Opinion
A128930
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. LOUSA MATAELE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC56277)
While riding in a taxi cab after a night of drinking, appellant Lousa Mataele pulled a revolver from his backpack, demanded money, and fatally shot the driver in the head. After getting out of the cab, he fired at his companion in the backseat, grazing his head with a bullet. Appellant was tried before a jury and convicted of first degree murder with a felony-murder (robbery) special circumstance, attempted robbery of a taxi cab operator, and attempted murder, along with firearm allegations. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17), 664/212.5, subd. (a), 664/187, subd. (a), 12022.53, subds. (c) & (d), 12022.5, subd. (a)(1), 1202.06, subd. (a)(1).) He was sentenced to prison for life without the possibility of parole for the murder count, plus 25 years to life for the firearm enhancement attached to that count, plus a consecutive 27-year determinate term for the attempted murder count and accompanying firearm enhancement.
Appellant's defense at trial was that he had suffered a seizure and was not conscious at the time of the shootings, or, alternatively, that he was unconscious due to intoxication, making the homicide no greater than involuntary manslaughter. In this appeal, he argues that the judgment must be reversed because the prosecution was allowed to present prejudicial evidence of a prior robbery and prior attempted robbery as circumstantial evidence that he was conscious and possessed an intent to rob when he committed the acts giving rise to this case. (Evid. Code, § 1101, subd. (b).) Appellant also complains that one of the investigating officers was allowed to offer an opinion of his truthfulness during an interrogation. We affirm the convictions, but strike a $200 parole revocation fine imposed under Penal Code section 1202.45.
I. FACTUAL BACKGROUND
A. The Offense
At about 3:20 a.m. on September 13, 2003, a Redwood City police officer noticed Jaime Torres standing by the rear of a taxi cab that had collided with a parked car near the intersection of Ebner Street and Oak Avenue. Torres appeared "dazed and confused" and was crying and bleeding. He told the officer, "We got blasted," and, "The fucker blasted us." When the officer asked whom he meant by "us," Torres gestured to the cab driver, Davinder Singh, who was slumped over dead in the driver's seat with two gunshot wounds in the back of his head. The driver's window was shattered and a turban with two holes matching Singh's wounds was lying near the center console.
Torres described the shooter as a "Tongan male with long black hair," and pointed down Ebner Street when asked where he had gone. Police arrested appellant, who matched the description of the shooter, at a bus stop less than a mile away. Appellant had arrived a few minutes earlier breathing heavily and had asked a man waiting at the bus stop when the bus arrived. He was carrying a backpack when he was arrested, which contained an older model .32-caliber revolver, eight .32-caliber rounds, and six .32-caliber casings. Bullets recovered from Singh's head and the left rear passenger door of the taxi cab were ultimately determined to match the revolver, as did bullet casings recovered from the sidewalk near the cab.
Torres testified that on the night of the shooting, he had been drinking at Sodini's bar in Redwood City, where he was a regular customer. He saw appellant, whom he knew from the bar, and was drinking with him on and off until closing time. Appellant was quiet and was wearing a backpack on his shoulders. He asked about a 14-karat gold "grille" that Torres was wearing over the bottom of his front teeth and Torres told him it cost about $500.
After the bar closed, Torres still felt like drinking so he walked to his friend Justin Bates' home. Appellant asked if he could come with him and Torres agreed. Bates did not want to let them in, but Torres lied and said they were being chased, so Bates allowed them to stay and watch some television. Bates eventually told them they would have to leave, and a cab was called. Torres was going to leave without appellant, thinking the evening was over, but appellant got into the cab with him and the two of them drove away together.
According to Torres, appellant told the cab driver to make a turn and Torres thought he intended to get out. Instead, appellant pulled a revolver out of his backpack, pointed it at the driver's head and said, "Break yourself [or "Jack yourself], give me your money now." He fired a shot and the driver moved as though he was trying to push the gun away. Appellant fired two more shots into the driver's head and the taxi cab crashed into a parked car.
Torres tried to get out of the cab but could not do so. Appellant, who by that time was standing outside the taxi, pointed a gun at Torres and demanded his cell phone and "gold teeth." Before Torres could reach for these items, appellant shot at him and fled. Torres felt something hit him but did not know he had been shot until he saw blood on his pants. He managed to get out of the cab and call for help.
Torres had a laceration on his head and blood on the back of his head, and he was taken to the hospital on the night of the shooting. On the way, he told a paramedic that he had been a passenger in the backseat of a taxi cab where the driver was shot in the head. He was shown a photographic lineup at the hospital and identified appellant as the shooter. He then went to the police station for questioning, where he initially claimed not to remember what had happened, but then told police his story. Torres sought medical treatment the following day after finding blood on his pillow, and was discovered to have a scalp wound consistent with a bullet graze.
Other witnesses supported Torres's version of events. A customer at Sodini's on the night of the shooting noticed appellant and Torres drinking together and saw them leave the bar together at about 1:45 a.m. Justin Bates testified that Torres came by his house with appellant, that he reluctantly allowed them to stay, and that he asked them to leave and called a cab for them after Torres became too loud. Liza Hay, who was returning to her friend's home on Oak Avenue at about 3:20 a.m., heard pops and saw a taxi cab roll through the intersection of Oak and Ebener before hitting a parked car. She saw a man she later identified as appellant get out of the cab and walk "briskly" away. Her friend, Patrick Gann, also saw a man walking quickly away from the cab after it crashed, after which another man who appeared to be injured crawled out of the passenger side and sat on the curb. Another neighbor went outside after hearing the crash and saw a man get out of a taxi, bleeding and upset.
Evidence was also presented that impeached Torres's credibility. For example, Torres admitted that he was an alcoholic who suffered from schizophrenia and had been involuntarily committed under Welfare and Institutions Code section 5150 since the time of this offense. Justin Bates, who knew Torres from the bars, testified that Torres was not trustworthy. Torres had been convicted of domestic violence.
Appellant was interviewed by police after he was taken into custody. He initially told them he was drinking at a bar named Shooters with a man named Rodney and then walked to the bus stop where he was contacted by police. He admitted owning the gun that was found in his backpack, saying he had bought it from a "collection." After he was asked about "Jaime," appellant said he was drinking at Sodini's with a person named Juan and went to another person's house to have some more beers. Appellant said that Juan called a taxi and the taxi dropped him off at the bus stop. He claimed not to know anything about the taxi cab crashing or about someone getting shot. Appellant identified a photograph of Torres as "Juan."
Analyses of blood samples taken from Torres and appellant revealed that at the time of the shooting, Torres would have had a blood alcohol level of about .27 percent and appellant would have had a blood alcohol level of about .15 percent.
B. Mental State Issues
Appellant was initially found incompetent to stand trial and was treated in Napa State Hospital for several years before competency was restored in 2008 and criminal proceedings were reinstated. In early 2008, he was evaluated by neuropsychologist Howard Friedman, who determined that his full scale IQ was 70, with 70 being the cutoff for mental retardation. This placed appellant in the range between "borderline and extremely low" and suggested he "cannot develop a concept, cannot figure out a plan, cannot apply reasoning in a complex matter." Earlier testing at Napa State Hospital had indicated a full scale IQ between 72 and 78.
Appellant was also evaluated by neurologist Peter Cassini, M.D., who noted that appellant had a history of bizarre behavior at night during his hospitalization, banging on walls and speaking in gibberish. Appellant's MRI (magnetic resonance imaging) results were normal, but his EEG (electroencephalogram) results show brain damage and a possibility of seizures. Dr. Cassini believed that appellant had an injury at some point in his life that has been "diffused throughout his brain," possibly causing him to suffer seizures in the frontal lobe of his brain. Patients who suffer from seizure disorder sometimes engage in postictal (post-seizure) aggressive behavior, and when they do so, they frequently retained no memory of their violent behavior. Persons in a postictal state may be completely unconscious or fall somewhere else on the "continuum" of consciousness, taking a significant amount of time to regain consciousness. Consuming alcohol lowers the threshold for someone to have a seizure.
When posed a hypothetical question based on the circumstances of the shooting in this case, Dr. Cassini opined that it was possible the shooter had experienced a "postictal event." Dr. Cassini had watched videotapes of appellant's interviews with the police and believed that he was amnestic during the shooting. He noted that appellant reported the facts of the evening consistently up until the time of the shooting.
Psychiatrist James Missett reviewed appellant's mental health records and the videotaped interviews on behalf of the prosecution. He agreed that appellant's EEG results indicated brain damage, and although there was no evidence of a seizure disorder, Dr. Missett could not rule it out. Dr. Missett disagreed that appellant's interview revealed a memory gap; for example, when asked how the cab driver was shot, appellant said, "I don't know. I wasn't there." This did not suggest to Dr. Missett that appellant did not remember where he was when the shooting occurred. In Dr. Missett's opinion, the videos of the interviews showed that appellant did not have the flat, monotone affect one would expect from someone in a postictal state, and his actions near the time of the offense—shooting the driver and the passenger, fleeing on foot, discarding bullet casings, walking to the bus stop and waiting for a bus—were entirely inconsistent with someone experiencing a postictal state as a result of a seizure.
Appellant's niece reported that she had lived in the same family residence as appellant before the shooting and that he frequently screamed in an angry manner at night as though someone else were in the room with him. Appellant's mother, who also lived in the home, reported that appellant woke up at night at least once talking to ghosts.
Before the shooting, appellant had been working as a laborer for a construction company, for which he received a regular paycheck and maintained a bank account. He had also held a job "doing inventory."
C. Prior Criminal Acts
On the morning of December 7, 1998, two employees of a parking structure in Honolulu, Hawaii were accosted by three men who demanded money. One of the men grabbed a satchel containing approximately $30,000 in checks and cash and ran away; they fled in a white car that police later determined had been rented by appellant about a week earlier. When appellant was contacted by police he initially claimed that he had been home with his daughter on the morning of the robbery, but he later admitted he was driving the rental car. He claimed that he had taken the other men to the parking garage thinking there would be a "drug rip off." He finally admitted that he witnessed the robbery and drove the car through the parking garage gate to get away.
At about 1:30 a.m. on May 3, 1999, appellant flagged down a Honolulu taxi cab driven by Michael Kim. He got into the front seat, which worried Kim, and asked to be driven to a strip club. Appellant leaned toward Kim and reached out his arm as if he intended to grab him; thinking he was going to be robbed and was in danger, Kim jumped out of the cab and it collided with a parked car. Appellant, who appeared to be intoxicated, was fondling himself and told the police that Kim had jumped out because he (appellant) "was gonna suck his dick." Appellant was charged with harassment as a result of the incident; he was not charged with attempted robbery because no money had been demanded before the driver jumped out of the cab.
II. DISCUSSION
A. Prior Crimes Evidence Under Section 1101, Subdivision (b)
The prosecution offered evidence of the two prior incidents in Hawaii to establish appellant's intent to rob and to negate his defense of unconsciousness due to seizure and/or intoxication. The court admitted the evidence over defense objection, ruling that it was admissible under Evidence Code section 1101, subdivision (b) to prove appellant's intent at the time of the charged offenses, and was not unduly prejudicial under Evidence Code section 352. Appellant argues that the court abused its discretion in admitting the evidence. (People v. Jones (2011) 51 Cal.4th 346, 371 (Jones); People v. Kelly (2007) 42 Cal.4th 763, 783 (Kelly).) We disagree.
Evidence of a defendant's character, including specific instances of conduct, is generally inadmissible when it is offered to show criminal disposition or to prove conduct on a specific occasion. (§ 1101, subd. (a); People v. Zamani (2010) 183 Cal.App.4th 854, 889-890.) This general prohibition does not apply to an uncharged "crime, civil wrong, or other act" when it is relevant to prove a material fact other than criminal disposition, such as intent or mental state. (§ 1101, subd. (b); Jones, supra, 51 Cal.4th at p. 371.) "[T]he recurrence of a similar result tends to negate an innocent mental state and tends to establish the presence of the normal criminal intent." (Jones, at p. 371.) Evidence of prior conduct is admissible in cases where the proof of defendant's intent is ambiguous, as when he admits the acts and denies the necessary intent. (People v. Miller (2000) 81 Cal.App.4th 1427, 1447-1448.)
The defense did not dispute that appellant shot Singh and Torres, but argued that he was not conscious when he did so and therefore lacked the requisite criminal intent. It also urged the jury to find Torres an unreliable witness, and to disbelieve his testimony that appellant had demanded money before and during the shooting (which would lend support to the theory that the shooting was a an unconscious act of violence rather than a calculated attempt to steal). Evidence that appellant had aided and abetted a robbery in 1998 by driving the getaway car, and had accosted a taxi cab driver in 1999 under circumstances that could be reasonably construed as the first step of an attempted robbery, tended to show that appellant was trying to rob Singh and Torres, and was not in some fugue state following a seizure. " ' "[I]f a person acts similarly in similar situations, he probably harbors the same intent in each instance" [citations], and [] such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.' " (People v. Rowland (1992) 4 Cal.4th 238, 261.)
Appellant argues that neither prior incident was sufficiently similar to the current offense to allow their admission. He notes that the 1998 parking garage robbery occurred during the day, that he was a getaway driver who did not directly participate in the robbery, and that he did not use a gun or other weapon during the offense. He acknowledges that the 1999 incident in the Honolulu taxi cab was similar to the current offense to the extent it occurred at night and involved a taxi driver as a victim, but he claims there was "no evidence whatsoever" that he had any intent to rob.
"To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented. The least degree of similarity is needed when, as here, the evidence is offered to prove intent." (Jones, supra, 51 Cal.4th at p. 371.) Though the parking garage robbery differed from the current offense in certain details such as the time of day, the involvement of accomplices, and the absence of weapon use by appellant, it showed that appellant was able to formulate a plan to steal. This tended to contradict testimony by one of the defense experts, Dr. Friedman, that appellant lacked the mental capacity to develop a plan or reason in a complex manner. Moreover, appellant's initial denial of involvement when interviewed by police in the earlier case tended to show that in this case, his alleged lack of memory was simply an attempt to avoid prosecution, rather than an amnestic event as claimed by Dr. Cassini.
As for the 1999 incident, we agree that in order for it to be relevant to the current charges, the jury would have to believe that appellant was trying to rob Kim, the taxi driver, rather than offering him a sexual favor as appellant claimed when questioned by the police. Though it might not be possible to say beyond a reasonable doubt that appellant had an intent to rob Kim, the standard for admitting evidence of a prior crime is preponderance of the evidence. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1224, fn. 14.) The jury in this case was so instructed, and could have reasonably found it was more likely than not that appellant was attempting to rob Kim when he grabbed him. If they made this determination, appellant's intent to rob during the 1999 incident was relevant to whether he harbored a similar intent in this case. The court did not abuse its discretion in admitting the evidence.
The jury was given a version of CALCRIM No. 375 that provided, "The People presented evidence that the defendant aided and abetted a robbery in 1998 and attempted to rob Mr. Kim in 1999. These offenses were 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 uncharged offenses. 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. [¶] 'Preponderance of the evidence' means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it. You should consider all of the evidence bearing upon every issue regardless of who produced it. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged 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 commit robbery in this case or [¶] The defendant's alleged actions in this case were the result of a seizure causing unconsciousness. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offenses, 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 the charged crimes. The People must still prove each charge and allegation and special circumstance beyond a reasonable doubt."
Appellant argues that evidence of the 1998 and 1999 Hawaii incidents should have been excluded under section 352 as more prejudicial than probative, because the danger was too great that the jury would convict him based on his bad character. We are not persuaded.
Evidence is not unduly prejudicial simply because it is so probative as to cause damage to the defense case. (People v. Karis (1988) 46 Cal.3d 612, 638.) Rather, evidence is unduly prejudicial under section 352 if it "uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." (Karis, at p. 638.) A court abuses its discretion in admitting evidence over a section 352 objection only when it acts in an "arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.)
Appellant's prior crimes were highly relevant to the most important issue in the case—his intent and consciousness at the time of the current offenses. They were completely separate from the charged offenses, making it unlikely the jury would confuse the issues. The facts of the prior crimes were not inflammatory, as appellant did not carry a weapon or injure the victim during either offense. The jurors were instructed on the limited purpose of the other crimes evidence and were told not to consider it as proof of criminal disposition, and we presume they followed that instruction.(See footnote 2.) (See People v. Lindberg (2008) 45 Cal.4th 1, 24-26.)
Appellant alternatively argues that the evidence about the two incidents in Hawaii violated his constitutional rights to due process and a fair trial. "The constitutional claims do not invoke facts or legal standards different from those defendant asked the trial court to apply but merely assert that the alleged errors were also constitutional violations. Because we find no error, we necessarily also find no constitutional violation. Accordingly, we provide no separate constitutional discussion." (Jones, supra, 51
Cal.4th at pp. 369-370, fn. 3.) B. Police Officer's Opinion of Appellant's Honesty
Appellant argues that the judgment must be reversed because one of the investigating officers who testified at trial was allowed to offer an opinion regarding appellant's truthfulness. We reject the claim.
Sergeant Rhonda Leipelt and Detective Don Banks began interrogating appellant after his arrest on the night of the shooting. Two other officers, Detective Stasiak and Detective Feeney, continued the interrogation. Sergeant Leipelt was called as a prosecution witness and was asked why the two other detectives took over the questioning. She explained, "That was my decision. When we interview suspects and we're taking statements, sometimes its better to change up the interviewers to see if a different technique or different personalities can elicit additional information." The prosecutor asked Sergeant Leipelt whether she had been satisfied with appellant's answers up until that point and she responded no. Asked why not, she stated, "I didn't think he was being honest." Defense counsel objected and the court sustained the objection.
This objection was sufficient to preserve the issue and we need not reach appellant's alternative claim that the objection, if insufficient, amounted to ineffective assistance of counsel.
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Lay opinion regarding the veracity of another person's statement is inadmissible. (People v. Melton (1988) 44 Cal.3d 713, 744 (Melton) ; People v. Zambrano (2004) 124 Cal.App.4th 228, 240.) "[T]he reasons are several. With limited exceptions, the fact finder, not the witnesses, must draw the ultimate inferences from the evidence. Qualified experts may express opinions on issues beyond common understanding (Evid. Code, §§ 702, 801, 805), but lay views on veracity do not meet the standards for admission of expert testimony. A lay witness is occasionally permitted to express an ultimate opinion based on his perception, but only where 'helpful to a clear understanding of his testimony' (id., § 800, subd. (b)), i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citations.] Finally, a lay opinion about the veracity of particular statements does not constitute properly founded character or reputation evidence (Evid. Code, § 780, subd. (e)), nor does it bear on any of the other matters listed by statute as most commonly affecting credibility (id. at § 780, subds. (a)-(k)). Thus, such an opinion has no "tendency in reason" to disprove the veracity of the statements. (Id. at §§ 210, 350.)" (Melton, at p. 744.)
Here, the court sustained the defense objection to Leipelt's testimony that she did not believe appellant during the interrogation, and the court instructed the jury that it must ignore any question to which an objection was sustained. But even if we assume the jury considered Sergeant Leipelt's opinion that appellant was not telling the truth, prejudice is lacking. Leipelt's decision to continue the interrogation made it apparent that she was skeptical of appellant's claim that he was not present when the shooting was committed. Her explanation as to why she had other officers continue the questioning simply confirmed the obvious: that Leipelt was not satisfied appellant was being honest about his involvement in the shooting. The evidence that appellant was the shooter was overwhelming, and the primary issue at trial was his mental state at the time he acted. It is not reasonably probable the jury would have reached a verdict more favorable to appellant absent the challenged testimony. (Melton, supra, 44 Cal.3d at p. 745.) C. Parole Revocation Fine
Appellant argues that a $200 parole revocation fine imposed under Penal Code section 1202.45 was not authorized because he was sentenced to prison for life without the possibility of parole. The People agree, and we will order the fine stricken. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184.)
DISPOSITION
The $200 parole revocation fine is stricken. The abstract of judgment shall be modified accordingly and an amended abstract shall be sent to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
NEEDHAM, J. We concur. JONES, P. J. SIMONS, J.