Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INF049480, Harold W. Opp, Judge.
Sharon G. Rubella, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Sc hons, Assistant Attorney General, and Rhonda Cartwright-Overladen and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant guilty of the first degree murder Jorge Danila (Pen. Code, § 187, subd. (a)) (count 1) and assault with a firearm on Mary Rodriguez (§ 245, subd. (a)(2)) (count 3). The jury also found true that in the commission of both offenses, defendant personally used a firearm (§ 12022.5, subd. (a)) and that in the commission of count 1, defendant personally discharged a firearm causing death (§ 12022.53, subd. (d)) and killed the victim while lying in wait (§ 190.2, subd. (a)(15)). Defendant was sentenced to a total term of life without the possibility of parole plus 25 years to life on count 1 and a consecutive eight years on count 3. Defendant’s sole contention on appeal is that the trial court prejudicially erred in admitting the autopsy photos of the victim. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
The jury acquitted defendant on count 2 for premeditated attempted murder as to Rodriguez (§§ 664/187, subd. (a)).
I
FACTUAL BACKGROUND
On January 2, 2005, as Mary Rodriguez, her two young children and a young friend of theirs, and her boyfriend Jorge Danila were stopped in their car in front of Danila's friend’s home, Rodriguez saw a shadow outside the car and then heard a gunshot. Rodriguez noticed her son was covered in blood and “meat.” Rodriguez heard another gunshot and saw that Danila had “blood squirting everywhere.” Several gunshot pellets had also struck Rodriguez.
Danila had been shot through the right ear with a shotgun slug, and several buckshot pellets had penetrated his neck and chest. Danila died from his shotgun wounds.
Police discovered two expended Smellier and Bellow shotgun shells two to three feet from the car. Police also learned that Raul Garcia, who went by the gang moniker “Scarface,” lived at the home near the shooting location.
The following day, police executed a search warrant at the defendant’s cousin’s home, where defendant had been residing. Hidden in a child’s bedroom, officers discovered a loaded shotgun and Smellier and Bellow brand ammunition. Officers arrested defendant’s cousin, Richard Machs.
During the search, defendant walked up to Desert Hot Springs Police Officer Brian Mahout, who was waiting outside, and asked if everything was okay. Officer Mahout told defendant that Machs had been arrested. Defendant responded, “You guys have the wrong person.” When the officer asked for clarification, defendant stated, “Richard didn’t do it. I’m the one you guys want.” Defendant then turned around, placed his hands on his head, and said “murder.” Officer Mahout immediately arrested defendant.
In a videotaped interview, defendant confessed to the shooting. The videotape was played for the jury. Defendant stated that he and Raul Garcia had had past gang disputes and had had a run in that day. Angry, he had taken a shotgun to Garcia’s residence and had waited for him to arrive. A vehicle drove up with a man and woman in it; defendant thought the man was Garcia. He approached the car and shot the man twice through the closed window from a distance of about four feet. He claimed that “guilt” made him confess to the shooting.
In a videotaped interview with defendant’s cousin Machs, Machs told police that he and his wife were standing outside of their house when defendant announced that he had just shot Garcia. Defendant later added that he had waited for Garcia and had shot the man he thought was Garcia twice in the head, once with buckshot and once with a slug. The videotaped interview was played for the jury.
II
DISCUSSION
Defendant argues the trial court abused its discretion under Evidence Code section 352 and deprived him of a fair trial by admitting seven gruesome and cumulative autopsy photographs of the deceased victim.
Prior to trial, the People sought to admit the autopsy photographs of the victim, exhibits 32 through 38, which were taken before any autopsy incisions were made. Defendant moved to exclude those photographs, which depicted the shotgun wounds sustained by the victim in the same position but from different perspectives, arguing they were irrelevant because the cause of death was not at issue, and the photographs were more prejudicial than probative. After reviewing the photographs, the trial court admitted them under Evidence Code section 352, finding that they were not “particularly gruesome, individually or cumulative[sly].”
At trial, Riverside County Sheriff’s Forensic Pathologist Mark McCormick, M.D., utilized the photographs to show where and how the victim had sustained the shotgun wounds. Exhibit 32 showed the victim as he had arrived at the coroner’s office. Exhibit 33 showed a close-up view of the right side of the victim’s ear where he had sustained a shotgun wound. Exhibit 34 illustrated more shotgun wounds to the victim’s lower neck and upper chest. Exhibit 35 depicted the right side of the victim’s head, neck, and chest, and exhibits 36 and 38 provided closer views of those areas and of the injuries sustained by the victim. Finally, exhibit 37 showed the victim’s neck area.
A trial court has broad discretion in determining whether evidence is relevant. (People v. Schneider (1997) 16 Cal.4th 1, 14.) Photographs of a crime scene are relevant to show that a crime was committed and to corroborate or illustrate witness testimony about the crime. (Id. at pp. 14-15, 18.) In Schneider, the court rejected the defendant’s argument that a photograph of the murder victim’s “bloodied, lifeless body” was irrelevant because the defendant was not at the scene during the actual shooting, the defendant was being prosecuted on a felony-murder theory and thus there was no issue of malice, and the parties were willing to stipulate as to the cause of death and the murder weapon. (Id. at pp. 14-15.) The Schneider court stated that the defendant’s position was “based upon an inappropriately narrow view of the concept of relevancy.” (Id. at p. 14.) The court explained that a photograph that showed a murder had been committed was relevant even if it was cumulative to other evidence, and the only ban on cumulative evidence arose under Evidence Code section 352. (Schneider, at pp. 15-16.) Further, the photograph did not lose its relevancy merely because malice was not at issue or because the defendant did not dispute the circumstances of the crime. (Id. at pp. 16-17.) The court reasoned that the prosecution was not obligated to prove details solely through witness testimony and was entitled to establish the fact that a murder had been committed “through the use of the most probative and compelling evidence available....” (Id. at p. 17; see also People v. Ramirez (2006) 39 Cal.4th 398, 452 [gruesome photo of victim with her eyes cut out admissible because highly relevant]; People v. Carter (2005) 36 Cal.4th 1114, 1168 [that photos of murder victims are graphic and disturbing does not render them unduly prejudicial]; People v. Michaels (2002) 28 Cal.4th 486, 532 [“[a]lthough photographic evidence is often cumulative of testimonial evidence, that fact does not require its exclusion, ‘[b]because the photographic evidence could assist the jury in understanding and evaluating the testimony’”].)
Even relevant evidence should be excluded under Evidence Code section 352, however, if the potential for prejudice outweighs probative value. “‘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.] The court’s exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.]’ [Citation.]” (People v. Schneider, supra, 16 Cal.4th at p. 18.) Generally, a jury is entitled to see photographs of a murder victim even if the photographs are cumulative of testimonial evidence. (Id. at p. 19.) The courts recognize that victim photographs in homicide cases are always disturbing, but they need not be excluded unless they are “unduly gory or inflammatory.” (Ibid.) For example, a court may be required to exclude photographs that depict “a close-up view of the victims’ wounds”; a “revolting portraiture displaying horribly contorted facial expressions”; badly decomposed bodies; or bodies disfigured during autopsy. (Id. at pp. 19-20.) Further, inappropriate use of photographs may occur if the prosecution seeks to reinforce the potential impact of the photographs with multiple exposures of similar views, or by unduly belaboring the issue by using the photographs extensively in examining witnesses. (Id. at p. 20.)
Here, the photographs were relevant to prove that the victim had been shot with a shotgun through the passenger-side window and to support the prosecution’s theory of how the murder was committed, illustrating the pathologist’s testimony regarding the resulting injuries and the cause of death. The exhibits also helped to corroborate Rodriguez’s testimony. It appears the photographs were used by the prosecution only briefly during Dr. McCormick's testimony.
We have reviewed the nine photographs and, although by their nature they are unpleasant to view, they are not unduly gruesome or inflammatory. The photograph that is the most disturbing is that of the close-up view right side of the victim’s ear where the shotgun wound was inflicted, which shows a large gash. But the pathologist’s description of the victim’s injuries and autopsy findings and Rodriguez’s testimony about seeing the victim’s “meat” on her son and seeing the victim’s “blood squirting everywhere” were as disturbing as the photographs presented to the jury, thus diminishing the potential that the photographs would impermissible sway the jury. (See People v. Schneider, supra, 16 Cal.4th at p. 20.)
Although the photographs were relevant to an issue that was not directly disputed by defendant the cause of death this fact still had to be proven by the prosecution. (See People v. Laidlaw (2000) 22 Cal.4th 690, 723 [the defendant’s not guilty plea puts all elements of the crime in dispute]). The photographs were relevant to the prosecution theory of how the murder was committed. They were not so graphic that they might have overcome the jury’s rationality. The trial court could reasonably conclude any potential for prejudice was minimal, and there was sufficient probative value to warrant admission. Accordingly, the court did not abuse its discretion or deprive defendant of a fair trial by admitting the photographs.
Even if we assume, for the sake of argument, the trial court erred in admitting all or some of the photographs, any error was harmless under the standards of People v. Watson (1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18, 24 [87 Sect. 824, 17 Led.2d 705]. The evidence overwhelmingly supported the jury’s verdict. The eyewitness testimony, as well as defendant’s own admissions, supported the prosecution’s theory of the case that defendant obtained a shotgun and waited for Garcia outside of his residence to murder him. The challenged photographs did not give the jury any information that was not presented through witness testimony. Notably, the fact that the jury acquitted defendant on the attempted murder charge as to Rodriguez indicates it carefully considered the evidence and was not particularly prejudiced against defendant for any reason. Based on the witness testimony and defendant’s statements to the police, we reject defendant’s contention that the evidence supported a verdict less than first degree murder and that he would have achieved a more favorable result without the photographs.
This is not a close case. Not only has defendant failed to show a reasonable probability that the jury would have reached a different result if the challenged photographs had been excluded, but any error was harmless beyond a reasonable doubt. (See People v. Cole (2004) 33 Cal.4th 1158, 1199 [finding any error admitting photos harmless under state and federal constitutions].)
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., McKINSTER J.