Opinion
D039837.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. JESSE ANDREW VILLA, Defendant and Appellant.
A jury convicted appellant Jesse Villa of first degree murder (Pen. Code, § 187, subd. (a)), and found true that he used both a hammer and a knife in connection with the murder. ( § 12022, subd. (b)(1).) The court found true that Villa had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction ( § 667, subds. (b)-(i)). The court sentenced Villa to a prison term of 50 years to life on the murder conviction, plus one consecutive five-year term for the prior serious felony conviction and two consecutive one-year terms for each of the weapons enhancements. The contested issues on appeal involve alleged evidentiary and instructional errors.
All further statutory references are to the Penal Code unless otherwise specified.
Villa also argues that it was error to impose separate terms for each of the two weapons enhancements, and respondent concedes the court should have imposed only one term. Accordingly, we direct the abstract of judgment be amended to reflect that one of the section 12022, subdivision (b)(1) enhancements be stayed.
I
FACTS
A. Prosecution Case
Percipient and Physical Evidence
Villa lived in a rented trailer in space 73 at a trailer park in San Diego, but was scheduled to move out on March 4, 2001, after being evicted. On March 5, 2001, at about 3:00 a.m., several San Diego police officers went to the trailer in response to an anonymous telephone call reporting that a man had been hit in the head with a hammer at the trailer. The officers knocked on the door; when there was no response, they looked through a window and saw blood on a wall and a large object on the floor that appeared to be a rolled up carpet or blanket covering a body. One officer entered through a window because the doors to the trailer were locked. Officers found the body of James Najar under the blanket. Najar had been badly beaten and was dead; a blood soaked pillow covered his face and there was blood on the walls and carpet.
Officers searched the trailer and found Villa sleeping in the back bedroom. When they yelled that there was a person in the trailer, Villa mumbled that he was getting ready to leave and wanted to sleep. Villa, who had no blood on him, came out of the bedroom and was detained.
Members from the Homicide Unit arrived around 5:00 a.m. and were told there was no weapon at the scene. Later that morning, they learned a weapon had been put in the trash receptacle serving space 45 in the trailer park. The trash had been picked up and police went to the dump, where they found a white trash bag containing a hammer; a small, wood-handle steak knife; socks; and a blue jacket. All of these items had Najars blood on them. Police also found Villas left shoe near space 45; the shoe had Najars blood on it.
The autopsy showed Najar died of more than 30 blunt force injuries to his head consistent with being struck by the hammer retrieved from the trash. There were also six stab wounds to the neck and a stab wound to Najars upper abdomen, which occurred close to the time of death. The wounds had been inflicted over a period of time and were consistent with being inflicted on a person who was on his back and helpless. The blood pattern evidence, found in the living room and the kitchen, was consistent with Najar having been beaten in three different places inside the trailer.
Villas Post-arrest Statements
Villa was interviewed three times by police on the morning of his arrest. At the first interview, conducted by Detectives Tefft and Warrick around 6:00 a.m., detectives did not notice any unusual odors to suggest Villa had been drinking. Villa told the detectives that, on the day before his arrest, he was at a relatives home until around 4:00 p.m., after which he returned to the trailer park and went to his uncles trailer. However, Villa was not allowed to enter and, after getting something to eat from a taco shop across the street, returned to his own trailer. Villa saw that it had been "trashed" after he left earlier that day, and a window appeared to be broken, but he did not call police. There was writing on the walls and Najars body on the floor. He knew Najar as a transient with whom Dawn Johnson (who had stayed in Villas trailer) had a brief affair while she lived at the trailer. Villa covered the body with a blanket, went to his bedroom, fell asleep, and remained asleep until awakened by police. He claimed he did not call police because he was drunk and was supposed to have vacated the trailer, but he planned to call police in the morning when he awoke. He thought the police were there to evict him and did not know why someone had called to report that a man had been hit with a hammer at his trailer.
In a second interview, conducted shortly after the first interview by Detective Tefft and Officer Fisher, Villa claimed he had not consumed any drugs or alcohol except for some marijuana and two 24-oz. cans of beer around noon the preceding day. He initially repeated his story that, when he returned from the taco shop and entered his trailer, he found Najars lifeless body on the floor and covered it with a blanket. He decided to wait to call police because he was "buzzed" on beer and marijuana and wanted to sober up before he called. Villa claimed he did not know who killed Najar. As this interview progressed, Fishers questions became more pointed. Villa admitted he had lied in the past, including lying to a judge, but stated he had never lied to police. He claimed he had never stabbed anyone or put anyone in a hospital. In response to a series of specific questions, Villa stated he did not kill Najar, was not there when Najar was beaten, and did not know (or even suspect) who had been the perpetrator. Fisher then replied he knew Villa was lying, and knew Villa had been the perpetrator, and that unless Villa told them the whole story the police were "going to think . . . the worst about you. That you were lying in wait for this guy or something . . . ." Fisher then recited the improbabilities inherent in Villas version of events and stated that, if Najar had stolen from Villa or induced him to try some bad methamphetamine, it was important for Villa to tell the truth about those events.
It appears that Fisher was a polygraph expert and Villa was being subjected to a polygraph test during this second interview. However, Villa moved in limine to exclude any use of the videotape of this interview because it revealed Villa was undergoing a polygraph test and a jury might infer that Villa changed his story because the polygraph test showed he was lying to police about not being the person who attacked Najar. The court resolved the quandary by allowing use of the audiotape (and a transcript) of the second interview after redacting any references in it (or any other interview) to the fact that Villa underwent a polygraph test during questioning.
At this point during the second interview, Villa stated, "All right, man[,] you got me" and dramatically revised his story. He claimed that when he returned home he was drunk on beer and tequila and high on methamphetamine. Najar was in the trailer and surprised him; Najar tried to stab Villa with a knife. Villa defended himself by hitting Najar with a hammer, but the initial blow did not stop Najar because he was "tweaked" on methamphetamine, so Villa kept hitting him until Najar stopped moving.
In the third interview, conducted by Detectives Tefft and Warrick around 9:30 a.m., Villa claimed he lied in his previous statements because he was on probation and was nervous. Villa claimed he was drunk and high on methamphetamine when he went to his uncles trailer around 9:00 or 10:00 p.m. on May 4, 2001. When he could not get into his uncles trailer, he returned to his own trailer around 10:00 or 11:00 p.m. The window was open, a light was on, and when he walked into the kitchen Najar was there. When Villa demanded to know why he was there, Najar came at him. Villa knew Najar to be a "speed freak" who was "notorious for stuff." Najar had stabbed Villa in September 2000 in a dispute over a bicycle. When Najar came at him, Villa reacted by hitting him with a hammer before Najar could pull out a knife. When Najar got back up, Villa hit him again and kept hitting him a total of four or five blows after Najar was again down; Villa attributed these continued blows to his rage and being high on methamphetamine. Villa was not trying to kill him, but feared Najar would stab him. Villa put a pillow over Najars face and threw the hammer over a fence into a nearby marsh. He later retrieved the hammer and put the hammer, along with the clothes he was wearing, into a dumpster. He also had new shoes that had blood on them. He called his uncle Frank around midnight to tell him that he had killed Najar. Frank told Villa to call police but Villa said he would wait until morning. Villa first stated he had not told anyone else about what had happened. However, he later admitted he told a neighbor (Danny) because Danny saw Villa taking the bloody clothes to the dumpster. Villa told Danny he had to kill Najar because Najar broke into the trailer and was trying to kill him. Villa showered and went to the taco shop around midnight; on the way he saw Nancy, Nick and Danny, three of Villas neighbors. Nancy asked if Villa had seen Najar because he owed her money. Villa responded he had not seen Najar, and Danny said nothing. Villa later returned to his trailer and went to sleep.
B. Defense Case
Villa was born to a drug-addicted mother, never knew his father, and had psychological problems. Villa moved into the trailer park in the summer of 2000 and lived there with a roommate, Moses Gomez, until he was evicted in March 2001. Johnson also lived in the trailer from February 2001 until they were evicted; Villa had a sexual relationship with Johnson while they lived together.
Villa met Najar in August 2000. Villa had left his housemates bicycle at an apartment complex. When Villa returned to the complex to retrieve the bicycle, Najar was nearby. Najar confronted Villa, an argument ensued, and Najar began beating Villa. Villa noticed he was bleeding, realized he had been stabbed, and fled. He went to a friends house, cleaned himself up, and called police. Later that month, Najar threatened Villa on two other occasions, including one occasion on which Najar threatened Villa with a 12-inch knife.
In September 2000 Villa was arrested for and pled guilty to assault with a deadly weapon. He served 60 days in jail and was placed on probation, which included a regular drug testing condition. After Villa was released from custody in November 2000, he saw Najar at a friends house. Najar and Villa agreed to resolve their differences; thereafter, Villa saw Najar on a regular basis and they shared drugs supplied by Najar. Najar bragged that he was a thief, and Villa knew from experience that he was violent.
When police searched Villas trailer in September 2000, they found a shotgun (along with a box of shotgun shells) and a large hunting knife in his closet. They also found a handwritten note, apparently authored by Villa, with a laundry list describing alternatives for exacting physical punishment on a person. The note mentioned "shoot the kneecaps," "break neck, fatality," "hang with suicide note," "kidnap, torture, let go petrified," "ball batt his ribs and torso and back" and other methods of attack.
The defense also introduced evidence of police reports from May 1995 and June 1995 in which two victims alleged Najar had stabbed them.
The trailer park was a gathering place for drug and alcohol abusers. Villa met Johnson when she came to his trailer to use methamphetamine; she then moved in with Villa and began a sexual relationship with him. Johnson also used drugs and had sex with Najar when he visited to use drugs at Villas trailer, but Villa was not jealous of the Johnson/Najar tryst. After moving into the trailer park, Villa became reacquainted with Lisa Guzman, who was also a regular user of alcohol and methamphetamine.
On March 2, 2001, Villa was using methamphetamine when Najar came to his trailer. Several other people, including Johnson, were also at the trailer at that time. When Najar attempted to convince a 15-year-old girl to accompany him on a crime spree, Villa became upset and ordered Najar to leave. Villa went to his uncles trailer, and they returned and ordered Najar to leave, which he did, in an angry mood. Around 3:00 a.m. the next day as Villa left his uncles trailer, he saw Najar standing near a neighbors trailer holding a backpack; it appeared as though Najar was waiting for him. Najar approached Villa and asked why Villa had thrown him out. Villa was afraid of Najar because he knew Najar could hurt him.
A defense witness, Ms. Gullone, lived at the trailer park. She testified to another confrontation between Villa and Najar when Najar was in her yard, looking at Villas trailer, and later saw them heading toward each other with knives. She told them to stop, and Najar left.
Villa knew he had to vacate the trailer and was gathering his belongings to leave on March 4. He saw Guzman sitting in a car parked at the trailer park; they went to a liquor store to buy liquor. When he returned to his trailer, Villa found Najar and a young woman inside. Najar stated he thought Villa had moved out, but Villa said he had a few more hours and demanded that Najar leave, which he did. Villa went to the back bedroom and discovered Najar had written, "Fuck you, dickhead Jesse" on the wall, and had rifled through Villas belongings.
Villa and Guzman then went to a friends house, where Guzman injected Villa with methamphetamine. They returned to his trailer around midnight. As they approached the trailer, Villa saw the door was ajar and the window blinds broken. He picked up a hammer for protection, apparently believing someone might be inside. Villa knew that Najar had hurt him before and might ambush him. He did not plan to kill Najar when he picked up the hammer.
Villa entered through the back door; Guzman was behind him. Villa saw a shadowy figure approaching, recognized it was Najar, and saw Najar holding what Villa thought was a knife. Najar lunged at Villa, who reacted by hitting him with the hammer, causing him to fall. Guzman was standing in the doorway and saw Villa strike Najar; she backed out, closed the door, and left. Villa did not remember stabbing Najar and denied hitting him in the living room. He covered Najar with a blanket and placed a pillow over his face. Villa showered to remove the blood, put the hammer and his clothes in a plastic bag, and threw the bag into the trash.
On cross-examination, Villa admitted that he lied to police when he said he threw the hammer into the marsh and when he denied killing Najar. He admitted lying to police, a probation officer and the judge in his prior case. He also admitted he did not tell police he was under the influence of methamphetamine at the time of the killing and did not reveal he was afraid of Najar. He denied telling Guzman that he intended to kill Najar with the hammer or showing Guzman the hammer underneath his jacket. He also denied telling Johnson and a Ms. Harris, two people who ultimately did not testify, that he intended to kill Najar.
Dr. Smith testified to the effects of methamphetamine use. It can produce paranoia, delusions and erratic behavior, and can alter memory and impair the ability to interpret surroundings. It can also aggravate psychological conditions such as bipolar disorder (by making the manic and depressive phases worse) and can produce irrational, impulsive and violent behavior. Dr. Benson examined Villa and concluded he had a bipolar disorder with severe psychotic features, dementia with learning disabilities, attention deficit hyperactivity disorder, methamphetamine dependency, and alcohol induced anxiety disorder. Villas records also showed a pattern of unruly and violent behavior.
In rebuttal, the prosecution introduced the testimony of Dr. Shule, who opined Villa suffered no mental disease or bipolar disorder.
C. Prosecution Rebuttal
Guzman testified at trial. She stated that on the afternoon of March 4, 2001, she saw Villa; he asked her to have a beer with him and she agreed. He expressed an interest in obtaining some methamphetamine; they went to her friends house to get some but were unsuccessful, and returned to Villas trailer. Villa had a hammer with him and told Guzman he was planning to kill Najar; she did not believe he was serious. Najar was outside the trailer and, because the door was locked, he crawled through a window and opened the door to let Villa and Guzman inside. Guzman was standing in the doorway when she saw Villa hit Najar on the head with the hammer. Najar was sitting on the living room floor near the couch when Villa hit him; Najar neither threatened nor approached Villa before Villa struck him. Guzman then left, but as she left she felt the trailer shaking and heard Villa exclaim, "motherfucker, this is what you get."
Guzman had active warrants for her arrest. She had been a methamphetamine user for 10 years but stopped one month prior to testifying; however, she told investigators she had used methamphetamine the day before testifying. When her permission to live in the United States expired, she moved back to Tijuana, where she lived first with her mother and then in an abandoned house. Guzman wanted to live in the United States but her family here did not want her back. She agreed to testify because the prosecution paid for a 30-day parole letter allowing her to stay in California, and promised to try to put her in a hotel, although she was living in jail at the time of trial.
Guzman went to a bar and drank some more; she was scared and thought she was being followed. She asked a woman at the bar to call an officer to escort her home, and she was escorted on her return home. However, she did not report the attack on Najar to police. She was interviewed by police on March 9 and March 22, 2001.
II
ANALYSIS
A. The Confrontation Clause and Prosecutorial Misconduct Claims
Villa raises two related claims of error in connection with a series of questions posed by the prosecutor during his cross-examination of Villa and the prosecutors subsequent closing argument. First, he argues the prosecution was allowed to introduce inadmissible hearsay, in violation of his confrontation clause rights, when the prosecutor asked Villa whether he made incriminating statements to Johnson and Harris, neither of whom testified at trial. Villa also claims the prosecutor committed misconduct by posing these questions without any factual basis for the questions, and in his closing argument.
Background for Appellate Claims
Prior to trial, defense counsel moved in limine to preclude the prosecutor from a line of cross-examination if Villa elected to take the stand. Specifically, defense counsel argued that, if the prosecutor was unable or unwilling to produce Guzman as a witness at trial, Villa should be free to take the stand without being subjected to cross-examination as to whether the events as related by Guzman to police depicted the true version of events. The court ruled that, as long as the prosecutor had a good faith basis for asking the questions, the prosecutor could cross-examine Villa on whether the events as related by Guzman to police were true. The court therefore denied the motion in limine because Guzmans statements to police satisfied the good faith basis standard and defense counsel did not assert the prosecutor lacked a good faith basis for asking the questions.
Villa elected to testify and, although admitting that Guzman was present at Najars beating, maintained his claim that he acted in self-defense to Najars unprovoked surprise attack. On cross-examination, the prosecutor asked a series of questions based on Guzmans version of the events. The prosecutor also asked, without objection from the defense, whether Villa told Guzman that Villa was "going to kill the bastard" or "kill . . . Najar with a hammer"; Villa denied making those statements. The prosecutor then asked, again without objection from the defense, whether Villa told Johnson he was going to kill Najar and say that Najar had broken into his trailer, and Najar didnt deserve to live; Villa denied making those statements. The prosecutor finally asked, again without objection from the defense, whether Villa told Harris he was going to kill Najar; Villa denied making that statement.
Although the general contours of Villas self-defense version of events was similar to the version he gave to police in his third statement, his third statement continued to maintain there was no one else present when he entered the trailer and Najar attacked him.
The Confrontation Clause Claim
The admission into evidence of hearsay statements violates the confrontation clause of the Sixth Amendment to the United States Constitution unless the statement either falls within a "firmly rooted exception" to the hearsay rule or satisfies a test of "residual trustworthiness." (Lilly v. Virginia (1999) 527 U.S. 116, 134, 144 L. Ed. 2d 117, 119 S. Ct. 1887.) Villa concedes Harris or Johnson could have testified to Villas out-of-court threats to kill Najar under a firmly rooted exception to the hearsay rule. However, Villa argues the prosecutors questions "amounted to unsworn testimony" by the prosecutor that Harris or Johnson made out-of-court statements concerning Villas admissions, and that it is the prosecutors "testimony" that violates the hearsay rule and Confrontation Clause.
We initially conclude Villas contention that the prosecutors question violated the hearsay rule and the confrontation clause is waived because no objection was made on those bases below. (People v. Hill (1992) 3 Cal.4th 959, 994-995, 839 P.2d 984, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Mitcham (1992) 1 Cal.4th 1027, 1044, 824 P.2d 1277.) A timely objection is required to preserve such issue for appeal. (People v. Barnett (1998) 17 Cal.4th 1044, 1171, 954 P.2d 384; People v. Champion (1995) 9 Cal.4th 879, 918, 891 P.2d 93.) Villa argues that because he objected to similar questions concerning Villas alleged statements to Guzman, which were overruled, he should be excused from resurrecting what would amount to a futile objection for similar testimony. However, as was held in another instance in which no hearsay objection was made below, Villa "has not preserved the claim for review. It is, of course, "the general rule" —which we find applicable here— "that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal." [Citations.]" (People v. Waidla (2000) 22 Cal.4th 690, 717, 996 P.2d 46 [italics added]; see also People v. Wheeler (1992) 4 Cal.4th 284, 300, 841 P.2d 938 ["defendant waived any hearsay claim by making no trial objection on that specific ground"].) Villas in limine motion contained no mention of the hearsay rule, but instead asserted the prosecutor should be precluded from asking Villa to confirm a version of events that the prosecutor had no good faith basis to believe it could prove if Villa denied the events. Because no hearsay objection was interposed at any time, either as to Guzman or as to the Johnson or Harris questions, the objection is waived.
However, even if the objection were deemed preserved, there was no violation of the confrontation clause. Villa concedes on appeal that any percipient witness who overheard his out-of-court threats to kill Najar could have testified to those statements under a firmly rooted exception to the hearsay rule. Villa, of course, would have been a percipient witness who overheard his out-of-court threat, and therefore was a proper person to ask to testify to those statements. Although Villa denied those statements, the questions did not result in the introduction of inadmissible hearsay into evidence.
Villas argument, made without citation to authority, is that when an attorney asks a question about out-of-court statements, the attorney has testified to those out-of-court statements. We are not persuaded by this assertion. Moreover, the jury was instructed under CALJIC No. 1.02, which informs the jury that statements and questions of counsel are not evidence. We presume the jury followed this instruction (People v. Hardy (1992) 2 Cal.4th 86, 208, 825 P.2d 781; People v. Delgado (1993) 5 Cal.4th 312, 331, 851 P.2d 811), and did not consider as evidence the content of the Johnson or Harris questions.
The Misconduct Claim
Villa argues the prosecutor committed misconduct because he posed the Johnson and Harris questions to Villa without a good faith basis for believing the prosecutor could show Villa uttered those threats. Villa also asserts the prosecutor committed misconduct because, after Villa denied making the statements to Johnson and Harris and no evidence was introduced that Villa did make those statements to them, the prosecutor nevertheless referred to those threats during closing argument.
A prosecutor can commit misconduct if he attempts to elicit inadmissible evidence (People v. Bonin (1988) 46 Cal.3d 659, 689, 250 Cal. Rptr. 687, 758 P.2d 1217, overruled on another point by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, 952 P.2d 673) or suggests that there is some additional evidence of guilt not introduced at trial. (People v. Wagner (1975) 13 Cal.3d 612, 619-620, 119 Cal. Rptr. 457, 532 P.2d 105.) It can also be misconduct for the prosecutor to refer during closing argument to facts as to which no evidence was admitted at trial. (People v. Bell (1989) 49 Cal.3d 502, 538-539, 262 Cal. Rptr. 1, 778 P.2d 129.)
However, as a general rule, a defendant may not complain on appeal of misconduct unless in a timely fashion, and on the same ground, he makes an assignment of misconduct and requests the trial court to admonish the jury to disregard the impropriety. (People v. Hill, supra, 17 Cal.4th at p. 820.) The exception to this general rule excuses the defendant "from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if "an admonition would not have cured the harm caused by the misconduct." [Citations.]" (Ibid.)
We separately address defendants claims of prosecutorial misconduct. Villa first claims the prosecutor committed misconduct by asking questions that implied unprovable facts. Villa relies on those cases holding that it can be "misconduct for a prosecutor to ask a witness a question that implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to anticipate an answer confirming the implied fact or is prepared to prove the fact by other means." (People v. Price (1991) 1 Cal.4th 324, 481, 821 P.2d 610.) For Villa to rely on this form of misconduct, the prosecutors question must put before the jury information of which there is no evidence and that, but for the improper question, the jury would not have heard. (People v. Earp (1999) 20 Cal.4th 826, 860, 978 P.2d 15.) However, Villa lodged no objection to any of the questions concerning Villas statements to Johnson or Harris. The Earp court, explaining the rationale behind the requirement that a defendant must object to a question implying harmful facts, stated at page 860:
Villa argues he should be excused from objecting because the trial courts ruling rejecting his objection to the cross-examination based on Guzmans statements shows it would have been futile to object to the Johnson and Harris questions. However, Villas objection to the Guzman questions was that it would be improper to cross-examine on the events as related by Guzman because it appeared doubtful at that stage that Guzman, who was then living in Mexico, could be secured as a trial witness. No similar concerns of witness unavailability appear to pertain to securing Johnson and Harris as witnesses, and therefore any ruling as it pertained to Guzman appears irrelevant as to Johnson or Harris.
"If the prosecutor is not asked to justify the question, a reviewing court is rarely able to determine whether this form of misconduct has occurred. [Quoting People v. Price, supra.] [P] . . . Because of defendants failure to request that the prosecutor make an offer of proof regarding the fact implied in the question, it is not possible to conclude from the record that, if asked, the prosecutor would not have been able to put forward evidence establishing the harmful implied fact." (Italics added.)
Here, Villa objected to cross-examination only insofar as it was premised on the version related by Guzman to police; he did not interpose similar objections to the Johnson and Harris questions. It is impossible to conclude from the record here that, if a timely objection had been made, the prosecutor would not have been able to call Johnson and Harris as witnesses to establish Villas statements. This assignment of misconduct is therefore not preserved for appeal.
Although Johnson and Harris were not called as witnesses, Villa confuses the failure to call them with the inability to call them as witnesses. A tactical decision not to call them as witnesses would not transmute otherwise proper cross-examination into prosecutorial misconduct, and the absence of a defense objection to the Johnson and Harris questions precludes us from determining whether the prosecutor had a basis for believing he could (if necessary) obtain their testimony.
Villa also argues the prosecutor committed misconduct because he referred during closing argument to the threats overheard by Johnson and Harris, even though Villa denied making the statements to Johnson and Harris and no evidence was introduced that Villa did make those statements to them. Improper remarks by a prosecutor can " so [infect] the trial with unfairness as to make the resulting conviction a denial of due process " (Darden v. Wainwright (1986) 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464), and under state law a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct even if such action does not render the trial fundamentally unfair. (People v. Price, supra, 1 Cal. 4th at p. 447.) However, as discussed above, the defense is generally required to make a timely objection and request an admonition to cure any harm. (People v. Price, supra, 1 Cal.4th at pp. 447, 460-462 [declining to address whether prosecutors committed misconduct because defense did not object at trial]; People v. Montiel (1993) 5 Cal.4th 877, 914, 855 P.2d 1277 [where trial counsel objected to the prosecutors conduct, his failure to also request an admonition constituted a waiver of the prosecutorial misconduct issue on appeal].)
Specifically, Villa cites the portion of the prosecutors rebuttal argument in which the prosecutor, responding to the defense contention that there was no evidence of premeditation, argued:
"So what evidence do we have in summary that shows us that the defendant is guilty of first degree murder. We have the defendants prior statements of his intent to kill James Najar. We have the note of the laundry list of things he wanted to do to James Najar. [P] Now, is it possible that he was writing out a laundry list of how to maim, torture, and kill some other person[?] Well, thats possible. But thats not what the evidence tells us."
Here, Villa neither objected to nor requested a curative admonition as to the argument he now claims was misconduct, and we must deem any objection waived for two reasons. First, the remarks complained of did not refer to Villas statements to Johnson or Harris; instead, the prosecutor said "We have [Villas] statements of his prior intent to kill James Najar. We have the note of a laundry list of things he wanted to do to James Najar." (Italics added.) In context, it appears the "statements" to which the prosecutor referred were Villas statements in the note, which was not an improper argument. Even if the remarks were susceptible to the sinister construction adopted on appeal by Villa, a timely objection could have provided an opportunity to cure any possible misimpression. (People v. Box (2000) 23 Cal.4th 1153, 1207-1208.) Second, any prejudice from Villas interpretation could have been obviated by a timely admonition that the evidence did not support such an interpretation. (People v. Price, supra , 1 Cal.4th at p. 461.) We therefore hold that the absence of any objection waives his claims of misconduct. (Id. at p. 482.)
B. The Polygraph Claim
Villa moved before trial to exclude a tape of his second statement to police, arguing it would show he took and failed a polygraph examination during the interview by Fisher. The trial court excluded the videotape but agreed to admit an audiotape of the interview after redaction for explicit references to the polygraph. Villa argues admission of the audiotape was nevertheless error because the format of the middle portion of the interview shifted away from the earlier narrative form of questioning into a form during which Villa was asked a series of narrow questions requiring yes-or-no answers. Villa argues that, even without any explicit reference to the polygraph, the format would nevertheless permit a jury to infer Villa was undergoing a polygraph examination and that he abandoned his original version and admitted to killing Najar only because he failed that examination.
Both parties agree that evidence of a polygraph examination is inadmissible. (People v. Basuta (2001) 94 Cal.App.4th 370, 388; Evid. Code, § 351.1.) We conclude the proscription against polygraph evidence was not violated. The trial court excluded any explicit reference to the fact or results of the polygraph. Villas argument rests on the speculative conclusions that a jury inferred from the tenor of the questions that Villa was undergoing a polygraph examination and that he failed the test when he denied involvement in or knowledge of the killing of Najar.
More importantly, even if a juror did decipher the questioning and inferred Villa was failing a polygraph test when he denied knowledge of who killed Najar, there is no reasonable probability that a more favorable outcome would have occurred absent the inference of the failed polygraph test. (People v. Watson (1956) 46 Cal.2d 818, 834, 299 P.2d 243.) The only injury from a failed polygraph test is that the jury could conclude Villa was lying when he denied involvement in or knowledge of the killing of Najar. However, because Villa abandoned that version and admitted to killing Najar during the same interview, the only conclusion a juror could reach is that Villas original version was a falsehood. Thus, once Villa admitted his "no involvement" story was a lie, the fact that a polygraph might have confirmed this version was a lie was inconsequential to the jurys assessment of Villas credibility. Accordingly, even assuming error, it was harmless. (People v. Watson, supra.)
C. The Exclusion of Evidence Claim
Villa argues it was prejudicial error to exclude evidence that a third party overheard Najar threaten he would "finish" the job he had started when he stabbed Villa. At trial, Gullone testified that Najar told her, approximately two days after the incident, of the August 2000 confrontation when he stabbed Villa with a screwdriver. The defense also sought to show that (1) Gullone witnessed a September 2000 confrontation when the two men began advancing toward each other carrying knives and (2) some time after the August 2000 stabbing incident Gullone overheard Najar state he was going to "finish what he had started from the time that he had stabbed [Villa]." The prosecutor objected to the latter testimony because it was hearsay and irrelevant absent evidence that Villa overheard that threat. The court permitted the confrontation evidence but excluded the threat evidence on grounds of relevance, hearsay, and also because it appeared cumulative to other admitted evidence of Najars violent character and animosity toward Villa.
Villa appears to argue on appeal that the evidence was admissible on two distinct issues: first, to show Najar was a violent person in general; second, to show Najar was acting in conformity with his threat by waiting to ambush Villa on the night of the killing. On the first issue, Villa asserts (and respondent does not dispute) that evidence of the violent character of the decedent is admissible under Evidence Code section 1103, subdivision (a)(1) to show the defendant actually and reasonably feared the decedent and reasonably believed it was necessary to employ deadly force in self-defense. (People v. Wright (1985) 39 Cal.3d 576, 587, 217 Cal. Rptr. 212, 703 P.2d 1106; People v. Smith (1967) 249 Cal. App. 2d 395, 404-405, 57 Cal. Rptr. 508.) However, because the record here contained undisputed evidence establishing that Najar was violent and aggressive, Villa was aware of Najars pugnacious character, and Villa and Najar had prior violent confrontations, the exclusion of cumulative evidence establishing Najars general character for violence was harmless. (People v. Smith, supra, at p. 405 [where evidence showed defendant was aware of victims reputation for and specific acts of violent behavior, exclusion of other specific acts of violent conduct harmless under People v. Watson, supra, 46 Cal.2d 818, 834].)
On the second issue, Villa argues that Najars statement of his intent to "finish" what he started was relevant to show Najar acted in conformity with this stated intent and was in fact waiting to ambush him in the trailer, as Villa claimed at trial. A statement of an intent to do an act in the future is hearsay, but it can be admitted under the exception to the hearsay rule provided by Evidence Code section 1250 as "evidence of the probable doing of the act . . . ." (People v. Weatherford (1945) 27 Cal.2d 401, 422, 164 P.2d 753.) However, Villa did not cite that exception below, and thus did not preserve the issue for appeal. (People v. Ramos (1997) 15 Cal.4th 1133, 1178, 938 P.2d 950.)
Moreover, even assuming the court could have divined that Villa was invoking Evidence Code section 1250, Villa had the additional burden of making an offer of proof of the substance of the anticipated testimony. (People v. Pride (1992) 3 Cal.4th 195, 236-237, 833 P.2d 643; People v. Ramos, supra, 15 Cal.4th 1133, 1178.) In People v. Whitt (1990) 51 Cal.3d 620, 647-648, 274 Cal. Rptr. 252, 798 P.2d 849, the court held that, although it was error to sustain the prosecutors objections to certain questions, the failure of the defendant to make an offer of proof as to the substance of the evidence precluded the appellate court from reversing the judgment. The Whitt court explained that, although there was error:
"On this record, however, we are precluded from reversing . . . on grounds that the error was prejudicial. [P] The problem is illustrated by Evidence Code section 354, which has long prohibited state appellate courts from reversing a judgment based on the erroneous exclusion of evidence unless there is a miscarriage of justice, and the substance, purpose, and relevance of the excluded evidence was made known to the [trial] court by the questions asked, an offer of proof, or by any other means. [Italics added by Whitt.] The statute serves two important purposes where, as here, an appellant complains that questions he asked of his own witness at trial were wrongly disallowed on relevance grounds.
"First, the offer-of-proof requirement gives the trial court an opportunity to change its ruling in the event the question is so vague or preliminary that the relevance is not clear. [Citations.] Second, even where the question is relevant on its face, the appellate court must know the substance or content of the answer in order to assess prejudice. [Citation.] This requirement is met only where the wording or context of the question makes the expected answer clear, or where the proponent of the evidence makes an offer of proof. [Citations.]" (51 Cal.3d at p. 648, italics added.)
Although Villa made an offer of proof, the substance was that at some undefined time after the August 2000 stabbing incident, Najar told Gullone he was going to "finish" what he had started. If the offer of proof had shown Najar issued this threat shortly before he was killed on March 4, 2001, its admissibility under Evidence Code section 1250 would have been more clear to the trial court, and the likelihood we would find prejudice from its exclusion would have increased. However, if Najars threat was issued shortly after their confrontation in August 2000, we would likely conclude it is not reasonably probable that Villa would have obtained a more favorable result had the evidence been admitted. Because the absence of an adequate offer of proof precludes us from assessing whether exclusion of the evidence was prejudicial, we conclude the issue is not preserved for appeal. (People v. Ramos, supra, 15 Cal.4th at p. 1178; People v. Whitt, supra, 51 Cal.3d at p. 650.)
The courts have concluded that, to admit hearsay statements as to intended acts, the statement "must tend to prove the declarants intention at the time it was made; it must have been made under circumstances which naturally give verity to the utterance; [and] it must be relevant to an issue in the case." (People v. Alcalde (1944) 24 Cal.2d 177, 187, 148 P.2d 627.) If Najars threat was issued in August 2000, it could prove his animus and intent toward Villa at that time, but would be irrelevant to whether Najar harbored an intent to attack Villa in March 2001.
Because the evidence showed Villa and Najar were antagonists during August and September, a threat to harm Villa during that period would be consistent with Najars then-existing attitude. However, by November, they had ceased hostilities and became comrades who shared drugs as well as the sexual favors of Johnson. It is not reasonably probable that a jury would have concluded, based on Najars pre-comradeship animus and threats, that Najar was lying in wait for Villa seven months later to fulfill his threat.
D. The Murder Instruction Claim
Villa contends the trial courts instructions on the murder-by-torture form of first degree murder were erroneous. He asserts that the instructions given here would have permitted the jury to return a verdict of first degree murder under the murder by torture theory without finding either that he intended to kill Najar or that Villa harbored malice, and that one or the other is an essential finding.
He also asserts the error was prejudicial because the court instructed it was not necessary that all jurors agree on a particular prosecution theory of first degree murder. Under this instruction, some jurors could have found him guilty of first degree murder on a "deliberate and premeditated killing with express malice" theory, which was properly instructed, while other jurors could have found him guilty of first degree murder on a torture murder theory, which was allegedly improperly instructed. Villa does not challenge the propriety of a "no unanimity on theory" instruction, and the courts have found this instruction proper. (See, e.g., People v. Santamaria (1994) 8 Cal.4th 903, 918-919, 884 P.2d 81.) Instead, he argues the instructions on one of the alternative theories was defective, and this was prejudicial because some or all of the jurors could have relied on the defective theory. Because we conclude the instructions on murder by torture were proper, we need not address the prejudice issue.
The jury was instructed, pursuant to CALJIC No. 8.24:
"Murder which is perpetrated by torture is murder of the first degree. [P] The essential elements of murder by torture are: [P] 1. One person murdered another person; [P] 2. The perpetrator committed the murder with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose; and [P] 3. The acts or actions taken by the perpetrator to inflict extreme and prolonged pain were [the] cause of the victims death.
"The crime of murder by torture does not require any proof that the perpetrator intended to kill his victim, or any proof that the victim was aware of pain or suffering.
"The word willful as used in this instruction means intentional. [P] The word deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. [P] The word premeditated means considered beforehand."
Villa concedes the instruction is correct insofar as it permits a jury to convict a defendant of first degree murder under a murder by torture theory even though the defendant did not intend to kill the victim. (People v. Steger (1976) 16 Cal.3d 539, 546, 128 Cal. Rptr. 161, 546 P.2d 665.) Villas claim of instructional error appears to be that the murder by torture instruction is erroneous because (1) any murder conviction requires a finding there was an unlawful killing with malice aforethought, (2) such malice can be express or implied, (3) the instruction eliminates the need to find express malice because express malice requires an intent to kill, and (4) the instruction does not require the jury to find he harbored the only other form of malice—implied malice—essential to a murder conviction.
We are not persuaded by Villas claim because the instructions, read as a whole, required the jury to find either express or implied malice before it could premise a first degree murder verdict on a murder by torture theory. CALJIC No. 8.24 begins with the statement that "murder which is perpetrated by torture is murder of the first degree," and then lists, as the first "essential [element] of murder by torture" that "one person murdered another person . . . ." (Italics added.) The italicized language shows that, before a jury could consider whether the other elements that would elevate a murder to first degree murder were present, it must first find a "murder."
The jury here was instructed under CALJIC No. 8.10 that, "in order to prove [murder], each of the following elements must be proved: [P] 1. A human being was killed; [P] 2. The killing was unlawful; and [P] 3. The killing was done with malice aforethought." (Italics added.) The jury was also instructed under CALJIC No. 8.11 that such malice "may be either express or implied. [P] Malice is express when there is manifested an intention to unlawfully kill a human being. [P] Malice is implied when: [P] 1. The killing resulted from an intentional act; [P] 2. The natural consequences of the act are dangerous to human life; and [P] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [P] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought."
Thus, the instructions as a whole, which we presume the jury understood and followed (People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Pinholster (1992) 1 Cal.4th 865, 919, 824 P.2d 571), required a predicate finding of murder (which necessarily includes a finding of malice) before the jury was to determine whether to elevate that offense to first degree murder under the murder by torture instruction. The instructions as a whole properly required a finding of malice.
E. The CALJIC No. 2.90 Claim
Villa argues that the standard California instruction on reasonable doubt, CALJIC No. 2.90, in the abstract and as applied in the instant case, is unconstitutional because it did not inform the jury it must find that Villa committed each of the elements of the charged offenses beyond a reasonable doubt. He asserts the jury in this matter "could have applied a gestalt approach to the concept of reasonable doubt, and decided that because most elements had been proven beyond a reasonable doubt, and others by a lesser standard, the totality was proof beyond a reasonable doubt."
The court gave CALJIC No. 2.90, which provides:
"A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [P] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." (Italics added.)
In People v. Osband (1996) 13 Cal.4th 622, 678, 919 P.2d 640, the California Supreme Court rejected the contention that a version of CALJIC No. 2.90 substantially similar to the one at issue here removed the constitutional requirement that the prosecution prove every element of each crime charged beyond a reasonable doubt. In our view, the Osband decision upholding the constitutionality of CALJIC No. 2.90 is dispositive. We reject Villas assertion that United States v. Gaudin (1995) 515 U.S. 506, 132 L. Ed. 2d 444, 115 S. Ct. 2310 (Gaudin), rather than the Osband decision, is controlling. In Gaudin, the United States Supreme Court held it was unconstitutional for a trial court to refuse to submit the question of materiality to the jury in a criminal case. (Gaudin, supra, 515 U.S. at p. 523.) Although the beyond-a-reasonable-doubt standard of proof was not directly at issue in that case, the Gaudin court explained that "the Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." (Id. at pp. 522-523.) Nothing in the Gaudin decision suggests that the California Supreme Courts Osband decision was wrongly decided.
Even assuming that giving CALJIC No. 2.90 in the instant case somehow constituted instructional error, we conclude the error was cured by other instructions. The court gave CALJIC No. 2.01, which informed the jury that:
"Each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. . . ." (Italics added.)
The court also gave CALJIC No. 1.01, which instructed the jury to "consider the instructions as a whole and each in light of all the others." We presume the jury understood and followed the instructions, and Villa has not shown "a reasonable likelihood that the jury construed or applied the challenged instruction in an objectionable fashion." (People v. Berryman (1993) 6 Cal.4th 1048, 1073, fn. 3, 864 P.2d 40, overruled on another point in People v. Hill, supra, 17 Cal.4th 800, 822-823.) We are not persuaded by Villas assertion that CALJIC No. 2.90 erroneously dilutes the concept of reasonable doubt "below constitutional minimums," or that there was instructional error here.
Villa acknowledges that the court in People v. Osband, supra, 13 Cal.4th 622 specifically upheld the propriety of the then current version of CALJIC 2.90. Villa essentially asks this court to reject Osband in light of Gaudin. While we doubt that Gaudin undermines the Osband decision, it appears that Villa has brought his challenge in the wrong court. We are obliged to follow the decisions of the Supreme Court and will continue to do so regarding this jury instruction until directed otherwise by that court. If Villa wishes to challenge the Osband decision, he should take his case to the Supreme Court for its consideration. In the meantime we must adhere to the views expressed in Osband.
F. The Jury Nullification Claim
Villa contends that the trial courts giving of CALJIC No. 17.41.1 deprived him of his constitutional right to a fair and impartial jury trial and infringed the jurys deliberative process, and that the error warrants automatic reversal. However, Villa recognizes that People v. Engelman (2002) 28 Cal.4th 436 rejects these arguments and holds the giving of CALJIC No. 17.41.1 does not warrant automatic reversal. We are bound by decisions of the Supreme Court, and Engelman controls. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The abstract of judgment shall be amended to reflect that one of the section 12022, subd. (b)(1) enhancements be stayed, and as so modified, the judgment is affirmed.
WE CONCUR: McCONNELL, J., and AARON, J.