Opinion
B225910
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. ANDREW FELTON ODOM, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Richard S. Moskowitz, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA079428)
APPEAL from a judgment of the Superior Court of Los Angeles County. Mark C. Kim, Judge. Affirmed in part and reversed in part with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Richard S. Moskowitz, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Andrew Felton Odom appeals from the judgment entered following a jury trial in which he was convicted of second degree murder. Defendant contends the trial court erred by refusing to let defendant argue his third party culpability theory and refusing to instruct upon voluntary manslaughter, the prosecutor engaged in misconduct, and insufficient evidence supported the findings on the prior prison term enhancements. We agree with respect to the prior prison term enhancements, but otherwise affirm.
BACKGROUND
Seventy-year-old Rita Wiley was found dead in the backyard of her Long Beach home late on August 20 or early on August 21, 2008. (All date references pertain to 2008). Firefighters who responded to the scene pronounced her dead about 1:27 a.m., but the actual time of her death was never determined. When Long Beach Police Detective Russell Moss saw Wiley sometime between 1:27 a.m. and 2:27 a.m., there was dried blood on her body and she was covered with ants. Wiley had nine stab wounds on the left side of her chest and abdomen and had suffered blunt force trauma to her face, the side of her head, the backs of her hands, knees, and feet. There were also abrasions on one foot and the backs of her hands. The facial injuries were consistent with a fist, and the stab wounds were consistent with a pocket knife with a four- to six-inch blade. The medical examiner was not asked, and did not state, which injuries caused Wiley's death or how quickly her death would have resulted. The injuries to Wiley's hands may have been defensive wounds.
Responding police officers described Wiley's backyard as long, narrow, and dark. They found stains that appeared to be blood near Wiley's body and about 10 feet away, leading away in a "zigzag trail to the northwest" (rear) corner of the yard. Police searched the yard, the house, the garage, the neighborhood, a nearby park, Wiley's car, and the car belonging to Wiley's housemate, Sandra Patterson, but found no other evidence and no signs of a struggle inside the house.
Patterson, a 65-year-old retiree, testified that she and Wiley had known each other for at least 45 years and were best friends. Patterson moved into Wiley's home in 1994 at Wiley's invitation. She paid Wiley rent and they had separate phone lines. Wiley had cancer and had told Patterson that she had only a few weeks to live. Patterson believed Wiley, based on her own observations. Wiley lived on Social Security and had no surviving family members. Even before Wiley died, Patterson knew she was the sole beneficiary of Wiley's will. Patterson "used to tell [Wiley] that [Patterson] would change some things" and fix the house up when it was hers. Patterson also said this while Wiley was in the hospital. After Wiley's death, she received Wiley's house, car, and dog. Wiley had no other assets and owed the state $79,000, which Patterson was paying at the rate of $500 per month. Patterson sold Wiley's car and applied the money to the debt to the state. She also painted the house, disposed of the dirty carpet, and exterminated the roaches.
Patterson testified that defendant and Wiley were close friends, and defendant was almost like a son to Wiley. He visited Wiley nearly every day and had a key to her house. He and his girlfriend, Regina Harris, had lived in the house with Wiley and Patterson for a time. Defendant often asked Wiley for money, and, as far as Patterson knew, Wiley never refused him. Patterson never saw Wiley give defendant more than $20 at a time, but she knew Wiley had paid defendant's rent for August. Defendant also borrowed Wiley's car about twice a week. Defendant "did things" for Wiley, such as raking the backyard, washing Wiley's and Patterson's cars, sometimes taking out the trash, and sometimes driving Wiley to see her doctors and receive chemotherapy treatment. Wiley also drove herself to chemotherapy and doctor's appointments, and Patterson had also occasionally taken her.
Patterson testified that she liked defendant, but felt he was taking advantage of Wiley by asking for money so often. It also bothered Patterson that defendant was at Wiley's house almost every day. Patterson had heard Wiley tell defendant that he should do a better job of managing his money so that he would not have to borrow from her so often.
Patterson testified that defendant came to Wiley's house on August 20 "maybe around" 11:00 a.m. Patterson let defendant in, and he went straight to Wiley's bedroom. Patterson returned to her own bedroom, where she spent the entire day and night watching the Olympics on television. Patterson did not see defendant leave. Patterson did not see Wiley during the rest of the day. During the afternoon, Patterson went outside and noticed that Wiley's car was gone. When she went outside again at night, Wiley's car was back in the garage. Patterson left her television on that night, did not hear anything unusual, and did not look out the window in her bedroom that looked onto the backyard. That window was closed and covered, but the window in her bedroom that faced the house next door was slightly open. Sometime during the night, Patterson heard Wiley say, "I'm not going to let you use my car anymore." Wiley was not yelling. Patterson thought it was between 9:00 and 9:30 p.m. when she heard this.
Patterson testified that at some point between 10:30 and midnight she got up to go to the bathroom. As she usually did, Patterson looked into Wiley's bedroom to check on her, but did not see her. After using the bathroom, Patterson looked in the kitchen for Wiley. She then stepped out the kitchen door that opened onto the backyard to see if Wiley was with the dog, but she saw neither Wiley nor the dog. Patterson then went back to Wiley's bedroom to check the far side of the bed. Wiley was not there, but her shoes were. Patterson attempted to phone defendant, but the number was out of service. She then phoned her neighbor, but no one answered. She went back outside through the kitchen door, went through the gate, and walked down the driveway all the way to the sidewalk. She looked up and down the street, but did not see anyone. She went back into the house and again called the neighbor. Clarissa Hunter answered, and Patterson asked whether Wiley was at her house. Hunter said she was not. Patterson went back in the backyard and entered the garage to check Wiley's car, but did not find her there. Hunter arrived to help Patterson search.
Patterson testified that Hunter asked her if she had searched the backyard. Patterson had already been in the backyard, but it was "pitch black." She retrieved a flashlight and went down the walkway into the yard. She found Wiley lying on the ground in a fetal position. Patterson felt Wiley's neck, but did not detect a pulse. She told Hunter to call 911.
Patterson testified that Wiley usually kept money in her dresser drawer, but there was no money there when Patterson looked in the drawer on August 21. Patterson denied that she looked for the money while the police were there.
Several police officers spoke to Patterson in the early morning hours of August 21. Officer Dennis Price testified that Patterson told him that she had spoken to Wiley about giving defendant money about 4:30 p.m., after defendant had taken Wiley's car, and that she had last seen Wiley alive about 9:00 p.m. Price also testified that Patterson had told him that she had checked Wiley's wrist for a pulse, and that $200 to $300 was missing from Wiley's dresser drawer. Price observed Patterson's face, hands, and neck and saw no injuries there.
The investigating officer, Detective Teryl Hubert, spent "a significant amount of time" interviewing Patterson, and also observed no injuries on Patterson's face and hands. It was obvious that Patterson loved Wiley. Hubert eliminated Patterson as a suspect based upon their interview and a complete lack of evidence pointing to Patterson as the killer. Patterson told Hubert that she last saw Wiley alive around 4:00 p.m. when she talked to Wiley about defendant and told Wiley she should stop giving defendant money. This conversation occurred before defendant came to the house that day. Patterson said that it was about midnight when she got up to use the bathroom, noticed Wiley was not in her room, and began searching for her. Patterson also told Hubert about the close relationship between Wiley and defendant. Patterson said that defendant did chores for Wiley and borrowed money from Wiley, and that Wiley had often told defendant that she was not going to give him any more money, but nonetheless continued to do so.
Danny Lewis testified that he lived next door to Wiley. He knew defendant from frequently seeing him at Wiley's house. He and defendant would usually exchange greetings and engage in small talk. On the night of August 20, Lewis arrived home around 7:00 p.m. Sometime between 8:00 and 8:30 p.m. he went outside to wash his car. While washing his car, he saw defendant walk down Wiley's driveway toward the street, cross the street, and walk away. Defendant's demeanor was different than usual. Although defendant did not look upset, he did not speak to Lewis and seemed to be "frantic," that is, in a hurry to leave. Lewis did not hear any yelling or screaming that night.
On August 21, Detective Jacinto Ponce followed Regina Harris to the College Inn Motel in Long Beach, where Ponce also located and arrested defendant. During a search of defendant's motel room, police seized two Nike athletic shoes that appeared to have spots of blood on them. They also recovered a narcotics pipe and pill bottles that contained what appeared to be rock cocaine. At defendant's apartment police seized a jacket with a stain on one sleeve that appeared to be blood.
Detectives Hubert and Moss interviewed defendant twice after advising him of his Miranda rights, which he waived. The initial part of each interview was not recorded, but the latter portion of each was recorded and played at trial. In the first interview, the detectives talked to defendant for about 90 minutes before turning on the recorder. In the recorded portion of first interview, defendant insisted he had not been at Wiley's house on Wednesday, August 20. He recounted where he had been and what he had done throughout the day and night. He phoned Wiley sometime on August 20 to ask to borrow her car on August 22 to go to his truck-washing job, which was one day, every other week. Wiley agreed to let him borrow her car but said that it would be the last time. Wiley had never said that before, but defendant did not think it was strange. Wiley was angry that he had not been replacing the fuel in the car when he used it. He also thought Wiley probably felt he had been using her car too much. Defendant said that after speaking to Wiley, he went out for a walk that took him about thirty minutes. He arrived back at the apartment he shared with Harris and her son around twilight. After dinner, he and Harris decided to spend two nights in a motel. Between 9:00 and 9:30 p.m. they took a bus to the College Inn Motel. Defendant went back to their apartment about 11:30 p.m. to get some clothes, but took only his slippers.
Miranda v. Arizona (1966) 384 U.S. 436 .
Defendant told the detectives he had visited Wiley on Tuesday, August 19. She gave him $20 that day but said she was tired of giving him money and he needed "to take a time out." Defendant understood and admitted to the officers he was only going to use the money to buy drugs. Defendant said he was a drug addict and typically spent $10 to $20 on rock cocaine every other day, but he had increased his drug use significantly in the two previous months. He and Harris had spent their August rent money on drugs, so he asked Wiley for help. She was reluctant, but eventually agreed. They went together to her bank and she gave him a $500 money order. Generally, Wiley gave him $10 or $15 twice a week, in addition to paying him to do work at her house.
During the first interview, defendant never asked why he was in custody until after Hubert pointed out that he had not asked. The detectives then asked defendant what had happened to Wiley on August 20, showed him a copy of Wiley's driver's license, and asked him if it was hard to look at her photo. Defendant then asked the detectives to tell him what was going on. Before either detective mentioned that Wiley was dead or accused defendant of killing her, defendant twice referred to Wiley in the past tense. He said, "[H]aving cancer she didn't, she don't, she didn't let that affect her" and "Rita was still living, she's still living strong." After the detectives stated that Wiley was dead, defendant did not ask how she died. Defendant denied the detectives' accusations that he killed Wiley and declared that he was "through talking."
Hubert testified that during the unrecorded portion of the first interview, defendant mentioned that he had purchased a folding knife with a blade about six inches long at a smoke shop.
The next morning, defendant agreed to resume speaking with the detectives. Before the detectives began recording the interview, they showed defendant an article about Wiley's murder in the Long Beach newspaper, and defendant spent most of the interview staring at the newspaper. After the detectives began recording the interview, Hubert asked defendant what his feelings were at that moment. He replied, "Like shit." Hubert asked why, and defendant responded, "Cause what had happened." Asked to further explain, defendant said, "Because I—I'm guilty." Defendant then stated, "I don't know why did I do it, I didn't want to." Hubert asked defendant what was going on in his mind when he went "over there" on Wednesday. Defendant replied, "Fighting." Hubert asked what he was fighting. Defendant said, "The inner voice trying to not—didn't want to do it." He then explained that the "inner voice" was saying, "You can go ahead and do it." Hubert asked what he meant by "do it," and defendant stated, "Get away with it." Asked what he could get away with, defendant replied, "A crime." Defendant said he felt bad because he was wrong and the whole "scenario" was wrong. He had not planned "for this to happen." He denied that he was upset that Wiley was not going to give him money in the future. He admitted that he took the money he spent on the motel room from Wiley's wallet on the dresser in her bedroom. Defendant said he was ashamed and sorry for what he had done. The knife he used was the one he had purchased at the smoke shop, and he got rid of it, but could not remember where. Hubert asked defendant if he knew "how many times [he] got her with" the knife, and defendant replied, "Got her with it?" Hubert said, "Yeah. How many times?" Defendant responded, "I don't know." Defendant claimed to remember nothing else, including what he was wearing and when he arrived at Wiley's house, then refused to answer any more questions.
Sheriff's department criminalist Lori Schumann extracted and analyzed DNA from reference samples from Wiley and defendant and the two Nike shoes seized from defendant's motel room. She saw spots on each shoe that appeared to be blood, and a presumptive test on those spots indicated they were blood. Their color and solubility also indicated to Schumann that they were blood. She attempted to extract DNA from two spots on the right shoe (the inside arch area and the ankle area near the Velcro closures) and from one of these she obtained a complete single source DNA profile that matched Wiley. She testified that two in 24 septillion people (approximately 300 trillion times the world's population) would be expected to match that profile. Schumann was not asked the location on the shoe of the spot yielding the complete profile. She also obtained a partial DNA profile from one of two spots she sampled on the left shoe, either an area on the side between the heel and the "swoosh" logo or on the front near the laces. Schumann was unfamiliar with a substrate control test and did not perform one. The Long Beach police had submitted other items for potential DNA testing in this case, but the policy and practice at the sheriff's department lab, which had a tremendous workload, was to start with the item the investigating detective felt was the best potential source of evidence, and to continue testing items only if they obtained "some sort of result."
Defense DNA expert Marc Taylor did not disagree with Schumann's DNA processing, results, or statistical calculation, but testified that because she had performed only a presumptive test for blood, then taken her samples for DNA extraction, without performing either a confirmatory blood test or substrate testing, Wiley's DNA may have been deposited on defendant's shoe from a non-blood source before the substance that looked like blood got on the shoes. If that happened, then Schumann's swab would have picked up Wiley's DNA along with the covering spot. The spots that looked like blood might have been non-human blood or another non-blood substance that would give a positive result on the presumptive blood test Schumann used. Taylor testified that it is relatively easy for one person to transfer cells containing DNA to another person.
Rubin Powell lived in an apartment built above Wiley's garage. On August 20, he arrived home around 9:30 p.m. and neither saw nor heard anything unusual. A window in his apartment facing the backyard was open, but he did not hear any voices or the dog barking. Powell had never heard Wiley arguing with either Patterson or defendant.
Clarissa Hunter testified that Patterson phoned her around 10:00 p.m. on August 20 and asked if Wiley was at Hunter's house. Hunter dressed and went to Wiley's house to help look for her. Hunter asked Patterson whether she had looked everywhere. Patterson replied that she had not searched the backyard and handed Hunter a flashlight. While Patterson stayed by the door trying to quiet the dog, Hunter went out into the yard. Hunter found Wiley's body lying in the grass, screamed, and ran off to call 911. Hunter had never heard Wiley and Patterson argue or get angry with one another. On the night of August 20, she heard Wiley's dog barking but did not hear any voices in the yard.
The jury convicted defendant of second degree murder. Defendant admitted he had suffered three specific prior felony convictions. The court sentenced defendant to prison for 15-years-to-life, plus 1 year for a prior prison term enhancement. (Pen. Code, § 667.5, subd. (b); undesignated statutory references are to the Penal Code.)
DISCUSSION
1. Third party culpability argument
After hearing defendant's opening statement, which asserted that "this case may be about money" and then cast suspicion on Patterson, the prosecutor filed a motion to exclude evidence of third party culpability. The trial court declined to exclude any evidence, but, after the close of evidence, found that the evidence was insufficient to link Patterson to the crime, and thus prohibited defendant from arguing that Patterson killed Wiley. Defendant contends that the trial court abused its discretion and violated his federal constitutional rights to due process and the effective assistance of counsel.
Section 1044 provides, "It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." The trial court thus has a duty to prohibit defense counsel from arguing a theory or matter that is not supported by the evidence. (People v. Modesto (1967) 66 Cal.2d 695, 707-708, disapproved on another point in Maine v. Superior Court (1968) 68 Cal.2d 375, 383, fn. 8 [unsupported self-defense theory]; People v. Stankewitz (1990) 51 Cal.3d 72, 102 [availability of other witnesses].) We review a trial court's ruling limiting argument for abuse of discretion. (People v. Marshall (1996) 13 Cal.4th 799, 855.)
The sufficiency of a third party culpability theory usually arises as an issue of the admissibility of evidence. In that context, the guiding principle is that evidence tending to show that someone other than the defendant committed the charged offense is admissible if it could raise a reasonable doubt about the defendant's guilt. (People v. Edelbacher (1989) 47 Cal.3d 983, 1017.) But evidence that a third person merely had a motive or opportunity to commit the crime is insufficient to raise such doubt. (Ibid.) There must be direct or circumstantial evidence linking the third person to the actual perpetration of the charged crime. (Ibid.) The trial court applied these principles when it barred defendant from arguing that Patterson killed Wiley.
The trial court found People v. Pride (1992) 3 Cal.4th 195 particularly analogous to defendant's argument. In Pride, two women who worked for an insurance company were stabbed to death in the company's offices on Labor Day—when very few employees were present. The trial court precluded Pride from asking Jeff, the husband of one of the two victims, about his receipt of $40,000 from his wife's life insurance and his purchase of a house, travel abroad, and remarriage after his wife's death. Pride argued that these matters, in conjunction with Jeffs presence in the building, purportedly bizarre behavior there, and inability to corroborate that he was not in the building during the interval in which the women likely were killed, raised a reasonable doubt as to Pride's guilt. (Id. at p. 237.) The California Supreme Court found no error: "Here, the court correctly found the proffered evidence raised no reasonable doubt as to defendant's guilt as a matter of law. Nothing in the purported motive evidence distinguishes Jeff from any other person who is named as a beneficiary under a working spouse's life insurance policy or who makes a fresh start after a painful loss. Jeff's behavior upon discovering [the other victim's] dead body—frantically searching for [his wife] throughout the building and calling people who might know her whereabouts—is not remarkable in the slightest degree. And, contrary to defendant's implication, the lack of corroboration that Jeff was not present at the time of the crimes is not evidence that he was present. Absent any physical or other evidence linking Jeff to 'actual perpetration' of the murders, the alleged third party evidence was irrelevant. There was no error under state or federal law." (Id. at p. 238.)
The present case presents a different issue because the trial court did not exclude any evidence regarding Patterson's culpability. Time had already been spent introducing the evidence and the jury had already been exposed to its effects, whatever they might have been. Permitting defendant to argue the theory would have been consistent with the court's admitting the evidence regarding Patterson's culpability.
But we need not decide whether the trial court erred by precluding argument on the theory as any error was harmless on this record. Defendant admitted killing Wiley. Although defendant's admissions were terse, it is clear from the questions, answers, and circumstances that defendant did not simply admit stealing money from Wiley. As far as the record reveals, the detectives did not mention a theft until after defendant stared at the newspaper article about Wiley's murder and told the detectives, "I'm guilty." In the first interview, he told the detectives about purchasing a folding knife at the smoke shop. In the second interview, Moss asked defendant, "What did you do with the knife? Do you know where you threw it?" Defendant said, "No." Moss continued, "You have no idea? You're shaking your head no." Defendant responded, "Yeah, I have no idea. I just—" Hubert asked, "Let me ask you this, was it that knife you got at the smoke shop?" Defendant said, "Yeah." Hubert then asked defendant, "Do you know how many times you got her with it?" Defendant initially echoed, "Got her with it?" but then replied, "I don't know." The detectives asked him several more times where he disposed of the knife, and he said he did not know. After Moss asked again and referred to the possibility of "some kid" picking it up, Hubert asked, "Do you remember getting rid of it? Andrew, do you remember getting rid of it?" Defendant replied, "Yes," but claimed he did not know where. Thus, read in context, defendant's terse admissions were not merely of a theft, but of killing Wiley with a knife. In addition, near the end of the first interview, before the detectives told defendant that Wiley was dead, defendant twice referred to her in the past tense. He also failed to ask why he was in custody and being interviewed and how Wiley died. Under all of these circumstances, no reasonable juror would conclude that defendant admitted only a theft.
In addition, DNA matching Wiley was found on defendant's shoes in the exact place where there were spots that appeared to be, and presumptively tested positive for, blood. Even crediting the defense expert's testimony that the DNA on defendant's shoe may have come from a non-blood source, nothing in the record suggested when or how— other than during the killing—Wiley's DNA might have been deposited on defendant's shoe. There was, for example, no evidence that Wiley touched the shoes or spat or sneezed on them.
Also, Lewis saw defendant walking down Wiley's driveway toward the sidewalk sometime after 8:00 or 8:30 p.m. Defendant's location and direction of travel was consistent with emerging from the backyard of Wiley's home. Lewis testified that defendant seemed to be in a hurry to leave or even "frantic," and did not greet Lewis as was their common practice.
In contrast, Patterson's purported motive was weak, in light of Wiley's terminal cancer. Defendant cannot explain why Patterson would risk grave criminal liability to hasten her inheritance by a matter of weeks. Patterson was present at the house on August 20, but so was defendant. The record does not reveal why Patterson told the police about defendant, but it seems probable that she did so because the last time she knew Wiley was alive was when she heard her speaking to someone that she thought was defendant, saying she was not going to lend the person her car again. The record does not reveal whether the police then questioned Patterson about defendant or she volunteered information, as defendant implicitly suggests. Defendant's claim that Patterson told the police about him to deflect attention from herself is sheer speculation. Patterson's purportedly odd behavior and attitude may have shown that she was not a very good friend or roommate, but it did not tend to show that she killed Wiley. Price and Hubert interviewed Patterson soon after the discovery of Wiley's body and found nothing suspicious about her or her statements. Indeed, Hubert initially considered Patterson a suspect, but changed her mind after interviewing her and finding no evidence linking her to the killing. Patterson consented to a search of the house, and the detectives found no signs of a struggle, no evidence, and nothing suspicious. They also searched her car and similarly found nothing. And they observed that she had no injuries on her face and hands.
Given defendant's confession, the DNA match, and Lewis's observation of defendant leaving the grounds of Wiley's house, in contrast with the extremely weak evidence regarding Patterson, the trial court's refusal to permit defendant to argue that Patterson killed Wiley was harmless beyond a reasonable doubt.
2. Prosecutorial misconduct
Before trial, defendant moved to prevent the prosecutor from arguing and introducing evidence that the defense could have performed DNA testing or retesting on the evidence collected by the police. The trial court granted the motion with respect to items upon which the prosecution had not performed DNA testing, but denied it with respect to defense retesting of items that the prosecution had tested.
During defendant's cross-examination of Moss, defense counsel asked a series of questions about whether Moss had asked for DNA testing of various items collected by the police, including "Rita Wiley's face," "her hands," and scrapings from beneath her fingernails. In each instance, Moss said he had not requested such testing. Defense counsel then asked, "Just out of curiosity because you're the detective in this case—either you or Detective Hubert would have been the one to make that request if it was to be done, correct?" Moss replied, "I'm—well, that's partially true." Defense counsel responded by asking, "Well, the crime lab is not going to do it if you don't ask, right?" Moss replied, "Or you could ask for it to be done as well." Defense counsel said, "I know I could, but I don't have the burden." Moss responded, "You're asking me. Your question was is it only Detective Hubert, and my answer is no. If you wanted it done, you could have requested it as well." The trial court ended this exchange by noting it was argumentative and directing counsel to ask her next question.
At defendant's request, the trial court included the following instruction in the jury charge: "You have heard testimony in this case that certain pieces of evidence were available for defense testing. The defense is not required to test any piece of evidence. The fact that the defense has not tested any items of evidence in this case should not be considered by you for any reason nor does it relieve The People of their burden of proving this case beyond a reasonable doubt."
Defendant contends that the prosecutor engaged in misconduct by "failing to properly instruct Detective Moss not to mention that the defense could have tested or retested items of evidence for DNA but did not do so."
Where a defendant complains of prosecutorial misconduct for the first time on appeal, we will reach the issue of whether such misconduct caused a miscarriage of justice only if, considering the alleged misconduct in context, a timely objection and admonition would not have cured the harm or an objection and request for admonition would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Defendant's contention fails for numerous reasons. First, he failed to ask that the court strike Moss's testimony and admonish the jury, and thus forfeited his claim of alleged prosecutorial misconduct. Next, defendant assumes that the prosecutor failed to tell Moss of the court's ruling. Nothing in the record shows that the prosecutor failed to do so. Indeed, when defense counsel requested an instruction regarding defense testing of evidence, she stated, "I'm assuming [Moss] did it in spite of the fact that [the prosecutor] advised him not to do so as the court told her to do."
In addition, the testimony in issue fell outside the scope of the court's prior ruling. The defense motion and the court's ruling addressed only the prosecutor's presentation of evidence and arguments. Defendant points to no violation of the court's ruling by the prosecutor. The testimony in issue was elicited by defense counsel's question, "Well, the crime lab is not going to do it if you don't ask, right?" Arguably, any error was invited and thus not cognizable on appeal. But if defense counsel expected Moss to refrain from mentioning the possibility of defense DNA testing of untested items, her question appears to have been designed to obtain an unfair advantage and create a misleading impression in jurors' minds.
Even if we were to consider Moss's testimony to be an error attributable to the prosecutor or even the court, any possibility of prejudice from it was extinguished by the jury instruction informing the jury that the defense was not required to test any evidence, it should not consider for any purpose the evidence that the defense did not perform any testing, and the prosecution had the burden of proving its case beyond a reasonable doubt. We presume the jury followed this instruction. (People v. Williams (2010) 49 Cal.4th 405, 469.)
3. Refusal to instruct on heat of passion
Defendant contends that the trial court erred by refusing his request to instruct upon voluntary manslaughter based upon heat of passion. In support of his request, defendant cited the manner in which Wiley was killed. The trial court refused the instruction for lack of any supporting evidence. The court stated, "You have a manslaughter instruction if the defendant testifies. You don't have any evidence to suggest that this is manslaughter. To argue manslaughter would be allowing you to basically speculate. The evidence doesn't support it." The court later clarified, "He doesn't have to testify, but there has to be some evidence."
"A trial court must give a requested instruction only if it is supported by substantial evidence, that is, evidence sufficient to deserve jury consideration." (People v. Marshall (1997) 15 Cal.4th 1, 39.)
"Where an intentional and unlawful killing occurs 'upon a sudden quarrel or heat of passion' (§ 192, subd. (a)), the malice aforethought required for murder is negated, and the offense is reduced to voluntary manslaughter—a lesser included offense of murder." (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) Heat of passion has both objective and subjective components. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) The defendant must subjectively act in the heat of passion. (Ibid.) But the claimed provocation must be sufficient to cause a reasonable person under the same circumstances to act rashly, without deliberation and reflection, from passion rather than from judgment. (Carasi, at p. 1306.)
The record contains no evidence supporting either the subjective or the objective components. Nothing showed that defendant was acting under the influence of any strong passion when he killed Wiley. Indeed, there was no evidence of the circumstances surrounding or leading up to Wiley's killing. Although there was evidence that Wiley— after giving defendant money and either lending him her car or agreeing to lend him her car two days later—told defendant that she was not going to give him additional money or lend him her car on additional occasions, such statements would not be sufficient to cause a reasonable person under the same circumstances to act rashly, without deliberation and reflection, from passion rather than from judgment. In addition, the only evidence on point tended to show that these statements had little or no effect upon defendant. Defendant told the detectives that he was not upset that Wiley said she would not continue to give him money, and he understood why she would not want to let him continue to borrow her car. Instead, defendant told the detectives that he was "fighting" an "inner voice," but otherwise he did not know why he committed the crime. The trial court thus correctly refused to instruct upon voluntary manslaughter and heat of passion. Defendant's heat of passion theory is premised solely on speculation, which is not evidence. (People v. Waidla (2000) 22 Cal.4th 690, 735.)
4. Prior prison term enhancement
The information alleged that defendant had served four prior prison terms within the scope of section 667.5, subdivision (b). Defendant waived a jury trial on these allegations.
At the time for the court trial of the prior prison term allegations, defense counsel told the court that defendant was "prepared to admit his priors at this time," and the prosecutor conceded that one of the allegations "wasn't valid." The prosecutor advised defendant of his rights, including his right to a jury trial, which he waived. The prosecutor then asked defendant, "Do you admit that you have suffered the following prior convictions, there's a couple of them, so bear with me for a moment: Case number VA042343, for a violation of Penal Code section 476, a conviction date of June 26th, 1997; case BA169255, for a violation of Penal Code section 4530(b), conviction date of June 24th, 1998; case number NA048664, for a violation of Health and Safety Code 11350, on April 24th, 2001; and [a separate violation of Health and Safety Code section 11350 alleged for a different purpose]? [¶] Do you admit those prior convictions?" Defendant replied, "Yes." Counsel joined in the admission, and the court found an express, knowing, and intelligent waiver and a factual basis for "the plea." The prosecutor introduced no further evidence regarding the prior prison term enhancement allegations, and the trial court made no express finding that they were true. The court nevertheless imposed one prior prison term enhancement, stating that it was "for case number NA048664." It struck the other two "for sentencing purposes" because they were over 12 years old.
Defendant contends that the evidence was insufficient to support true findings on the section 667.5, subdivision (b) enhancements. We agree because he did not admit the entire enhancement allegation or the remaining statutory elements, but only that he had suffered the prior convictions.
We review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports a true finding on the enhancement allegation, so that a reasonable trier of fact could find the allegation true beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Section 667.5, subdivision (b) provides as follows: "Except where subdivision (a) [pertaining to a 'violent' new offense] applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction."
As defendant argues, he admitted just one of several elements required to establish the truth of a section 667.5, subdivision (b) enhancement allegation. He did not, as the Attorney General argues, admit the truth of the entire allegation, and the prosecution introduced no evidence to prove the remaining elements. The evidence was thus insufficient to support the trial court's implicit finding that three prior prison term allegations were true. Because the court "struck" or vacated its findings as to two of the allegations, we need address only one.
The only arguable issue is whether retrial is permitted. Defendant argues that double jeopardy precludes retrial, while the Attorney General declined to address this issue.
The double jeopardy provisions of the federal and state constitutions protect against successive prosecutions for the same offense after acquittal or conviction, and against multiple punishment for the same offense. (North Carolina v. Pearce (1969) 395 U.S. 711, 717 ; People v. Anderson (2009) 47 Cal.4th 92, 103-104 (Anderson)) In Monge v. California (1998) 524 U.S. 721, 734 , the United States Supreme Court held that double jeopardy does not bar retrial of a prior conviction enhancement allegation after reversal on appeal for insufficient evidence. Defendant argues that Monge has been undermined by the line of cases commencing with Apprendi v. New Jersey (2000) 530 U.S. 466 , which essentially requires any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum to be charged, submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.)
But defendant waived his right to a jury trial on the enhancement allegations and thus cannot claim that the Apprendi line of cases somehow precludes trial of those allegations upon remand. Defendant expressly agreed that facts to be determined by the court, not by a jury, might be used to increase his sentence. Remanding for a retrial of the prior prison term allegation does not violate defendant's constitutional rights, but simply effectuates the parties' agreement. In addition, "Sattazahn [v. Pennsylvania (2003) 537 U.S. 101, 106-110 ] teaches that double jeopardy principles do not bar retrial of an aggravated sentencing allegation if the first trial did not produce an express or implied acquittal on the allegation." (Anderson, supra, 47 Cal.4th at p. 111 [retrial of sentencing allegation upon which jury deadlocked was permissible even where Apprendi required the allegation to be considered part of a greater offense and tried by a jury].) The failure of proof in this case bore no hallmarks of an acquittal. It appears the prosecutor and trial court simply failed to perceive the glaring gap in the evidence regarding the prior prison term enhancement. Accordingly, under both Monge and Anderson, double jeopardy does not preclude a retrial of the prior prison term enhancement allegation.
DISPOSITION
The Penal Code section 667.5, subdivision (b) enhancement is reversed. The judgment is otherwise affirmed, and the cause is remanded for a retrial of the section 667.5, subdivision (b) enhancement allegation.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
JOHNSON, J.