Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05086190.
SIMONS, J.
Jonathan Carrol Marvin (defendant) appeals from the judgment entered following a jury trial that resulted in his conviction for the first degree murder of Eric James Martin (Martin). Defendant contends that custodial statements he gave to the police should have been suppressed because they were taken in violation of Miranda and because they were involuntary. He also contends that the trial court made other errors in the admission of evidence at trial. We affirm.
Miranda v. Arizona (1966) 384 U.S. 436.
Procedural Background
In June 2008, the District Attorney filed an information in Contra Costa County Superior Court alleging that defendant committed murder in violation of Penal Code section 187 and personally used a firearm and caused great bodily injury within the meaning of section 12022.53, subdivisions (b), (c), and (d).
All undesignated section references are to the Penal Code.
In March 2009, the jury returned a verdict finding defendant guilty of first degree murder and finding true the enhancement allegation. In May 2009, the trial court sentenced defendant to state prison for two consecutive terms of 25 years to life. This appeal followed.
Factual Background
At about 11:45 p.m. on December 2, 2007, people in Walnut Creek heard gunshots. At about 5 a.m. on December 3, a police officer was dispatched to a location on Crokaerts Street; he observed a bloody male slumped in a kneeling position into the open driver’s door of a black Acura with his upper body resting on the driver’s seat. The police determined he was dead.
On our own motion, we take judicial notice of the fact that Crokaerts Street is close to the locations from which witnesses heard gunshots at about 11:45 p.m. on December 2. (Evid. Code, §§ 459, 452, subd. (h); see also People v. Armas (2011) 191 Cal.App.4th 1173, 1187.)
A wallet in the victim’s sweatshirt pocket contained a California driver’s license with the victim’s photo that identified him as Martin. The police located a cell phone near Martin’s body. A forensic pathologist performed an autopsy and determined that Martin died from multiple gunshot wounds. Four to six bullets hit his body; any one of four head, abdomen, and chest wounds could have been fatal. An expert examined the bullets recovered from the scene and from Martin’s body and determined they were.38 or.357 caliber bullets of a commonly available brand. The murder weapon was not recovered during the ensuing investigation.
The police examined the text messages on the cell phone found near Martin’s body and the records for the phone, as well as the records for defendant’s cell phone. Martin and defendant had exchanged numerous text messages and phone calls in the week preceding December 2, 2007. On December 1, Martin sent defendant a message stating that it was the first of the month and asking “[w]hen we gonna make this happen?” On December 2, the day of the murder, defendant and Martin exchanged various calls and messages. At about 9:50 p.m., defendant called from Benicia to Martin in Pittsburg. At 10:06 p.m., defendant received a message from his girlfriend, Sarah Dillingham, when he was in Walnut Creek. At 10:43 p.m., Martin sent defendant a message asking if defendant was home; defendant replied with a message saying “still coming?” At 11:58 p.m., after the gunshots were heard, defendant sent Martin a message saying, “No worries. I’ll be done with work by noon. Let’s get together then. Call me when you’re free.”
On our own motion, we take judicial notice of the facts that Walnut Creek is in central Contra Costa County, on the path of I-680; Pittsburg is Northeast of Walnut Creek, off Highway 4, East of I-680; and Benicia is North of Walnut Creek in Solano County, on the path of I-680, across the Benicia-Martinez bridge. (Evid. Code, §§ 459, 452, subd. (h).)
Before his death, Martin lived with Rachel Robinson and their young son and roommates in a rented house in Pittsburg. Martin worked as a contractor and he also grew marijuana for sale in a house in Boulder Creek with a friend, Maher (“Mo”) Heaps. According to Heaps, when he and Martin decided to grow marijuana for sale in 2004, they had no prior experience and turned to defendant for advice about what equipment to get and how to set it up. Defendant also helped with selling the marijuana that they produced. Defendant would take marijuana from Martin on credit, sell it, and then repay Martin from the proceeds.
In October 2005, Martin and Heaps reduced the size of their operation and gave some growing equipment to defendant, who used it to set up a growing operation at a warehouse on Lemon Street in Vallejo. Martin continued to front marijuana to defendant. Defendant had accumulated a debt to Martin and was supposed to use the proceeds from his Lemon Street operation to repay it. In 2006, defendant’s debt was as much as $10,000, but Martin kept providing defendant marijuana to sell. During 2007, Martin provided defendant about two pounds of marijuana every two or three weeks.
Robinson testified that, towards the end of 2007, Martin desired to buy a house in Walnut Creek. To make the down payment, Martin was trying to collect some money that he said was owed to him, including from defendant. Martin had been talking to defendant about the money defendant owed him in the weeks before he died, including the Friday or Saturday before the Sunday night he was killed. Heaps testified that, shortly before Martin died, Martin said defendant was going to pay him back. Heaps’s younger brother testified that, about three weeks before Martin died, he heard Martin talking to defendant on Martin’s cell phone. Martin was “very upset.” Martin was telling defendant that defendant was wasting Martin’s time and always giving Martin excuses. According to one of defendant’s roommates, 10 days before Martin’s death he accompanied Martin to drop off marijuana at defendant’s house; afterwards, Martin was upset, saying that he had given defendant “ ‘a front on top of a front.’ ”
Defendant’s girlfriend, Dillingham, testified that in 2007 she and defendant were going to a gym on Crokaerts Street, which was near where Martin was killed. She said that in the months before Martin’s murder, defendant was on disability and not working. Defendant was married and had two children with his wife. Dillingham herself was about eight months pregnant in December 2007. A friend of defendant’s, Matthew Lough, testified that defendant had five children by four different women. During 2007, Lough and defendant talked about life stresses and lamented that they “barely made enough to scrape by” and “had to work very hard to be able to survive.” In the period preceding defendant’s arrest, defendant was struggling financially.
On Sunday, December 2, 2007, defendant came over to Dillingham’s home, watched a movie with Dillingham and her daughter, received text messages, and left at about 9:00 p.m. He returned between 12:30 and 1:00 a.m. Around the date of Martin’s murder, defendant talked about leaving California to go to Florida or New Mexico.
Defendant said he was going to meet “Rick.” There was testimony at trial about defendant’s interactions with Rick Parada the evening of December 2, but that testimony is not significant to the issues on appeal.
On December 3, 2007, defendant rented a storage unit in Vallejo, and he accessed it on December 4 and 5. Police found inside the unit bags of marijuana, a shotgun, and a rifle.
On December 6, 2007, police found a Gateway computer at defendant’s Lemon Street marijuana-growing operation. The computer had photos of a safe containing several bags of a green leafy substance and money. There was also a photo of a speed loader for a revolver next to an ammunition box on the top shelf of the safe. A safe was found in the garage at defendant’s residence in Benicia; it contained a gun cleaning kit, ammunition of different calibers, and marijuana.
On December 11, 2007, police found a Toshiba laptop computer in the garage at defendant’s wife’s Vallejo residence. It had a user profile named Jonathan Marvin. The time on the computer was accurate. The computer’s cache contained web pages accessed on the date of the murder, December 2, between 5:13 and 5:22 p.m. The cached pages included advertisements for erotic services and web searches for “Walnut Cre[e]k police log” and “Walnut Creek murder.”
Defendant’s Statements to the Police
Defendant was interviewed by Detective Brian McColgin on December 4, 2007. Defendant came voluntarily; he was not detained or arrested. Defendant said that Martin came to defendant’s Benicia residence on Sunday, December 2 around 10:30 p.m., and left at about 11:00 p.m., saying he had something to take care of. Defendant said he then watched television at home and sent Martin a text message right before going to sleep. Martin wanted to sell a large quantity of marijuana; defendant suggested the killing could have been a drug deal gone bad. Defendant could not say whether he had ever been on Crokaerts Street because he was not familiar with the side streets in Walnut Creek.
On December 5, 2007, defendant spoke to Detective McColgin in Benicia. He said Martin came over on December 2 expecting to do a big marijuana sale, but defendant told Martin he could not set it up and Martin said he would find someone else to buy the marijuana. Defendant said he owed Martin between $1,200 and $1,300 for a half pound of marijuana that Martin gave him a year earlier. He denied having anything to do with Martin’s death.
On December 6, 2007, defendant was arrested and interviewed again by Detective McColgin. McColgin read defendant his Miranda rights and defendant said he wanted to have his lawyer present during the questioning. Nevertheless, he continued speaking, denying he had anything to do with the murder. Defendant said he wanted to “clarify” some points, and told McColgin that he drove to his girlfriend’s house after midnight on December 3. McColgin ceased his questioning after defendant again indicated he wanted to call his attorney.
On December 7, 2007, defendant’s wife called Detective McColgin and said that defendant wanted to speak to the detective. McColgin contacted defendant, telling him that, even though defendant had asked for the interview, it was still necessary to read him his Miranda rights. McColgin did so, and defendant waived his rights. Defendant told a story about how, the night of December 2, Martin followed defendant to a gym in downtown Walnut Creek, near Crokaerts Street, where defendant taught classes. Defendant was showing the gym to Martin; defendant denied setting up a drug deal that night. Defendant left Martin in the parking lot and then went home and then to his girlfriend Dillingham’s house. Much later in the interview, defendant said he had arranged a drug deal between Martin and a Robert Gray. Someone he thought might be Gray arrived in a car with two associates; the associates exited the car and pulled out guns. They told defendant to leave; as he was driving away he heard shots fired.
On December 9, 2007, McColgin reinterviewed defendant. The detective reminded defendant of his Miranda rights, and defendant indicated he wanted “to get everything ironed out.” Defendant admitted he had arranged a drug deal near his gym in Walnut Creek on the Sunday Martin was killed. The buyer was Gray. During the deal, two of Gray’s associates pulled guns and shot Martin with a revolver. Defendant denied killing Martin and stealing his marijuana.
Defendant was interviewed by the police for the last time on December 10, 2007. He acknowledged that the interview was completely voluntary and that he could stop the interview at any time. Defendant said that he set up a drug deal and eventually stated that he knew Gray intended to rob Martin of the marijuana, but he denied being the shooter.
Defendant also took polygraph examinations during the December 7 and December 10, 2007 interrogations, but the recordings of his statements played for the jury were redacted to eliminate references to the polygraph examinations.
At trial, Robert Gray testified that, on December 2, 2007, he spent the day at his daughter’s birthday party until about 7:30 p.m. and then went to his girlfriend’s house in Sacramento for the rest of the night. Cell phone records showed that at 11:18 p.m. on December 2 he made a phone call that went through a cell phone tower in Sacramento.
Defense Evidence
In addition to some relatively insignificant witness impeachment and forensic evidence, defendant presented various witnesses who testified that defendant did not have a violent character or they had not seen defendant act violently or aggressively.
Discussion
I. Defendant’s December 7 Statements Were Not Obtained in Violation of the Fifth Amendment and the Miranda Decision
Defendant contends his statements to the police on December 7, 9, and 10 were obtained in violation of the Fifth Amendment to the United States Constitution and the Miranda decision because he did not knowingly and intelligently waive his right to counsel and because the statements were obtained by coercion. We conclude the trial court did not err in denying defendant’s motion to suppress the December 7 statements; we need not resolve defendant’s challenge to the admission of the December 9 and 10 statements because any error in the admission of those statements was harmless beyond a reasonable doubt.
A. Summary of Applicable Legal Standards
In order to protect the exercise of the Fifth Amendment privilege against compelled self-incrimination, the United States Supreme Court has, in Miranda, supra, 384 U.S. 436 and its progeny, “declared that persons subject to custodial interrogation must be informed of certain rights, including the right to counsel, and that once such a person invokes the right to counsel, the police must cease interrogation until counsel is provided or the suspect initiates further contact and makes it clear that he or she wishes to proceed without counsel. [Citations.]” (People v. Peevy (1998) 17 Cal.4th 1184, 1187-1188.) The Miranda warnings are designed to protect Fifth Amendment rights from “the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation.” (Berkemer v. McCarty (1984) 468 U.S. 420, 428.)
Statements a suspect made to police during the course of a custodial interrogation are admissible at trial if the suspect knowingly and intelligently waived his Miranda rights and voluntarily made the statements at issue. (People v. Cruz (2008) 44 Cal.4th 636, 667, 669 (Cruz).) The prosecution bears the burden of proving by a preponderance of the evidence the validity of Miranda waivers and the voluntariness of statements made by the suspect. (People v. Clark (1993) 5 Cal.4th 950, 987-988, fn. 12, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The waiver of Miranda rights may be express or implied. (Cruz, at p. 667.) In this case, because the facts surrounding defendant’s statements to the police are undisputed, we review de novo the validity of his waiver and the voluntariness of his statements. (See People v. Bacon (2010) 50 Cal.4th 1082, 1105 [waiver]; People v. McWhorter (2009) 47 Cal.4th 318, 346 [voluntariness].)
B. Defendant Knowingly and Intelligently Waived His Right to Counsel on December 7
Although there is no dispute that the police repeatedly informed defendant of his Miranda rights, and that defendant repeatedly expressed his willingness to waive those rights and speak to the police, defendant contends he did not knowingly and intelligently waive his right to counsel because he made unsuccessful efforts to obtain the assistance of counsel. In particular, on December 5, defendant or his wife conferred with attorney Thomas Gill and defendant met with Gill the next day, before his arrest. Both defendant and Gill informed Detective McColgin that defendant had retained counsel. The interrogation of defendant following his arrest on December 6 was terminated after defendant asked to speak to his lawyer. On December 7, defendant’s wife telephoned McColgin; she advised him that Gill was not representing defendant because they could not afford Gill’s fee and that defendant wanted to speak to McColgin. Defendant also telephoned the public defender and alternate public defender to request legal assistance, but was told that neither office would assist him until he appeared for arraignment. The record does not reflect when defendant made those calls.
The factual summary in this paragraph is based on the evidence elicited at the preliminary hearing.
Defendant contends his waiver of his Miranda rights “cannot be characterized as self motivated when it was in fact a response to his inability to either hire a lawyer or to obtain the assistance of a public defender.” With respect to the December 7, 2007 interrogation, defendant points to no portion of the record in which he indicated he desired the assistance of counsel. To the contrary, his waiver of his Miranda rights was unambiguous. At the outset of the interrogation, McColgin stated that defendant’s wife had contacted him and indicated defendant was willing to talk to him. Defendant answered, “Absolutely. Absolutely.” McColgin asked, “You want to talk to me?, ” and defendant answered, “Yeah. Sure. Please.” McColgin then, after a brief further exchange, read defendant each of the Miranda rights and defendant indicated he understood each. McColgin then asked, “And having these rights in mind obviously, you’re willing to speak with me now?” Defendant answered, “Yeah. I’ve been wanting to speak with you the whole time.”
It is clear defendant’s December 7, 2007 waiver was “ ‘made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1045.) Defendant points to nothing in the December 7 interrogation suggesting defendant misunderstood his Miranda rights or desired to invoke his right to counsel. As McNeil v. Wisconsin (1991) 501 U.S. 171, 178points out, “suspects often believe that they can avoid the laying of charges by demonstrating an assurance of innocence through frank and unassisted answers to questions.” The record strongly suggests defendant made a calculated decision to speak to McColgin without the assistance of counsel in the hope of convincing McColgin of his innocence.
Defendant does point to one comment—“We got to get over that attorney thing, okay?”—made by Detective Ted Todd, who administered a polygraph examination on December 7, 2007. In context, it is clear Todd’s comment was intended to convey that he needed to get a clear waiver from defendant before proceeding with the examination.
The circumstances of the December 9, 2007 interrogation are less clear. At the outset, McColgin reminded defendant of his Miranda rights and offered to reread them. Defendant answered, “I’m good. I still can’t afford the lawyer.” He also stated, “And no one’s allowed me to get ahold of any other lawyer so, ” at which point McColgin asked, “but you remember the rights I read you and you’re still willing to talk to me now to get this ironed out, right?” Defendant responded, “Man, I want to get everything ironed out. I’m trusting that you’re going to help me. You’re the only person I have.” After some further exchange, McColgin reminded defendant that he had been read his rights twice before and asked “And you remember—and you’re still willing to talk to me and all that? I have to just get that out.” Defendant answered, “I know, ” and McColgin proceeded with the interrogation.
Defendant’s comments at the outset of the December 9, 2007 interrogation are consistent with a desire to confer with counsel and could suggest he proceeded with the interrogation without the assistance of counsel only because he believed that counsel was not available to him, at least before any arraignment. McColgin was not required to keep defendant “abreast of his various options for legal representation” (People v. Bradford (1997) 14 Cal.4th 1005, 1046), and Miranda does not obligate the police to have attorneys “producible on call” (People v. Smith (2007) 40 Cal.4th 483, 503). In any event, we need not determine whether defendant validly waived his Miranda rights on December 9, or whether McColgin disregarded an invocation of defendant’s right to the assistance of counsel, because any Miranda violation was harmless. In light of defendant’s statements on December 7, any error in the admission of his statements on December 9 and 10 was harmless beyond a reasonable doubt. (People v. Cunningham (2001) 25 Cal.4th 926, 994.) By the end of the December 7 interrogation, defendant had told inconsistent versions of his role in the homicide and had admitted to McColgin that he set up a drug deal between Martin and Gray, two men with guns emerged from a car that arrived to do the deal, he believed Gray was in the back seat of the car, and he heard gunshots as he fled in his own car. In the December 9 and 10 interrogations, defendant provided minor additional details about the deal with Gray and the circumstances leading up to the shooting, but he did not change the basic outline of his December 7 admissions. On appeal, in his briefing on the prejudice issue, defendant does not emphasize any facts elicited only during the December 9 or 10 interrogations. Defendant asserts the prosecutor emphasized defendant’s statements in his closing argument, but, in large part, the prosecutor’s arguments did not depend on statements made exclusively during the December 9 or 10 interrogations. Instead, the prosecutor’s main emphasis was that defendant repeatedly lied and tried to implicate Gray, when the evidence at trial proved Gray was not involved. To the extent the prosecutor made specific references to statements made in the December 9 or 10 interrogations, those statements were not particularly significant to the prosecutor’s overall argument. Accordingly, even assuming defendant’s statements during the December 9 and 10 interrogations should have been excluded from evidence, he has not shown any error was prejudicial. (See People v. Bacon, supra, 50 Cal.4th at p. 1108 [claim of prejudice “questionable” where defendant made critical admissions before alleged Miranda violation].)
C. Defendant’s December 7 Statements Were Voluntary
Defendant contends his December 7, 9, and 10, 2007 statements were involuntary—the product of police coercion in the form of promises of leniency, in violation of his rights under the federal and the California constitutions. (See People v. Boyette (2002) 29 Cal.4th 381, 411.) Because we conclude there was no coercion involved in obtaining defendant’s December 7 statements, we need not consider whether there was any coercion in relation to the December 9 or 10 statements; as explained previously, any error in admitting those statements was harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 487, 509-510.)
“The test for determining whether a confession is voluntary is whether the questioned suspect’s ‘will was overborne at the time he confessed.’ [Citation.] ‘A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions.’ [Citation.]” (Cruz, supra, 44 Cal.4th at p. 669.) Such coercive police activity includes “express or implied promises, on the part of law enforcement officials, of ‘leniency’ or ‘benefit’ in the event the defendant confesses.” (People v. Cahill, supra, 5 Cal.4th at p. 485.) “ ‘However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.... Thus, “[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, ” the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, “if... the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible....” ’ [Citation.]” (People v. Holloway (2004) 33 Cal.4th 96, 115.)
Defendant argues the police induced him to make his inculpatory statements by assuring him he would not be prosecuted for murder if he admitted to setting up a robbery but was not the one who shot Martin. He argues the police suggested he would not be culpable for the murder in that circumstance; those assurances, he contends, constituted a promise of leniency rather than a truthful statement of the law, because under that scenario he would have been culpable under the felony murder rule. (See People v. Washington (1965) 62 Cal.2d 777, 782 [“All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design”].) However, in none of the cited portions of the December 7, 2007 interrogation did McColgin (or Detective Todd, who joined McColgin for portions of the interrogation) assert that defendant would not be culpable for murder if he only conspired in the robbery. When the interrogators referred to the possibility that defendant conspired in a robbery, those references were not accompanied by assurances of leniency. Instead, it was only suggested that defendant’s culpability would be less if he merely told the murderer that Martin had marijuana or set up a drug deal between Martin and the murderer.
Defendant does not direct this court’s attention to any other particular comments that he contends constituted improper promises of leniency or benefit. Based on our review of the December 7, 2007 interrogation, we conclude that the interrogators “did not represent that they, the prosecutor or the court would grant defendant any particular benefit” if he told them how the shooting happened, other than “the benefit that might ‘ “flow[] naturally from a truthful and honest course of conduct” ’ [citation].” (People v. Holloway, supra, 33 Cal.4th at p. 116.) The trial court did not err in concluding that defendant’s December 7 statements were voluntary.
Defendant also argues his statements were involuntary because the conditions of his confinement were coercive. The contention is without merit. When defendant made his critical admissions on December 7, 2007, he had been under arrest for only one day, and he cites to no evidence that the police subjected him to coercive deprivations. Defendant did complain during the December 7 interrogation that he was unable to sleep or eat due to his stress from being arrested for murder. But he said he had been fed that morning, Detective Todd offered him food and coffee, and the interrogators were friendly. (Cf. People v. Esqueda (1993) 17 Cal.App.4th 1450, 1486 [after all night interrogation, the defendant “was exhausted, he had had nothing to eat, he had gotten sick and vomited, he had been processed, he had been shown pictures of the autopsy, and he had been told [the police] would continue to question him until they got what they wanted”].) No coercive deprivations or police conduct rendered defendant’s December 7 statements involuntary. And, although admission of the December 9 and 10 statements was harmless even if in error, defendant has not identified any extraordinary deprivations preceding those statements.
II. Defendant’s Other Evidentiary Claims Are Without Merit
Defendant contends the trial court erred in admitting certain firearm-related evidence and evidence of internet searches for erotic services. We review the court’s rulings on the admissibility of evidence for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 266.)
A. Firearm-Related Evidence
Defendant contends the trial court abused its discretion by admitting photographs of a safe containing a speed loader retrieved from a computer in defendant’s storage unit and a.357-caliber speed loader brought to court by McColgin as an example. In discussing other firearm-related evidence in the context of pretrial motions, the trial court reasoned, “[A] significant part of this case, which has actually been discussed in the voir dire examination, has to do with the defendant’s statement[s] he made to the police... [¶]... in which he downplays his association with violent activity... in connection with his drug dealing, all of this evidence—the guns, the ammunition, and the volume of it—to the extent that somebody could conclude something about the amount of it, tends to shed light on those statements that were made by [defendant] during the course of the interviews.” When the speed loader was admitted into evidence, the trial court advised the jury that there was no evidence that the speed loader in the photograph was for.357-caliber cartridges, the type of cartridges used in the shooting.
Defendant presents no argument in his opening brief regarding the admission of any other firearm-related evidence. For the first time in his reply brief he argues that all of the firearm-related evidence was prejudicial “ ‘other crimes’ ” evidence. We will not consider the authority and argument presented by defendant for the first time in his reply brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
Defendant contends the speed loader and photographs were irrelevant, because the photographs were not recent and because there was no evidence the speed loader McColgin brought to court was of the same type depicted in the photographs. Relevant evidence is defined as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Defendant fails to address the trial court’s theory of relevance for the firearm-related evidence, as quoted above. Because the court’s rationale is not “arbitrary, capricious, or patently absurd” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 (Rodriguez)), we conclude the court did not abuse its discretion.
B. Computer Searches for Erotic Services
The internet cache on the Toshiba laptop computer, discovered in the garage at the Vallejo residence where defendant’s wife was living, contained web pages from the date of the murder, accessed between 5:13 and 5:22 p.m. The pages included searches relating to females advertising erotic services for males and murders in Walnut Creek. The erotic services searches were conducted shortly before the Walnut Creek murder search.
In discussions with counsel prior to trial, the trial court outlined the following theory of relevance for the evidence of the searches for erotic services, in concluding that the probative value of the evidence outweighed the risk of undue prejudice: “the nature of the searches... [¶]... [¶]... tends to limit at least certain categories or classes of people from the identity of the person that may have conducted the search, and to the extent that [defendant] may fall within the categories of persons that would conduct this sort of search from others who would not. [¶] I think the jury is allow[ed] to draw inferences about who might have conducted the search. Especially since the computer was found in the [possession] of somebody else.” Later, the court reiterated, “each and every one of these items tend to establish the target audience that these people were advertising for, and to a certain degree, identify [defendant] as opposed to somebody else, particularly as distinguished from his wife, perhaps, who might have done this search—who might have done this craigslist search. [¶] And so while I don’t say that it conclusively establishes [defendant] or identifies [defendant] as the searching person, it tends to do that, and that’s what makes it relevant. Insofar as that evidence is important corroboration of... who also did the “Walnut Creek Murder” search, it just seems to me that it’s a... significant part of the People’s proof....” The prosecutor, in his closing argument, relied on the same theory of relevance articulated by the trial court.
On appeal, defendant fails to address the trial court’s theory of relevance for the erotic services searches, as quoted above. Because the court’s rationale is not “arbitrary, capricious, or patently absurd” (Rodriguez, supra, 20 Cal.4th at pp. 9-10), we conclude the court did not abuse its discretion.
Disposition
The trial court’s judgment is affirmed.
We concur: JONES, P.J., BRUINIERS, J.