Opinion
D071626
05-17-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL RAYA, JR., Defendant and Appellant.
Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1404085) APPEAL from a judgment of the Superior Court of Riverside County, John V. Stroud and Becky L. Dugan, Judges. Affirmed. Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Daniel Raya drove onto a sidewalk and hit Bernard C. with his truck, ultimately causing Bernard's death. A jury found Raya guilty of one count of murder (Penal Code § 187, subd. (a), count 1) and one count of failing to perform a duty following an accident (Veh. Code § 20001, subd. (a), count 2), and found true additional allegations Raya used a deadly weapon, the truck, in the murder and the accident resulted in Bernard's death.
California Rules of Court, rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial" to protect those individuals' privacy. Accordingly, we refer to certain witnesses in this case by their first name and last initial, and thereafter by first name only. Our use of first names is not intended as a sign of disrespect.
All further statutory references are to the Penal Code unless otherwise specified.
Raya asserts the conviction should be reversed or reduced to voluntary manslaughter because: (1) there was insufficient evidence to prove he caused Bernard's death or did so with malice aforethought; (2) the prosecutor committed misconduct by improperly defining the burden for voluntary manslaughter; (3) the court erred in permitting a pathologist to testify as to the opinion of a nontestifying pathologist; (4) the court erred by allowing the prosecutor to play recordings of two police interviews; and (5) the cumulative impact of these errors was prejudicial. We conclude there was substantial evidence to support the verdict, any errors were forfeited or harmless, and the court did not abuse its discretion in allowing the police interviews. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Earl G. woke early one morning in September 2013 to the sound of something being thrown around and went outside to find his cousin Bernard standing in his yard. After returning to the house briefly to get dressed, Earl asked Bernard why he was there so early in the morning, but Bernard did not provide a coherent explanation. The two continued to talk as Earl picked up some trash in the street and Bernard stood on the grass between the sidewalk and the curb.
Earl turned his back to Bernard for a moment, heard a stone being thrown and then saw the stone rolling down the street. Concerned someone would think he was throwing the stones into the street, Earl asked Bernard not to do that. He did not see any vehicles in the road at that time, but a few minutes later Earl noticed a small black pickup truck driving up the street towards him.
The truck went up a ramp on the sidewalk, accelerated, and struck Bernard. Bernard flew into the air and landed on the hood of the truck, and then the truck accelerated again and Bernard rolled off onto the street. Earl ran over to Bernard and dragged him out of the street and onto the driveway. Earl's wife came outside and called the police.
Emergency personnel arrived and transported Bernard to the hospital. Bernard had a broken pelvis that required surgery and two broken vertebrae. He spent approximately one week in the hospital before being discharged. Detective Mike M. was assigned to investigate the case and attempted to contact Bernard after he was discharged but was unable to speak with him.
Bernard's health deteriorated over the next couple of weeks, he developed a decubitus ulcer on his lower back, and approximately three weeks after he was hit by the truck, Bernard died. A pathologist performed an autopsy and determined the cause of death was sepsis, a complication from the blunt force trauma of the accident. The pathologist also listed hypertensive heart disease, cirrhosis and chronic narcotic abuse as conditions contributing to Bernard's death.
In October, Raya was arrested on an unrelated charge while driving a black pickup truck. On a prison bus from court in December, he ran into Robert V., whom he knew from a previous incarceration. Raya told Robert he was happy he had not been arrested on a murder charge because he had killed someone a couple months earlier. A few months later, Raya and Robert were placed in a cell together and Raya further disclosed that he had run a black man over after the man threw a rock at his truck. Raya told Robert some family members had taken the truck and put it out in the desert near Hesperia.
Robert told a prison investigator about Raya's admission and the investigator put Robert in touch with Detective Mike. The detective asked Robert to wear a recording device to get Raya's admission on tape and Robert agreed to do so, in exchange for a shortened sentence. During a recorded conversation with Robert, Raya explained that his truck needed body work because it got hit with a rock and he had hit the man that threw the rock with the truck.
A few weeks later, the People charged Raya with one count of murder and one count of failing to perform a duty following an accident, commonly referred to as a hit and run. The information also alleged Raya used a dangerous weapon—a truck, the accident resulted in Bernard's death, and Raya had five prior felony convictions. Raya was arrested and interrogated by Detective Mike but denied any involvement.
Raya waived his right to a jury trial regarding the prior felony allegations and proceeded to trial on the remaining charges.
Around the same time, law enforcement located the black pickup truck Raya had been driving when arrested the previous October in the desert near Hesperia. The back window was smashed and there was body damage on the front.
At trial, Earl described the events on the morning Bernard was hit and stated the black pickup truck the police recovered was similar to, but not necessarily the same as, the one that hit Bernard. The pathologist who performed the autopsy on Bernard no longer worked for the office, so the supervising pathologist, Dr. Jennifer P., reviewed the autopsy report and testified sepsis due to the injuries sustained in the collision caused Bernard's death, Bernard would not have died but for the accident, and her conclusions were consistent with those noted in the autopsy report. The People also called Raya's former girlfriend Rosie D. but she refused to answer most questions, and the court allowed the prosecutor to play a recording of an interview with Detective Mike during which Rosie made several statements implicating Raya in the murder. Raya did not testify but, over defense counsel's objection, the prosecutor played a recording of his interrogation by Detective Mike.
The jury found Raya guilty as charged. Raya appeals.
DISCUSSION
I. Substantial Evidence
Raya contends there was insufficient evidence to support the murder conviction because the evidence did not prove the collision was the proximate cause of Bernard's death or that he was acting with malice aforethought, as opposed to reacting in the heat of passion, when he hit Bernard with his truck.
A
We review assertions regarding the sufficiency of the evidence supporting a conviction for substantial evidence and affirm the judgment if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319; accord, People v. Maury (2003) 30 Cal.4th 342, 403.) Even where there is some evidence the defendant was not guilty, substantial evidence supports the verdict as long as the record as a whole contains evidence that is reasonable, credible and of solid value from which a rational jury could find the defendant guilty beyond a reasonable doubt. (People v. Booker (2011) 51 Cal.4th 141, 172 (Booker).)
B
To find a defendant guilty of murder, the jury must conclude an act, or omission, of the defendant caused the victim's death. (People v. Jennings (2010) 50 Cal.4th 616, 643.) An act or omission causes the victim's death if it sets in motion a chain of events of which the death is a direct, natural and probable consequence, or, put another way, if the victim would not have died but for the act or omission. (People v. Cervantes (2001) 26 Cal.4th 860, 874, citing CALJIC No. 3.40.)
In some cases, the direct cause of the victim's death is an intervening event, such as the action of another. If the intervening event is an independent, unforeseen and extraordinary or abnormal occurrence, it may break the chain of causation and absolve the defendant of liability. (People v. Cervantes, supra, 26 Cal.4th at p. 871.) By contrast, when the victim's death is the result of a dependent intervening event—a normal and foreseeable result of the defendant's original action—the chain of causation is not broken and the defendant is still liable for murder. (Id. at pp. 868-869.) In the latter case, it is not necessary that the defendant actually foresaw the intervening event, or that it was a likely consequence of the defendant's action; all that is necessary is that the defendant might have foreseen that some harm of the type that did occur might result from his or her act. (Id. at p. 871.)
Of particular relevance here, when the defendant causes an injury that requires medical treatment, grossly improper treatment may be an unforeseeable intervening cause of death if the original injury is not an actual contributing factor at the time of death, but mere negligence or inadequate treatment is ordinarily no defense. (People v. McGee (1947) 31 Cal.2d 229, 240, 243 (McGee).) Moreover, a victim's condition or predisposition to injury or death prior to or at the time of the defendant's act is of no relevance as preexisting conditions are concurrent, and not intervening, causes. (People v. Wattier (1996) 51 Cal.App.4th 948, 953.)
Here, there was substantial evidence to support the jury's conclusion Raya's actions caused Bernard's death. Raya hit Bernard with his pickup truck, causing two broken vertebrae and a fractured pelvis that required surgery. Bernard died a few weeks later. A senior pathologist concluded, based on the autopsy report, Bernard died from sepsis, an overwhelming infection resulting from the blunt force trauma and subsequent surgery, and would not have died but for the injuries he sustained in the collision.
Raya asserts the sepsis was an independent intervening event, but there was substantial evidence from which a reasonable trier of fact could have concluded it was not. Although rare, Dr. Jennifer testified that infection is always a risk during surgery, regardless of how careful the surgeon is to maintain a sterile environment. Raya argues the surgery was nevertheless an intervening event because, unlike the victim in McGee, supra, 31 Cal.2d at pp. 240-241, Bernard's injuries were not the type of "dangerous wounds" that typically result in death if left untreated, but Raya offers no evidence to support this assertion. Instead, there was substantial evidence, including Dr. Jennifer's description of the severity of Bernard's injuries and the undisputed fact that medical personnel did perform the surgery to repair Bernard's fractured pelvis, from which the jury could have reasonably concluded the surgery and resulting infection were both foreseeable results of the collision. (See, e.g., Gibson v. State (Ind. 1987) 515 N.E.2d 492, 496 [death caused by staph infection resulting from surgery required by injuries inflicted by defendant was foreseeable result of defendant's actions despite evidence suggesting only 0.015% of patients contract staph in this manner].)
Raya also asserts, for the first time in his reply brief, drug use could have caused Bernard's death. However, Dr. Jennifer testified she considered Bernard's drug use but concluded the sepsis was a complication from the blunt force trauma to Bernard's pelvis sustained in the accident and Bernard would not have died but for the collision. Further, although Dr. Jennifer noted the pathologist performing the autopsy listed chronic narcotic abuse, hypertensive heart disease, and cirrhosis as factors contributing to Bernard's death, those were preexisting and concurrent conditions, insufficient to break the chain of causation. (See People v. Wattier, supra, 51 Cal.App.4th at p. 953.) Thus, even if some evidence pointed to Bernard's drug use as precipitating his death, substantial evidence supported the jury's conclusion the collision was the ultimate cause of Bernard's death. (See Booker, supra, 51 Cal.4th at p. 172.)
Based on the record as a whole, we conclude there was substantial evidence from which it was reasonable for the jury to conclude Raya caused Bernard's death by hitting him with the truck, thereby breaking his back and pelvis and requiring extensive surgery that ultimately led to the deadly sepsis infection.
C
To find Raya guilty of murder, the jury also had to decide he acted with malice aforethought when he hit Bernard. (See People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) By contrast, if he acted in the heat of passion, and without malice aforethought, he was guilty not of murder, but of the lesser-included offense of voluntary manslaughter. (Id. at p. 163.)
A heat of passion defense has both a subjective and objective component; the jury must conclude the defendant actually acted with obscured judgment due to a provocation and the provocation was sufficient to cause a person of average disposition to act rashly and without due deliberation. (Breverman, supra, 19 Cal.4th at p. 163; see also People v. Steele (2002) 27 Cal.4th 1230, 1252-1253 [defendant must prove adequate provocation and actual heat of passion].) It is not necessary to prove that a person of average disposition would have acted in a manner that caused the victim's death, so long as an average person would have acted from passion and not judgment. (People v. Beltran (2013) 56 Cal.4th 935, 938.) Further, the defendant is still liable for murder if there was sufficient time between the provocation and the defendant's action to allow reason to return. (Breverman, at p. 163.)
Raya asserts there was substantial evidence to support a heat of passion defense because the testimony suggested Raya was reacting to Bernard throwing a rock that shattered the window of Raya's truck, relying primarily on People v. Barton (1995) 12 Cal.4th 186. However, the issue in Barton was whether there was sufficient evidence to require the court to sua sponte instruct the jury on voluntary manslaughter. (Id. at p. 203.) Here, the court did instruct the jury on voluntary manslaughter but the jury nevertheless found Raya guilty of murder. Thus, the relevant inquiry is whether there was sufficient evidence to support the malice aforethought component of the murder verdict, and we conclude there was.
Earl testified he did not see any vehicle in the road when he asked Bernard to stop throwing rocks, and he had been outside picking up trash for at least a few minutes when he saw the truck come up the street and hit Bernard. Thus, there was evidence Bernard had not hit the truck with a rock and, even if he had, there was evidence Raya had time to cool off before he returned and ran Bernard over. By contrast, Raya did not testify and the only evidence even suggesting he was actually, subjectively, acting in the heat of passion when he hit Bernard was the extreme nature of the action itself.
We therefore conclude it was reasonable for the jury to decide Raya was acting with malice aforethought when he hit Bernard, and substantial evidence supported that conclusion. (See Booker, supra, 51 Cal.4th at p. 172.)
II. Prosecutorial Misconduct
Raya contends the prosecutor committed misconduct during closing arguments by improperly characterizing the provocation requirement and misstating the prosecution's burden with respect to voluntary manslaughter. The People contend Raya forfeited this argument by failing to object and Raya asserts the error is nevertheless reviewable because any forfeiture was ineffective assistance of counsel.
A
Before closing arguments, the court instructed the jury using, among others, the standard jury instructions for murder and voluntary manslaughter.
The court instructed the jury using CALCRIM No. 570 which states, in part:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶]...[¶]
"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts would have reacted from passion rather than from judgment. [¶]...[¶]
"The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
During closing, the prosecutor stated:
"Basically to convict the defendant of voluntary manslaughter, this is what you need to tell yourselves. It's okay if an average person did this. Would an average person do what the defendant did here? Would he — would an average person do that? Absolutely not. Average people don't run people over when rocks are thrown at their cars. It doesn't happen that way. But that's what you would have to tell yourselves. An average person -- it's okay to an average person to do this."
Raya's counsel did not object to this argument or ask the court to admonish the jury.
B
A prosecutor has wide latitude to argue his or her case vigorously, but improper argument may amount to prejudicial misconduct if a prosecutor uses deceptive or reprehensible methods to persuade the jury or if the argument infects the trial with such unfairness as to make the conviction a denial of due process under the federal Constitution. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill); People v. Tully (2012) 54 Cal.4th 952, 1009-1010 (Tully).) Here, the People concede the prosecutor's characterization during closing arguments of the provocation element of involuntary manslaughter was improper, and we agree.
In order to preserve an issue of prosecutorial misconduct for appeal, though, the defendant must timely object on those grounds and seek an admonishment of the jury. (See Hill, supra, 17 Cal.4th at p. 820.) Failure to object or seek an admonition results in forfeiture. (Ibid.; People v. Ayala (2000) 23 Cal.4th 225, 284.) As Raya concedes he did not object to the prosecutor's characterization of provocation during closing arguments or seek an admonishment of the jury, he forfeited the issue.
Raya asserts the misconduct nevertheless remains grounds for reversal because his counsel provided ineffective assistance by failing to object. To prove ineffective assistance of counsel, Raya must prove his attorney's performance was well below the standard of reasonableness under prevailing professional norms and the deficiency undermined the fairness of his trial. (Strickland v. Washington (1984) 466 U.S. 668, 686-688; In re Wilson (1992) 3 Cal.4th 945, 950.) In other words, he must prove the result would have been more favorable to him but for his attorney's unreasonably substandard performance. On appeal, we assess counsel's tactical decisions under the circumstances in which the decisions were made and do not second-guess them in hindsight. (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.) We give deference to trial counsel's tactical choices and presume counsel's decisions were proper. (Strickland, at pp. 691-694; People v. Hinton (2006) 37 Cal.4th 839, 876.)
Here, the decision of Raya's counsel not to object to the prosecutor's closing argument was reasonable and did not undermine the fairness of Raya's trial. Raya's primary defenses were that he was not the driver of the truck that hit Bernard, his truck was not the truck that hit Bernard, and the collision was not the cause of Bernard's death. There was no testimony suggesting Raya acted in a heat of passion and his counsel did not argue he did, as to do so would have contradicted Raya's primary defense that he was not the one that hit Bernard. At the same time, there was testimony indicating there were no vehicles on the road for at least a few minutes before the truck hit Bernard, suggesting the driver had time to cool off, even if provoked, and undermining any heat of passion defense Raya may have presented. Further, the court instructed the jury on the elements of murder and voluntary manslaughter, including an accurate description of the provocation requirement in the instructions, such that defense counsel had reason to believe the jury would follow the correct standard regardless of the prosecutor's misstatement. (See People v. Holt (1997) 15 Cal.4th 619, 662 [juries are presumed to understand and follow the court's instructions].)
We therefore conclude it was a reasonable tactical choice for Raya's attorney not to object to the prosecutor's mischaracterization of provocation so as not to draw the jury's attention away from Raya's primary defense, and it is unlikely the result would have been more favorable to Raya if his attorney had objected. Moreover, even if Raya had not forfeited the argument, any error was harmless beyond a reasonable doubt for the same reasons. (See People v. Chapman (2005) 134 Cal.App.4th 1440, 1453 [prosecutorial misconduct not reversible if harmless beyond a reasonable doubt].)
III. Pathologist's Testimony
Raya next asserts the court erred by permitting Dr. Jennifer to testify regarding the conclusions of the nontestifying pathologist who performed the autopsy, and by admitting a copy of Bernard's death certificate.
A
Dr. Jennifer did not perform the autopsy on Bernard's body. She drew her conclusions as to the cause of death from her review of an autopsy report created by a nontestifying pathologist who no longer worked for the county.
The first time the prosecutor asked Dr. Jennifer if the pathologist that performed the autopsy made any independent conclusions, Raya's counsel objected, stating "I would object to this witness testifying as to what Dr. [Y.] decided." The court explained that experts can "testify on hearsay and other matters that are not firsthand knowledge on their part" and suggested the prosecutor rephrase the question.
Dr. Jennifer then went on to testify, without objection, as follows:
"Q. And is it true that your independent conclusions are consistent with Dr. [Y.]'s conclusions?
"A. They are consistent.
"Q. Basically you didn't come to a different opinion about the cause of death in this case than Dr. [Y.]?
"A. No."
"Q. And you testified to this briefly already, but it's fair to say that Dr. [Y.] came to her own independent conclusion of [Bernard]'s death as well. Is that correct?
"A. Yes.
"Q. And it's consistent with your conclusion. Right?
"A. It's consistent."
"Q. Is that your -- your opinion this morning and when you reviewed this case, but for [Bernard] sustaining the injuries from this accident, or this hit-and-run, he'd likely still be alive today?
"A. Yes, he would.
"Q. And is it true that apparently Dr. [Y.] felt the same way?
"A. Yes."
The court also admitted a copy of Bernard's death certificate into evidence without objection.
B
The People assert Raya also forfeited this argument by failing to object and Raya counters, even if forfeited, the issue is nevertheless reviewable on appeal because the failure to object was ineffective assistance of counsel.
With respect to the death certificate, Raya stipulated to its entry into evidence, and thus we agree Raya forfeited any argument based on its admission. (Evid. Code, § 353, subd. (a).) With respect to Dr. Jennifer's testimony, however, Raya did initially object to Dr. Jennifer "testifying as to what Dr. [Y.] decided." Typically, a defendant forfeits a constitutional argument by failing to object on that specific ground at trial, but here, Raya's objection may have been broad enough to preserve the issue, as his argument on appeal is consistent with the objection he did make. (See People v. Partida (2005) 37 Cal.4th 428, 438-439 [objection to evidence as prejudicial was broad enough to encompass due process argument based on the same reasoning as the asserted objection].) Regardless, as set forth more fully below, we conclude any error was harmless beyond a reasonable doubt, and thus we need not ultimately decide whether Raya forfeited the issue or whether Raya's counsel was ineffective as a result.
C
A defendant has a constitutional right to confront any witnesses that testify against him or her, and the submission of affidavits concerning laboratory or forensic analysis implicate this right. (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 309-311 (Melendez-Diaz).) However, in the case of autopsy reports, the law draws a distinction between objective facts about a body's condition and the opinions and conclusions drawn therefrom. A testifying pathologist may describe to the jury objective facts about the condition of victim's body as described in a nontestifying pathologist's autopsy report, and may testify as to his or her own conclusions based on those facts. (People v. Dungo (2012) 55 Cal.4th 608, 621.) The pathologist's testimony may violate the confrontation clause, however, if it references conclusions reached by the nontestifying pathologist. (See People v. Trujeque (2015) 61 Cal.4th 227, 276-277 (Trujeque).)
Where the court permits testimony in violation of the confrontation clause, the judgment must be reversed unless the error is harmless beyond a reasonable doubt. (Melendez-Diaz, supra, 557 U.S. at p. 329, fn. 14.) Under this standard, courts have concluded it was harmless error for a testifying pathologist to reference the conclusions of a nontestifying pathologist when the conclusions of the two pathologists were consistent and the defendant did not dispute the actual cause of death. (Trujeque, supra, 61 Cal.4th at pp. 276-277; People v. Edwards (2013) 57 Cal.4th 658, 707.) Similarly, the admission of an autopsy report created by a nontestifying pathologist is harmless error where a testifying pathologist independently reaches the same conclusion and the cause of death is not in dispute. (People v. Capistrano (2014) 59 Cal.4th 830, 874 [admission of autopsy report harmless error where testifying pathologist stated consistent but independent conclusions and cause of death was not disputed]; see also People v. Leon (2015) 61 Cal.4th 569, 604 [error of admitting autopsy report containing conclusions of nontestifying pathologist was harmless beyond a reasonable doubt where cause of death was undisputed].)
As in Trujeque and Edwards, Dr. Jennifer referenced the conclusions of the nontestifying pathologist to confirm that they were consistent with her own independently developed conclusions and Raya did not dispute the infection was the immediate cause of death. Unlike those cases, though, Raya did assert the prosecution did not meet its burden to prove the infection was caused by the collision because there was no clear etiology for the infection, the doctor treating Bernard did not attribute his death to the injuries sustained in the collision, and Dr. Jennifer conceded at least one of the conditions affecting Bernard's health could have been caused by Bernard's habitual drug use. However, as discussed above, preexisting conditions such as those caused by the victim's habitual drug use are contributing and not superseding factors. Further, Raya did not present any evidence to support the assertion the infection was not the result of Bernard's injuries with the exception the reference to the conflicting conclusion of the treating physician during Dr. Jennifer's testimony. However, that testimony was equally problematic as the physician also did not testify. Had the court excluded both references, the jury would have had only Dr. Jennifer's undisputed testimony regarding the cause of death to consider and necessarily would have found Raya caused Bernard's death by hitting him with the truck. We therefore conclude any error related to Dr. Jennifer's testimony was harmless beyond a reasonable doubt.
Lastly, we consider the admission of the death certificate. Although admission of a more detailed autopsy report under the same circumstances would be error, the death certificate was admissible as a business record created for the purposes of administration required in connection with every death. (See Capistrano, supra, 59 Cal.4th at p. 874; Melendez-Diaz, supra, 557 U.S. at p. 324.) Moreover, the death certificate simply stated the cause of death as sequela of blunt force trauma, without further detail or explanation and was consistent with Dr. Jennifer's testimony, and we therefore conclude any error was harmless beyond a reasonable doubt for the same reasons Dr. Jennifer's testimony regarding the conclusions of the nontestifying pathologist was harmless.
IV. Interrogations of Rosie and Raya
Raya contends the court erred by allowing the prosecutor to play the full recordings of Detective Mike's interrogations of Rosie and Raya.
A
Raya argues the trial court should have redacted certain portions of the recordings but he never asked the trial court to do so. Instead, he argued the court should exclude the recording of Raya's interrogation pursuant to Evidence Code section 352 and on the grounds it was hearsay and Rosie's refusal to testify was not an inconsistent statement and did not make her unavailable. As Raya did not provide the trial court with the opportunity to consider any proposed redactions, we will limit our review on appeal to the trial court's decision to allow playback of the recordings as a whole based on the hearsay and prejudice objections asserted at trial. (See People v. Fuiava (2012) 53 Cal.4th 622, 670.)
Rosie initially refused to testify but eventually answered some questions and provided some inconsistent statements, after which Raya's counsel stated "most of what I was going to argue has now become moot" and submitted the issue regarding the interrogation to the court.
B
We review the trial court's ruling on the admissibility of evidence for an abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197-198.)
Evidence is relevant if it tends to prove, logically, naturally or by reasonable inference, a material element at issue in the case. (Evid. Code, §§ 210, 350; People v. Daniels (1991) 52 Cal.3d 815, 856.) The court may, however, exclude evidence if the prejudicial effect of the evidence outweighs its probative value. (Evid. Code, § 352.) The trial court has broad discretion when deciding whether the prejudicial effect of evidence outweighs its probative value. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Out of court statements offered for the truth of the matter asserted are typically inadmissible hearsay, but prior statements that are inconsistent with the witness's testimony at trial fall under an exception and are admissible. (Evid. Code, § 1235.)
During her interrogation, Rosie made a number of incriminating statements, indicating Raya was driving the truck the morning Bernard was hit and Raya became visibly upset when he found out Bernard had died. At trial, Rosie made several statements inconsistent with those admissions, stating, for example, she did not know anything about Raya's reaction to finding out about Bernard's death. Thus, Rosie's interrogation fell within the inconsistent statement exception to hearsay and was probative of a central issue at trial—Raya's guilt. (See People v. Zapien (1993) 4 Cal.4th 929, 950-958 [finding recorded statement of witness was admissible as it fell within the inconsistent statement hearsay exception and was more probative than prejudicial].)
During his interrogation, Raya denied hitting Bernard with his truck or owning the truck that the police recovered in the desert. He did, however, admit driving the truck regularly during the relevant time period, including on the day Bernard was hit, although he later claimed he could not remember whether he drove it that morning or what he was doing that morning. He also denied having told Robert he hit someone with the truck, despite the detective mentioning the recording. As the interrogation placed Raya in the truck and included his reactions to the detective confronting him with evidence of his involvement, it was also probative.
As we conclude both interrogations were probative and otherwise admissible, we next consider whether the trial court abused its discretion in determining the probative value outweighed any potential prejudice. Raya makes several arguments regarding the prejudicial nature of the interrogations, but they are not persuasive.
First, Raya contends the interviews improperly allowed the prosecution to restate its case through officer narratives. In People v. Sanders (1977) 75 Cal.App.3d 501, 508, on which Raya relies, the court found it was improper to provide the jury with a transcript of an interrogation of the defendant in which the officer made multiple lengthy narrative statements embracing numerous facts not in the record. By contrast, here, the detective's narratives were limited and the court explicitly instructed the jury not to consider any of the statements the detective made for any reason other than to provide context for Raya's responses. We presume the jury understood and followed the court's instructions (People v. Holt, supra, 15 Cal.4th at p. 662.) Further, on cross-examination, Detective Mike explained he had made false statements during the interview as part of an interrogation technique.
Although we find no abuse of discretion in the first instance in the present case, we note the court in Sanders did not consider whether the narratives were sufficiently prejudicial to warrant reversal, and instead reversed the judgment on wholly separate grounds. (Sanders, supra, 75 Cal.App.3d at p. 508.)
Raya also asserts playback of the recording of his interrogation was prejudicial because the detective made inadmissible statements regarding Raya's credibility. The determination of credibility is properly left to the jury, but here, as noted, the court admonished the jury not to give any weight to the content of the detective's statements and instructed the jury they were offered only to frame Raya's otherwise probative responses. (See United States v. Scheffer (1998) 523 U.S. 303, 313; cf. People v. Smith (2003) 30 Cal.4th 581, 628 [court did not abuse discretion by excluding testimony of an expert offered solely to express an opinion as to the defendant's credibility].) The trial court determined the instruction, along with defense counsel's ability to argue the point to the jury, was sufficient to cure any potential prejudice resulting from Detective Mike's statements during the interrogation, and we find no abuse of discretion in that conclusion.
Finally, Raya contends the interrogations contained prejudicial references to his prior arrests and purported gang activity. First, Raya points to the references to his previous probations at the beginning of the interrogation. Although character evidence, including past crimes, is generally inadmissible when offered to prove the defendant's conduct on a specified occasion (Evid. Code, § 1101, subd. (a)), there was no indication what crimes Raya had been on probation for, let alone any assertion Raya was acting in a manner consistent with the prior crimes. Second, Raya suggests the detective's single reference to Raya "hook[ing] up with some gangster" was prejudicial but the "gangster" the detective was referring to was Robert, who had already admitted he was a gang member in response to a question from defense counsel on cross-examination. Lastly, Raya points to Rosie's claims that Raya physically abused her, but those claims were relevant to explain why she refused to testify at trial. Further, the prosecution did not offer them to prove consistent conduct and Raya was on trial for murder of a stranger, not domestic abuse. In this context, it was reasonable for the trial court to determine the references to Raya's past conduct and association with a gang member were not overly prejudicial.
Raya also asserts evidence of prior arrests is inadmissibly prejudicial but the cases he relies on distinguish between arrests and convictions, and here the passages Raya points to reference probation and parole, suggesting prior convictions as opposed to arrests. (See People v. Medina (1995) 11 Cal.4th 694, 769; People v. Anderson (1978) 20 Cal.3d 647, 650.) --------
Because the interrogations were probative and not overly prejudicial, and because Rosie's interrogation fell within an exception to the hearsay rule, we find no abuse of discretion in the trial court's decision to allow the prosecutor to play the recordings.
V. Cumulative Error
Raya asserts his convictions should be reversed because the cumulative effect of the foregoing errors was prejudicial. Cumulative error requires reversal if it significantly influences the fairness of the trial. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 128.) As set forth ante in sections I and II, there was substantial evidence to support a conviction of murder in this case. Bernard was hit by a small black pickup truck, similar to the one Raya was driving when pulled over by police the following month. Raya was extremely upset when he found out from the newspaper that Bernard had died, despite not knowing Bernard, and he later admitted to his cellmate that he had run over a black man with his truck. Finally, Raya abandoned the truck in the desert shortly after the police pulled him over in it and when police later located it, it had damage to the window and front end. As set forth ante in sections III and IV, the individual errors were harmless, particularly in light of the weighty evidence of guilt. Consequently, we conclude the accumulation of the claimed errors did not deprive Raya of a fair trial.
DISPOSITION
The judgment is affirmed.
/s/_________
McCONNELL, P. J. WE CONCUR: /s/_________
O'ROURKE, J. /s/_________
DATO, J.