Opinion
C072527
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. BRIAN ERIC NORTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F5472)
Advances in DNA analysis solved this cold case, linking defendant Brian Eric Norton to a homicide 20 years after it happened. Defendant did not deny killing victim Despina Magioudis but told police he and the victim argued after consensual sex, and he "just freaked" from "[t]oo much dope probably" and hit her repeatedly. The jury found defendant guilty of first-degree murder and found true the special circumstance allegation of murder during the commission or attempted commission of rape. (Pen. Code, §§ 187, 190.2, subd. (a)(17); unless otherwise set forth, statutory section references that follow are to the Penal Code.)
On appeal, defendant contends (1) inclusion of evidence of uncharged misconduct under a statute enacted after the homicide (Evid. Code, § 1108) violated the ex post facto clauses of the federal and state Constitutions; (2) trial counsel rendered ineffective assistance by failing to move to exclude evidence of uncharged misconduct that occurred after this homicide; (3) the trial court failed to instruct on all elements of felony murder and limited the jury's consideration of defendant's intoxication evidence; (4) the court failed to instruct on "unlawful act" manslaughter as a lesser included offense; (5) the jury instructions on the special circumstance were faulty; and (6) the trial court improperly ordered an 11-day recess after the prosecution had presented some of its most important witnesses.
We affirm the judgment.
FACTS AND PROCEEDINGS
On October 25, 2011, the prosecution charged defendant with the August 10, 1991, first degree murder of Despina Magioudis, adding a rape special circumstance. The prosecutor proceeded on two theories of first degree murder -- felony murder based on rape or attempted rape, and willful, premeditated murder. Defense counsel conceded during his opening statement to the jury that defendant murdered the victim but argued it was at most second degree murder. The defense also conceded to the jury that defendant had sex with the victim but asserted it was consensual.
The Prosecution's Case
In 1991, the victim was allowed to stay in a travel trailer parked behind the Redding home of Bradford Aarons. He described her at trial as a "sweet soul" though "a little bit left of center" and "loony." She spent her days walking around town, talking with people.
Midday on August 10, 1991, the victim's dead body was discovered in an open field next to a drainage canal. She was face down, with her dress pulled up over her waist and underpants pulled down around her left ankle. She had substantial head trauma. The cause of death was both manual strangulation and blunt force trauma from bludgeoning to the head. Broken fingernails suggested a struggle. Sperm was found in her genital region, and swabs from her labia were preserved.
In 2010, a national DNA database found a match between those DNA samples and defendant, who was then a prisoner in the state of Iowa. The statistical probability of an unrelated Caucasian having provided the sample on the victim's genitals was about one in 340 trillion. The criminalist also testified defendant was not one of the more than 99.9 percent of the population that could be excluded from having deposited the DNA in scrapings taken from under the victim's fingernails.
Defendant was extradited to California. During transit, he confided in a fellow prisoner, Arden Archer, who testified at defendant's trial, that defendant said he had raped and murdered a woman years earlier in Redding. Defendant said he took the victim to an area near a bridge, intending to rape and murder her. As he was raping her, he choked her unconscious. She regained consciousness and started fighting. This angered defendant, and he beat her to death. He raped her before, during, and after he killed her. He left her underpants pulled down and kicked her body into a drainage ditch. Archer testified defendant said he was considering telling the police that the victim was a prostitute, and the sex was consensual. Defendant also said he might fake a mental illness to escape the death penalty.
In a videotaped interview with the Redding police played for the jury, defendant said he was on medication because he was "schizophrenic [and] highly depressed." He said the victim agreed to have sex with him for $20, and they had sex near a bridge. He admitted killing the victim, stating, "I just freaked" because of "[t]oo much dope probably." He claimed he and the victim had walked into the field and argued. He "blew up and []started hitting her," then pushed her body down to the creek. When asked what might have set him off, defendant said the victim "didn't want sex." Defendant admitted he "raped" and "sexually assaulted" the victim. When asked to explain, defendant said, "I don't know why it was rape. It just does [sic]. I got mad and raped her." He remembered hitting her in the face with his fists during sex because she wanted to stop. He dragged her into the field and forcibly pulled her clothes down. He kicked her body towards the creek so no one would find her. He pushed her into the canal and heard water splash. (Defendant's appellate brief says her body was found at the top of the canal bank, but his citations to the record do not so state.) He then went home, cleaned blood off his hands, threw away his bloody shoes, and watched television. When asked if he was under the influence of drugs on the night of the crime, defendant said, "I bet I was."
The victim had no arrest or conviction record, and the man who allowed her to stay on his property said she was not a prostitute.
Defendant's ex-wife S.E. testified that in 1991, while they were still married, defendant forced her to have sex with him numerous times, holding her down with one hand, forcing himself on her, and threatening that she would give him sex "one way or another." She did not call police. She later divorced defendant and went to Iowa, where her mother lived.
Defendant's ex-girlfriend B.C. testified she lived with him in Iowa. She ended the relationship in 2007 but allowed him to stay in her house until he could afford his own place. One night, he entered her bedroom and demanded sex. She refused and headed for the door. Defendant stood in her way, pulled out a 12-inch serrated knife, grabbed her, threatened to kill her children if she did not comply, pulled down her pajama pants, tore off her underwear, and pushed her onto the bed. She started yelling. He forced a pillow over her face and repeatedly punched her in the side of the head. He forced her to copulate him orally. He raped her vaginally and anally. She called the police. Defendant was arrested, convicted, and sent to prison.
The Defense Case
Through the law enforcement officer who initially interviewed the ex-wife, the defense elicited that the ex-wife said that when she got to Iowa, she told her mother about the sex abuse. The ex-wife testified at trial that she did not tell her mother until the day before the trial testimony.
Defendant's daughter testified he was a good father. He had full custody of her by court order after her stepfather abused her, until she got pregnant at age 16 and chose to move back with her mother.
The Verdict and Sentencing
The jury found defendant guilty of first degree murder and found true the special circumstance allegation that defendant committed the murder during the commission or attempted commission of rape.
On November 5, 2012, the trial court sentenced defendant to life in prison without possibility of parole.
DISCUSSION
I
Evidence Code Section 1108Defendant contends evidence of unrelated rapes under Evidence Code section 1108 -- which was enacted four years after this incident -- violates the ex post facto clauses of the federal and state Constitutions.
Evidence Code section 1108 provides in part: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101 [general inadmissibility of character evidence], if the evidence is not inadmissible pursuant to Section 352. . . ."
The trial court allowed the evidence from defendant's ex-wife and ex-girlfriend on Evidence Code section 1108 grounds and overruled defendant's Evidence Code section 352 objection to the 1991 rape of his then-wife. The court ruled the evidence relevant and material; the prior offenses were similar to the charged offense in the use of force and strangulation or attempt to impeded victims' breathing. While years had passed between 1991 and the 2007 events, the fact that defendant's deviant behavior had not abated over that span of time weighed in favor of allowing the evidence.
For purposes of this appeal, we assume for the sake of argument that defendant's ex post facto challenge to Evidence Code section 1108 is preserved for appeal despite his failure to raise it in the trial court.
California's constitutional bar on ex post facto laws is analyzed in the same manner as the federal constitutional bar. (U.S. Const., art. I, § 9, subd. 3; Cal. Const., art. I, § 9; People v. Alford (2007) 42 Cal.4th 749, 755.) Ex post facto principles bar laws which (1) make criminal an act that was innocent when committed, (2) make a crime greater than it was when committed, (3) make the punishment greater than it was when the act was committed, and (4) alter the legal rules of evidence by allowing for " 'less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.' " (Carmell v. Texas (2000) 529 U.S. 513, 522, 525 (Carmell).) Defendant's challenge raises the fourth point, which refers to situations where the practical effect is to lower the minimum quantum of evidence required to obtain a conviction. (Id. at p. 534.)
When defendant killed the victim in 1991, California law barred admission of evidence of prior misconduct to prove a defendant's propensity to commit a charged crime. (Evid. Code, § 1101, subd. (a); People v. Flores (2009) 176 Cal.App.4th 1171, 1175 (Flores).) After defendant killed the victim, the Legislature in 1995 enacted Evidence Code section 1108 (Stats. 1995, ch. 439, § 2) creating an exception for sexual misconduct, authorizing use of evidence of separate sexual offenses to show the defendant's propensity to commit the charged sexual offense, subject to exclusion under Evidence Code section 352 if more prejudicial than probative. (People v. Lewis (2009) 46 Cal.4th 1255, 1286.) Evidence Code section 1108 is a narrow exception to the rule against propensity evidence. (People v. Villatoro (2012) 54 Cal.4th 1152, 1160 [statute applies to both charged and uncharged offenses].) The jury is instructed, as it was in this case, that evidence of uncharged crimes is not sufficient to prove guilt of the charged offenses.
People v. Fitch (1997) 55 Cal.App.4th 172, 185-186, (which defendant does not address on this point), held Evidence Code section 1108 does not violate ex post facto principles because an earlier federal case indicated that language about altering rules of evidence was not intended to prohibit application of new evidentiary rules in trials for crimes committed before the changes. (Id. at p. 186.) To the extent Fitch could be construed as dismissing the " ' "alter[ing] the legal rules of evidence" ' " component as obsolete, the Carmell decision filed in 2000 -- three years after Fitch -- made clear that this fourth component of ex post facto analysis remains valid. Nevertheless, People v. Davis (2009) 46 Cal.4th 539, 603, fn. 6, cited Fitch with approval for the proposition that Evidence Code section 1108 is not an ex post facto law.
We disagree with defendant's view that Carmell, supra, 529 U.S. 513, supports his ex post facto claim. Carmell involved a Texas statute that initially required corroboration for a victim's testimony of sexual assault but was amended to dispense with the need for corroboration. (Id. at pp. 530-531.) Carmell held the amendment impermissibly authorized conviction of "less evidence than previously required." (Id. at p. 531.) "A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof [citation]. In each of these instances, the government subverts the presumption of innocence by reducing the number of elements it must prove to overcome that presumption; by threatening such severe punishment so as to induce a plea to a lesser offense or a lower sentence; or by making it easier to meet the threshold for overcoming the presumption. Reducing the quantum of evidence necessary to meet the burden of proof is simply another way of achieving the same end." (Id. at pp. 532-533.) " 'Under the law in effect at the time the acts were committed, the prosecution's case was legally insufficient and [the defendant] was entitled to a judgment of acquittal, unless the State could produce both the victim's testimony and corroborative evidence.' " (Id. at p. 530.) The amendment violated the ex post facto prohibitions. (Id. at pp. 530, 532.)
Carmell is not controlling here because, unlike the Texas statute, Evidence Code section 1108 does not allow for conviction based on a lesser amount of evidence. Section 1108 of the Evidence Code deals solely with admissibility of a particular kind of evidence. Carmell expressly made that distinction: "The issue of the admissibility of evidence is simply different from the question whether the properly admitted evidence is sufficient to convict the defendant. Evidence admissibility rules do not go to the general issue of guilt, nor to whether a conviction, as a matter of law, may be sustained." (Id., supra, 529 U.S. at p. 546.)
Carmell was distinguished on that basis in Flores, supra, 176 Cal.App.4th at pp. 1176-1181, which rejected an ex post facto challenge to a different but analogous Evidence Code statute -- Evidence Code section 1109 -- making unrelated domestic violence evidence admissible in domestic violence cases. Flores held Evidence Code section 1109 does not reduce or alter the sufficiency of evidence needed to convict. (Id. at pp. 1177-1179.)
Defendant argues Flores improperly relied on a federal case (Schroeder v. Tilton (9th Cir. 2007) 493 F.3d 1083 (Schroeder)), which held on denial of habeas corpus relief that a California Court of Appeal properly determined Evidence Code section 1108 did not violate ex post facto principles in light of Carmell. Defendant points out Schroeder noted it was not addressing a claim that the jury instructions in the particular case created a problem. (Id. at p. 1086, fn. 4.) Defendant says he is arguing that the jury instruction in this case violated ex post facto principles -- by telling the jurors that, if they found by a preponderance of the evidence that defendant committed the uncharged acts, they "may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit rape. . . ."
However, defendant fails to show anything wrong with the jury instruction, which went on to state that a conclusion defendant committed the uncharged offenses was only one factor to consider along with all the other evidence and was insufficient by itself to prove guilt, which the prosecution must still prove beyond a reasonable doubt.
Moreover, Flores did not rely entirely on Schroeder, but also relied on Carmell.
Defendant's reply brief cites purported legislative history that a defendant's propensity for sex crimes would be critical to the jury's assessment of the victim's credibility. We disregard this new point -- which would change nothing -- raised for the first time in the reply brief without following proper procedure for presenting legislative history in this court, as set forth in our Local Rule 4: "A party making a motion to have the Court take judicial notice of legislative history documents must identify each such document as a separate exhibit and must provide legal authority supporting the consideration of each document as cognizable legislative history. (See Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26.)" (Ct. App., Third Dist., Local Rules of Ct., rule 4, Judicial notice of legislative history materials.)
We conclude the introduction of evidence under Evidence Code section 1108 did not violate ex post facto principles. Since there was no constitutional error, we need not address defendant's argument that the alleged ex post facto error caused him prejudice. He does not raise or develop any analysis of error under Evidence Code section 352.
II
Claim of Ineffective Assistance of Counsel
Defendant argues trial counsel was ineffective in failing to object to the use of the 2007 sexual assault under Evidence Code section 1108, because that assault occurred after the crime at issue in this case. Defendant's sole argument on this point is that the Legislature never intended the statute to allow introduction of subsequent acts to prove propensity. This contention fails.
In order to prevail on a claim of ineffective assistance of counsel, defendant must show (1) deficient performance by trial counsel falling below prevailing professional norms under an objective standard of reasonableness, and (2) prejudice. (Harrington v. Richter (2011) 562 U.S. 86, 105 ; Strickland v. Washington (1984) 466 U.S. 668, 687-688 .) Courts must indulge a strong presumption that counsel acted within the wide range of reasonable assistance. (Harrington v. Richter, supra, 562 U.S. at p. 105.) To find deficient performance in trial counsel's failure to make an objection in the trial court, the record must affirmatively disclose lack of a rational tactical purpose for failing to object. (People v. Ray (1996) 13 Cal.4th 313, 349.) Where the record fails to show the reason for counsel's omission, the ineffectiveness claim must fail, unless trial counsel was asked for a reason and failed to give one, or there could be no satisfactory reason. (People v. Huggins (2006) 38 Cal.4th 175, 206.) Additionally, we will not find trial counsel deficient where an objection would have been futile. (People v. Osband (1996) 13 Cal.4th 622, 678.)
As noted, defendant argues trial counsel was ineffective for failing to object to the 2007 rape evidence on the grounds that it occurred after the charged crimes and, according to defendant, Evidence Code section 1108 is limited to evidence of uncharged misconduct occurring before the charged crimes.
However, defendant fails to show any such limitation in the statute. The statute itself has "no temporal" modifiers, as noted in People v. Medina (2003) 114 Cal.App.4th 897, 902 (Medina), which held that uncharged misconduct committed subsequent to the charged offense is admissible under Evidence Code section 1108.
The very existence of the Medina opinion makes it reasonable that trial counsel did not object to use of the subsequent misconduct in this case, thus defeating defendant's claim of ineffective assistance of counsel.
Moreover, defendant's appellate attack on the Medina opinion lacks merit.
Defendant faults the Medina opinion for failing to address legislative history. However, courts resort to legislative history only when a statute is ambiguous (People v. Licas (2007) 41 Cal.4th 362, 367) -- though a court may refer to legislative history to confirm its interpretation of an unambiguous statute (Hughes v. Pair (2009) 46 Cal.4th 1035, 1046). Medina saw no ambiguity in Evidence Code section 1108, which allows evidence of "another" sex offense, with no temporal modifier, and so there was no need for the Medina court to discuss legislative history.
Defendant suggests the Medina court was prevented from considering legislative history due to Mr. Medina's asserted failure to cite legislative history in his briefs. Despite our denial of defendant's two requests for judicial notice of Mr. Medina's briefing, defendant improperly argues the content of Mr. Medina's briefs, misciting inapposite case law where prior briefs were material to a current appeal. Misciting People v. Evans (2008) 44 Cal.4th 590, 599, defendant claims cases are not authority for issues "not presented by the parties," and therefore the Medina court could not consider legislative history.
This argument has no merit. The rule of law is that cases are not authority for issues not decided therein. (Evans, supra, 44 Cal.4th at p. 599 [cases are authority only for points actually involved and actually decided].) An appellate court may, on its own motion, take judicial notice of the legislative history of a contested statute (Evid. Code, §§ 452, subd. (c), 459) and may use it as a basis for decision even if not raised by the parties (People v. Alice (2007) 41 Cal.4th 668, 677; People v. Clark (1993) 5 Cal.4th 950, 993, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22). Thus, even assuming Mr. Medina failed to argue legislative history, that would not have precluded the Medina court from considering legislative history had the court wanted to do so, as it presumably would have, had the court viewed the statutory language as ambiguous.
Even if we were to resort to legislative history, defendant's argument still fails.
Defendant claims the legislative history shows the legislators did not consider subsequent uncharged misconduct because they mentioned only prior uncharged misconduct. We reject the claims on various grounds.
First, as indicated ante, defendant has forfeited any reference to legislative history by failing to comply with this court's Local Rule 4.
Second, defendant's quotation of references to "prior" or "past" acts in the legislative history are unavailing, because the statute as enacted did not use either of those words but instead used the broader word "another" offense. Moreover, we agree with the Attorney General that the appearance of words like "prior" in the legislative history tells little about the intended reach of Evidence Code section 1108, because all section 1108 evidence in criminal trials involve prior acts, in the sense that they have already been committed by the time of trial. Thus, a legislative committee's concern about the prejudicial nature of "past" sexual offenses does not necessarily support defendant's contention that offenses admitted under Evidence Code section 1108 must have been committed before the charged crimes.
Defendant cites cases allowing evidence of prior uncharged misconduct and asks us to treat them as authority for the proposition that only prior misconduct is admissible. Not so. Those cases did not consider or decide whether subsequent misconduct is admissible. Cases are not authority for propositions not therein considered by the reviewing court. (People v. Barragan (2004) 32 Cal.4th 236, 243.) Moreover, we agree with the Attorney General's astute observation: Common experience dictates that the apprehension of defendants for charged offenses hampers their ability to commit subsequent offenses, and if they do commit subsequent offenses, they are likely to be charged with those subsequent offenses, and so most Evidence Code section 1108 evidence will be uncharged misconduct committed before the charged offense. Most cases are not cold-cases such as this case.
We conclude defendant fails to show ineffective assistance of counsel.
III
Claimed Instructional Error -- Intent and Intoxication
A. Felony Murder - Intent
Defendant argues the jury instructions on felony murder allowed the jury to convict him without finding the requisite intent to commit the underlying felony of rape or attempted rape. (People v. Jones (2003) 29 Cal.4th 1229, 1256-1257.) We conclude there is no reasonable likelihood the jury misapplied the instructions.
The trial court instructed the jury that, to prove defendant guilty of felony murder, the prosecution must prove that defendant "committed or attempted to commit rape," "intended to commit rape," and "[w]hile committing or attempting to commit, rape the defendant caused the death of another person. . . ." The court instructed that rape is a general intent crime that did not require intent to break the law, but the murder, attempted rape, and rape special circumstance required "specific intent and/or mental state." The court instructed on the elements of rape, i.e., sexual intercourse without consent accomplished by force, violence, duress, menace or fear and on the elements of attempted rape, i.e., defendant took a direct but ineffective step toward committing rape and intended to commit rape.
The court further instructed: "In order for the People to prove that the defendant is guilty of murder under a theory of felony murder and that the special circumstance of murder committed while engaged in the commission or attempted commission of rape is true, the People must prove that the rape or attempted rape and the act causing the death were part of one continuous transaction. . . ."
Defendant argues these instructions allowed the jury to convict him of felony murder on a rape theory (as opposed to attempted rape) without making the finding necessary for felony murder -- that he intended to commit rape. We disagree.
The test for this claim of instructional error is whether there is a reasonable likelihood the jury understood the instructions in a manner that violated defendant's rights. (People v. Lewis, supra, 46 Cal.4th at p. 1296; People v. Andrade (2000) 85 Cal.App.4th 579, 585.) We consider the instructions as a whole, as well as the trial record and counsels' arguments to the jury. (People v. Mathson (2012) 210 Cal.App.4th 1297, 1312.) We presume jurors are intelligent persons capable of understanding and correlating the instructions. (Id. at p. 1311.)
Defendant argues that the jurors would have understood that intent to rape was not required for felony murder based on rape, because otherwise there would have been no need to single out attempted rape as requiring intent to rape.
Taken together, all the instructions told the jurors that felony murder required specific intent to commit rape, and that the intent to commit rape must exist before or at the time defendant caused the victim's death. The prosecutor's arguments to the jury reinforced this message -- that for felony murder, "the killing had to occur during the commission or attempted commission of rape, with the specific intent to commit that -- that rape." The prosecutor argued the evidence showed actual rape; he never argued attempted rape. And the prosecutor used defendant's own words to police: "I raped her" and "I raped and killed her." When asked to describe what happened without using the word "rape," defendant said, "She didn't want sex so I took it." Though defendant also said she had offered him sex for $20 -- which he paid and later took back -- he also told police that he hit her while having sex "[b]ecause she wanted to stop," and he kept having sex with her.
In closing argument, the defense highlighted police comments during the interview where they questioned whether defendant was just saying what he thought they wanted to hear.
There is no reasonable likelihood the jury misapplied the law.
B. Intoxication
Defendant argues the intoxication instruction -- which specifically told the jurors that intoxication was not a defense to felony murder -- improperly precluded the jury from considering defendant's intoxication in connection with the mental state required for a felony murder conviction -- intent to rape. According to defendant, the problem is that the instructions improperly limited the intoxication evidence to negating the specific intent to rape in the crime of attempted rape. Defendant argues that, had the jury found that a rape occurred (as opposed to an attempted rape), the intoxication instruction would not have permitted jurors to consider the intoxication evidence in deciding if defendant harbored the intent to rape needed for a felony murder conviction based on rape. Defendant fails to show grounds for reversal.
Instruction on voluntary intoxication is appropriate when there is evidence that the defendant was intoxicated and that the intoxication affected the defendant's actual formation of intent. (People v. Williams (1997) 16 Cal.4th 635, 677.)
The trial court instructed the jury:
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the express intent to kill, or whether the defendant acted with premeditation and deliberation, or whether the defendant acted with the intent to commit rape. [¶] . . . [¶] In connection with the charge of attempted rape, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to rape. . . . [¶] You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to the theory of implied malice murder, felony murder, or the crime of rape."
Defendant acknowledges the trial court instructed the jury that felony murder based on rape required the prosecution to prove intent to rape, and they could consider intoxication in deciding whether defendant acted with intent to rape. But defendant maintains the trial court undercut that instruction by also instructing the jurors (1) that intent to rape was part of the state's burden of proof (but only) in connection with attempted rape, and (2) that voluntary intoxication was not a defense to felony murder or rape.
Assuming for the sake of argument that the jury instructions were defective, any error was harmless. Error in a pinpoint instruction on voluntary intoxication is analyzed under the state "reasonable probability" test, even when the defendant argues instructional error infringed on constitutional rights. (People v. Pearson (2012) 53 Cal.4th 306, 325.) Defendant argues the instructions removed an element (intent to rape) from the jury's consideration, violating his Fifth and Sixth Amendment rights to a fair trial and to present a defense -- error reviewable under a standard of harmlessness beyond a reasonable doubt. However, the instructions did not remove any element from the jury's consideration. Even assuming the beyond-a-reasonable-doubt test applies, reversal is not warranted.
Evidence of defendant's intent to rape the victim was overwhelming -- including defendant's admissions to police and the evidence of similar rapes of two other women -- while there was only weak evidence of intoxication at the time in question and virtually no evidence that intoxication negated intent to rape at the time in question. Defendant told police he did not remember the past "that long ago 'cause I was fucked up on drugs." "I've done a lot of acid. A lot of speed." The interviewer then took it step by step and told defendant it was fine if he did not recall. Defendant told police he did not use drugs or alcohol with the victim that night. When asked if he was under the influence that night, he said, "I bet I was" because "[w]hen I lived there I sold." He also said he "just freaked" and when asked why said, "I don't know. Too much dope probably." When asked whether the victim threatened him, defendant said, "I don't know. I blacked out." Thus, defendant was just guessing about the possible effect of possible intoxication on his actual intent at the time in question.
Moreover, defendant's recollection of the numerous specific details of the crimes and his actions to conceal the crimes further weakens any possible conclusion about intent-negating intoxication. Defense counsel suggested to the jury that defendant may have been under the influence when he killed the victim because he later told police he kicked her body into the culvert and heard a splash, whereas the body was found up on the bank. But counsel acknowledged the splash could have been a rock hitting the water. Thus, the defense had little to work with.
Defendant suggests that, because the trial court gave the intoxication instruction, that must mean the trial court found substantial evidence that there was intoxication that negated intent, and we must defer to the trial court's finding and assume the jury might have believed the intoxication evidence. Defendant offers string citations to cases without discussion -- none of which require us to assume the jury would have found intoxication negated intent to rape under other instructions.
Defendant argues the physical evidence suggested a rape did not occur. But his citations to the record do not speak to this issue, with one exception: The pathologist stated he did not describe any physical signs of trauma in the victim's genitourinary region. However, on re-direct examination the doctor testified that the physical evidence was not inconsistent with consensual sex before fatal attacks of strangulation and blunt force trauma, nor was it inconsistent with a scenario where someone strangled the victim to unconsciousness, raped her, she regained consciousness and fought, and was again strangled and was beaten with fists.
We conclude there was no prejudicial instructional error related to intoxication.
IV
No Instruction on Unlawful-Act-Manslaughter
Defendant argues the trial court erred by failing to instruct sua sponte on unlawful-act-manslaughter as a lesser included offense of murder. The contention lacks merit.
Manslaughter is the unlawful killing of a human being without malice. (§ 192.) Involuntary manslaughter is a killing committed during the commission of "an unlawful act, not amounting to a felony. . . ." (§ 192, subd. (b); People v. Prettyman (1996) 14 Cal.4th 248, 274.) This means commission of a misdemeanor inherently dangerous to human life or an act ordinarily lawful but which involves a high risk of death or bodily harm done without due caution or circumspection. (People v. Murray (2008) 167 Cal.App.4th 1133, 1140.)
Defendant argues the evidence supported a conclusion that the homicide occurred during the commission of "some unlawful act." (Orig. italics.) However, he fails to identify any unlawful act which could serve as a predicate for manslaughter. If he means to rely on assault, he fails to show how his attack on the victim could be construed as a misdemeanor assault.
Despite section 192's specification of an act "not amounting to a felony," authority exists for a nonstatutory form of involuntary manslaughter based on the predicate act of a noninherently dangerous felony committed without due caution and circumspection. (E.g., People v. Butler (2010) 187 Cal.App.4th 998, 1007.) But the trial court had no sua sponte duty to instruct on such a theory because it would be based on a legal principle that has been so " 'obfuscated by infrequent reference and inadequate elucidation' " that it cannot be considered a general principle of law. (People v. Bryant (2013) 56 Cal.4th 959, 975, conc. opn. of Kennard, J.; see opinion on remand, People v. Bryant (2013) 222 Cal.App.4th 1196 [trial court had no duty sua sponte to instruct that unlawful killing committed without malice during assaultive felony was involuntary manslaughter].)
Defendant argues that jurors who found insufficient evidence of rape but believed he did not have the specific intent for attempted rape, were put in an all-or-nothing position of a murder conviction or an acquittal. However, the jurors had the alternative of finding defendant guilty of second-degree murder, as argued by defense counsel, yet found him guilty of first-degree murder.
Defendant fails to show a duty sua sponte to instruct on involuntary manslaughter.
V
Instruction On Special Circumstance Allegation
Regarding the special circumstance allegation of murder during the commission or attempted commission of rape, defendant complains the trial court failed to instruct the jury sua sponte on (1) the elements of the special circumstance allegation, (2) the prosecution's burden to prove it beyond a reasonable doubt, and (3) that the verdict must be unanimous. We conclude any error was harmless.
The trial court has a duty sua sponte to instruct on the elements of the special circumstance. (People v. Williams, supra, 16 Cal.4th at p. 689.)
Defendant speculates the trial court simply forgot about the special circumstance allegation. Defendant complains the court did not instruct with CALCRIM No. 700 (prosecution's burden to prove special circumstance beyond a reasonable doubt and all jurors must agree) or CALCRIM No. 730 (elements of special circumstance murder in commission of felony). The latter would have instructed the jury that, to prove the special circumstance, the People must prove (1) defendant committed or attempted to commit rape; (2) defendant intended to commit rape; (3) defendant did an act that caused the death; and (4) to decide whether defendant committed or attempted to commit rape, "please refer to the separate instructions" given on those crimes and "You must apply those instructions when you decide whether the People have proved this special circumstance." (CALCRIM No. 730.) Defendant adds the court failed to warn the jury with CALCRIM No. 706, not to discuss punishment when deciding the special circumstance allegation.
When a trial court fails to instruct on elements of a special circumstance allegation, the prejudicial effect of the error is measured under the Chapman standard, i.e., the error is harmless only when a rational juror, given proper instructions, could have had no reasonable doubt about whether the defendant was guilty of the special circumstance. (People v. Mil (2012) 53 Cal.4th 400, 416-417; Williams, supra, 16 Cal.4th at p. 689.) Error may be harmless where the record overwhelmingly supports the jury's special circumstance finding. (People v. Johnson (1993) 6 Cal.4th 1, 46-47 [overwhelming evidence leaves no reasonable doubt that missing element was proved], abrogated on other grounds as stated in People v. Rogers (2006) 39 Cal.4th 826, 879.) Error may also be harmless where the jury necessarily made the required findings under other properly-given instructions. (People v. Jones (2003) 30 Cal.4th 1084, 1119-1120.) Reversal may be compelled if the trial court fails to instruct on "substantially all" elements and it cannot be determined that the jury has found under other instructions the existence of facts necessary to conclude the omitted elements were proven. (People v. Cummings (1993) 4 Cal.4th 1233, 1315.) Reversal is also compelled where a verdict is rendered without instructions on the burden of proof beyond a reasonable doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 280 .)
The instructions given in this case included the following:
"The People must . . . prove the charge and allegation beyond a reasonable doubt [despite preponderance standard applicable to other-acts evidence]." "You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt." "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise."
The court instructed: "The following crimes and allegation require a specific intent or mental state: First degree murder, second degree murder, attempted rape, and the special allegation of murder in the commission or attempted commission of rape. . . . The act and the specific intent and/or mental state required are explained in the instruction for that crime or allegation." (Italics added.) The court did give instructions for rape and attempted rape.
CALCRIM No. 549 told the jury that "[i]n order for the People to prove that the defendant is guilty of murder under a theory of felony murder and that the special circumstance of murder committed while engaged in the commission or attempted commission of rape is true, the People must prove that the rape or attempted rape and the act causing the death were part of one continuous transaction. [Factors to consider.] . . . ." (Italics added.)
Although the court instructed the jury on rape and attempted rape for felony murder, defendant complains they were not repeated for the special circumstance.
However, we agree with the People that the felony murder instructions were patently applicable to the special circumstance allegation. The court instructed the jury with CALCRIM No. 540A, that to prove defendant guilty of felony murder, the People had to prove that defendant committed or attempted to commit rape; that he intended to commit rape; and he caused the victim's death while committing or attempting to commit rape, and that "To decide whether the defendant committed or attempted to commit rape, please refer to the separate instructions that I will give you on that crime," which the court did. Although this instruction did not expressly reference the special circumstance, it would have been patently obvious to the jurors that the felony murder requirements, along with the rape and attempted rape instructions, were relevant to their analysis of the special circumstance. (People v. Mathson, supra, 210 Cal.App.4th at p. 1311 [jurors are presumed capable of correlating instructions].)
Defendant argues these other instructions did not cure the defect in omitting CALCRIM special circumstance instructions, because the jury was given two theories of first degree murder: (1) willful, deliberate and premeditated murder and (2) felony murder during the commission or attempted commission of rape, and the jurors were instructed "You do not all need to agree on the same theory." Defendant argues that, since the jurors rendered a general verdict, it cannot be determined what elements, if any, were properly decided by a unanimous jury. The People point out the trial court instructed the jury pursuant to CALCRIM No. 3550 that "Your verdict on each count must be unanimous. That means that, to return a verdict, all of you must agree to it." Defendant points out the standard instruction says the verdict on each count and any special findings must be unanimous, but the court omitted any reference to special findings.
However, we know all jurors agreed to guilt on the felony murder theory, because they returned a "VERDICT SPECIAL ALLEGATION" finding true the allegation of murder during the commission or attempted commission of rape, and each juror was polled in open court as to whether the verdict was "your verdict as to the charge and the special enhancement," and each juror answered Yes.
Moreover, as indicated, there was overwhelming evidence of felony murder.
Defendant argues jurors would not know that general reasonable doubt instructions apply to special circumstance allegations. He offers string citations with no discussion of any potential applicability of the cited cases, which said the general instruction that motive is not an element of the crime charged did not conflict with a special circumstance instruction so as to confuse the jury. (People v. Riggs (2008) 44 Cal.4th 248, 314 [robbery-murder special circumstance]; People v. Crew (2003) 31 Cal.4th 822, 845; People v. Noguera (1992) 4 Cal.4th 599, 637 [financial gain special circumstance]; People v. Edelbacher (1989) 47 Cal.3d 983, 1027 [financial gain need not be defined for jury except where potential overlap with felony-murder special circumstance].)
We conclude any instructional error regarding the special circumstance was harmless.
VI
Continuance
Defendant maintains the trial court erred by ordering an 11-day recess of the trial after the prosecution had presented some of its most important witnesses. He claims the recess violated his federal and state constitutional rights to a fair trial, but his argument focuses on the statute requiring good cause for continuances. (§ 1050.) He says the record shows no explanation for the delay and no evidence of good cause. But that circumstance is attributable to defendant's failure to object in the trial court.
The People note that, while the continuance was for 11 calendar days, it incorporated four weekend days, Labor Day, and days the courtroom was dark pursuant to county policy. The People assert the continuance postponed trial by only three days.
In any event, we agree with the People that defendant has forfeited this matter by failing to raise it in the trial court. Failure to make a timely objection to a continuance after trial has begun forfeits any appellate claim concerning the continuance. (People v. Ochoa (2001) 26 Cal.4th 398, 440-441, disapproved on other grounds as stated in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) Even constitutional claims may be forfeited by failing to raise them in the trial court, particularly where as here they involve factual matters. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Defendant argues nothing in the record shows good cause for the continuance, but had defendant objected in the trial court, the prosecution would have had the opportunity to develop the record as to good cause for the continuance.
Anticipating forfeiture, defendant argues forfeiture does not apply here because his right to an "uninterrupted" jury trial is a fundamental right that required his personal affirmative consent to a continuance. He cites no authority, other than inapposite ancient common law authority that a jury cannot be discharged after hearing evidence until it has given its verdict.
Defendant has forfeited his challenge to the continuance.
DISPOSITION
The judgment is affirmed.
HULL, J. I concur: DUARTE, J. RAYE, J.
As to Part III (B) and Part V, I concur in the result. The jury was properly instructed on the underlying felonies asserted by the prosecution as the basis for its felony-murder theory, rape and attempted rape. The jury was also properly instructed that felony murder based on rape required the prosecution to prove intent to rape, and they could consider intoxication in deciding whether defendant acted with intent to rape. The trial court's instruction that "voluntary intoxication is not a defense to the theory of . . . felony murder" muddied the waters, but I do not think it reasonably probable the jury would have reached a different result had that instruction not been given. However, I do not believe the evidence of defendant's intent to rape the victim was overwhelming in this 20-year-old cold case where the physical evidence was sketchy and defendant's admissions even sketchier in their detail. Clearly, however, the court properly instructed on the required elements of felony murder; overwhelming evidence was not required to render the error harmless.
RAYE, P. J.