Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA057712, Rafael A. Ongkeko, Judge.
Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, J.
In 2004, Rickey Glen Luster killed his wife, Barbara. In 2006, a jury convicted Luster of second degree murder, and the trial court sentenced Luster to state prison for a term of 15 years to life. In May of this year, we affirmed the judgment. (People v. Luster (May 2, 2008, B194825) [nonpub. opn.].) On July 30, 2008, the Supreme Court granted Luster’s petition for review, and transferred the matter back to our court with directions to vacate our opinion, and to reconsider the cause in light of Giles v. California (2008) ___ U.S. ___, 128 S.Ct. 2678. We have now reconsidered Luster’s appeal, and, again, affirm the judgment.
FACTS
On June 10, 2004, Los Angeles County Deputy Sheriff Eric Sandoval went to the Luster home in Monrovia in response to a “check-the-welfare” call regarding Luster and his wife, Barbara. When Deputy Sandoval arrived at the scene, he saw Luster outside the family home wearing a football jersey that was “wet” with what appeared to be blood. Deputy Sandoval asked Luster where his wife was, and Luster answered that she was inside the house, taking a bath. Shortly thereafter, Deputy Sandoval and another deputy entered the house, and found Barbara’s body on the living room floor. Barbara’s face was “severely swollen [and] covered with blood.” Meanwhile, Luster left the scene. Paramedics responded to the Lusters’ home to no avail; a subsequent autopsy showed that Barbara had died from asphyxia caused by strangulation. Two days after he killed Barbara, police arrested Luster in a motel in Pasadena.
Deputy Sandoval explained a “check-the-welfare” call this way: “Basically some-one called the station. Nobody can get ahold of the person at the location. They call the station, have one of us roll out and see if anybody is at the location.” Other evidence at trial showed that Luster’s psychologist had made the “check-the-welfare” call after Luster failed to appear for a 4:00 p.m. session, which he had promised to attend just hours earlier.
In February 2005, the People filed an information charging Luster with murder. At a jury trial in September 2006, the People presented evidence establishing the facts summarized above. The People also presented evidence of a prior, uncharged domestic violence incident at the Lusters’ home in June 2003 for the purpose of showing Luster’s intent to kill and/or motive for killing and/or propensity for domestic violence. (See Evid. Code, §§ 1101, 1109.)
Luster testified in his own defense. According to Luster, he and Barbara both had mental health issues. On the day that he killed Barbara, he had been drinking and had taken some pills, and Barbara had been hitting herself in the face with a wood or metal object (she had done the same thing in the past). At some point, Luster took off his wedding ring and told Barbara that he was leaving. She reacted by hitting him with the wood/metal object, knocking him to the floor, and jumping on his back. Luster tried using his elbow to push Barbara her away. The next thing he could remember, he was “waking up on the floor.” Barbara was lying on the floor about five feet away, and he realized that she was dead. The jury rejected Luster’s arguments that he killed Barbara in self-defense or imperfect self-defense, and found him guilty of second degree murder.
DISCUSSION
I. The Reasonable Doubt Instruction
For the reasons explained by Division Two of our court in People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1239, we reject Luster’s contention that his murder conviction must be reversed because CALCRIM No. 220 “obscures” the concept of reasonable doubt by “intolerably” increasing ambiguity through the use of the phrase “abiding conviction,” and by failing to “convey the necessary impression of subjective certitude” required for a verdict of guilt. In short, we agree with our colleagues in Division Two that the validity of CALCRIM No. 220 has been “conclusively settled.” (Id. at p. 1239.)
II. Instruction with CALCRIM Nos. 375 and 852
As noted above, the People presented evidence of a prior, uncharged domestic violence incident in June 2003 for the purpose of showing Luster’s intent to kill, and/or motive for killing, and/or propensity for domestic violence. (See Evid. Code, §§ 1101, 1109.) The trial court instructed the jurors with CALCRIM Nos. 375 and 852 on the limited purpose for which the evidence of prior domestic violence could be considered. On appeal, Luster contends his murder conviction must be reversed because the trial court’s instructions with CALCRIM Nos. 375 and 852 may have “misled and distracted” jurors from considering the domestic violence evidence in a light that was beneficial to his claims of self-defense or imperfect self-defense. More specifically, Luster argues the court’s limiting instructions effectively directed the jurors not to consider whether the domestic violence evidence tended to show that it had been Barbara who possessed the propensity for aggression in the family home. We find no instructional error.
A reviewing court must determine the correctness of jury instructions based upon its examination of the entire charge from the trial court, and not based upon consideration of isolated parts of the instructions. (People v. Reliford (2003) 29 Cal.4th 1007, 1013.) In addition, a reviewing court must presume that the jury was capable of following the trial court’s instructions. (People v. Bradford (1997) 15 Cal.4th 1229, 1337.) These principles of review admit this bottom-line rule: In order to prevail on a claim that the jury instructions were misleading, a convicted defendant bears the burden of persuading a reviewing court that there is a reasonable likelihood that his or her jury misunderstood the instructions as a whole. (See People v. Van Winkle (1999) 75 Cal.App.4th 133, 147, citing People v. Cain (1995) 10 Cal.4th 1, 36.)
Luster’s arguments on appeal do not persuade us that there is a reasonable likely-hood that the jurors misunderstood the trial court’s instructions as a whole. During its instructions to the jury, the trial court expressly referred to the evidence of prior domestic violence presented by the People, and, in that context, gave its instructions pursuant to CALCRIM Nos. 375 and 852. The court instructed the jurors that they could not consider the evidence at all unless the People proved by a preponderance of the evidence that the events had, in actuality, occurred. The court instructed the jurors that they could, but were not required to, consider the evidence for the limited purpose of deciding whether Luster acted with the intent to kill and/or had a motive for killing, and/or had a propensity for domestic violence. Luster’s arguments on appeal assail the trial court’s use the following language the its instructions: “Do not consider this evidence for any other purpose except as . . . instructed . . . .”
CALCRIM No. 375 provided:
CALCRIM No. 852 provided:
Luster narrowly focuses on the trial court’s direction to the jurors not to consider the People’s domestic violence evidence for any purpose other than intent and/or motive. He contends the trial court effectively and improperly restricted the jurors from considering whether the evidence showed a possibility that Barbara was the aggressor in the family home. In other words, Luster argues the trial court essentially told the jurors not consider the evidence of prior domestic violence in any way that might have tended to support Luster’s claims of self-defense or imperfect self-defense.
We may have been inclined to view Luster’s argument with some interest had the trial court’s instructions begun and ended as set forth above. But that is not what transpired at Luster’s trial. Apart from and in addition to the instructions noted above, the trial court also instructed the jurors with CALCRIM Nos. 505 and 571 regarding Luster’s claims of self-defense and imperfect self-defense. And, within those instructions, the court expressly instructed the jurors that, if they found that Barbara had threatened or harmed Luster in the past, they could consider that information in evaluating whether Luster believed that he needed to defend himself.
We simply cannot accept Luster’s argument that the trial court essentially told the jurors not to consider Barbara’s history of domestic violence, if any, when assessing his self-defense claims. Luster’s attempt to read into the trial court’s instructions an implicit restriction on the use of the domestic violence evidence is defeated by the court’s express instructions to the contrary.
We reject Luster’s argument that the trial court’s instructions with CALCRIM Nos. 505 and 571 were misleading or deficient because those instructions, when heard in conjunction with CALCRIM Nos. 375 and 852, improperly implied that Luster had the burden of proving his self-defense and imperfect self-defense claims by a preponderance of the evidence. The jurors, argues Luster, should have been told that, if his self-defense claims created reasonable doubt in their minds, whether or not he actually proved that he had acted in self-defense, then he was entitled to acquittal.
Luster makes an interesting argument, but, once again, he runs head-long into the actual language used by the trial court in its instructions. Luster’s argument fails because the very last sentence of the trial court’s instructions under both CALCRIM Nos. 375 and 852 stated: “The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of second degree murder.” We are satisfied the trial court did not implicitly instruct the jurors that Luster had the burden of proving his self-defense and imperfect self-defense claims by a preponderance of the evidence.
III. Instruction with CALCRIM No. 852
Luster contends his murder conviction must be reversed because the language of CALCRIM No. 852 is “confusing and misleading” in that it “confound[s] the ultimate determination of guilt vel non with the determination of intermediate facts in [a] case.” We disagree.
A. The Instruction’s Language
CALCRIM No. 852, as given at Luster’s trial, instructed the jurors as follows:
“The People presented evidence that the defendant committed domestic violence that was not charged in this case . . . . [¶] . . . [¶] If the People have not met [the burden of proving the prior domestic violence by a preponderance of the evidence], you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit second degree murder, as charged here, or voluntary or involuntary manslaughter, lesser offenses. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of second degree murder, as charged here, or voluntary or involuntary manslaughter, lesser offenses. The People must still prove each element of every charge beyond a reasonable doubt.” (Italics and underscoring added.)
B. CALCRIM No. 852 Is Not Confusing and Misleading
Pointing at the emphasized language in CALCRIM No. 852 as set forth above, Luster contends a problem arises from the instruction’s use of the word “conclude” in place of the “infer” which was used in prior versions of the instruction. From Luster’s perspective, “[t]he meaning of ‘conclusion’ and ‘inference’ may overlap, but they are not identical, and in a forensic context, the differences can be important. The ultimate conclusion in a criminal case is whether or not the defendant is guilty. . . . An ‘inference’ of guilt does not signify the ultimate step of a verdict.”
We do not share Luster’s concern about a “conclude” versus “infer” dichotomy. The plain language of the final sentences of CALCRIM No. 852 necessarily negates his argument that the instruction’s use of the word “conclude” –– as opposed to the word “infer” –– may have given his jury the “impression that proof beyond a reasonable of guilt [could] be based on propensity evidence alone . . . .” The final sentences of CALCRIM No. 852 plainly and expressly cautioned Luster’s jurors that any conclusion regarding his commission of the uncharged domestic violence could be considered only “one factor . . . along with all the other evidence,” and that any such conclusion was “not sufficient by itself” to prove that he was guilty of any crime. The very final sentence of CALCRIM No. 852 reminded the jurors that the People were still required to “prove each element of every charge beyond a reasonable doubt.”
We disagree with Luster that the final sentences of CALCRIM No. 852 did not “cure the problem” caused by its initial use of the word “conclude.” We find ourselves hard-pressed to understand how the instruction could have been written more plainly, and Luster does not offer a model instruction. In summary, Luster has not convinced us that his murder conviction must be undone based on CALCRIM No. 852.
IV. Ineffective Assistance of Counsel
Luster contends his murder conviction must be reversed because his trial lawyer failed to present an available argument supporting the exclusion of the statements which Barbara gave to an investigating officer during the June 2003 domestic violence incident. We disagree.
A. The Trial Context for the Domestic Violence Evidence
The lawyers and the trial court dedicated a significant portion of the Luster’s trial to the issue of whether Barbara’s statements during the police investigation of the prior domestic violence incident were admissible. Coalescing the trial court’s comments on the issue from a number of different exchanges, we find the court essentially found that Barbara’s statements were “testimonial” within the meaning of Crawford v. Washington (2004) 541 U.S. 36, and therefore, presumptively inadmissible because Barbara was not available for cross-examination. (Id. at pp. 59-62.) In the next breath, however, the court ruled that Barbara’s statements were admissible because Luster had “forfeited” his right of confrontation by causing Barbara’s unavailability himself. (Id. at p. 62; see also Davis v. Washington (2006) 547 U.S. 813; and see also People v. Giles (2007) 40 Cal.4th 833, 848-849, revd. by Giles v. California, supra, 128 S.Ct. 2678.) In other words, the trial court basically ruled that Luster gave up his right to object that he could not cross-examine Barbara at the moment he killed her, or, in still other words, the court ruled that a defendant may not kill a witness, and then be permitted to say, “Gotcha, the deceased witness’s prior statements are not admissible because I can’t cross-examine her.”
B. The People’s Evidence of the Prior Domestic Violence Incident
Following the trial court’s ruling, the People called Los Angeles County Deputy Sheriff Steven French to testify about the prior domestic violence incident at the Lusters’ home. Deputy French’s testimony established the following facts: On June 29, 2003, Deputy French went to the Lusters’ home in response to a family disturbance call. When he arrived at the scene, Deputy French first encountered Luster outside the home. After listening to Luster’s version of the day’s events, Deputy French entered the family home and talked to Barbara. She appeared to be intoxicated, and was crying and upset. She stated that she and Luster had been arguing about his drinking when he grabbed her by the arms and shoved her against a mirror in the bedroom. The mirror broke and cut her on the shoulder. Luster had also grabbed Barbara by the neck, and pushed her to the floor. He put his knee on her chest to hold her down, and would not let her get up. Deputy French observed that the inside of the house appeared to be in “disarray,” that there was, in fact, a broken mirror, and that Barbara had a cut on her shoulder and a scratch on her neck.
C. Luster’s Ineffective Assistance of Counsel Claim Does Not Justify Reversal
At Luster’s trial, the prosecutor argued that the statements which Barbara had given to Deputy French during his investigation of the prior domestic violence incident were admissible without violating Luster’s Sixth Amendment right of confrontation under the so-called “forfeiture doctrine.” The trial court agreed.
Six months after Luster’s trial, our state Supreme Court decided in People v. Giles, supra, 40 Cal.4th 833 that application of the forfeiture doctrine to admit hearsay state-mints does not violate a defendant’s Sixth Amendment right of confrontation when his or her criminal act rendered the witness unavailable to testify, whether or not the defendant specifically intended to prevent the witness from testifying. (Id. at p. 849.) In other words, insofar as Luster’s trial was concerned, People v. Giles essentially confirmed that the trial court had properly admitted Barbara’s prior statements over Luster’s Sixth Amendment objection.
On appeal, Luster argues his trial counsel’s representation fell below the required norm of performance because he failed to “marshal the proper evidence and argument” needed to convince the trial court that Barbara’s prior statements were not admissible under statute , namely, section 1370 of the Evidence Code. We agree with Luster that his trial counsel could have and should have presented a strong statute-based argument for excluding Barbara’s prior statements.
All references to section 1370 are to the Evidence Code.
Under section 1370, a hearsay statement narrating or describing the infliction of injury is admissible at trial when the statement was made to a law enforcement officer, “under circumstances that would indicate its trustworthiness.” (Id., subds. (a)(4) & (5).) The record shows that Deputy French went to the Lusters’ home in June 2003 following a 911 call from Barbara. During that call, Barbara stated that Luster had injured himself, but was “sayin’ [she] beat him up.” Barbara did not say that Luster had hurt her in any way, and she denied that she had been drinking. After Deputy French arrived at the scene, the information that Barbara provided face-to-face to Deputy French told a significantly different story. In addition, Barbara was intoxicated. At a minimum, the intoxication factor alone could have provided Luster’s trial counsel with ammunition for excluding Barbara’s prior statements under section 1370. Add in Barbara’s inconsistencies, and the argument became stronger.
The omission by counsel, however, is not enough for Luster to establish his claim of ineffective assistance of counsel. The remaining question is whether there is a reason-able probability that the outcome of Luster’s murder trial would have been different had counsel argued section 1370. (See Strickland v. Washington (1984) 466 U.S. 668, 694.) On this issue, Luster’s arguments do not sate one’s appetite for a taste of prejudice.
This is Luster’s entire prejudice argument: “Without Barbara Luster’s statements, the description of the [June 2003 domestic violence] incident was confined to [Luster]’s admissions to Deputy French[,] and Deputy French’s observations. These painted only an equivocal portrait of [Luster]’s aggression without muting the portrait of Barbara Luster’s aggression. With [Barbara’s] statements, the balance shift[ed] significantly in favor of the prosecution’s interpretation of the [prior domestic violence] incident.”
We believe the examination of the prejudice element must be considered from a slightly different vantage point. The question, in our view, is whether the evidence of Barbara’s statements about the prior domestic violence incident may be seen as having contributed in any meaningful measure to the jury’s decision to find Luster guilty of murder. Let’s revisit the record. There is no dispute in the evidence that Luster killed Barbara; he admitted as much. There is no dispute in the evidence that, when police arrived at the family home, Luster’s shirt was “wet” with blood, and Luster lied about his wife’s whereabouts. There is no dispute in the evidence that Barbara’s face was beaten, and that she died from being strangled. This was no instantaneous homicide. There is no dispute in the evidence that Luster left the scene when officers went inside the family home to check on his wife. As for Luster’s defense, common sense cannot be ignored. Should we find it reasonably likely that Luster’s jury would have believed that Barbara beat her own face with a wood or metal object, if only the jury had not heard her prior statements? Should we find it reasonably likely that the jury would have believed his “I don’t remember anything” explanation of killing, if only the jury had not heard Barbara’s prior statements? Should we find it reasonably likely that the jury would have believed that Luster needed to strangle his wife to death to stop her attack, if only the jury had not heard her prior statements? All-in-all, we are more than amply satisfied that the People’s evidence of Barbara’s prior statements was not a linchpin holding together the jury’s murder verdict, and that, to the contrary, her prior statements did not sway the jury in any meaningful measure.
V. The Right of Confrontation
Luster contends his murder conviction must be reversed because the trial court’s ruling to admit Barbara’s statements about the prior domestic violence incident violated his Sixth Amendment right of confrontation. We disagree.
A. Some Historical Context
On September 27, 2006, a jury convicted Luster of the second degree murder of his wife. In March 2007, the California Supreme Court decided People v. Giles, supra, 40 Cal.4th 833. In May 2008, we affirmed Luster’s murder conviction based on People v. Giles. This was our discussion of his Sixth Amendment claim:
“[T]he California Supreme Court has rejected [Luster’s Sixth Amendment] argument. In People v. Giles[, supra,] 40 Cal.4th 833, the Court concluded that the forfeiture by wrongdoing doctrine may be applied when the defendant’s intentional criminal act rendered the witness unavailable to testify, whether or not the defendant specifically intended to prevent the witness from testifying. (Id. at p. 849.) Giles forecloses our review of Luster’s claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We acknowledge that the United States Supreme Court has granted certiorari in Giles. . . . Until and unless that Court reverses our high court in Giles, the decision remains the controlling law in this state.” (People v. Luster, supra, B194825.)
In June 2008, just one month after we affirmed Luster’s murder conviction, the United States Supreme Court decided Giles v. California, supra, 128 S.Ct. 2678. In Giles v. California, the United States Supreme Court ruled that the forfeiture doctrine may only be applied when a witness is unavailable to testify against a defendant as the result of the defendant’s criminal act, and the defendant committed the criminal act with the specific intent to prevent the witness from testifying. (Id. at pp. 2682-2693.)
In July 2008, our state Supreme Court granted Luster’s petition for review, and transferred the matter back to our court with directions to vacate our opinion, and to reconsider the cause in light of Giles v. California.
B. Reexamination of Luster’s Murder Conviction after Giles v. California
Applying the Supreme Court’s Sixth Amendment jurisprudence, as articulated in Giles v. California, we now conclude that the statements, which Barbara made to Deputy French during his investigation of the 2003 domestic violence incident, should not have been admitted at Luster’s 2006 murder trial. The introduction of Barbara’s statements violated Luster’s Sixth Amendment right of confrontation because the record is devoid of any evidence tending to suggest that Luster killed Barbara with the specific intent to prevent her from testifying anywhere, about anything. We see no evidence in the record establishing any kind of linkage between Barbara’s killing on the one hand, and any “testimony-related” event of any kind on the other hand.
The violation of Luster’s Sixth Amendment right of confrontation does not, how-ever, mandate reversal of his murder conviction. A violation of a defendant’s right of confrontation at trial is reviewed under the constitutional harmless error standard. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680-683; see also Chapman v. California (1967) 386 U.S. 18, 24.) We see no possibility whatsoever, under the most strident standard of review, that the evidence of Barbara’s prior statements adversely affected Luster at this trial. We are completely confident that, with or without the evidence of Barbara’s prior statements, the result of Luster’s trial would have been a murder conviction. We do not view this as a close case.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.
“The People presented evidence that the defendant committed the offense of battery on a spouse that was not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
“If the People have not met this burden, you must disregard this evidence entirely.
“If you decide that the defendant committed the offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] the defendant acted with the intent to kill in this case; or [¶] the defendant had a motive to commit the offense alleged in this case.
“Do not consider this evidence for any other purpose except as otherwise instructed in the following instruction; Instruction # 852.
“If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any crime in this case. The People must still prove each element of the charge beyond a reasonable doubt.”
“The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically, battery on a spouse.
“Domestic Violence in this case means abuse committed against an adult who is a spouse.
“Abuse means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent serious bodily injury to his or herself or to someone else.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
“If the People have not met this burden of proof, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also [sic] conclude that the defendant was likely to commit second degree murder, as charged here, or voluntary or involuntary manslaughter, lesser offenses. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of second degree murder, as charged here, or voluntary or involuntary manslaughter, lesser offenses.
“The People must still prove each element of every charge beyond a reasonable doubt.”