Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F3290
DAVIS, J.
As pertinent on appeal, a jury convicted defendant Patricia Anne Ordway of first degree premeditated murder and found true a special circumstance that she committed the killing to prevent the victim from testifying as a witness to a crime. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(10).) Additionally, the jury convicted defendant of elder abuse, two counts of forgery, and one count of grand theft. (§§ 368, subds. (b)(1), (d), 470, subd. (a), 487, subd. (a).)
Hereafter, undesignated section references are to the Penal Code.
Sentenced to a term of life without parole, defendant on appeal contends (1) the trial court erroneously admitted hearsay evidence that undermined her defense of third party culpability, and (2) the evidence is insufficient to support the special circumstance finding that defendant killed the victim to prevent him from testifying against her. We disagree and shall affirm the judgment with a minor modification.
Background
1. The Discovery of the Victim’s Body and the Cause and Timing of Death
On September 17, 2004, about 6:20 a.m., the lifeless body of 77-year-old Ray Shires was discovered lying in the parking lot of the Avery Tire Center in Avery. His car was still in the lot. Shires died from an extensive head beating in which he suffered 23 injuries consistent with the use of a claw hammer.
Based on information from the owner of Avery Tire Center, from an adjoining business owner, and from a passerby, together with evidence found at the crime scene, a criminalist opined that the crime occurred between 9:30 p.m. and 11:15 p.m. on September 16, 2004.
2. Defendant and Her Relationship to Victim
Defendant, who was on Social Security disability, worked for Shires as a housekeeper. She was having financial difficulties around the time of Shires’s death.
About a week before his death, Shires told Amy S. and Debbie N. that he was looking for a housekeeper. He wanted them or someone they knew personally to do the job. Repeatedly, Shires said he needed someone he could trust who would not take advantage of him. He did not want anyone who would steal from him. He added that he had given loans to a housekeeper before, and he did not want to do that. According to Debbie, Shires said he was having a problem with his current housekeeper.
To maintain privacy, we will use only last name initials for witnesses.
According to defendant’s best friend, Rhonda S., defendant did construction activities and was strong. When Rhonda talked to defendant the day after Shires was found dead, defendant told Rhonda that her (defendant’s) fingerprints would be found on the passenger door of Shires’s car because she and Shires had taken a drive in his car the night before he was found dead, and that Shires would have dog hair on him because she had allowed Shires to touch her. Rhonda thought it was odd that defendant had relayed this information.
Defendant told police that Shires paid her $150 each time she cleaned his house and visited him, which occurred numerous times. When the police asked defendant about her activities on the night of September 16, 2004, she provided varying and inconsistent accounts in response to police skepticism. Defendant’s car had been seen at Shires’s house on the afternoon of that day.
3. Physical and Forensic Evidence
Just a few days after the discovery of Shires’s body, evidence was found on some vacant property in Angels Camp owned by Debra H. that was about a 10-minute drive from the Avery Tire Center. This evidence included Shires’s wallet (which contained his driver’s license and other identification), his checkbook (with cover), a hammer (and some latex gloves), a pair of jeans, a T-shirt, a linen sheet, a cell phone charger, and a toilet wax ring box (which contained some torn papers and was sealed shut with black electrical tape). These items, in turn, disclosed the following:
--Defendant’s fingerprints were found inside the back cover of Shires’s checkbook cover.
--Blood found on the hammer matched Shires’s DNA.
--The size of the jeans was consistent with jeans found at defendant’s house. The jeans discovered on Debra H.’s property had spots that tested positive for blood, and defendant’s and Shires’s DNA were on the jeans.
--The T-shirt resembled the T-shirt defendant had been wearing at a local store on September 16, 2004, as captured on a video surveillance tape (the T-shirt had the word Arnold and a picture of frogs on it). Spots on the T-shirt tested positive for blood.
--The linen sheet had a logo of Lodi Memorial Hospital. Defendant’s former husband had operated an ambulance service that transported patients to Lodi.
--The cell phone charger was the same type as one that Shires had purchased.
--And the torn pieces of paper found within the toilet wax ring box were reassembled to include: (1) Shires’s check No. 699, made out to Mark S. for $2,500, which defendant had endorsed but unsuccessfully tried to cash at the Pacific State Bank around September 15, 2004; (2) a bank deposit slip for $2,500 dated September 14, 2004, with defendant’s name and account number and Shires’s check No. 699 on it; (3) another deposit slip dated September 14, 2004, with defendant’s signature on it showing a deposit of $2,500 pursuant to a corresponding check from Shires, check No. 700; and (4) a $2,500 check from Shires dated August 16, 2004, payable to defendant. Check Nos. 699 and 700, along with their carbons, were found missing from Shires’s checkbook. As for the toilet wax ring box in which these torn-up documents were found, evidence showed that defendant went with her father to Home Depot on September 15, 2004, where he bought three toilets, one of which she installed at his house and another she took home with her. Defendant installed a new toilet at her home on September 17; a wax ring is a device used to reseat a toilet.
The bank records of Shires and defendant provided further revelations. Shires’s records revealed two checks made out to defendant: check No. 675 for $2,500, dated August 16, 2004, and check No. 700 for $2,500, dated September 14, 2004. It appeared that the handwriting on check No. 675 had been used to trace the writing on check No. 700. Defendant told an investigating police officer that Shires had given her check No. 675 as a loan to buy a used red Subaru, and had given her blank check No. 700 for housecleaning and minor sexual contact and told her she could write it out for $2,500. Defendant had saved a photocopy of check No.675, so she used it to trace the writing for check No. 700. Defendant acknowledged she was taking advantage of Shires.
Defendant’s bank records showed a deposit of $2,500 (less $2,000 cash received) from Shires’s check No. 675 on August 16, 2004, and a deposit of $2,500 (less $500 cash received) from Shires’s check No. 700 on September 14, 2004.
4. Defendant’s Letters from Jail
While in jail, defendant wrote two letters to Shelly C. In the letters, defendant claimed that Shires must have been robbed and murdered by Joyce P., Joyce’s son and the son’s wife, who in turn had framed defendant by dumping the evidence found on the Angels Camp property (i.e., Debra H.’s property). (For a period of time, defendant had allowed Joyce and her clan to live at defendant’s residence, until they were asked to move out by defendant’s parents, who owned the residence.) Defendant wrote that, to prove her innocence, she needed Shelly to find a person who would lie to defendant’s lawyer, the district attorney and the police using a false story that defendant had concocted. Defendant offered to pay Shelly and the other person for this assistance with substantial lottery winnings she had never told anyone about. Defendant admitted this scheme in her trial testimony, but maintained it was done to prove her innocence. Defendant added at trial that Joyce had forged checks on Shires’s account and blackmailed defendant into cashing them.
From jail, defendant also wrote to Ruby J. and asked her to relay the concocted story to the police.
5. Third Party Culpability
The manager of an Angels Camp mini-mart told Detective Jim Stenquist that one of her store clerks had seen a woman--who did not fit defendant’s description--in the store with blood or oil on her hands between 7:00 and 8:00 p.m. the night Shires was killed. A customer at the store who had overheard the manager and the detective talking told the detective that she (the customer) knew of the woman the manager was describing, and that the woman had been working on her car at the residence of Billy B., who lived about three blocks from the mini-mart.
Detective Stenquist then checked with Billy B., who echoed the customer’s account. Billy stated that he and a woman named Cheryl S. had been working on her car “the last few weeks,” that they had “probably” worked on the car on the evening of September 16, 2004, and that he had sent Cheryl to the mini-mart “to get items.” The detective then confirmed that indeed it was Cheryl’s registered car on Billy’s property--with its hood up and surrounded by cans of motor oil and transmission fluid (which is red). The detective also checked with the original source of the information regarding the allegedly bloody-handed woman, the mini-mart store clerk (Ann F.), who said the substance on the woman in the store “possibly could have been motor oil.” Based on all this information, Detective Stenquist did not contact Cheryl, concluding that the woman in the mini-mart with the substance on her hands did not pertain to the Shires murder.
Ann F., the mini-mart store clerk, testified for the defense. She stated that on a September 2004 evening, between 9:30 and 10:00 p.m., a woman, who was not defendant, came into the store with dried blood all over her hands. Ann did not think the substance was transmission fluid, but admitted she had never seen dried transmission fluid. The woman wandered around the store, bought a snack, and ate it in the store.
The evidence of the statements to Detective Stenquist from the (eavesdropping) mini-mart customer and from Billy B. is the subject of defendant’s first issue on appeal, to which we turn now.
Discussion
1. Allegedly Inadmissible Hearsay Statements from Mini-mart Customer and from Billy B.
Defendant contends the trial court erred in admitting these hearsay statements, which undermined defendant’s third party culpability defense involving the allegedly bloody-handed woman observed in the Angels Camp mini-mart on the night of the murder. We find no error because the evidence was properly admitted for a nonhearsay purpose and the jury was instructed accordingly.
These statements were admitted in the following manner. In a reported discussion outside the jury’s presence, the prosecutor asked the trial court if it was going to allow the defense to question Detective Stenquist about the allegedly bloody-handed woman, even if the prosecutor did not raise this issue with Detective Stenquist. Defense counsel responded that he was “obviously going to ask [Detective Stenquist] what he did to investigate this case and what he didn’t do to investigate this case,” explaining that such questioning went “to [Detective Stenquist’s] credibility, his bias, his motive and his interest, and [was] certainly fair fodder for cross-examination.” The trial court agreed.
In light of this ruling, the prosecutor then asked Detective Stenquist on direct examination (1) what information the eavesdropping mini-mart customer had provided him about the identity of the supposedly bloody-handed woman in the mini-mart on the night of the murder, and (2) what Billy B. had told the detective in this regard as well.
Defendant unsuccessfully objected to both of these inquiries on hearsay grounds. In each instance, the trial court instructed the jury that the statements from the mini-mart customer and from Billy B. were not being admitted for the truth of the matters stated, but only to explain Detective Stenquist’s investigation into the matters based on the detective’s state of mind. (As noted, the customer stated she knew of the allegedly bloody-handed woman whom the mini-mart manager had described and this woman was working on her car at Billy B.’s, and Billy B. confirmed the customer’s account and provided the woman’s name, Cheryl S.)
We conclude the trial court acted properly. As defense counsel had argued, what Detective Stenquist did and did not do to investigate this case, especially with respect to the allegedly bloody-handed woman at the mini-mart on the night of the murder, was relevant. The prosecution was entitled to have Detective Stenquist explain his investigation regarding this woman, if the defense was going to criticize that investigation as lacking. Detective Stenquist’s investigation in this regard was based on the information he had obtained from the mini-mart customer and from Billy B. That information was consistent and exculpatory as to the supposedly bloody-handed woman. Detective Stenquist then combined this information with his observation of the ongoing car repair at Billy B.’s, his confirmation that the car being repaired was registered to Cheryl S., and the subsequent equivocations from mini-mart clerk Ann F. concerning the substance on the woman’s hands, to conclude the bloody-handed woman theory was a dead end.
Because Detective Stenquist’s investigative actions were at issue in this case, and because those actions were based on statements from the mini-mart customer and from Billy B., these statements constituted nonhearsay evidence that was admissible to show the detective’s (i.e., the hearer’s) actions in conformity with the statements. The statements were not hearsay and were admissible because it was how Detective Stenquist acted in light of the statements, not the truth of the matter asserted in the statements, which was the relevant fact sought to be proved. (People v. Scalzi (1981) 126 Cal.App.3d 901, 907, and authorities cited therein.)
In light of our resolution of the hearsay issue, defendant’s related contentions that the trial court violated her constitutional right to confrontation and constitutional due process right to be convicted on reliable evidence--if not forfeited--fall as well. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 1, pp. 679-680 [hearsay rule functions to preserve confrontation and reliable evidence].)
2. Sufficiency of Evidence Regarding Special Circumstance of Witness-Murder
Defendant contends the evidence is insufficient to support the special circumstance finding that defendant killed Shires to prevent him from testifying in a criminal proceeding. (§ 190.2, subd. (a)(10).) We disagree.
In reviewing the sufficiency of evidence in a criminal appeal, we review the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the elements at issue beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578; People v. Guerra (1985) 40 Cal.3d 377, 385.)
As pertinent here, three elements comprise the witness-murder special circumstance: (1) the victim witnessed a separate crime prior to being killed; (2) the defendant intended to kill the victim; and (3) the purpose of the killing was to prevent the victim from testifying about the crime he had witnessed. (People v. Stanley (1995) 10 Cal.4th 764, 801 (Stanley).) The trial court properly instructed the jury with these three elements. (CALCRIM No. 725.)
“The relevant fact under this [special] circumstance is that the defendant believes that he or she is exposed to criminal prosecution, not that in fact criminal proceedings are pending or contemplated.” (3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) § 457, p. 610; People v. Weidert (1985) 39 Cal.3d 836, 853-854.) Consequently, it is the accused’s subjective intent that is relevant in proving this special circumstance. (Weidert, supra, at p. 853.) And killing for the purpose of preventing the victim from testifying about the crime he had witnessed does not have to be the sole or predominant purpose of the killing. (Stanley, supra, 10 Cal.4th at pp. 800-801.)
Defendant concedes the evidence is sufficient to prove the first two elements of this special circumstance: Shires witnessed a separate crime (forgery/theft), and defendant intentionally killed Shires.
Defendant’s evidentiary challenge is to the third element. Defendant argues: “[T]here was absolutely no evidence to prove that the purpose of the intentional killing was to prevent [Shires] from testifying against [defendant] about the crimes involving [Shires’s] checks. There was no evidence that [Shires] had reported [defendant’s] criminal conduct with his checks, no statements by [defendant] that she feared that [Shires] was going to report her criminal conduct with his checks, and no evidence of any law enforcement investigation of [defendant’s] criminal conduct with [Shires’s] checks prior to the murder. [¶] [Defendant’s] case is entirely different from People v. Ledesma (2006) 39 Cal.4th 641 [(Ledesma)] and People v. Sanders (1990) 51 Cal.3d 471 . . . . In Ledesma, the court [found sufficient evidence of the third element by relying] on the defendant’s statement that if he ‘got rid of the witness, he wouldn’t have a witness to testify against him.’ (Ledesma, supra, at p. 723.) In Sanders, the court relied on the defendant’s expression of concern that one of the victims of a robbery attempt could identify him. (Sanders, supra, at p. 520.) In contrast, there is no evidence of any statement by [defendant here] to show that the purpose of the killing was to prevent [Shires] from testifying.”
Defendant has framed her sufficiency argument too narrowly, essentially basing it on direct evidence of the third element. Because this third element involves defendant’s purpose underlying the killing--i.e., her criminal intent--circumstantial evidence has a role to play. Direct evidence is not required. Indeed, a defendant’s criminal intent is often proved through circumstantial evidence because criminal defendants often do not expressly state what was on their mind regarding the crime. (See People v. Patino (1979) 95 Cal.App.3d 11, 27.) As Ledesma itself recognized regarding the evidence before it, “[t]he circumstances of the offense also support the conclusion that the victim was killed to prevent his testimony.” (Ledesma, supra, 39 Cal.4th at p. 723.) As we shall see, it is the circumstantial evidence that is defendant’s undoing here.
As the People note, defendant herself testified that she knew she had committed a crime by taking and depositing checks from Shires’s bank account and that she was going to get in trouble for it. When originally questioned by the police, defendant lied about Shires giving her money. Defendant also acknowledged to officers that she felt she was taking advantage of Shires. Moreover, defendant was financially strapped at the time of Shires’s death. One reason for killing a financial lifeline during a time of financial distress would be if the lifeline had become aware he was being criminally exploited.
Aside from evidence from defendant herself, there was evidence from Debbie N. that Shires had stated he was having a problem with his current housekeeper, and Shires repeatedly told Debbie and Amy S. that he needed a housekeeper he could trust who would not take advantage of him. Shires made these statements only about a week before his death.
Defendant’s forgery and theft involved Shires’s checks and checking account, and deposit slips with defendant’s name, signature and account number. This meant there was a paper trail of wrongdoing. As the prosecutor argued, Shires’s upcoming bank statement, especially regarding the September 14, 2004, check and deposit, would prove very troubling for defendant. A treasure trove of this paper evidence--torn up, secreted in a taped-up box and dumped in a vacant, trashy, overgrown, unlit area--pointed to defendant.
This evidence, then, from defendant’s own mouth, from statements Shires made shortly before his death, and from the paper trail of forgery and theft, revealed a timing and motive for Shires’s death that led to defendant. Although it is at least arguable the $2,500 defendant obtained from Shires in mid-August 2004 may have been a loan, the same cannot be said for the $2,500 defendant obtained on September 14. The evidence showed only outright theft as to this transaction, accomplished via defendant’s forgery. Shires was murdered on September 16.
We conclude there is sufficient evidence to sustain the special circumstance finding that defendant killed Shires to prevent him from testifying against defendant concerning the forgery and theft involving Shires’s checking account.
Disposition
As the People note, because the judgment includes a sentence of life without the possibility of parole, the restitution fine of $5,000 that was imposed but suspended unless parole is revoked (§ 1202.45; i.e., the parole revocation fine), must be stricken. (See People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1185.) The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: SIMS, Acting P. J., NICHOLSON, J.