant cites is his own testimony where he denies rushing at Huynh and claims he merely "shoved him." He also stated he did not think Huynh was "injured like that." But he admitted he was taller than Huynh and that Huynh "went straight down" when he "shoved him." He knew Huynh was "hurt" and "had at least a concussion." He further testified he saw Huynh "shaking" and "vibrating" and knew he was having a seizure.
Mecham and Taylor both testified Huynh "flew through the air and landed on his head," hitting the cement. Mecham said it looked like Huynh "had been hit by a car." Taylor heard him begin "to snore" and believed he was "choking to death." Mecham said Huynh "was either unconscious or losing consciousness. . ." and "absolutely" "was in severe medical distress."
There is no evidence of an alternative cause of death. There was nothing to suggest the needle marks made by paramedics were anything other than that nor do the bruised elbows present any evidence of another cause. The jury had nothing else to consider but the head trauma, which was supported by virtually all the evidence. Juguilon's testimony did not prevent the jury from "draw[ing] inferences about the cause of death from other testimony" as defendant argues, because there was no other testimony that would support such inferences.
2. CALCRIM No. 549
Defendant was charged with felony murder based on commission of a robbery. Over defendant's relevancy objection the court gave CALCRIM No. 549, the instruction defining felony murder based on one continuous transaction, which provides: "In order for the People to prove that the defendant is guilty of murder under a theory of felony murder the People must prove that the [r]obbery or attempted [r]obbery and the act causing the death were part of one continuous transaction. The continuous transaction may occur over a period of time and in more than one location. [¶] In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors: [¶] 1. Whether the felony and the fatal act occurred at the same place; [¶] 2. The time period, if any, between the felony and the fatal act; [¶] 3. Whether the fatal act was committed for the purpose of aiding the commission of the felony or escape after the felony; [¶] 4. Whether the fatal act occurred after the felony but while the perpetrator continued to exercise control over the person who was the target of the felony; [¶] 5. Whether the fatal act occurred while the perpetrator was fleeing from the scene of the felony or otherwise trying to prevent the discovery or reporting of the crime; [^] 6. Whether the felony was the direct cause of death; [¶] AND [¶] 7. Whether the death was a natural and probable consequence of the felony. [¶] It is not required that the People prove any one of these factors or any particular combination of these factors. The factors are given to assist you in deciding whether the fatal act and the felony were part of one continuous transaction."
In a motion for new trial defendant argued it was error to give the instruction because it was misleading. The jury was instructed as to larceny, but the court never explained larceny was not a felony within the felony-murder context and did not instruct as to the difference between a misdemeanor and a felony. The court denied the motion, ruling the instruction was proper.
On appeal defendant points to the instruction in CALCRIM No. 549 that the jury should "consider the time period between the felony and the fatal act, and whether the fatal act occurred after the felony . . . ." He argues this "impl[ies] . . . the petty theft inside the liquor store was the underlying felony" but in reality it only "began as a misdemeanor." He asserts that one continuous transaction is not relevant unless the initial theft of the magazine inside Huynh's store was a felony, which, he argues, it was not. He maintains giving CALCRIM No. 549 "confused the jurors into thinking [he] committed a felony when he initially committed petty theft by shoplifting a magazine."
Instead, he contends, the same act caused the death and made the robbery a felony. Defendant points to his testimony that, once he took the magazine from the store and Huynh chased him, he threw the magazine back at Huynh and gave up his attempt to steal the magazine before he hit Huynh. If the jury found this testimony credible, it would still convict him because, based on the improper instruction, it would believe defendant hit Huynh while running from a robbery in the store. Thus, it "would not need to analyze whether the later struggle between [defendant] and Huynh was a robbery."
The Attorney General appears to concede the instruction was not proper, her only argument being it was harmless error. Giving a correct but irrelevant instruction generally is "'"only a technical error which does not constitute ground for reversal."' [Citation.]" (People v. Cross (2008) 45 Cal.4th 58, 67.) Without deciding the propriety of the instruction, but considering the instructions as a whole (ibid.), we agree that even if the facts did not support giving it, it was not reasonably likely the jury misapplied or incorrectly relied on it. (People v. Smithey (1999) 20 Cal.4th 936, 963.)
CALCRIM No. 549 was only one of several instructions given as to the felony murder. CALCRIM No. 540A made it clear the prosecution had to prove defendant committed or attempted to commit robbery and while doing so caused another person to die. The robbery instruction advised that the prosecution had to prove defendant took property of another with the intent to steal and using force or fear. (CALCRIM No. 1600.) It amplified that theft becomes robbery if the defendant uses force or fear to take the property away even though he initially obtains it without force of fear. (Ibid) And CALCRIM No. 549 itself instructed that the underlying felony was robbery, not larceny as defendant suggests. Further, the court articulated that not all instructions would necessarily apply. (CALCRIM No. 200.) We presume the jury followed instructions (People v. Prince (2007) 40 Cal.4th 1179, 1295) as directed (CALCRIM No. 200).
Further, the prosecutor's arguments made clear that the jury could convict defendant of felony murder only if it found he committed robbery. In closing argument the prosecution barely mention one continuous transaction; without citation from the parties, we found only one sentence.
Moreover, defendant's lawyer also argued the prosecution had to prove robbery to prove felony murder. Counsel further pointed to defendant's testimony he threw the magazine back at Huynh before he shoved him. The prosecution's brief mention of one continuous transaction in rebuttal is of no moment. Counsel then immediately began arguing that, even if the jury believed defendant that he threw the magazine back at Huynh, when he picked it up again he formed a new intent to rob and defendant pushed Huynh for accomplish that. This was evidence of robbery as the underlying felony.
DISPOSITION
The conviction and sentence are affirmed. The matter is remanded with directions to amend the abstract of judgment to conform to the court's actual sentence and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
RYLAARSDAM, ACTING P. J. WE CONCUR: O'LEARY, J. FYBEL, J.