Opinion
E064608
03-06-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO HUMBERTO REAL, Defendant and Appellant.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1315560) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed. Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Francisco Humberto Real was convicted of first degree murder for killing Michael Cheatham in an apartment in Corona. Defendant worked for Cheatham's medical marijuana business, and Cheatham owed defendant money. The prosecutor put on strong evidence that defendant beat Cheatham savagely on the back of the head with a skateboard. As Cheatham lie facedown on the floor bleeding, defendant removed his belt, wrapped it around Cheatham's neck, and strangled him. The evidence also showed that defendant manufactured a makeshift suppressor for a handgun he probably stole from his brother-in-law and, at some point during the assault on Cheatham, defendant fired the gun but missed Cheatham. The primary cause of Cheatham's death was blunt force trauma, and ligature strangulation was a contributing cause.
A jury also convicted defendant of being a felon in possession of a firearm and found true that defendant personally used a deadly weapon and personally discharged a firearm during the commission of the murder. Defendant stipulated that he had previously been convicted of assault with a deadly weapon, and the trial court found true the special allegations that defendant had previously been convicted of a serious felony and had previously been convicted of a serious and violent felony. The trial court sentenced defendant to a total of 80 years to life in state prison.
On appeal, defendant argues the trial court prejudicially abused its discretion by permitting the People to introduce evidence of uncharged criminal conduct, to wit, the underlying facts of defendant's prior conviction for assault with a deadly weapon. Defendant also argues the trial court prejudicially abused its discretion by permitting the People to introduce 19 autopsy photographs.
We find no abuse of discretion. Defendant's prior assault with a deadly weapon conviction was properly admitted under Evidence Code section 1101, subdivision (b), to prove defendant intended to murder Cheatham. The prior assault was sufficiently similar to the assault on Cheatham, and its probative value was not substantially outweighed by its prejudicial impact. The prior assault paled in comparison with the brutal nature of Cheatham's murder, and the evidence would not have inflamed the jury to convict defendant. Finally, we conclude the trial court properly admitted the 19 autopsy photographs. Although some of the photographs were cumulative, in that they depicted the same injuries to Cheatham, the photographs were highly relevant and not so gruesome as to inflame the jury against defendant. Therefore, we affirm the judgment.
I.
FACTS
In a second amended information, the People charged defendant with first degree murder (Pen. Code, § 187, subd. (a), count 1), and with being a convicted felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1), count 2). The People also alleged that, during the commission of the murder, defendant personally used a deadly and dangerous weapon (a blunt instrument or belt) (Pen. Code, §§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)), and discharged a firearm (Pen. Code, §§ 12022.53, subd. (c), 1192.7, subd. (c)(8)). Finally, the People alleged defendant had been convicted of assault with a deadly weapon in 2000 (Pen. Code, § 245, subd. (a)(1)), which qualified as a prior serious felony conviction (Pen. Code, § 667, subd. (a)) and as a prior serious and violent felony conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
A. The People's Case-in-Chief.
Defendant and Cheatham were friends, and defendant worked for Cheatham's medical marijuana business for about six months before the murder. Defendant had unsuccessfully tried to grow marijuana plants and had racked up a large electricity bill. Cheatham agreed to help pay defendant's electricity bill and help defendant grow a new crop of marijuana plants in exchange for the profits from the first successful marijuana grow.
Cheatham lived with his girlfriend in an apartment on Stoneybrook Drive in Corona. Cheatham and his girlfriend were friends with defendant and his family, and they would visit at defendant's house. On December 18, 2013, Cheatham's girlfriend had been in Phoenix, Arizona, for three or four days for job training that was to last a week. Defendant had congratulated Cheatham's girlfriend on her getting a new job, and defendant knew she would be in Phoenix that week. Cheatham had been texting with his girlfriend during the day on the 18th, and Cheatham told her defendant was at the apartment and the two were watching television. When Cheatham's girlfriend called to speak with him, Cheatham said he did not want to answer the phone because defendant was there. She thought nothing of it, and said she would call back in an hour. Cheatham did not respond. Later, Cheatham's girlfriend tried to call Cheatham multiple times but he never answered his phone.
Just before 8:00 p.m. on December 18, 2013, Cheatham's downstairs neighbor heard a loud thud and banging on the floor coming from the apartment above. Because it was nearly Christmas, the neighbor thought someone might have been decorating and something fell on the floor. She then heard someone scream, "Help and help me." The sound was muffled so the neighbor could not tell if the person screaming was male or female. She thought the first scream might have come from a television set or might have been someone playing around, so she did nothing. A few moments later, the neighbor heard more noises from above and again heard someone scream for help. This time, she called 911.
Officers with the Corona Police Department responded to the apartment at 7:58 p.m. One of the officers listened at the door to the apartment for signs of distress. He heard the sound of a television playing loudly inside. The officer knocked on the door at least 10 times and announced his presence, but no one came to the door. As he knocked on the door, the officer heard the sound of footsteps from inside the apartment. Meanwhile, the downstairs neighbor heard a police officer knock loudly on the door to the apartment above and heard him say, "Corona Police Department." While the police officer was knocking on the door and announcing his presence, the neighbor heard creaking sounds and footsteps moving back and forth inside the apartment above. She did not hear anyone leave the upstairs apartment.
The officers called for a maintenance worker to come and open the locked front door to the apartment. As they waited for the maintenance worker, one of the officers went downstairs and spoke to the neighbor. The neighbor told the officer she had heard footsteps from the apartment above after the officer had started knocking on the door. Around 8:29 p.m., a maintenance worker arrived with a key and opened the front door to the apartment for the officers. There was no sign of forced entry. A sliding glass door that led to a patio was locked. The apartment was "a mess," and there was a lot of blood on the carpet and on the walls. There was blood on the carpet in the doorway to the master bedroom and blood on the floor of the bathroom and in the sink area.
A hallway led to the bedrooms, and at the end of the hallway the officers saw defendant lying on the floor to the master bedroom with his head partly sticking out into the hallway. Defendant had blood on his back and arms. He had superficial injuries including an injury below his left eye. Defendant did not respond when the officers told him to put his hands up or when the officers asked if he was okay, but one of the officers concluded defendant was conscious because his eyes were moving. Defendant never verbally responded to the officers who first responded to the scene. However, defendant was conscious and awake when he was transported to the hospital. He appeared to be disoriented, but defendant was alert and at least somewhat responsive to the medics who treated him in the ambulance.
Eight to 10 feet away from where officers found defendant, they found Cheatham lying on the floor in the master bedroom, between the bed and the closet. No other persons were found in the apartment. There were pools of blood on the floor in the bedroom. Cheatham was unresponsive and lying on his stomach, and his head was directly below the tripod legs of a floor lamp. Cheatham was not wearing a shirt, but he was wearing pants and a belt. Cheatham had head trauma and there was a belt wrapped twice around his neck. His head was soaked in blood. There was no evidence that Cheatham had been dragged or placed under the lamp, and he may have crawled there. Cheatham's right arm was under his body, and his right hand was grasping his left forearm. Cheatham's left hand was lying with the palm facing up, and a semiautomatic handgun was in the open palm of his hand. Cheatham was right-handed. Cheatham had several fresh lacerations to the back of his head, and there was a large amount of blood on the back of Cheatham's head and on his back. There was more blood and signs of an attack or struggle in the vanity area between the bathroom and the master bedroom. A trashcan was tipped over, carpets appeared to have been moved out of place, and there was blood throughout the master bedroom, primarily on the walls in the doorway and the hallway, but also on the bed. Cheatham had no pulse.
Between Cheatham and the bed was a skateboard that was covered in blood. The skateboard had been partially covered with a towel. The front or nose of the skateboard and the front truck and wheels were covered in blood. Some of the blood was smeared. The majority of the blood in the master bedroom was on the lower part of the walls, indicating Cheatham had been struck on the head while he was on or very close to the ground. There were two gouge marks on a wall in the hallway that separated the vanity area and the master bedroom. There was blood in the gouge marks, blood spatter in the doorjamb to the master bedroom and puddles of blood on the carpet below. Based on stripe marks inside the gouges that matched the grain of the skateboard's edge, and the blood on the wall nearby, it appeared the edge of the skateboard was swung in a downward direction. A small amount of blood appeared to be smeared directly under the peephole on the inside of the front door, and there was some blood on the kitchen counter.
"Skateboard trucks are the metal T-shaped pieces that mount onto the underside of the skateboard and keep [the] skateboard wheels and bearings securely attached to the deck." (As defined at <https://www.warehouseskateboards.com/help/Skateboard-Trucks-Buying-Guide> [as of Mar. 6, 2018]; see J.J.W. v. State (Fla.Dist.Ct.App. 2005) 892 So.2d 1189, 1190.)
A pathologist who performed an autopsy of Cheatham identified nine separate and distinct lacerations on his body, and testified it was likely that each laceration was caused by a separate strike with a blunt object. Cheatham had significant head trauma, and one of the lacerations on the back of his head went straight through to his skull. Cheatham also had ligature marks on his neck. Cheatham had hemorrhaging and blood on his entire brain, and the inside of his skull had fractures caused by blunt force trauma. Those types of fractures are commonly seen in traffic accidents and falls from a great height. Cheatham also had fractures to the cervical vertebrae caused by blunt force trauma, and those types of fractures are also commonly caused by falls from a great height. The pathologist testified the injuries to Cheatham's head were caused by "[f]requent[]" and "excessive" blunt force trauma with a flat object, and they were consistent with being struck on the head with the skateboard found in Cheatham's apartment. The laceration on Cheatham's head that cut through the scalp to the skull was the result of a "fairly significant amount" of force. The pathologist testified Cheatham had hemorrhaging on the muscles around his hyoid bone, and that it would take a fair amount of force to cause that hemorrhaging.
At the pathologist's request, a neuropathologist examined Cheatham's brain to determine if blunt force trauma or ligature strangulation was the primary cause of death. The neuropathologist testified the injuries to Cheatham's brain were "complex." Cheatham's entire brain was swollen and herniated, and it was covered with hemorrhages and contusions. The swelling and hemorrhages were associated with blunt force trauma on the surface of the brain transmitted through the bone. The neuropathologist also observed vascular injury and rupture. As a result of the blunt force trauma to his head, Cheatham's brain swelled or herniated, and the brainstem pushed onto the spinal cord. The neuropathologist could not determine how many times Cheatham had been hit on the head because the hemorrhaging was so diffuse, but he testified the brain injuries were consistent with being hit more than once. The traumatic brain hemorrhages associated with blunt force trauma are caused by being struck with a blunt object, not by being hit with a fist. A skateboard would be considered such a blunt object. The neuropathologist formed the opinion that Cheatham died of blunt force trauma, and that the head trauma occurred before Cheatham was strangled. He explained, "[t]he blunt force head trauma [was] so severe that [Cheatham] would have been knocked out. And loss of consciousness, loss of reflexes, and respiratory arrest and brain swelling and trauma [would have] continue[d]."
Based on the results of her own examination and the neuropathologist's findings, the pathologist concluded the primary cause of Cheatham's death was blunt force trauma to the head, and ligature strangulation was a contributing cause of death.
Defendant had minor cuts on his head, a small cut on his right pinky finger just above the knuckle, and a mark or bruise on his left cheek under the eye. Defendant's head had blood on it, but he was not actively bleeding. The medics did not apply pressure or gauze to defendant's head as he was transported to the hospital. No other injuries were found on defendant's body. Defendant's clothing was collected when he was examined, and he was not wearing a belt. After performing tests, including a computerized axial tomography (CAT) scan of defendant's head, doctors determined defendant needed no further treatment so he was released. Defendant was five feet eight inches tall and weighed 215 pounds. In contrast, Cheatham was five feet seven inches tall and weighed 148 pounds.
A bullet jacket was found in the bathtub, and there was evidence that a bullet had been fired and that a projectile had struck the ceiling. Bits of clear or white plastic were scattered on the floor of the bathroom (primarily by the door), on the bathroom counter, and some of the plastic was partially embedded in the shower curtain. It appeared that someone had fired into the bathroom from the direction of the hallway.
The handgun was in "an unnatural position" in Cheatham's left hand, meaning the way the gun was pointed away from the body did not correspond with how someone would hold a handgun to fire it. One of the responding officers told a detective that the way the gun was placed in Cheatham's hand indicated the scene might have been staged. On cross-examination, that officer testified the handgun could still have been used as a weapon even if it was held in such an unnatural manner and even if the gun was inoperable.
An improvised suppressor, comprised of a small plastic "Flavo" bottle with yellow microfiber towels stuffed inside, had been affixed with duct tape to the muzzle of the chrome-plated Davis Industries .380-caliber semiautomatic handgun that was found in Cheatham's hand. There was a hole at the end of the bottle where plastic was missing; the bottle and the towels inside had dark residue on them; the towels had holes in them; and a bit of yellow towel was sticking out, all of which indicated the gun had been fired. From the way the duct tape was placed on the muzzle, it did not appear the gun was capable of being loaded and fired again.
Cheatham's girlfriend testified defendant had brought many cases of "Flavo" water to their apartment, and that a case of the water was on top of the refrigerator and loose bottles were inside the refrigerator when she left for Phoenix. The "Flavo" bottle attached to the gun was stamped, "Expires 01-04-12 12:35 CT." The expiration and time stamp on the bottle used as a suppressor was an exact match to the date and time stamp found on bottles of apple-flavored "Flavo" water found in defendant's garage. The "Flavo" bottles found in Cheatham's refrigerator had different expiration dates and time stamps.
Inside a cabinet in defendant's garage, but hidden behind a red box, police found an empty Gatorade bottle filled with yellow microfiber towels. Two sets of "flex cuffs" (plastic handcuffs) were sitting on top of the bottle. Police also found a stack of yellow microfiber towels on a shelf in the garage. The towels were the same type as the towel stuffed inside the makeshift suppressor found at Cheatham's apartment and the same as the towel stuffed inside the Gatorade bottle. Dirty, greasy, and faded microfiber towels were found in the engine compartment of a vehicle owned and driven by Cheatham, and in the trunk of a vehicle owned by Cheatham but driven by defendant. Those towels looked like they had been there for quite some time. In contrast, the similar yellow microfiber towels recovered from defendant's garage were clean and neatly stacked. Other than inside the makeshift suppressor, no similar microfiber towels were found at Cheatham's apartment.
A police officer, who testified as a firearms expert, testified the Gatorade bottle found in defendant's garage appeared to be a "version 1.0 of the suppressor" that was found at Cheatham's apartment. According to the officer, the Gatorade bottle would not have worked as a suppressor because the mouth or opening of the bottle was too large a diameter and would have blocked the view of the pistol's sights. In contrast, the "Flavo" bottle was thinner with a "lower profile" and would not have blocked the sights. The pistol found at Cheatham's apartment was capable of being fired even though the "Flavo" bottle covered the front sight. Flex cuffs are used for one purpose alone, to bind someone in lieu of metal handcuffs. Silencers or suppressors are designed to reduce the noise made by a firearm when the projectile leaves the barrel. The design of the improvised suppressor found in Cheatham's apartment is common and there are numerous videos on the Internet website YouTube that describe how to manufacture one.
Cheatham owned a .22-caliber handgun, a Sig Sauer .40-caliber handgun, and an AR-15 assault rifle. Other than in the context of video games, Cheatham had never discussed silencers or suppressors with his girlfriend or with his best friend. Cheatham's girlfriend and best friend testified they were familiar with Cheatham's firearms, and neither had ever seen the handgun that was found in Cheatham's hand. Inside a safe in Cheatham's apartment, police found 750 rounds of .40-caliber ammunition, $400 in loose cash, over $6,000 cash in a gray bag, a loaded Raven .25-caliber semiautomatic handgun, and receipts for the purchase of two firearms. A holstered Sig Sauer .40-caliber handgun was found in a nightstand. The receipts found in the safe were for the Sig Sauer handgun and for a DPMS rifle, not for a Davis .380-caliber handgun. The rifle was not found in the apartment.
The Davis Industries .380-caliber handgun found in Cheatham's hand was registered to defendant's brother-in-law. Defendant's brother-in-law normally kept the gun in a safe, but before Christmas 2012, he moved it to a nightstand in his bedroom. He did not lock his bedroom door or the drawer to the nightstand where he kept the gun. In late February 2013, defendant's brother-in-law noticed the gun was missing and his wife reported it as missing to the police. Defendant had been to his brother-in-law's home several times before the gun went missing, including Christmas 2012. Although Cheatham's DNA was found on the gun and the duct tape used to affix the suppressor to the muzzle, defendant's was not.
A backpack or book bag was found in the living room. It did not belong to Cheatham or to his girlfriend. A letter indicating defendant was under the care of a physician was found inside the bag. Investigators concluded the bag belonged to defendant. Inside the bag, Cheatham's girlfriend found leather gloves, a hat, and trash bags. She also found reading glasses she had previously seen defendant wear, but she could not recall if they were inside the bag or on top.
The parties stipulated that on February 18, 2000, defendant had been convicted of assault with a deadly weapon. The victim in the prior crime testified that in April 1999, he and a former coworker had recently ended a dating relationship. On the morning of April 22, 1999, the now ex-girlfriend told the victim to come to the restaurant where she worked so he could retrieve some personal papers. Later that day, the victim went to the restaurant. As he walked to the bar area of the restaurant, someone attacked him from behind, put a knife to his neck, and threatened to kill him. The victim grabbed the blade of the knife with his hands and started to fight with his assailant. The assailant, who the victim recognized as defendant, ran off.
On cross-examination, defendant testified the victim's ex-girlfriend asked him to come to the restaurant where she worked. Defendant denied that he and the ex-girlfriend were in a dating relationship, and he testified he did not know that the victim and the ex-girlfriend had dated. Defendant denied that he attacked the victim from behind and held a knife to his throat. He also denied that when he realized the police had been called, he ran away to a nearby hotel where he was staying. Defendant did not remember being identified by the victim as the man who had held a knife to his throat. Defendant admitted he had been convicted of the felony of assault with a deadly weapon, but he denied that he attacked the victim from behind or that he held a knife to victim's throat.
B. Defense Case.
Defendant testified he and Cheatham were friends and partners in Cheatham's medical marijuana business. On December 18, 2013, defendant was at Cheatham's apartment from 10:00 a.m. until 2:00 or 3:00 p.m. working. Defendant left to pick up his daughter and returned to Cheatham's apartment around 7 o'clock that evening. Although Cheatham had allegedly not paid defendant 10 percent of the profits from the business per their agreement, defendant and Cheatham did not get into any kind of an argument. The two hung out and did some curing of marijuana plants.
Defendant testified he was down on one or two knees in the growing room tending to the product on some shelves when Cheatham attacked him from behind or from his side, and hit him on the head with a skateboard. Defendant felt a headache and fell down, but he then got up and lunged at Cheatham. The two struggled, defendant tried to grab the skateboard, and Cheatham ran out of the room and into the hallway that led to the bathroom. Cheatham was also holding the gun, which was later found in his hand, and Cheatham said he was going to kill defendant. Defendant was fighting for his life, and he might have hit Cheatham with his hands and he might have grabbed the gun. On cross-examination, defendant denied that he hit Cheatham with the skateboard.
During most of his direct testimony about the alleged attack, defendant did not identify his assailant as Cheatham. However, when asked by defense counsel, "Besides hitting you on the head with the skateboard, do you remember Michael [Cheatham] doing anything to you?," defendant answered, "He was on my back choking me . . . with his arm."
Defendant did not remember holding the gun in his hand or the gun going off. He had no idea how Cheatham ended up on the floor of the bedroom or how he sustained his injuries. Defendant did not remember how he got on the floor of the bedroom where the police later found him. Defendant did not remember talking to the police at the apartment, being transported to the hospital, or talking to the doctors at the hospital. Defendant testified that as he was lying on the floor, Cheatham choked him with his arm. He did not remember anything after that. Defendant denied that he attacked Cheatham from behind. On cross-examination, defendant testified he was not given stitches, staples, or even a bandage for the bump on his head, and he was not given any pain medication. Defendant believed he and Cheatham were the only people in Cheatham's apartment, and that nobody forced themselves into the apartment.
Defendant recognized the gun found in Cheatham's hand as his brother-in-law's. Defendant had no idea how his brother-in-law's gun ended up in Cheatham's apartment. Defendant testified his brother-in-law had been depressed over the death of his mother, so defendant took the gun to his home for safekeeping. He did not remember where in his workshop he had put the gun. Defendant testified on cross-examination that he once worked as a gunsmith and was "somewhat" knowledgeable about firearms.
C. The People's Rebuttal.
Detectives interviewed defendant on December 19, 2013, and the interview was recorded. The People played the recording of the interview to the jury, and transcripts were provided to the jury. A detective testified that defendant appeared to understand their questions during the interview, and he did not appear to be disoriented.
Defendant told detectives that his business arrangement with Cheatham was for Cheatham to pay him around $200 per week, and that Cheatham owed him between $4,000 and $5,000. The detective testified that the first time he had heard about the deal defendant supposedly had made with Cheatham for 10 percent of the profits was during defendant's testimony.
Defendant told detectives he was at Cheatham's apartment during the day. Defendant asked Cheatham to pay him a portion of what he was owed, and Cheatham said, "Yeah, no problem, man." Defendant left to pick up his daughter and returned around 7:00 p.m. Cheatham and defendant were the only two people there. Defendant told detectives that Cheatham was irritated, antsy, and nervous, and that he paced back and forth like he was up to something. Defendant told the detectives he asked Cheatham, "Well, do you have my money?" He was not asking for all of it at once, just enough to get through the holidays. Cheatham said he would pay defendant and started pacing back and forth in the bedroom. Defendant denied that he did anything other than ask for some of what he was owed.
Defendant walked from the living room to the guest bedroom when Cheatham "swooped up" and hit defendant "kind of hard" on the head with a skateboard, knocking him to the ground. Defendant said he got back up, rushed Cheatham and punched him in the nose, and the two struggled over the skateboard. Defendant said Cheatham hit defendant "a lot of times," tried to poke defendant's right eye out with his thumb, and kicked defendant in the groin. The two fought, and defendant rushed Cheatham into the bathroom and the hallway. Defendant told detectives that Cheatham said, "I'm gonna kill you." Defendant said he thought he was doing all the punching.
Defendant also told the detectives that he saw a chrome gun in Cheatham's hand. Defendant said he took the gun from Cheatham and, during the struggle, the gun might have gone off, but he did not hear it fire. Defendant said the gun was a "cheapy after market" semiautomatic pistol, that there was nothing special about it, and that he might have seen the gun before. Defendant told detectives that he took the skateboard from Cheatham and hit him with it, though he could not remember where he hit Cheatham.
Defendant also said Cheatham tried to choke him, and that he might have choked Cheatham in return as they wrestled. Defendant told detectives that he wore a black belt with his jeans, and that he might have taken it off and choked Cheatham during the struggle. He said he might have been "over" Cheatham when he took his belt off. He did not remember if Cheatham was lying facedown.
Defendant told detectives that Cheatham had a knife, but that he took it from Cheatham. Defendant said the fight went on until he passed out. He remembered crawling on the floor, but could not remember where he ended up. The last thing he remembered was waking up at the hospital.
Defendant told the detectives he blacked out and could not remember many details of the incident or where Cheatham ended up after they fought. Defendant denied that he threatened Cheatham, that he had any weapons on him, or that he was trying to scare Cheatham. He also denied that he and Cheatham had any problems before that night. Defendant said he did not remember the police knocking on the front door or remember going into the kitchen.
D. Jury Verdicts, Priors, and Sentencing.
The jury found defendant guilty of first degree murder and of being a felon in possession of a firearm. The jury also rendered true findings that defendant personally used a dangerous and deadly weapon and personally discharged a firearm during the commission of the murder. After a bifurcated hearing, the trial court found beyond a reasonable doubt that defendant had suffered a prior serious felony conviction and a prior serious and violent felony conviction.
The trial court sentenced defendant to a total of 80 years to life in state prison. The court deemed count 1 to be the principal count and sentenced defendant to an indeterminate sentence of 25 years to life in state prison, doubled pursuant to the one strike law. For the determinate term, the court sentenced defendant on count 2 to the middle term of two years, doubled under the one strike law, to be served consecutively to the sentence on count 1; a one-year consecutive enhancement for the personal use of a deadly and dangerous weapon; a 20-year consecutive enhancement for personally discharging a firearm; and a five-year consecutive enhancement for suffering a prior serious felony conviction; for an aggregate determinate term of 30 years in state prison. Defendant received 645 days of credit for time served. Finally, the court ordered defendant to pay a $10,000 restitution fine, $19,918.79 in victim restitution, and other mandatory fines and fees.
Defendant timely appealed.
II.
DISCUSSION
A. The Trial Court Properly Admitted Defendant's Prior Assault with a Deadly Weapon Under Evidence Code Section 1101 , Subdivision (b).
Defendant argues the trial court abused its discretion by permitting the People to introduce evidence that he had previously assaulted a man by coming up from behind and holding a knife to the man's neck. According to defendant, the weapon used in the prior assault was not the same as the weapons used during the murder of Cheatham, so that evidence was not sufficiently similar to the current crime for purposes of admission under Evidence Code section 1101, subdivision (b) (hereafter 1101(b); all additional statutory references are to the Evid. Code unless otherwise indicated). In addition, defendant argues the trial court should have excluded the evidence under section 352 because its probative value was substantially outweighed by its prejudicial impact. We find no error.
1. Additional Background.
The People moved to admit other crimes evidence pursuant to section 1101(b). According to the People, in 1999 defendant pleaded guilty to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and the next year he was sentenced to probation. In that earlier crime, defendant was in a dating relationship with the victim's ex-girlfriend. The victim went to his ex-girlfriend's place of work to retrieve some personal papers. When he arrived, someone came up from behind and held a knife to the victim's throat. The victim struggled and broke free from the person's grip, receiving a cut in the process, and saw that his assailant was defendant. The People argued the evidence was admissible to prove intent, premeditation and deliberation, because in both instances defendant assaulted a victim with a deadly weapon, acted without provocation, and intended to inflict great bodily injury. In addition, the People argued the evidence was admissible to disprove defendant acted in self-defense when he attacked Cheatham, to prove implied malice for second degree murder, and to prove motive. Finally, the People argued the probative value of the prior assault with a deadly weapon was not substantially outweighed by its prejudicial impact and, therefore, it should not be excluded pursuant to section 352.
Defendant did not object to the use of his prior felony conviction under sections 780 and 788 to impeach him if he were to testify, and he stipulated to admission of the conviction for purposes of the charge under count 2 of being a felon in possession of a firearm. However, defendant argued the underlying facts of his conviction for assault with a deadly weapon were inadmissible under section 1101(b) because they were too remote. In addition, defendant argued the prior assault was dissimilar from the alleged murder because the current crime did not involve the use of a knife, and he argued the evidence should be excluded under section 352 because its probative value was substantially outweighed by its prejudicial impact.
The trial court concluded the prior crime evidence was relevant to proving defendant's intent, including premeditation and deliberation, and that both crimes were sufficiently similar for purposes of section 1101(b). The court also concluded the prior crime evidence was relevant to disproving a claim of self-defense to the current charge, and relevant to proving implied malice and motive. Finally, the court concluded the probative value of the evidence was not substantially outweighed by any prejudice to defendant, its admission would not unduly consume time, and it would not confuse or mislead the jury.
As stated, ante, the victim of the prior assault with a deadly weapon testified during the People's case-in-chief about what happened to him. The victim's testimony took up less than 15 pages in the reporter's transcript. After the close of the People's case-in-chief, the parties stipulated that on February 18, 2000, defendant had been convicted of assault with a deadly weapon. And on cross-examination, defendant admitted that he had previously been convicted of assault with a deadly weapon, though defendant denied that he came up behind the victim and held a knife to his throat.
2. Applicable Law.
"Only relevant evidence is admissible (Evid. Code, §§ 210, 350), 'and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)' [Citation.] 'The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.' [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 337.)
Section 1101, subdivision (a), generally prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, "to prove his or her conduct on a specified occasion." Section 1101(b), clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when it is relevant to establish some fact other than the person's disposition to commit such an act, such as motive, intent, and absence of mistake or accident.
"'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 22.) "As long as there is a direct relationship between the prior offense and an element of the charged offense, introduction of that evidence is proper. [Citations.]" (People v. Daniels (1991) 52 Cal.3d 815, 857.)
"The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance." [Citation.]'" (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)
"The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 371.) "[E]vidence of uncharged misconduct '"is so prejudicial that its admission requires extremely careful analysis"'" under section 352. (People v. Lewis (2001) 25 Cal.4th 610, 637, quoting Ewoldt, supra, 7 Cal.4th at p. 404.) "'Because this type of evidence can be so damaging, "[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." [Citation.]'" (People v. Fuiava (2012) 53 Cal.4th 622, 667.)
"'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.) The more probative the uncharged crime is to proving a material fact in the case, the less prejudicial it will likely be. Conversely, dissimilarities between the uncharged crime and the charged offense will necessarily decrease the probative value of the uncharged crime, and it will increase the possibility that admission of the evidence was prejudicial. (People v. Balcom (1994) 7 Cal.4th 414, 427 [discussing prejudice analysis for evidence admitted to prove common design or plan].) In determining whether evidence of an uncharged offense prejudiced a defendant, one factor a court must weigh is whether "[t]he testimony describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses." (Ewoldt, supra, 7 Cal.4th at p. 405.)
"'"Rulings made under [Evidence Code sections 1101 and 352 . . .] are reviewed for an abuse of discretion. [Citation.]" [Citation.] "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal . . . is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citations.]"'" (People v. Rogers (2013) 57 Cal.4th 296, 326.)
3. Analysis.
Defendant argues the facts of his prior conviction for assault with a deadly weapon are insufficiently similar to the events leading to Cheatham's death and, therefore, those facts were inadmissible under section 1101(b). According to defendant, the first assault involved a knife whereas Cheatham died from being struck by a skateboard and strangled with a belt. In addition, defendant argues the first assault involved an unprovoked attack from behind, whereas Cheatham's death was the result of a struggle in which defendant fended off an unprovoked attack from Cheatham.
Defendant's argument is based on a very one-sided view of the evidence. True, defendant testified he was attacked by Cheatham and that he fought for his life. But the totality of the evidence, which the jury clearly believed, painted a very different picture. Instead, the evidence tended to prove defendant planned to kill Cheatham all along. He made a prototype suppressor with a Gatorade bottle for the gun he either stole from his brother-in-law or had in his possession, and he perfected the suppressor with one of the "Flavo" bottles and some yellow microfiber towels he had in his garage. It is unclear whether defendant fired the gun at Cheatham before or after he hit Cheatham on the head with the skateboard, but the evidence simply did not support defendant's claim that it was Cheatham who had pointed the gun at defendant. Considering how much he bled and that the gun was found in his hand, it is unsurprising that Cheatham's DNA was found on the gun. But Cheatham was right-handed, and the gun was placed in an unnatural position in Cheatham's left hand, which strongly suggested defendant staged the scene when the police arrived.
Defendant's testimony that Cheatham (who was significantly smaller than defendant) came up behind and hit defendant on the head fairly hard with a skateboard, and that defendant blacked out after the fight, is belied by the evidence. Defendant was heard walking around the apartment when the police knocked on the door. The prosecutor introduced evidence that tended to prove defendant looked through the peephole to the front door and left a blood smear there. And the evidence showed defendant was not actively bleeding from the head when police arrived and, despite playing possum (as the People argue), he was conscious. Moreover, the severity of Cheatham's injuries, and the evidence that defendant had removed his belt and strangled Cheatham once he was on the ground, strongly contradicted defendant's claim that he merely fought off Cheatham in self-defense.
Viewing the evidence of Cheatham's death in a more reasonable light, we conclude the uncharged conduct was admissible under section 1101(b). The evidence of the prior assault with a deadly weapon was certainly relevant in this case. As noted, there was strong evidence from which a reasonable jury could conclude that defendant acted with premeditation and without any provocation when he attacked Cheatham from behind, hit him in the head repeatedly with a skateboard, then wrapped a belt around his neck and strangled him. And, although the prior assault involved a different weapon and did not result in the victim's death or serious injury, there was a sufficient degree of similarity between the assaults to allow admission of the evidence to prove defendant intended to kill Cheatham and to disprove his claim of self-defense. The trial court did not abuse its discretion. (Ewoldt, supra, 7 Cal.4th at p. 402.)
Likewise, we reject defendant's argument advanced primarily in the trial court that the uncharged conduct was too remote because the assault with a deadly weapon took place a little more than 14 years before Cheatham's murder. "'[N]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible.' (People v. Branch (2001) 91 Cal.App.4th 274, 284 . . . .) And similar time periods have been approved in other cases. (See People v. Ing (1967) 65 Cal.2d 603, 612 . . . , questioned on other grounds by People v. Tassell (1984) 36 Cal.3d 77, 89 . . . [15 years before charged offenses]; People v. Branch, supra, 91 Cal.App.4th at pp. 284-285 . . . [more than 30 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 . . . [18 to 25 years].)" (People v. Spector (2011) 194 Cal.App.4th 1335, 1388-1389.)
Finally, we disagree with defendant that the uncharged conduct should have been excluded under section 352. To repeat, the evidence was highly probative to proving defendant's intent and to disproving his claim of self-defense. That probative value was not substantially outweighed by its prejudicial impact. The facts of the uncharged assault—in which defendant held a knife to the victim's throat and caused no significant injuries—pales in comparison with the gruesome nature of the attack and murder of Cheatham. The jury heard evidence that Cheatham's apartment had blood on the walls and pools of blood on the floors of multiple rooms. The rooms showed signs of a terrible and deadly struggle. Cheatham was found facedown in blood, with massive wounds to the back of his head and a belt wrapped around his neck. The pathologist and neuropathologist testified that Cheatham suffered massive head trauma, the kind of trauma commonly seen in victims of car accidents and in persons who fall from great heights. Compared to the evidence of what defendant did to Cheatham, the uncharged conduct was mild and infinitely less capable of inflaming the jury against defendant. (Ewoldt, supra, 7 Cal.4th at p. 405.)
B. The Trial Court Properly Permitted the Prosecutor to Introduce 19 Autopsy Photographs to Prove How Cheatham Died.
Defendant argues the trial court prejudicially abused its discretion by permitting the prosecutor to introduce 19 autopsy photographs during the testimony of a pathologist and a neuropathologist. Defendant contends the photographs were irrelevant because the cause of death was not in dispute, and their probative value was substantially outweighed by their prejudicial impact. In addition, defendant argues the photographs were cumulative in that a number of them depicted the same injuries, albeit from varying angles and degree of close-up. He argues all 19 photographs should have been excluded because the pathologist and neuropathologist's testimony was sufficient to prove an issue that was not in dispute, viz, the cause of death. We find no abuse of discretion.
1. Additional Background.
The People moved in limine to admit 19 autopsy photographs to "demonstrate the numerous and various injuries suffered by the victim and also [to] illustrate how the pathologist determined the cause of death." Defendant objected that some of the photographs were cumulative and highly prejudicial and suggested that "19 photographs are more than what the prosecutor needs." The prosecutor responded that over 600 photographs were taken during the autopsy, and she "deliberately and very thoughtfully" only chose 19 to use during trial. According to the prosecutor, the 19 photographs showed "different angles of varying injuries that the victim suffered, all of which the pathologist and the neuropathologist will be able to testify as it relates to cause of death." Although some of the 19 photographs depicted the same injury, the prosecutor argued "[s]ome angles may only show portions of injuries," whereas other photographs were taken from a different angle and therefore depict the injury "in greater detail" and would assist the experts in explaining how they determined cause of death.
Defendant did not suggest in the trial court and does not argue on appeal that the People could have made due with some of the autopsy photographs and, instead, he argues all 19 should have been excluded.
The trial judge reviewed the autopsy photographs in chambers, including a photograph that depicted exposed brain and another depicting Cheatham's cranial cavity. The judge concluded the photographs were relevant to proving the extent of Cheatham's injuries. The judge agreed with the prosecutor that, although some of the photographs depicted the same injury, they were taken from different angles and varying degrees of close-up. The judge concluded the more gruesome of the photographs—of Cheatham's brain matter and cranial cavity—were relevant "to substantiating testimony with regard to the brain hemorrhaging" and "to show the extent of [the] skull fractures." The judge also concluded the probative value of the photographs was not substantially outweighed by their prejudicial impact, admitting the 19 photographs would not unduly consume time, and the photographs would not confuse the jury.
The prosecutor showed all 19 autopsy photographs to the pathologist and one to the neuropathologist during their testimony. Those experts identified Cheatham's various injuries as they were depicted in the photographs:
On our own motion, we directed the superior court to transmit the autopsy photographs (exhibits 46-64) for our review. (Cal. Rules of Court, rules 8.224(d), 8.320(e).)
Exhibit 46 depicted Cheatham's face and head from the front and showed the belt wrapped around his neck.
During his testimony, a detective with the Corona Police Department identified the belt, which had been removed from Cheatham's neck, as it was depicted in exhibit 46.
Exhibit 47 depicted Cheatham's face and neck from the right profile and, like exhibit 46, showed the belt around his neck. The pathologist testified exhibit 47 also showed a ligature mark left by the belt, as well as bruising under Cheatham's right eye and blood pooled under his head.
Exhibits 48 and 49 were nearly identical photographs depicting Cheatham's entire head, torso, and groin area, the only difference being the belt had been removed from Cheatham's neck for exhibit 49. The pathologist testified exhibit 48 also showed bruising to Cheatham's left arm near the wrist, bruising to the torso, and discoloration or livor mortis to the torso that was likely caused by blood settling as he lie facedown. On exhibit 49, the pathologist identified abrasions to Cheatham's stomach, bruises or contusions to the right upper extremity, the chest, and the face.
See 2 Schmidt's Attorneys' Dictionary of Medicine (Feb. 1992) page L-115, column 2, which defines "livor mortis" as "[t]he reddish, bluish, or purplish discoloration of the parts of a dead body to which the decomposing blood has gravitated, usually the low or dependent parts of the body. Also called cadaveric lividity." The reporter's transcript incorrectly reports the pathologist testified about "liver mortis."
Exhibit 50 was taken from Cheatham's left profile and depicted the left side of his head, face, torso, and left arm. The pathologist identified abrasions near Cheatham's belly button, on the left side of his torso, and on his left arm.
Exhibit 51 was taken in a downward angle from the top of Cheatham's head, showing his entire body from head to toe. The pathologist identified bruising on Cheatham's shoulders and face.
Exhibit 52 was taken from Cheatham's left side with his left arm held up and depicted abrasions to the side of his torso and extensive bruising on his left upper arm.
Exhibit 53 was taken at a side angle from above Cheatham's left shoulder, with his left arm held up, and depicted bruising and abrasions to the lower left side of his face and an abrasion on the back of his left shoulder.
Exhibit 54 was a close-up photograph of the left side of Cheatham's torso and depicted in greater detail the abrasions to his left side, which were also depicted in exhibits 50 and 52.
Exhibit 55 depicted the side angle above Cheatham's left shoulder, with his arm down, and showed bruising to the upper chest and the front part of his shoulder, which is not visible in exhibit 53.
As the pathologist testified, exhibit 56 was almost identical to exhibit 55, except that exhibit 56 depicted more of Cheatham's head and showed more bruising to the left side of his face.
Exhibit 57 depicted the shaved right side of the back of Cheatham's head and showed deep lacerations in the middle and right side of the back of his head, as well as bruising on the top of his head.
Exhibit 58 depicted the top of the right side of Cheatham's head taken from the opposite direction as exhibit 57, and it again showed the deep lacerations to the back of his head, as well as bruising to the top of the head.
Exhibit 59 depicted the right side of Cheatham's head, taken from the exact same angle as exhibit 58, but close-up with a ruler in the shot for measurement, which again showed deep lacerations to the back of the head and bruising to the top of the head.
Exhibit 60 depicted a close-up photograph taken of the entire back of Cheatham's head, at a slight angle from the left. This photograph showed the same deep lacerations in the middle and on the right side of the back of Cheatham's head, which were depicted in exhibits 57 through 59, but it also showed a deep laceration to the back left side of Cheatham's head and a smaller laceration higher up on the left side of his head. The pathologist testified exhibit 60 showed the larger laceration on the left side of the back of Cheatham's head went "down to the level of the skull, [to the] bone underneath."
Exhibit 61 depicted the left and middle of the back of Cheatham's head, but also showed the back of his neck and the back of his left shoulder. This exhibit also showed the same deep lacerations on the left side and in the middle of the back of his head, which were depicted in exhibit 60, as well as bruising to the back of Cheatham's neck and shoulder.
Exhibit 62 depicted Cheatham's hyoid bone after it had been completely removed from his body, and the pathologist testified the photograph depicted hemorrhaging to the surrounding muscles.
Exhibit 63 depicted the top of Cheatham's head after the scalp and top of the skull had been removed. It showed hemorrhaging and blood on the surface of the exposed brain, as well as bruising to the undersurface of the scalp. The neuropathologist testified exhibit 63 also showed "diffuse hemorrhages in the soft tissue" and blood covering the entire brain and collected in the sulci.
The sulci, the plural of sulcus, are the grooves or furrows on the surface of the brain. (Stedman's Concise Medical Dict. (2d ed. 1994) p. 972, col. 2.)
Finally, exhibit 64 was taken from the same angle as exhibit 63, but after Cheatham's brain had been completely removed. It showed fractures to the inside of the back of the skull.
2. Applicable Law.
"'"The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.]"'" (People v. Montes (2014) 58 Cal.4th 809, 862.) "A court's ruling admitting such photographs will not be disturbed on appeal unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner. [Citation.]" (People v. Mills (2010) 48 Cal.4th 158, 191-192.)
As our Supreme Court has long noted, "'"'murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant.'"' [Citation.]" (People v. Moon (2005) 37 Cal.4th 1, 35.) "'The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .' (Evid. Code, § 352.) 'The jury can, and must, be shielded from depictions that sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the charged crimes that does not unnecessarily play upon the emotions of the jurors.' [Citation.] We review the trial court's ruling under Evidence Code section 352 for abuse of discretion [citation], and a reviewing court will reverse a trial court's exercise of discretion to admit crime scene or autopsy photographs only when 'the probative value of the photographs clearly is outweighed by their prejudicial effect.' [Citation.]" (People v. Watson (2008) 43 Cal.4th 652, 683-684.)
Autopsy photographs are admissible to illustrate the testimony of a pathologist and to corroborate other evidence of how a victim died. (People v. Winbush (2017) 2 Cal.5th 402, 459.) "'Photographs of a murder victim "are always relevant to prove how the charged crime occurred, and the prosecution is 'not obliged to prove these details solely from the testimony of live witnesses,'" even in the absence of a defense challenge to particular aspects of the prosecution's case.' [Citation.]" (People v. D'Arcy (2010) 48 Cal.4th 257, 299.) "'[T]he jury is entitled to see details of the [victim's body] to determine if the evidence supports the prosecution's theory of the case.' [Citation.]" (People v. Brooks (2017) 3 Cal.5th 1, 55.)
"Furthermore, autopsy . . . photographs are not made inadmissible because they are offered to prove an issue not in dispute [citation], and are admissible even if repetitive of other evidence, provided their probative value is not substantially outweighed by their prejudicial effect . . . [citations]." (People v. Watson, supra, 43 Cal.4th at p. 684.) Even "superficially similar" autopsy photographs are admissible when they provide "different views" of the victim's injuries and, therefore, corroborate the pathologist's testimony and assist the jury in understanding the prosecutor's theory of the case. (People v. Farnam (2002) 28 Cal.4th 107, 185-186.)
3. Analysis.
Defendant contends that, because the cause of Cheatham's death was not in dispute, the autopsy photographs were irrelevant evidence, and they were admitted for no other purpose than to inflame the jury. Not so. Autopsy photographs are admissible even when the cause of death is not an issue in dispute. (People v. Watson, supra, 43 Cal.4th at p. 684.) Moreover, our Supreme Court has concluded autopsy photographs are admissible even when the defendant is willing to stipulate as to the cause of death. (People v. Johnson (2015) 61 Cal.4th 734, 767.) The prosecutor was not required to prove its case based solely on pathologist and neuropathologist's testimony.
The record amply supports the People's argument that the autopsy photographs illustrated and corroborated the pathologist and neuropathologist's testimony about the type and extent of Cheatham's injuries, and they helped the jury to understand the expert opinions about the primary and contributing causes of Cheatham's death. Nothing in the record supports defendant's claim that the photographs were admitted for no other purpose than to bias and inflame the jury against him. And although a number of the photographs showed the same injuries from different angles, such duplication was not excessive and did not render the photographs inadmissible. (People v. Farman, supra, 28 Cal.4th at pp. 185-186.)
Nor do we agree with defendant that the photographs were overly gruesome. True, the photographs depicted in somewhat unpleasant detail the nature and extent of Cheatham's injuries. But except for the photographs that depicted Cheatham's brain and the inside of his skull (exhibits 63 & 64), and perhaps the photograph of Cheatham's hyoid bone after it had been removed (exhibit 62), the photographs were not especially gory. We reviewed the autopsy photographs and conclude they are not unduly gruesome or inflammatory. "[A]ny 'revulsion they induce is attributable to the acts done, not to the photographs.' [Citation.]" (People v. Brooks, supra, 3 Cal.5th at p. 55.)
III.
CONCLUSION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.