Opinion
F052710
7-3-2008
THE PEOPLE, Plaintiff and Respondent, v. ALFRED SUNIGA, III, Defendant and Appellant.
Cliff Gardner and Lazuli Whitt, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and J. Robert Jibson, Supervising Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
Appellant Alfred Suniga III stands convicted, following a jury trial, of two counts of first degree murder, in each of which he personally used and intentionally discharged a firearm, causing death (Pen. Code, §§ 187, subd. (a), 12022.5, subd. (a), 12022.53, subd. (d)). Pursuant to the jurys further finding of multiple-murder special circumstances (id., § 190.2, subd. (a)(3)), the trial court sentenced him to consecutive terms of life in prison without the possibility of parole plus 25 years to life. He now appeals, raising various claims of trial and sentencing error. For the reasons that follow, we will modify the judgment by striking one multiple-murder special-circumstance finding, but otherwise affirm.
FACTS
I
PROSECUTION EVIDENCE
At approximately 1:00 a.m. on December 30, 1998, Detective Meek was dispatched to the Goshen area to assist then-Deputy Boudreaux, who was attempting to catch a suspect who had fled from a vehicle stop Boudreaux had initiated following a citizens report of a female in need of help. After a pursuit, the vehicle came to a stop. The driver — appellant — ran a short distance and then turned, as if to fight. Although Boudreaux sprayed him with pepper spray, appellant managed to run again. He was taken into custody within 10 to 20 minutes, and spontaneously stated he pushed her down, and she deserved it. His breath smelled strongly of alcohol and his voice was slurred.
Meek was then directed to make contact with Cindy Baldiviez, who reportedly was the victim of spousal abuse. Cindy was crying and very upset, and she appeared afraid. She advised that the suspect was appellant, her live-in boyfriend at the time and the father of their son, Alfred. Cindy related that she and appellant had both been at home. Appellant had been drinking for a few hours, when a man Cindy had never met before showed up at the house. The men wanted to go for a ride, but Cindy did not want appellant to, because they had been drinking. They ended up going for a ride in a van. Appellant, who was driving, was very drunk and all over the road, and she told him to pull over so that she could drive, as she was sober. Appellant became very angry and started calling her names. Eventually, he pulled over. The argument continued, and he told her to get out of the van. When she refused, he tried to pull her out of the van by her hair, then began punching her in the head. When she fell to the ground, he kicked her several times. She ran off. This incident occurred around midnight, and Meek observed a goose egg on Cindys forehead.
To avoid confusion, we refer to various individuals by their first names. In addition, we refer to Cindy and appellants son, Alfred Suniga IV, as Alfred. No disrespect is intended.
As of the time of the homicide, Cindy and appellant had been a couple for approximately 10 years, and had been married for part of that time.
Around 1999 or 2000, Katrina Murillo lived with her grandmother, Olivia Baldiviez; her aunt, Cindy Suniga; and Cindys husband, appellant. Cindy and appellant had their own room. There were many times when Cindy and appellant argued, but on one particular occasion, the arguments escalated, and Murillo heard loud yelling and what sounded like appellant hitting Cindy. Murillo heard Cindy tell appellant to stop hitting her. When Murillo went into the room, Cindy and appellant both appeared angry, and Cindy was crying. This was something that happened over and over again and that Murillo heard many times.
At approximately 7:15 a.m. on July 1, 2001, Visalia Police Officer Pree was dispatched to a residence on Copper Court, where he contacted Cindy, who was crying and afraid. She related that she had returned home just prior to Prees arrival, and had found unknown people at her home and numerous beer bottles lying around. She went inside and was telling the people to get out, when appellant told her to leave. At one point, he produced a shotgun, racked the action, and pointed the weapon at her. He told her that if she was not going to leave, he would make her leave, and, as far as he was concerned, she did not have a house anymore. Cindy then left the residence and contacted the police. Although appellant was not there, officers found a .12-gauge, pump-action shotgun in the house.
At approximately 2:50 a.m. on July 29, 2002, Visalia Police Officer Alfano responded to a minimart following a call from a woman saying she had been involved in a disturbance with her husband. Upon arrival, he contacted Cindy, who was crying and upset and appeared afraid. She said appellant had come home intoxicated and accused her of cheating on him. The argument had become heated, and he had pushed her around the room, pulled her hair, and called her names. Alfano responded to the residence, but did not find appellant.
Pauline Baldiviez was Olivia Baldiviezs daughter and Cindys sister. On September 18, 2005, she and her boyfriend Joe Cruz, Cindy and appellant, and Joes sister Christina Cruz and her boyfriend Daniel Nanez, left Olivias house around 7:00 or 8:00 a.m., to go to an Oakland Raiders football game. They traveled in a van. Joe drove. Appellant had a couple of beers and Daniel was also drinking. Although the game did not start until 5:30 p.m., they left early to make sure they had plenty of time, as they planned to tailgate before the game.
They arrived in Oakland around 2:00 p.m., and had to wait in line to get into the stadium parking lot. While the van was in line, appellant and Cindy got out at a store. Pauline kept watching for them as the van moved along in line. At one point, the sisters waved at each other. When appellant and Cindy got back into the van, Pauline heard them arguing. Appellant was upset because he thought Cindy had been waiving at someone else. Cindy was angry. This type of misunderstanding occurred a lot when appellant was drinking: he would get a little jealous of Cindy or not be quite sure what was going on. Appellant tended to act very inappropriately toward Cindy when he drank, and he frequently cursed at her.
Once inside the parking lot, the group barbecued for a couple of hours. Everyone except Pauline was drinking, and Pauline observed appellant to have approximately four beers. At some point, he and Cindy walked away. They seemed fine and were gone for abut 20 or 30 minutes. When they returned, it was time to eat. Appellant just stood by Cindy and did not interact with the others.
Joe Cruz estimated the group took two or three cases of beer with them to the game. He, appellant, Daniel, and Christina were sharing that beer while they were tailgating. By Daniels own account, he got "pretty wasted" and "was gone." Joe described his own intake in the parking lot as "[q]uite a few" beers, and he "was wasted" by the time they drove home.
A little before 5:00 p.m., the group started cleaning up in preparation for entering the stadium. Pauline and Cindy got into the van to touch up their makeup. The sliding door was open, and appellant was standing outside the van, right next to Cindy. Pauline heard them arguing and saw Cindy start to cry. Appellant then struck Cindy in the nose with his closed fist. Pauline told him to stop hitting her sister. He did not say anything.
Pauline finished her makeup and went to the back of the van, where everyone was standing. Apparently around this time, Christina saw Cindy sitting in the van, crying. Cindy said she and appellant were fighting because he was accusing her of looking at all the men who where there in the parking lot. About 10 minutes later, when Pauline went to call Cindy to go, appellant was gone. Cindy just said he left. The group waited at the van for 10 or 15 minutes. Cindy was crying and seemed nervous. When appellant failed to return, the group got in line to enter the stadium. They were in this line about 10 minutes, but appellant still did not come. Cindy had his ticket and she kept looking around, hoping he would come, but eventually the group went on inside.
It was loud inside the stadium, and Pauline did not hear her cell phone ring. When she looked at it, she saw that she had missed appellants call, and that he had left a voice mail message saying he needed to talk to Cindy. Pauline informed Cindy, who tried to call appellant back, but no one answered. Cindy left the stadium and went to the van to see if he was there, and Pauline believed she even drove around, looking for him, but he was nowhere to be found. After about 30 minutes, she returned to the others, but was very worried.
The group stayed until the game ended, then walked to the van. They did not see appellant, nor was he waiting for them by the vehicle. They waited another 15 minutes, then Cindy said appellant would probably call his mother, who lived in Goshen, to pick him up. Although Joe was not comfortable with just leaving appellant behind, the whole group made the decision to go. Everyone then got in the van and drove home. During the ride, Cindy was nervous. She wanted to hurry and go home.
When they neared Olivias house in Goshen, Cindy telephoned to ask if Olivia could go home with her, because she was scared. Olivia agreed. The group arrived at Olivias house around midnight. Some 10 to 15 minutes later, Olivia, Cindy, and Cindy and appellants children, drove to Cindys house in Visalia. Once there, seven-year-old Alfred went to bed with Cindy in Cindys room, while five-year-old Ariah went to bed with Olivia in Ariahs room.
Meanwhile, appellant telephoned his mother, Rachel Suniga, and asked her for a ride home from the game. A family friend, Angela Fernandez, drove Rachel to Oakland, as Rachel was unable to drive that long a distance. They picked appellant up across from the stadium, where the hotels are located. To Fernandez, he appeared tired and stressed out, although not really upset. She could tell he had been drinking, and he appeared intoxicated to her. She overheard him tell his mother that he and Cindy had had an argument, and that Cindy had taken his ticket. He said that he was going to be in big trouble. To Rachel, appellant did not seem angry. She could tell he had been drinking, although he was not falling-down drunk. He was a little upset, although he became calmer as they drove back to Goshen.
The trip was approximately four hours, one way.
When interviewed by police several hours after picking up appellant, Fernandez related that she had seen appellant intoxicated and, on this occasion, he was not, but had probably had a good six-pack. She also related that appellant was very upset and could not believe "she" had done this to him.
On the way home, appellant asked for a bathroom, so they stopped at a store in Manteca. Rachel bought appellant some beer, although he did not drink the entire six-pack. Fernandez, who was driving, got lost. Appellant told her to backtrack in the direction from which she had come, and that led her to the freeway.
When they reached Rachels house in Goshen, Fernandez left, while Rachel and appellant went inside. They both were tired, but appellant asked if he could take the truck. Rachel invited him to spend the night, as his home in Visalia was about a 15- or 20-minute drive, but appellant said he had to go home because he had to go to work the next day and had to get his clothes. Rachel told him to wake his father and ask if he could take the truck, a 2001 white Silverado pickup. When appellant woke his father about 2:00 a.m., appellant was drinking a beer. His father thought it was a problem that appellant was drinking and would be driving, but allowed him to take the truck.
Alfred was still awake when appellant came home, and he went with Cindy to the door in response to knocking and the doorbell ringing. Appellant was acting "[b]ad" and yelling. Cindy let him in. Alfred had seen him drunk before, and he appeared drunk now. Alfred did not see anything in his hands.
Alfred ran back to his mothers room, but Cindy stayed where she was. Alfred heard both his parents yelling and cursing, then Alfred heard four loud whipping noises, like a belt whipping. Ariah ran into Cindys room, where Alfred was. Alfred did not know where Olivia was. When Alfred no longer heard anything, he and Ariah ran out of the room. He saw Cindy on the floor in the bathroom. Olivia was on the floor in the kitchen. Both women were bloody, and neither was able to say anything to him. Alfred then called 911. He did not see appellant leave the house.
According to Detective Grant, a small-caliber firearm such as a .22 would make a noise similar to a belt-whipping sound or a firecracker.
Alfreds 911 call was logged in at 2:08 a.m. on September 19. In it, Alfred reported that his mother and grandmother were dead and his father was drunk. Alfred said his father, who was outside, had thrown his mother and grandmother on the ground. Alfred said he did not see it. Police and an ambulance were dispatched as the result of the call.
Visalia Police Officer Alfano arrived at the house, which was near the intersection of Kennedy and Copper, at 2:12 a.m. Upon approach, he could see that the front door was partially open and light was on inside the house. He heard what sounded like a small female inside the residence, yelling for help and basically saying, "`Please dont make Mom be dead." When Alfano and other officers entered through the front door, Alfred walked up to Alfano. He was crying and appeared to be very scared. Alfano sent him outside, where other officers could assist him.
Cindy was lying halfway in the bathroom, just off the hall, near the entrance to the residence. There was a strong odor of gunpowder, indicating the incident had just occurred. The officers proceeded to search the residence to see whether the gunman was still inside. In the kitchen, they found Olivia. Ariah came out of the master bedroom and ran to Alfano. She was crying and very scared and upset, and had a portable telephone in her hand. He rushed her to the front door, where he handed her off to another officer. No one else was found inside the house.
Alfano was directed by his sergeant to start assisting with a yard-to-yard search of the area for the gunman, who was assumed to be appellant. No one was found during the search.
Cindy suffered two gunshot wounds to the face, one of which went through the brain and was, of itself, lethal. She also suffered three gunshot wounds to the upper right back, one of which transected the aortic arch and was, of itself, fatal. All five were inflicted of a distance of at least a couple of feet. Olivia suffered a single gunshot wound to the back that caused her to bleed out into the chest and abdominal cavities, and was fatal within a matter of minutes. It also was inflicted from at least a couple of feet away.
All DNA extracted from evidence found at the scene came from the two victims. No skin or other tissues were found in their fingernail clippings. No firearms or anything suggesting there had been firearms at the house were found. However, Detective Grant recovered several bullets that were consistent with a .22. He determined that at least eight rounds had been fired. He found no shell casings, indicating a revolver had been used.
Not long after appellant left his parents house, Rachel received a telephone call from Melissa Omos, the mother of appellants child from a previous relationship. Rachel was told that something had happened at the house on Copper, and that her grandchildren were being taken to the Visalia Police Department. Rachel responded that she had known something was going to happen.
Later that morning, Francine Recendez and Martin Vasquez received word that appellant, Recendezs nephew, was at their home in Selma. When they arrived, appellant said that something had happened at his house, and that he had shot something with a gun. He was crying and mostly thinking about his children. He did not want to turn himself in, but was convinced to do so, and Vasquez drove him to the Visalia Police Department for that purpose. This occurred roughly around 11:00 or 11:30 a.m.
Appellant, accompanied by family members, turned himself in at the Visalia Police Department at approximately 12:50 p.m. on September 19. He had no visible injuries. Officers subsequently searched the white Chevrolet Silverado pickup, in which appellant had arrived at his aunts home, for firearms and firearms-related evidence. They found nothing.
Mario Fierro was a Nuestra Familia dropout who had been in prison five times and whose criminal record dated back to 1985. At the time of trial, he was in custody and awaiting sentencing, having pled guilty to second degree burglary. He pled guilty on June 27, 2006, with an indicated sentence of four years in prison. He had his attorney contact the district attorneys office in October 2006, and gave a statement on October 17. Although Fierro requested that the district attorneys office make him some kind of deal in his current case in return for his information, nothing was offered to him in return. Fierro was hoping that his sentencing judge would take into consideration his initiative in doing this, as he had never testified against anyone before and his life had been threatened.
Fierro testified on March 8, 2007. According to him, sentencing typically occurs a few weeks after a plea. He was scheduled to be sentenced a couple of times, but there were continuances.
Fierro was acquainted with appellant, as they had been in jail together in around 1999 to 2000. In May 2006, when Fierro returned from prison, he was housed in the same unit with appellant. Sometime in late September or early October, appellant asked Fierro if he thought the district attorney would offer appellant manslaughter. As Fierro did not really know about appellants case, appellant calmly told him, over the course of two conversations, that he and his wife or girlfriend went to a game in Oakland. They got into an argument, and he got mad and left and was unable to see the game. He went to go get drunk and was upset because he was left in Oakland. His mother came and picked him up, and he was pretty angry about the situation. All he could think about on the ride home was killing the woman. When he got back from Oakland, he acquired a pistol that he had in his truck, which was at his fathers house, then went to the house and shot her four to five times. He shot her once in the face and the bullet came out through the top of her head. He shot her mother in the lower back. He said that one of his children might have seen him leave, and that he used a low-caliber pistol, which Fierro believed was a .22. Appellant said he thought his wife might have been having an affair, and that he was going to make it seem like somebody else was in the house. Appellant said he had planned on doing it before.
At the time of trial, Samuel Romero was in custody, pending sentencing following his October 13, 2006, no contest plea to "second degree strong arm robbery." His anticipated sentence was four years eight months in prison. In light of the nature of his criminal record, which dated back to 1984, and the fact he was facing 25 years to life as a third striker, he considered four years eight months a fairly good deal.
Around December 27, 2006, Romero got word to the district attorneys office that he might have information about this case. At his first meeting with the district attorneys investigator, Romero opted not to speak because the investigator was not willing to make him any kind of offer. Later, however, Romero changed his mind and, on January 11, 2007, gave a statement, despite the fact the investigator again made it clear the district attorneys office was not making any offers. According to Romero, he had never before given information to the prosecution, although he had told jail staff about drugs in cells and the like. Romero testified in hopes there might be leniency or modification at his sentencing, as his life would be in danger in prison.
Romero had known appellant for about a year, was housed in the same unit at the jail with him for about eight months, and, as the units barber, cut appellants hair several times. Appellant sometimes asked Romeros advice concerning his case. Once, appellant asked whether Romero knew anything about gunpowder residue and how long it stayed on a persons body or clothing. Appellant said the police did not take such tests from him after the incident, and he thought this would be a major factor in his case. Appellant said his case was a double homicide. Although he did not mention names, he said he had "blasted" two people, and that there were no witnesses, other than his eight-year-old son may have seen or heard something. Appellant asked if Romero knew anything about whether his son could be called as a witness at that age. These conversations took place while Romero was cutting appellants hair, before Romeros plea bargain.
Due to the fact appellant had had time to clean up and was wearing different clothing than that described by the witnesses at the scene, Detective Grant made the decision not to perform a gunshot residue test on him. That information was neither contained in a police report nor released to the press.
On November 20, 2006, Romero went to the jail visiting room to meet with his attorney. Appellant and his attorney were there. After both attorneys left, appellant and Romero remained at their respective tables, waiting to be escorted back to their units. While they were waiting, they started talking. Appellant asked Romero to tell Fierro that appellant knew what he was up to, and that he (Fierro) was through. Appellant then asked Romero to relay a message to Solomon Vasquez. Appellant said he wanted Vasquez to do him a favor. When Romero asked what it was and suggested maybe he could do it, appellant kind of laughed and said it was nothing, unless Romero was willing to slice Fierros throat. Appellant said Fierro was testifying against him or gave information to the district attorney. Appellant was angry. He told Romero that it did not matter anyway, because it would be just a matter of time and that his cousin would get Fierro if appellant could not do it himself. As they walked out with their escorts, appellant told Romero to make sure he relayed the message to Vasquez. Romero said he would, but he never did. Instead, he informed Fierro of the conversation.
Correctional Officer Ortiz confirmed that appellant and Romero each met with his attorney at the same time on November 20, 2006. Because of the layout of the room, she estimated that appellant and Romero could have been sitting no closer than 20 to 30 feet apart.
Romero saw appellant again just after Thanksgiving. Each was in his units yard, about 40 feet from each other, and they could yell back and forth. Romero was playing handball, when he heard appellant yelling to someone that Fierro was going to regret talking to the district attorney. Appellant then called to Romero and asked whether he had relayed the message to Vasquez. Appellant said his family had sold some property or something and that he was willing to pay someone to shut Fierro up.
II
DEFENSE EVIDENCE
Appellant testified that he and Cindy were married for about seven years, and together for around 10. On September 18, 2005, he awoke around 5:00 a.m., in preparation for a trip to an Oakland Raiders game that had been planned for several weeks. Everyone met at Olivias house; while waiting for the others to get ready, appellant purchased more beer, as the plan was to barbecue and drink beer at the game. Once everything was loaded, the group went in Paulines van.
The trip took three to four hours, as the group stopped several times on the way. They reached the stadium about noon, then were parked on the road, waiting, because the gates did not open until 2:00 p.m. While waiting, they drank some beer. When the line started moving, appellant wanted a different kind of beer, so he and Cindy got out of the van and walked to a nearby store. While appellant was standing in line to make his purchase, he saw Cindy at the door, signaling to her sister. Although he knew she was waiving at her sister, he told her to come here and asked her what she was doing, and said that Pauline knew where they were at. Cindy was under the misimpression that appellant was getting angry because he thought she was doing something wrong, but that was never the case. Once they had the beer, they returned to the van.
Once parked, the group began barbecuing. As there was still a little tension between appellant and Cindy, he suggested they go for a walk. They walked around, talked for a while with some of appellants other family members who were there, and then returned to the van. Things were fine between them; appellant, who did not know the other members of the group very well, was simply minding his own business.
Appellant was not having a very good time and was just standing around, drinking his beer. The others were not including him at all. There was still a little tension between Cindy and him, as they had gotten into another little argument about him not participating with the group. At the van door area, they had a quiet argument; rather than anything escalating, appellant went for a walk to find a restroom. He did not hit Cindy.
Appellant had to wait in line to use the restroom. When he got back to the van, the others were gone. As he did not have a cell phone with him, he borrowed one from another fan and tried to call them. He did not know any of their numbers, so he called Olivia, who gave him some numbers. He made several calls, and she also said she would try to get hold of them. Appellant was upset and "[n]ot at all" happy about being left, although everything was fine between him and Olivia.
When appellant realized he was not going to get into the stadium, he walked to a nearby motel, where he knew there was a bar. He telephoned his mother to come and get him, watched some of the game at the bar, and drank some more beer. Although he assumed the van was still there, he had his mother come get him, rather than returning to the van and going home with the group.
Rachel and Angela Fernandez arrived after dark. Once appellant was in the car, his mother asked what had happened. When he explained, she told him not to be mad. He was not; he felt hurt and abandoned, but he knew it was not Cindys fault. He felt Pauline had been the one saying to leave him, so he was not upset with Cindy.
There was not much conversation on the drive home. They stopped twice, once to use the restroom, and once when appellant purchased more alcohol. Once at appellants parents home in Goshen, Fernandez left. Appellant, who was tired and needed to go to work the next day, asked whether he could borrow his fathers truck to drive home. His father said that appellant looked drunk to him and invited him to stay there, but appellant, who was still drinking, needed his work clothes, so he got the keys to the vehicle and drove home.
The drive home took about 20 minutes. It was extremely late and appellant, who was "pretty intoxicated," wanted to go to bed. He did not have any idea whether anyone would be at the house, and he did not have his keys. Upon arrival, he knocked on the door. He just wanted to go in and go to bed. He was tired, intoxicated (although he did not have any trouble getting out of the vehicle and walking to the door), and a little hurt and upset. Cindy let him in. The entryway was dim, and he did not see anyone else. Cindy was very hostile toward him and they started arguing. His memory was "pretty foggy," but he recalled them having an argument that was escalating, and someone coming from the area of his daughters room, behind him. He had no clue who it was. He did not hear anything, but was unexpectedly pushed in the back and fell to the floor. Appellant had no idea where the gun came from; he had not seen it before and did not have a firearm. He did not shoot the gun. He, Cindy, and the other person whose identity he did not know at the time were in a struggle. Through the struggle, he heard several gunshots. He did not know who pulled out the firearm. He could have shot the gun in the midst of the struggle. He was intoxicated and in shock at what was going on. He saw Cindy on the ground and recognized that the other person was Olivia. She was standing there. He did not see either one of his children. He heard a voice saying to call the cops. He believed it was Olivia. When he heard that, he left. At the time, Olivia was walking toward the living room. Appellant did not think anything was wrong with her and believed she would take care of the children. Had he known otherwise, he would have stayed there with his children. He did not intend to kill anyone. He denied shooting Olivia because she was going for the telephone. He never called 911 or returned to see how his family was. The gun was on the ground; appellant picked it up and took it with him when he left.
Appellant did not know where he went, except that he was out in the country somewhere and there were a lot of trees. He believed he disassembled the gun, a revolver, and threw it in the orchard because he had no use for it. He ended up in Selma, at his aunts house. When his aunt was not at home, he waited for her. He was hurt and did not know where to go. When his aunt arrived, he told her that he did not know exactly what happened, but that something bad had taken place at his home. He asked her to tell him it was a bad dream. Although he was hesitant when it was suggested that he turn himself in, he was concerned for his children and agreed. Recendez and Vasquez accompanied him to the police department, where his parents joined them. A blood alcohol test taken following his arrest showed he had no alcohol in his system.
Appellant described Fierro as an acquaintance he had met through the jail system. Although appellant asked Fierro some court questions, he had only minimal conversation with him. Fierro was a known jailhouse informant, and appellant denied telling him that he had intentions of killing all the way home from Oakland. Appellant kept copies of police reports, statements, and other papers connected to his case in an open cubbyhole in his cell. Sometimes his cellmate would be in his cell, along with the reports, when he was not. Appellants case received a lot of media attention, and other inmates knew about it without learning of it from him.
Appellant was also acquainted with Romero, another known jailhouse informant who was fighting a three strikes case. Appellant and Romero were in the visiting room on the day about which Romero testified, but, while they were waiting to be escorted back after their attorneys left, they were about 15 to 20 feet apart and only exchanged small talk. Appellant did not talk to Romero much because he knew Romero was an informant. Appellant denied telling Romero to give a warning to Fierro; there was a deputy at her station the entire time, and she was able to hear any conversation. Although Romero could have been on the yard at the same time as appellant, appellant did not communicate with him. Given the distance between yards, he would have had to yell, and there were always deputies walking between the two yards.
Appellant admitted having struck Cindy on occasion. He did not recall the incident about which Katrina Murillo testified, although it could have happened. With respect to the 1998 incident, Cindy jumped in the vehicle, uninvited. When she wanted out, appellant, who was driving, pulled over and she got out. He was intoxicated and may have struck her. He did not recall the 2002 incident, although it could have happened. He was intoxicated a lot, as he had an alcohol problem. He did not remember the 2001 incident happening the way it had been described, although he admitted a shotgun was found in the master bedroom and he knew he was not supposed to have a shotgun because he had been convicted of domestic violence as a result of the 1998 incident.
DISCUSSION
We have reordered the contentions set forth in appellants opening brief to conform more closely to the chronology of events at trial.
I
DOMESTIC VIOLENCE EVIDENCE AND INSTRUCTIONS
Appellant raises a number of claims concerning the evidence of his prior acts of domestic violence. He broadly attacks admission of this type of evidence, specifically attacks admission of statements Cindy made to police in conjunction with the prior incidents, and also contends the instructions given by the trial court with respect to the evidence were unconstitutional and conflicting. We address each claim in turn.
A. Admission of Evidence of Prior Domestic Violence
The prosecutor moved, in limine, for admission of appellants prior acts of domestic violence against Cindy, under authority of Evidence Code section 1109. Appellant objected under section 352. After argument concerning the admissibility of the statements Cindy made to police on the various occasions (discussed post), as well as whether the 1998 incident was too remote and whether Katrina Murillo would be permitted to testify that she saw bruises on Cindy on unspecified dates, the trial court ruled the bruising was not to be mentioned unless more specific information could be provided concerning how and when Cindy was bruised, but that the remaining evidence was admissible. Accordingly, the prosecutor presented evidence of the four instances of prior domestic violence set out in the statement of facts, ante.
Further statutory references are to the Evidence Code unless otherwise stated.
Subject to exceptions not pertinent here, section 1109, subdivision (a)(1) provides: "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." Appellant does not contend the discovery provisions of section 1109, subdivision (b) were unmet, that the various incidents did not constitute "domestic violence" within the meaning of subdivision (d) the statute, or that the challenged evidence should have been excluded under section 352. Instead, he says section 1109 is unconstitutional, as it violates due process by permitting admission of prior acts of domestic violence to prove a defendants propensity to commit such acts. Although appellant did not raise this claim in the trial court, "we will consider the issue on the merits because it involves `a pure question of law which is presented by undisputed facts. [Citation.]" (People v. Hines (1997) 15 Cal.4th 997, 1061; accord, People v. Valladoli (1996) 13 Cal.4th 590, 606; see People v. Jennings (2000) 81 Cal.App.4th 1301, 1310.)
Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Generally speaking, evidence of a defendants conduct is inadmissible to prove his or her propensity or disposition to commit the crime charged. (People v. Denis (1990) 224 Cal.App.3d 563, 567.) Thus, section 1101, subdivision (a) states: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Section 1108, which deals with evidence of prior sexual offenses, and section 1109, which deals with evidence of prior acts of domestic violence, are express exceptions to the general rule. In People v. Falsetta (1999) 21 Cal.4th 903, (Falsetta), the California Supreme Court held that section 1108 does not violate due process. (Falsetta, supra, at pp. 907, 912-922.) Appellant says Falsetta was wrongly decided. As an intermediate court, we are, of course, bound to follow it with respect to section 1108. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Insofar as is pertinent to this case, section 1108 is indistinguishable from section 1109. For the reasons stated in Falsetta, we reject appellants due process challenge to section 1109. In so doing, we agree with the other appellate courts that have considered the issue. (E.g., People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Rucker (2005) 126 Cal.App.4th 1107, 1120; People v. Price (2004) 120 Cal.App.4th 224, 239-240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. Jennings, supra, 81 Cal.App.4th at pp. 1309-1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1333-1334; People v. Hoover, supra, 77 Cal.App.4th at pp. 1026-1029; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420.)
In addition, subdivision (b) of section 1101 permits admission of prior acts when relevant to prove some fact, such as motive or intent, other than disposition. By pleading not guilty to charges of first degree, premeditated murder, appellant placed in issue all elements of the offenses, including his mental state and intent. (People v. Balcom (1994) 7 Cal.4th 414, 422; see People v. Williams (1988) 44 Cal.3d 883, 908.) The prosecution bore the burden of proving, beyond a reasonable doubt, that appellant acted with a specific intent to kill, and with premeditation and deliberation. The challenged evidence may well have been admissible to show intent and motive, an intermediate fact that may be probative of ultimate issues such as intent and premeditation. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026; People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1018; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1612-1614.)
Subdivision (a) of section 1108 provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
B. Alleged Instructional Error
Appellant next contends that, even if admission of the domestic violence evidence did not constitute error, the trial court nevertheless violated his due process rights by instructing the jury that criminal disposition need only be proved by a preponderance of the evidence and that, if proved, the jury could rely on disposition to find him guilty. He says the instruction undercut the presumption of innocence and the right to proof beyond a reasonable doubt. Since his substantial rights were affected if error occurred, we address the merits of his claim despite the fact he failed to raise it below. (Pen. Code, § 1259; People v. Prieto (2003) 30 Cal.4th 226, 247.)
Pursuant to CALCRIM No. 852, the trial court instructed the jury:
"The People presented evidence that the defendant committed domestic violence that was not charged in this case. [¶]. . . [¶]
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged domestic violence, you may but are not required to conclude from the evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit murder or manslaughter as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder or manslaughter. The People must still prove each element of every charge beyond a reasonable doubt."
There is no material difference between CALCRIM No. 852 and CALJIC No. 2.50.02. (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) CALJIC No. 2.50.02 is, in turn, the section 1109 equivalent of CALJIC No. 2.50.01, which instructs the jury on how to treat evidence admitted pursuant to section 1108. (People v. Pescador (2004) 119 Cal.App.4th 252, 261.) In People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), the California Supreme Court rejected a due process challenge to CALJIC No. 2.50.01. (Reliford, supra, at pp. 1009, 1012-1016; see also Falsetta, supra, 21 Cal.4th at pp. 923-924.) Appellant says Reliford was wrongly decided. Again, however, we are bound to follow it with respect to the constitutionality of CALJIC No. 2.50.01 (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455) and, by logical extension, the analogous CALCRIM instruction, CALCRIM No. 1191 (People v. Cromp (2007) 153 Cal.App.4th 476, 479-480). As there is no material difference between the section 1109 instructions (CALCRIM No. 852 & CALJIC No. 2.50.02) and the section 1108 instructions (CALCRIM No. 1191 & CALJIC No. 2.50.01), we find Relifords reasoning applicable. Based on that case, as well as People v. Reyes, supra, 160 Cal.App.4th at pages 251-253, People v. Pescador, supra, 119 Cal.App.4th at pages 261-262, and People v. Escobar, supra, 82 Cal.App.4th at pages 1097-1101, we reject appellants challenge to the instruction given in his case.
CALJIC No. 2.50.02 tells jurors, in pertinent part: "If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit [another] [other] offense[s] involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] [she] was likely to commit and did commit the crime [or crimes] of which [he] [she] is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged offense[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime."
Appellant contends, however, that when we consider the prosecutors argument in conjunction with the instruction — something that was not discussed in Reliford — there becomes a reasonable likelihood the jury understood the instruction in an improper way. (See Victor v. Nebraska (1994) 511 U.S. 1, 6, 22-23; People v. Young (2005) 34 Cal.4th 1149, 1202; People v. Kelly (1992) 1 Cal.4th 495, 525.) Appellant says the prosecutor explicitly told jurors they could (1) rely on disposition alone to convict, and (2) convict appellant by finding to be true facts about the other crimes that had only to be proven by a preponderance of the evidence.
Appellants selectively edited version misstates the prosecutors argument. In reality, the prosecutor stated:
"You heard some uncharged violence. The defendant committed domestic violence that was not charged in this case; abuse against an adult who is a spouse. The defendant pointed a shotgun at Cindy and racked the action. Olivia was there. You heard the officer come testify about it. And you know what? The shotgun was in the house. They found the shotgun that he used. The defendant hits Cindy, pulls her hair, punches her in the head with his fist, and dragged her out of the car, repeatedly calling her a bitch. The defendant pushes Cindy, pulls her hair, and repeatedly calls her a bitch on a different incident. Those kind of look the same, dont they? They look like a pattern of conduct, dont they? Katrina hears Cindy yell, `Please stop hitting me more than once. She hears hitting sounds. What did the defendant tell you on the stand? Ah, he doesnt remember that. Could have happened. `Could have happened, but I — I dont really remember.
"I have to prove to you that these things happened by a preponderance of the evidence, more likely than not. Is it more likely than not that these events happened? If you believe that it is, if you decided that he committed any of these acts, you may, but youre not required to, but you may conclude that the defendant was disposed or inclined to commit domestic violence and that the defendant murdered his wife. This evidence alone is not enough to convict on the charged crime, but it can be considered. You can consider it. Its up to you what you do with it." (Italics added.)
The prosecutors actual argument thus made it clear appellant could not be convicted on disposition alone or on facts that only had to be proven by a preponderance of the evidence. Moreover, the trial court instructed on the presumption of innocence and proof beyond a reasonable doubt. In view of the foregoing, we find no reasonable likelihood the jury misunderstood or misapplied CALCRIM No. 852 in a way that violated appellants constitutional rights. (See Victor v. Nebraska, supra, 511 U.S. at p. 6; Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Young, supra, 34 Cal.4th at p. 1202; see also People v. Lee (1987) 43 Cal.3d 666, 677-678 [finding giving of conflicting instructions harmless beyond a reasonable doubt in light of other jury instructions and arguments of counsel].)
C. Admission of Cindys Statements to Police
In conjunction with the in limine motion to admit the section 1109 evidence, the prosecutor sought admission of Cindys statements to the law enforcement officers who responded to the various domestic violence incidents. The prosecutor asserted the statements were admissible as spontaneous utterances under section 1240, and were not testimonial within the meaning of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). The trial court agreed.
Appellant now contends that, even assuming section 1109 and CALCRIM No. 852 do not violate a defendants due process rights, admission of Cindys statements to police violated state law, as they did not fall within a hearsay exception. He further claims admission violated his Sixth Amendment rights to confront and cross-examine witnesses, as Cindys statements were testimonial under Crawford and appellant had no prior opportunity to cross-examine Cindy about them. We turn first to the hearsay inquiry, as "in any Crawford analysis, the first question for the trial court is whether proffered hearsay would fall under a recognized state law hearsay exception. If it does not, the matter is resolved, and no further Crawford analysis is required." (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 5 (Cage).)
Citing to pages 6-7 of the reporters transcript, appellant says trial counsel objected on hearsay and confrontation grounds. The record shows no such objection, except to the extent counsel questioned whether the requirements of section 1240 were met as to one specific piece of proffered evidence that the prosecutor withdrew. Ordinarily, the lack of objection would result in forfeiture of the issue on appeal. (See, e.g., People v. Raley (1992) 2 Cal.4th 870, 892; People v. Harmon (1992) 7 Cal.App.4th 845, 849.) Nevertheless, since the statutory and confrontation clause issues were before the trial court by virtue of the prosecutors motion and it is clear the court and parties understood the issues presented, we deem them preserved. (People v. Brenn (2007) 152 Cal.App.4th 166, 173-174; see People v. Scott (1978) 21 Cal.3d 284, 290.)
1. Section 1240
There can be no doubt that Cindys statements, which were offered for the truth of the matters contained therein, constituted hearsay. (§ 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Id., subd. (b).) Pursuant to section 1240, "[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." The theory underlying this exception is that "the declarants lack of opportunity for reflection and deliberate fabrication supply an adequate assurance of the statements trustworthiness. [Citation.]" (Box v. California Date Growers Assn. (1976) 57 Cal.App.3d 266, 272.)
"A trial courts decision to admit evidence under the spontaneous utterance exception to the hearsay rule will not be reversed unless the court abused its discretion. [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 714.) "`To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. [Citations.]" (People v. Poggi (1988) 45 Cal.3d 306, 318.) "Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] In performing this task, the court `necessarily [exercises] some element of discretion . . . . [Citation.] [¶] Because the second requirement relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met [citation]." (Id. at pp. 318-319.)
In arguing that the requirements of section 1240 were not met in this case, appellant points to the lapse of time between events and statements, the fact the statements were given in response to questioning, and Cindys appearance (crying and afraid, but not in physical shock). These are all circumstances that must be considered. (See People v. Jones (1984) 155 Cal.App.3d 653, 661-662.) As the California Supreme Court has emphasized, however, "`[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance. [Citation.] [¶] Under the same reasoning, the fact that the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity. [Citations.]" (People v. Poggi, supra, 45 Cal.3d at p. 319; People v. Washington (1969) 71 Cal.2d 1170, 1176.) "The crucial element . . . is . . . not the nature of the statement but the mental state of the speaker. . . . The fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation, but it does not ipso facto deprive the statement of spontaneity. Thus, an answer to a simple inquiry has been held to be spontaneous. [Citations.] More detailed questioning, in contrast, is likely to deprive the response of the requisite spontaneity. [Citations.] But ultimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter. [Citation.]" (People v. Farmer (1989) 47 Cal.3d 888, 903-904, disapproved on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
Here, the record supports the trial courts finding of spontaneity with respect to Cindys various statements. With regard to the 1998 incident, Detective Meek testified that he spoke to Cindy right after the event occurred. She was crying and very upset, and appeared to be afraid. She had a visible bruise and swollen spot on her forehead. As for the 2001 incident, Officer Pree testified that he arrived slightly more than 15 minutes after the event. Cindy was crying and afraid. With respect to the 2002 incident, Officer Alfano described Cindy as upset and crying. She looked like she was afraid. He spoke with her perhaps 13 minutes after the event. Although in none of the instances does the record disclose the extent to which Cindys statements were made in response to questioning, the trial court did not abuse its discretion by concluding, based on all the circumstances, that the requirements of section 1240 were met as to each. (See, e.g., People v. Ledesma (2006) 39 Cal.4th 641, 708-709 [statements admissible where made approximately 15 minutes after event; declarant appeared nervous, but, in response to officers questions, was able to describe perpetrators in some detail & furnish license number of getaway vehicle]; People v. Brown (2003) 31 Cal.4th 518, 540-541 [statements admissible where declarant was crying, shaking, & visibly upset two & one-half hours after event, even though portion of statement was response to question]; People v. Roybal (1998) 19 Cal.4th 481, 516 [911 call admissible where made within minutes of event, even though declarant was responding to questions]; People v. Raley, supra, 2 Cal.4th at pp. 893-894 [statements admissible, though made some 18 hours after event, where declarant-victim may have been in shock from injuries & was distraught]; People v. Poggi, supra, 45 Cal.3d at pp. 319-320 [statements admissible where made approximately 30 minutes after event, in response to questioning, & after declarant had been calmed sufficiently to be able to speak coherently; questions were mostly simple and nonsuggestive, such as "`What happened?" & "`What happened then?"]; People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1589-1590 [statements admissible where made approximately 30 minutes after event & after declarant made her way to police station; record furnished no reason to believe officers questions, to which declarant responded, were anything but routine, nonsuggestive inquiries]; People v. Smith (2005) 135 Cal.App.4th 914, 923-924 [statements admissible where, although three to six hours had elapsed, declarant was very distraught, anxious, & had blank look on face].)
Defense counsel implicitly conceded as much when he questioned the spontaneity of only one piece of proffered evidence, which the prosecutor ultimately withdrew.
2. Crawford
We turn now to the trial courts determination of the constitutional issue, which we independently review. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1477-1478.)
As a preliminary matter, respondent argues appellant should be precluded from raising any confrontation clause argument because he murdered Cindy. In this regard, the rule of forfeiture by wrongdoing extinguishes confrontation clause claims on essentially equitable grounds. (Crawford, supra, 541 U.S. at p. 62.) As stated in Reynolds v. United States (1878) 98 U.S. 145, 158, "[t]he Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated."
In People v. Giles (2007) 40 Cal.4th 833 (Giles), the California Supreme Court held that, subject to limitations not at issue in appellants case, the forfeiture by wrongdoing doctrine bars a defendants objection under the confrontation clause of the federal Constitution when the witnesss unavailability for confrontation and cross-examination is caused by the defendants intentional criminal act. (Id. at p. 854.) Under this formulation of the doctrine, appellant would be precluded from challenging admission of Cindys statements on confrontation clause grounds, as his intentional criminal act caused her to be unavailable as a witness. After oral argument, however, the U.S. Supreme Court vacated the California Supreme Courts opinion and held that the forfeiture rule applies only where a defendant engaged in conduct designed to prevent a witness from testifying, so that unconfronted testimony will not be admissible without a showing the defendant intended to prevent the absent witness from testifying. (Giles v. California (June 25, 2008, No. 07-6053) 554 U.S. __, __.) As there was no suggestion here that the homicide expressed appellants intent to stop Cindy from reporting abuse or cooperating with a criminal prosecution, we will address his confrontation claim on the merits.
"The Confrontation Clause of the Sixth Amendment [to the United States Constitution] provides: `In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. In [Crawford, supra,] 541 U.S. [at pages] 53-54, [the United States Supreme Court] held that this provision bars `admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. A critical portion of this holding . . . is the phrase `testimonial statements. Only statements of this sort cause the declarant to be a `witness within the meaning of the Confrontation Clause. [Citation.] It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." (Davis v. Washington (2006) 547 U.S. 813, 821 (Davis).
In Crawford, the United States Supreme Court declined to give a precise definition of "testimonial statements," although "`statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" was given as one formulation of the phrase. (Crawford, supra, 541 U.S. at pp. 51-52.) The court observed that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Id. at p. 51.) In Davis, the high court declined to attempt to classify all conceivable statements — even those made in response to questioning by police — as either testimonial or nontestimonial. (Davis, supra, 547 U.S. at p. 822.) It did further define the categories, however, stating: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Ibid., fn. omitted.) Where the declarants "statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were `initial inquires is immaterial. [Citation.]" (Id. at p. 832, fn. omitted.)
From Davis, the California Supreme Court has derived several basic principles. "First, . . ., the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony — to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined `objectively, considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Cage, supra, 40 Cal.4th at p. 984, fns. omitted.)
Examining Cindys statements in light of the foregoing authorities, we conclude that the statements admitted with respect to the 1998 incident were testimonial within the meaning of Crawford and its progeny. By the time Detective Meek contacted Cindy, he knew appellant was in custody. Although the situation understandably may still have been very upsetting to Cindy, it no longer constituted an emergency. Viewed objectively, the primary purpose for which Meek took Cindys statement was not to deal with a contemporaneous emergency, but to produce evidence about past events for possible use at a criminal trial. (See Davis, supra, 547 U.S. at pp. 829-830; Cage, supra, 40 Cal.4th at pp. 984-986.) Accordingly, and leaving aside application of the doctrine of forfeiture by wrongdoing, admission of Cindys statements to Meek, without an opportunity for cross-examination by appellant, was a violation of the Sixth Amendment.
It has been suggested that statements falling within the purview of section 1240 may never be "testimonial," since they are, by definition, made without reflection or deliberation and, thus, are not made in contemplation of their testimonial use in a future trial. (People v. Corella (2004) 122 Cal.App.4th 461, 469; see also People v. Pedroza (2007) 147 Cal.App.4th 784, 794.) As Cage teaches, however, we must consider not only the purpose for which the statements were given, but also the purpose for which they were taken. (See Cage, supra, 40 Cal.4th at p. 984.)
The situation is different with respect to the statements Cindy made in conjunction with the 2001 incident. The reported involvement of a shotgun strongly suggests the primary purpose for which at least Cindys initial statements were given and taken was to deal with a contemporaneous emergency. Although appellant was not at the house when Officer Pree arrived, his whereabouts apparently were unknown and there was the possibility he might regain access to the firearm. Thus, even though Cindy was now somewhat protected because an officer was present, both she and the officer reasonably could have been in danger. Accordingly, we find no Sixth Amendment violation. (Compare Davis, supra, 547 U.S. at pp. 817, 828 [emergency appeared to have ended once Davis drove away from the premises; no weapons were involved in assault on victim].)
A closer question is presented by Cindys 2002 statements, but we again think they pass muster under the Sixth Amendment. Although Cindy and appellant were physically separated when Officer Alfano contacted her, she had had to leave her home due to appellants violence, and, given the early morning hour, it was reasonable to infer that Cindy could not return home until the situation was resolved. Under the circumstances, her statements were not testimonial in nature. (See People v. Saracoglu, supra, 152 Cal.App.4th at pp. 1596-1598 & fn. 8.)
A violation of the confrontation clause is subject to harmless-error analysis under the standard of Chapman v. California (1967) 386 U.S. 18. (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225, & fn. 42; see People v. Ledesma, supra, 39 Cal.4th at p. 709.) Factors to be considered in determining whether the error was harmless beyond a reasonable doubt include "`the importance of the witness testimony in the prosecutions case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecutions case." (People v. Mitchell, supra, 131 Cal.App.4th at p. 1225, fn. omitted, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.)
In analyzing these factors in the present case, we conclude that any error in admitting any of Cindys statements to police was harmless beyond a reasonable doubt. Katrina Murillos testimony regarding the 1999 or 2000 incident did not implicate the confrontation clause, and appellant does not contend otherwise. Murillo testified to hearing what sounded like appellant striking Cindy, and Cindy telling him to stop hitting her. Murillo testified that she heard this sort of thing many times. Pauline testified to seeing appellant strike Cindy in the face with his fist just hours before the homicides. Significantly, appellant himself admitted having struck Cindy on occasion, including possibly during the 1998 incident, and he testified that he was convicted of domestic violence as a result of that incident. He could have been impeached with this conduct even in the absence of Cindys statements. (See People v. Wheeler (1992) 4 Cal.4th 284, 295-297; People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1401-1402.)
II
INTOXICATION INSTRUCTIONS
The jury was instructed on first and second degree murder, and on voluntary manslaughter based on sudden quarrel or heat of passion. With respect to the latter, jurors were told, in pertinent part: "The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] One, the defendant was provoked; Two, as a result of the provocation the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and Three, the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] . . . [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his 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."
At appellants request, the trial court also instructed on voluntary intoxication. Pursuant to CALCRIM No. 625, jurors were told: "You may consider evidence, if any, of the defendants voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation. [¶] . . . [¶] You may not consider evidence of voluntary intoxication for any other purpose."
Appellant now contends jurors should have been instructed they could consider voluntary intoxication in assessing the provocation/heat of passion theory. He says either the trial court had a sua sponte duty to so instruct, or defense counsel rendered ineffective assistance by failing to request such an instruction.
A trial court has no sua sponte duty to instruct on voluntary intoxication. (People v. Saille (1991) 54 Cal.3d 1103, 1120; accord, People v. Bolden (2002) 29 Cal.4th 515, 559.) If it does instruct on the topic, however, it must do so correctly. (People v. Mendoza (1998) 18 Cal.4th 1114, 1134.) The instruction given here was correct; as we shall explain, an instruction such as that now sought by appellant would incorrectly state the law as it presently exists. It necessarily follows that defense counsel did not perform deficiently by failing to request such an instruction.
Penal Code section 22, subdivision (b) currently provides: "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." "Express malice aforethought" constitutes an intent unlawfully to kill. (Id., § 188.) As the Court of Appeal in People v. Timms (2007) 151 Cal.App.4th 1292 found, after reviewing the history of Penal Code section 22 (including the 1995 amendment that enacted subd. (b) in its present form), CALCRIM No. 625 "is true to [Penal Code] section 22, as amended." (Timms, supra, at p. 1298.) We agree. "The 1995 amendment to [Penal Code] section 22 results from a legislative determination that, for reasons of public policy, evidence of voluntary intoxication to negate culpability shall be strictly limited." (People v. Martin (2000) 78 Cal.App.4th 1107, 1117.) Accordingly, appellant was not entitled to have the trial court give, whether sua sponte or upon request, an instruction permitting jurors also to consider intoxication with respect to provocation.
People v. Humphrey (1996) 13 Cal.4th 1073 (Humphrey) and People v. Cameron (1994) 30 Cal.App.4th 591 (Cameron ), on which appellant primarily relies, do not assist him. Humphrey, a self-defense case, deals with battered womens syndrome and nowhere addresses the specific rules regarding voluntary intoxication the Legislature has prescribed in Penal Code section 22. Cameron, while addressing the issue of voluntary intoxication, does so in the context of implied malice and antedates the 1995 amendment to Penal Code section 22, subdivision (b).
Moreover, Cameron states: "As to the partial defense that defendant lacked the intent to kill and the act occurred in the heat of passion, evidence of intoxication is cognizable. The defense requires provocation capable of arousing sufficient passion and evidence that `the defendant in fact did act under it. [Citation.] Intoxication is a circumstance from which the jury might find that defendants act in response to the provocation should be attributed to passion rather than judgment." (Cameron, supra, 30 Cal.App.4th at p. 601.)
This statement refers only to the subjective component of a heat of passion defense. However, "[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As [the California Supreme Court] explained long ago in interpreting the . . . language of [Penal Code] section 192, `this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because `no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)
In People v. Lee (1999) 20 Cal.4th 47, a plurality of the California Supreme Court rejected the argument that a defendants intoxication (which the defendant argued may have caused him to be prone to emotional instability and to lack critical judgment, thus increasing the possibility he reacted strongly to only modest provocation) played a part in the objective prong, stating: "The test of adequate provocation is an objective one, however. The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment." (Id. at p. 60, italics added.) "Because the test of sufficient provocation is an objective one based on a reasonable person standard, the fact the defendant is intoxicated or suffers from a mental abnormality or has particular susceptibilities to events is irrelevant in determining whether the claimed provocation was sufficient. [Citation.]" (People v. Oropeza (2007) 151 Cal.App.4th 73, 83.)
In light of the foregoing, there was neither instructional error nor ineffective assistance of counsel.
III
QUESTIONING JUROR OUTSIDE APPELLANTS PRESENCE
At the time set for sentencing, defense counsel announced that some issues needed further investigation, and that appellant requested to speak to the court in chambers. The court refused, stating that whatever investigation needed to be done could be done by counsel and his investigator. When defense counsel asked for time to conduct the investigation, the prosecutor related that the subject had been discussed at the bench, and that it was regarding a juror from whom the district attorneys investigator was in the process of obtaining contact information, which the prosecutor would then disclose to defense counsel. The court agreed to trail the hearing until that afternoon.
Sometime prior to sentencing, court personnel received a telephone call from one of the jurors, who indicated that someone — apparently from appellants family — was attempting to contact her. The court turned that information over to the district attorneys office, whose investigator contacted the juror and determined she was no longer scared. The investigators written report about the incident was disclosed to the defense. Since the prosecutor stated, without contradiction, that no further action was necessary on that particular issue, it appears two separate jurors were involved.
After the noon recess, proceedings resumed in chambers. Juror No. 730234 was present. The court related that the defense had brought to light the possibility of a familial relationship between the juror and appellant. The juror stated she was now aware of the fact that the husband of her cousin, who lived in Hawaii, was related to appellant, possibly by virtue of their parents being siblings. The juror was not sure of the exact relationship and had not been aware of it at the time of trial. She became aware of it the day she came home, after the verdict. In addition, the jurors father telephoned her on the morning of deliberations, but only told her that he had done a couple of trials, that he knew what was going on, and that she should just make sure she did what was right. He did not tell her to vote one way or the other and would not discuss it further with her, but simply told her to call him later on. When she did, after the verdict, he said that someone from appellant had contacted him in person and was trying to coerce him to tell the juror to go with a lesser plea. At that point, the juror contacted her sons school and told them no one was to pick her son up or drop him off beside herself or her mother. Although the juror had not been threatened, her father told her, again after the verdict, that someone recognized her in the courtroom. This really frightened her. When the juror talked to her cousin after the verdict, her cousin related that appellants mother was contacting the cousin in Hawaii during the entire trial. The mother wanted the cousin to relay messages to the juror. As soon as the juror found out about everything that was going on, she contacted the district attorneys office to report it.
The morning proceedings were held in open court.
After the juror was excused, defense counsel asked permission to show a transcript of the hearing to appellant, to verify that the issues had been addressed. The court agreed. Sentencing then commenced in open court. Defense counsel stated there was no legal cause why sentence should not be pronounced, and, at appellants request, moved for a new trial based on the speed with which the jury returned its verdict. The motion was denied and sentence was imposed.
It appears, from the clerks minutes, that jurors deliberated for 43 minutes.
Appellant now contends the trial courts questioning of a juror outside his presence violated his federal and state constitutional rights, as well as his state statutory right to be present. He says reversal is required regardless of whether the error is considered to be structural.
The California Supreme Court has stated the applicable law as follows:
"Under the Sixth Amendments confrontation clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless his appearance is necessary to prevent `interference with [his] opportunity for effective cross-examination. [Citations.]
"Similarly, under the Fourteenth Amendments due process clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a `stage . . . that is critical to [the] outcome and `his presence would contribute to the fairness of the procedure. [Citation.]
"Under section 15 of article I of the California Constitution, a criminal defendant does not have a right to be personally present `either in chambers or at bench discussions that occur outside of the jurys presence on questions of law or other matters as to which [his] presence does not bear a "`"reasonably substantial relation to the fullness of his opportunity to defend against the charge."" [Citations.]
"Lastly, under sections 977 and 1043 of the Penal Code, a criminal defendant does not have a right to be personally present where he does not have such a right under section 15 of article I of the California Constitution. [Citations.]" (People v. Waidla, supra, 22 Cal.4th at pp. 741-742; accord, e.g., Kentucky v. Stincer (1987) 482 U.S. 730, 744-745 & fn. 17; People v. Davis (2005) 36 Cal.4th 510, 530; People v. Cole (2004) 33 Cal.4th 1158, 1231; People v. Bradford (1997) 15 Cal.4th 1229, 1356-1357.)
Subdivision (b)(1) of Penal Code section 977 provides: "In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . ."
Subdivision (a) of Penal Code section 1043 provides: "Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial."
"`An appellate court applies the independent or de novo standard of review to a trial courts exclusion of a criminal defendant from trial, either in whole or in part, insofar as the trial courts decision entails a measure of the facts against the law. [Citation.]" (People v. Perry (2006) 38 Cal.4th 302, 311-312; People v. Waidla, supra, 22 Cal.4th at p. 741.) "Erroneous exclusion of the defendant is not structural error that is reversible per se, but trial error that is reversible only if the defendant proves prejudice. [Citations.]" People v. Perry, supra, 38 Cal.4th at p. 312; Rushen v. Spain (1983) 464 U.S. 114, 117-119; see also Campbell v. Rice (9th Cir. 2005) 408 F.3d 1166, 1172.) Accordingly, the burden is on appellant to "demonstrat[e] that his absence prejudiced his case or denied him a fair trial. [Citations.]" (People v. Bradford, supra, 15 Cal.4th at p. 1357.) Stated another way, he "`bears the burden of demonstrating that personal presence could have substantially benefited the defense. [Citation.] [Citations.]" (People v. Price (1991) 1 Cal.4th 324, 408.)
Appellant has not met that burden here. This was not a hearing at which evidence was presented concerning his guilt or innocence. It was not even an evidentiary hearing concerning juror misconduct per se, but instead was in the nature of a preliminary inquiry to ascertain whether further investigation might be warranted or instead whether imposition of sentence could go forward that day. It is clear, from the record, that appellant knew what was going on. It is also clear that he had time to discuss the matter with defense counsel. If appellant had pertinent information he wanted to provide to the court, he could have provided it to his attorney. (See, e.g., People v. Davis, supra, 36 Cal.4th at p. 533; People v. Box (2000) 23 Cal.4th 1153, 1191; People v. Bittaker (1989) 48 Cal.3d 1046, 1080.) If he wanted to dispute that his family had wrongfully attempted to contact a juror (which seems likely, since admitting there was wrongful contact could have left at least his mother open to potential criminal charges), he likewise could have conveyed that to defense counsel. Moreover, such a denial — even if believed by the trial court — would have had no effect, since the issue was what the juror believed had happened, and when it happened. (See People v. Siripongs (1988) 45 Cal.3d 548, 572.)
"Under the federal Constitution, error pertaining to a defendants presence is evaluated under the harmless beyond a reasonable doubt standard set forth in Chapman v. California[, supra,] 386 U.S. [at p.] 23. [Citations.] Error under [Penal Code] sections 977 and 1043 is state law error only, and therefore is reversible only if `"it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) [Citations.]" (People v. Davis, supra, 36 Cal.4th at pp. 532-533.) We conclude that, even assuming appellant had a right to be present during the in-chambers inquiry of the juror, he "has not shown how his attendance . . . would have assisted the defense or otherwise altered the outcome . . ., and therefore has not demonstrated prejudice" under either standard. (People v. Bradford, supra, 15 Cal.4th at p. 1358; see, e.g., United States v. Gagnon (1985) 470 U.S. 522, 526-527; People v. Johnson (1993) 6 Cal.4th 1, 18-20, overruled on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879.)
IV
EXCESS MULTIPLE-MURDER SPECIAL-CIRCUMSTANCE FINDING
The information alleged two multiple-murder special circumstances pursuant to Penal Code section 190.2, subdivision (a)(3), one in connection with each murder, and the jury found both to be true. The prosecution did not seek the death penalty. At sentencing, defense counsel observed that only a single such special circumstance should have been alleged; hence, he argued, only one term of life in prison without the possibility of parole (LWOP) plus 25 years to life should be imposed. The trial court implicitly disagreed and sentenced appellant to two consecutive terms of LWOP plus 25 years to life.
Appellant now correctly asserts that one of the two multiple-murder special-circumstance findings must be stricken. It does not follow, however, that his sentence must be modified.
Subdivision (a)(3) of Penal Code section 190.2 provides for a penalty of LWOP or death for a defendant who is found guilty of first degree murder where "[t]he defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree." As the California Supreme Court has consistently held for some time now, "[a] defendant charged with two murders may be charged with only one multiple-murder special circumstance, which should be charged separately from the individual murder counts. [Citations.]" (People v. Crandell (1988) 46 Cal.3d 833, 880, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; accord, e.g., People v. Halvorsen (2007) 42 Cal.4th 379, 422; People v. Danks (2004) 32 Cal.4th 269, 315; People v. Marshall (1996) 13 Cal.4th 799, 855; People v. Kimble (1988) 44 Cal.3d 480, 504; People v. Anderson (1987) 43 Cal.3d 1104, 1150; People v. Allen (1986) 42 Cal.3d 1222, 1273.) Where, as here, the district attorney erroneously attaches a multiple-murder special-circumstance allegation to each murder charge, and the jury finds the allegations to be true, the appropriate remedy is to strike the superfluous finding(s). (People v. Halvorsen, supra, 42 Cal.4th at p. 422; accord, e.g., People v. Marshall, supra, 13 Cal.4th at p. 855; People v. Avena (1996) 13 Cal.4th 394, 425; People v. Mason (1991) 52 Cal.3d 909, 953; People v. Crandell, supra, 46 Cal.3d at pp. 880-881.)
This does not mean, however, that appellant is entitled to have his sentence on one count reduced to life in prison with the possibility of parole plus 25 years to life — in other words, the sentence he would have faced absent the special circumstance. The single multiple-murder special circumstance applies to both murders. (People v. Garnica (1994) 29 Cal.App.4th 1558, 1563; see People v. Anderson, supra, 43 Cal.3d at p. 1150; People v. Harris (1984) 36 Cal.3d 36, 67 [plur. opn. of Broussard, J.], disapproved on other grounds in People v. Bell (1989) 49 Cal.3d 502, 526, fn. 12, abrogated on other grounds in People v. Melton (1988) 44 Cal.3d 713, 765-767.) "A defendant who kills more than one person may be convicted and punished for each murder. [Citations.]" (People v. Sandoval (1992) 4 Cal.4th 155, 197, italics added, affd. sub nom. Victor v. Nebraska, supra, 511 U.S. 1.) Thus, a trial court is not precluded — even by Penal Code section 654 — from imposing a separate, consecutive sentence of LWOP for each first degree murder conviction, based on the single multiple-murder special circumstance. (People v. Garnica, supra, 29 Cal.App.4th at pp. 1562-1564.)
Penal Code section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
DISPOSITION
The judgment is modified by striking one of the multiple-murder special-circumstance findings under Penal Code section 190.2, subdivision (a)(3). In all other respects, the judgment is affirmed.
WE CONCUR:
Levy, J.
Dawson, J.