Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, No. RIF-138767 Mac R. Fisher, Judge.
O'ROURKE, J.
A jury convicted Edgar Escobar Mejia of second degree murder, a lesser included offense of first degree murder. (Pen. Code, § 187, subd. (a).) The jury found true an enhancement allegation that he personally used a deadly and dangerous weapon, a knife. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).)
All statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced Mejia to 16 years to life in state prison.
Mejia contends the trial court erred by: (1) permitting a pathologist to testify regarding the autopsy, which a different pathologist performed, and admitting into evidence the autopsy results — both in violation of his confrontation rights as stated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Melendez-Diaz v. Massachusetts (2009) 557 U.S, __ [129 S.Ct. 2527] (Melendez–Diaz); (2) instructing on voluntary manslaughter in a manner that prejudiced him and (3) failing to instruct on its own motion on the lesser included offense of involuntary manslaughter. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Mejia does not challenge the sufficiency of the evidence to support a conviction; therefore, we present the facts briefly and in the light most favorable to the judgment. (People v. Osband (1996) 13 Cal.4th 622, 690.)
Prosecution Case
On September 2, 2007, the victim, Gustavo Medina Cruz, participated in the rodeo at Lake Perris Fairgrounds. Afterwards, at around 9:00 p.m., he got into an argument with Mejia and his companions, who security officers removed from the fairgrounds. Undeterred, Mejia and his companions continued shouting curse words at Cruz and challenging him to a fight. Mejia walked to his vehicle in the parking lot, returned and shouted at Cruz to come outside and fight. Cruz walked outside of the fairgrounds gate towards Mejia, who walked towards him. They both assumed fight stances, and Mejia pulled an object from his pocket and stabbed Cruz in the left side of the chest. Immediately afterwards, Cruz held his chest and ran back inside the fairgrounds, saying, "He stabbed me, he stabbed me." Mejia threw a knife to the ground and ran to his vehicle. A crowd surrounded Mejia's vehicle and prevented his departure; he got out of the vehicle and they subdued him. When the police arrested him in the parking lot, his hands were bloody. Police later found a folding knife at the crime scene.
Stephanie Munoz testified she was a medical assistant and nursing student certified in CPR. Upon leaving the rodeo, she saw Cruz collapse and attended him. He was moaning and had a chest laceration that was between "an inch and a half to two inches thick." Munoz performed five minutes of CPR on him, but he vomited and stopped breathing before an ambulance arrived.
Dr. Mark Thomas, the emergency room attending physician, testified that the paramedics brought Cruz, and reported they had been doing CPR on him, but he had been without a pulse or breath for at least 20 minutes. Dr. Thomas made contemporaneous notes regarding a stab wound to Cruz's chest.
Dr. Thomas O'Callaghan testified that at 9:45 p.m. Cruz arrived at the emergency room with a stab wound to the heart. He operated on Cruz to insert a tube to control hemorrhage, but Cruz had lost a massive amount of blood and was pronounced dead after approximately seven minutes.
Riverside County Deputy Coroner Michael Oare testified that he investigated this case and performed a physical inspection of the homicide victim and found one stab wound to the left side of his chest.
Riverside County Sheriff Detective Kenneth Patterson testified he attended the autopsy and saw what appeared to be a knife wound on the left side of Cruz's chest. He estimated the wound was approximately 1.5 inches long and 1 inch wide, and caused by a single-sided knife.
Before trial, the People moved in limine for an order permitting Dr. Joseph Cohen, Riverside County Chief Forensic pathologist, to testify in lieu of Dr. Gleckman, the retired pathologist who had performed the autopsy. Dr. Cohen had been Dr. Gleckman's supervisor. The defense opposed the motion on grounds Dr. Cohen's testimony would violate Mejia's confrontation rights as stated in Crawford, supra, 541 U.S. 36 and Melendez-Diaz, supra, 129 S.Ct. 2527. The trial court tentatively ruled to allow Dr. Cohen to testify, and for the People to lay as much foundation as they possibly can "independent of the autopsy protocol, to the extent that other witnesses, such as medical experts who treated the decedent, might be necessary as well." Just before Dr. Cohen testified, the court confirmed its tentative ruling.
Dr. Cohen testified he reviewed Dr. Gleckman's autopsy notes and photographs and other photographs, Cruz's medical records and related documents, and he heard the trial testimonies of Drs. Mark Thomas and Thomas O'Callaghan. Based on Dr. Cohen's independent review of the documents, he concluded the cause of death was a stab wound to Cruz's heart and the manner of death was homicide. Dr. Cohen also testified Cruz's death certificate states the manner of death is homicide and the cause of death is a stab wound to the chest.
Defense Case
Mejia testified he attended the rodeo and dance afterwards, and had been drinking beers at the fairgrounds. His friend, who was talking to another man's girlfriend, got into a fight about that. Mejia started to help his friend, but security officers stepped in and took his friend outside of the fairgrounds. Mejia walked to his vehicle to drop off his new cowboy hat, and remained outside the fairgrounds gate. Suddenly, someone who passed through the fairgrounds gate hit Mejia, who almost fell. Mejia became afraid because others were coming to attack him. Just then, a passerby handed him a knife, and Mejia swung his hand and stabbed Cruz once. Mejia was chased and hit in the head. He testified that he had lied to Riverside County Sheriff Detective Robert Masson by saying in an interview shortly after the incident that Cruz had thrown beer bottles at him.
Rebuttal
The lead investigator, Detective Masson, testified that Mejia initially stated Cruz had thrown a beer bottle at him, and denied stabbing Cruz. Mejia later admitted stabbing Cruz. When asked why he stabbed Cruz, Mejia admitted being a dummy; he did not say he was scared for his life. After Detective Masson told Mejia that Cruz had died, Mejia responded, "Maybe I didn't stab him then."
DISCUSSION
I.
Mejia contends the trial court erred by admitting into evidence the autopsy report and Dr. Cohen's testimony in violation of Mejia's right to confrontation as defined by the United States Supreme Court in Crawford, supra, 541 U.S. 36 and Melendez-Diaz, supra, 129 S.Ct. 2527. We conclude any error was harmless.
"The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, [citation], provides that '[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.' " (Melendez–Diaz, supra, 129 S.Ct. at p. 2531.) In Crawford, the United States Supreme Court held that the Confrontation Clause guarantees a defendant's right to confront those who bear witness against him. (Melendez–Diaz, at p. 2531.) "A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." (Ibid.) In People v. Geier (2007) 41 Cal.4th 555 (Geier), the California Supreme Court determined that scientific evidence such as DNA expert testimony and laboratory reports are admissible despite the limitations the Confrontation Clause places on conventional evidence. (Id. at pp. 596–607.)
Currently pending before the California Supreme Court are at least six petitions of review to address the following issue: "How does the decision of the United States Supreme Court in [Melendez–Diaz] affect this court's decision in [Geier]?" (People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886; People v. Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620; People v. Benitez (2010) 182 Cal.App.4th 194, review granted May 12, 2010, S181137; People v. Bowman (2010) 182 Cal.App.4th 1616, 1618, review granted June 9, 2010, S182172.)
In this case, we need not weigh in on the legal issue of whether admission of the autopsy report or Dr. Cohen's testimony explaining the report violated Mejia's Sixth Amendment rights because even assuming without deciding that there was error, we conclude any error in admitting the evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
As we have detailed in the fact section, Dr. Gleckman conducted the autopsy and wrote the autopsy report. Dr. Cohen testified at trial about Dr. Gleckman's findings and conclusions regarding the cause of death. Additionally, Dr. Cohen gave his opinions regarding how Cruz's injuries might have been caused and whether they were consistent with certain hypotheticals.
The autopsy report's conclusion that Cruz died of stabbing (and Dr. Cohen's recitation of it) did not prejudice Mejia because it was supported by independent evidence. Specifically, evidence of stabbing was provided by Munoz, who gave Cruz CPR and testified that she could not revive him. Further, Drs. Mark Thomas and Thomas O'Callaghan, who treated Cruz in the emergency room, testified about Cruz's stab wound. Deputy Coroner Oare performed an independent inspection of Cruz and determined he had a stab wound to the chest. Detective Patterson attended the autopsy and testified he saw the knife wound to Cruz's chest. Mejia had blood on his hands when arrested, and admitted at trial that he had stabbed Cruz. In light of all of the evidence, including eyewitness testimony that Cruz collapsed and stopped breathing shortly after receiving the knife wound, it is clear beyond a reasonable doubt that a rational jury would have found Mejia guilty absent any error in admitting the autopsy report and Dr. Cohen's testimony, because the errors were harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24; Geier, supra, 41 Cal.4th at p. 608.)
We note the jury could reasonably conclude Mejia exhibited consciousness of guilt both because he offered differing accounts of the stabbing in his interview with Detective Masson, and he threw away the knife. The jury was instructed with CALCRIM No. 362 regarding consciousness of guilt: "If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt." The jury also was instructed with CALCRIM No. 371: "If the defendant tried to hide evidence against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
II.
Mejia contends the trial court's instructions to the jury regarding voluntary manslaughter "contain frequent references to the notion that a manslaughter verdict requires a reduction of the homicide from murder. This plants in the jurors' minds the construct that they should not return a verdict less than murder unless the defense has convinced them that the homicide should be 'reduced' to manslaughter. This impermissibly intrudes into the deliberative process and creates an improper presumption that a homicide is murder rather than manslaughter, instead of allowing the jurors to begin deliberations with all levels of crime submitted to them deemed worthy of even-handed consideration." He claims the jury "was told repeatedly [through CALCRIM Nos. 522 on provocation; 570 on heat of passion; and 571 on imperfect self-defense] that it should presume the charged offense was murder unless someone convinced them they should 'reduce' it." He concludes, "[T]he instructions tended to lighten the prosecution's burden of proof by creating an impermissible inference in favor of the prosecution on the most significant issue of the case, which was: did [his] mental state make the crime a murder or a manslaughter?"
In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire record. (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Further, in examining the entire charge we assume that jurors are " ' " 'intelligent persons and capable of understanding and correlating all jury instructions which are given.' " ' " (People v. Riley (2010) 185 Cal.App.4th 754, 767.)
Mejia does not contend the individual instructions that he challenges contain misstatements of the law. To the contrary, he contends that even if the concept that a murder may be reduced to manslaughter is an accurate statement of the law, it was improper. The gravamen of Mejia's contention is that the instructions "had the likely effect of prescribing an order of deliberations for the jurors. If they were to presume the killing was murder unless convinced otherwise, they would logically begin deliberating the question of whether the killing was murder."
We reject the notion that the jury was instructed to presume the killing was murder. The court instructed the jury with CALCRIM No. 500 regarding murder as follows: "Homicide is the killing of one human being by another. Murder and manslaughter are types of homicide. The defendant is charged with murder. Manslaughter is a lesser offense to murder. [¶] A homicide can be lawful or unlawful. If a person kills with a legally valid excuse or justification, the killing is lawful and he or she has not committed a crime. If there is no legally valid excuse or justification, the killing is unlawful and, depending on the circumstances, the person is guilty of either murder or manslaughter. You must decide whether the killing in this case was unlawful and, if so, what specific crime was committed. I will now instruct you in more detail on what is a legally permissible excuse or justification for homicide. I will also instruct you on the different types of murder and manslaughter." (Emphasis added.) This instruction made it clear the jury was free to decide if the killing was lawful, and if it was unlawful, whether it was murder or manslaughter.
Mejia claims People v. Kurtzman (1988) 46 Cal.3d 322 supports his contention the jury is not to be given an order for their deliberations. In Kurtzman, the California Supreme Court held that one of its previous decisions "should be read to authorize an instruction that the jury may not return a verdict on the lesser offense unless it has agreed beyond a reasonable doubt that defendant is not guilty of the greater crime charged, but it should not be interpreted to prohibit a jury from considering or discussing the lesser offenses before returning a verdict on the greater offense." (Id. at p. 329.) Mejia concedes that here the jury was instructed with CALCRIM No. 640, which "specifically informed them that they could order their deliberations as they wished, " but in a non sequitur, he adds, "The fact that a separate instruction was required illustrates this particular defect of which [he] complains." We conclude Kurtzman is inapplicable, and CALCRIM No. 640 conclusively refutes Mejia's contention the instructions prescribed an order for the jury's deliberations.
CALCRIM No. 640 states in relevant part, "You will be given verdict forms for guilty and not guilty of first degree murder, second degree murder, and voluntary manslaughter. [¶] You may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of all of the greater crimes."
Finally, we reject the contention the jury instructions reduced the People's burden of proof. Mejia relies on People v. Owens (1994) 27 Cal.App.4th 1155, in which the court concluded regarding a challenged instruction that, "Instructing the jury that the People have introduced evidence 'tending to prove' appellant's guilt carries the inference that the People have, in fact, established guilt. This inference would be eliminated if the phrase 'for the purpose of showing' was substituted for 'tending to prove, ' so that the instruction would read: 'The People have introduced evidence for the purpose of showing that that there are more than three acts.... ' " (Id. at p. 1158.) Nonetheless, the court concluded any instructional error was harmless in light of the entire instructions given. (Id. at p. 1159.) Here, the instructions did not reduce the People's burden of proof. Rather, the jury was instructed with CALCRIM No. 220 regarding the presumption of innocence, and the People's burden of proof. The instruction states, "Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
III.
Mejia contends he was denied due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments of the federal Constitution because the trial court failed to instruct the jury on its own motion on the lesser included offense of involuntary manslaughter. He contends the instruction was supported by his testimony that he did not intend to kill or for that matter stab someone, but just swung the knife as soon as someone passed it to him, and he was just trying to scare his attacker because a crowd was attacking him. He contends the jury could have found involuntary manslaughter under either prong of section 192, subdivision (b). Specifically, Mejia maintains the jury could have found he committed an unlawful act not amounting to a felony because he brandished a deadly weapon under section 417, subdivision (a)(1), or that he committed an ordinarily lawful act, self-defense — which involved a high degree of risk of death or great bodily injury — without due caution and circumspection.
Section 192, subdivision (b) provides that involuntary manslaughter is the unlawful killing of a human being without malice "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection."
"Second degree murder is the unlawful killing of a human being with malice aforethought, but without the additional elements — i.e., willfulness, premeditation, and deliberation — that would support a conviction of first degree murder." (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102; see § 187, subd. (a).) Section 188 defines malice as follows: "[M]alice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."
A court must on its own motion instruct the jury on any lesser included offense when there is substantial evidence from which a reasonable jury could conclude the defendant committed the lesser, but not the greater, offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) "On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (Ibid.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (Ibid.)
A lesser included offense is necessarily included in a greater offense if the greater offense cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117.) Involuntary manslaughter is generally a lesser included offense of murder. (People v. Abilez (2007) 41 Cal.4th 472.)
We independently determine whether an instruction on the lesser included offense of involuntary manslaughter should have been given. (People v. Manriquez (2005) 37 Cal.4th 547, 587.)
Here, there was no substantial evidence of involuntary manslaughter. The killing of Cruz can only be characterized as intentional. Mejia and his friends were involved in the argument with Cruz, and therefore security officers escorted them outside of the fairgrounds. Undeterred by the authorities' attempt to end the argument, Mejia went to his vehicle and put away his hat. However, he did not take the opportunity to reflect on his actions and end the confrontation. Rather, he returned to the fairgrounds gate and taunted Cruz, challenging him to a fight. He elected to stab Cruz in the chest with a knife, causing death. He threw the knife away. He did not tell the police interviewer he was scared for his life.
The jury's verdict finding Mejia guilty of the second degree murder implicitly rejected his version of the events — whether that version sought to establish voluntary manslaughter based upon a theory of either provocation or imperfect self-defense, or involuntary manslaughter based upon a theory of self-defense — eliminating any doubt that the jury would have returned the same verdict had it been instructed on involuntary manslaughter. (See People v. Lewis (2001) 25 Cal.4th 610, 646 [error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions].) Accordingly, even if we were to assume for the sake of discussion that the trial court's failure to instruct on involuntary manslaughter violated Mejia's constitutional rights, we would find the error harmless beyond a reasonable doubt. (See People v. Sakarias (2000) 22 Cal.4th 596, 621.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J.NARES, J.