Opinion
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. 1176862 of Santa Barbara James F. Rigali, Judge
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Steven D. Mathews, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Ferdinand Pitargue Vistro appeals a judgment after his conviction of first degree murder. (Pen Code, §§ 189/187, subd. (a).) We conclude: 1) the trial court did not err by admitting statements Vistro made before the murder, 2) it properly admitted statements the victim made before the crime to show her state of mind, and 3) there was no prejudicial prosecutorial misconduct.
FACTS
Vida, Vistro's wife, wanted a divorce. She served Vistro with a dissolution of marriage petition. Vistro told his brother-in-law, Roscoe Holloway, "She came out of the blue and gave me divorce papers. . . . And I'm going to . . . I'm just going to . . . ." Holloway said Vistro appeared to be surprised that Vida wanted a divorce.
Before filing for dissolution, Vida discussed her marital problems on an internet chat room with Nicole Anesti. She told Anesti that she was disgusted by the thought of having sex with Vistro and she was afraid of him. She was happy she would be ending her marriage and "making plans for the future."
Vistro moved out of the house after being served with the dissolution petition. He stayed with a relative in a house next door.
A few days later, Vistro went back to Vida's house and entered her bedroom. At 5:00 a. m., Brandon, Vistro's son, heard yelling coming from that room. Brandon knocked on the door. Vistro told his son that he and Vida had been arguing.
Brandon went back to sleep. He woke up to go to school, but he did not see his mother. Vistro told him she was sleeping.
Several hours later, concerned relatives entered the house and knocked on Vida's bedroom door. Vistro opened the door and appeared "groggy." The relatives entered the room and discovered Vida's dead body.
Police arrived and entered the bedroom. They saw a trash bag on Vida's bed which was attached to a roll of tape. They found a second trash bag of the same type near the corner of the bedroom. They searched Vida's residence, but found no other trash bags of that type. When they searched the house next door, where Vistro had been staying, they found the same type of trash bags that they had found in Vida's bedroom.
Dr. Robert Anthony, a forensic pathologist, testified that Vida's death was not a suicide. Dr. Dean Hawley, an expert in forensic pathology, testified that Vida died "as the result of suffocation," and her death was a homicide. Someone had placed a plastic bag over her head and "pinched" her nose closed. The trash bags found in Vida's bedroom contained Vistro's fingerprints.
Sheriff's Deputy Todd Johnson testified that, after Vida's death, Vistro told him "he had never hurt anyone before, and that he was very sorry." Vistro said he was "surprised how [Vida] could violate his trust" by seeking a divorce and that he had argued with her about her decision to end their marriage.
Police Officer Duane Schneider testified that Vistro said, "I'm sorry for everything," and "[f]orgive me for my sins." He told Schneider, "[Vida] wanted a divorce, and it's tough if you not in [my] shoes."
In the defense case, Catherine Silva, an acquaintance of Vistro's, testified that Vistro told her he was depressed because Vida wanted a divorce and did not love him anymore. But he did not appear to be angry.
Dr. Arlene Gonzalez had treated Vida and had prescribed wellbutrin and prozac for her.
Marc Taylor, a forensic scientist, testified that he examined the evidence which the police found in Vida's bedroom, the "two-draw string [plastic] trash bags and a partial roll of duct tape." The DNA evidence confirmed that a hair root found inside one bag belonged to Vida. Taylor said he could not conclude that a bag was placed over Vida's head. Her DNA was inside the bags, but he did not see "large quantities of cellular material" on the inside of the bag. On cross-examination, Taylor said he could not "rule out" that saliva from Vida's mouth ended up on the inside of one of the bags. The evidence of Vida's hair inside the bag was consistent with the theory that a bag was placed over her head. Taylor said he was not surprised that Vistro's fingerprints were on the bags and on the tape.
The Limited Admissibility Order
Before trial, Vistro objected to the admission of Vida's chat room conversations. The prosecutor argued this evidence was relevant to establish Vida's state of mind. She claimed it showed Vida was optimistic about the future which refuted a defense theory that Vida committed suicide. The prosecutor also noted that DNA evidence showed there was sexual contact between Vida and Vistro before her death, but it did not show whether it was consensual. She argued the chat room evidence was relevant to refute the claim that Vida died as a result of engaging in consensual "kinky" sex. The trial court ruled the evidence was admissible to establish Vida's state of mind. It later instructed jurors that they could not consider it for any other purpose.
DISCUSSION
I. Admitting Vistro's Statements to Holloway
Vistro contends the trial court erred by admitting Holloway's testimony about what Vistro told him a few days before the murder. He claims his statements were irrelevant and too ambiguous to be admissible. We disagree.
Holloway testified that after Vida served him with divorce papers, Vistro said, "She came out of the blue and gave me divorce papers. . . . And I'm going to . . . I'm just going to . . . ." Holloway said Vistro appeared to be surprised that his wife was divorcing him.
Vistro claims his remarks are irrelevant. But they show his state of mind. A trier of fact could reasonably infer his statements show he was upset by what his wife had done. They support the prosecution's theory that he had a motive for murder.
Vistro contends that his remarks are incomplete and therefore ambiguous because he did not state what he intended to do. He argues that the statements are therefore inadmissible. But his claim fails because it "'concerns only the weight of this evidence, not its admissibility, which does not require complete unambiguity.' [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1122.) The statements by themselves raise multiple inferences. But their probative value becomes significant when combined with other evidence, such as Vistro's highly incriminating comments to the police following the crime. A reasonable trier of fact could infer there was a logical connection between Vistro's expressed intent to do something and the subsequent murder of his wife.
II. Admitting the Victim's Chat Room Statements
Vistro contends the trial court erred by admitting Vida's statements made on an internet chat room before she was murdered. He claims they were inadmissible hearsay and unduly prejudicial. We disagree.
There is an exception to the hearsay rule where the out-of-court statements reflect a victim's "then existing state of mind . . . [and] that state of mind is [either] in issue or the evidence is offered to prove or explain acts or conduct of the [victim]." (People v. Crew (2003) 31 Cal.4th 822, 840.)
Here Vida's state of mind was in issue. Vistro's trial counsel claimed that expert testimony could not completely rule out suicide as a cause of her death. He said Vida was depressed, was on prozac and was being treated by a psychiatrist. The defense also claimed that Vida was never afraid of Vistro and had consensual sex with him on the night the prosecution claimed she was murdered.
Vida's chat room statements with Anesti refuted the defense theory about her state of mind and showed that she was not suicidal. Anesti said Vida told her that she was happy because she was going to get a divorce from Vistro. Vida was making plans for the future and "was coming into her own." Vida's statements also refuted the claim that she had consensual sex with Vistro. She told Anesti that she was disgusted by the thought of having sex with him and did not want him near her. This evidence was properly admitted. (People v. Crew, supra, 31 Cal.4th at p. 840.)
Vistro notes that the court admitted an e-mail from Vida which included the following language, "I don't know how things will play out, but they can't go on like this forever. I worry because my husband talks about committing suicide when we fight. I wonder if he would do it. Would he take me and our kids out with him?" Vistro claims this evidence should have been excluded. He correctly notes that a victim's hearsay statements about his or her fear of the defendant may not be used to prove the conduct of the accused. (People v. Noguera (1992) 4 Cal.4th 599, 622.) But here the trial court instructed the jury that all of the e-mail evidence "is offered only for the limited purpose of trying to consider the state of mind of the deceased."
Yet, even if the trial court erred, the result does not change. Any error was harmless because the evidence of Vistro's guilt is overwhelming. Vistro was in the room where Vida had been murdered. Dr. Anthony testified there was no evidence that Vida committed suicide. Dr. Hawley testified that someone had murdered her and her death was the result of suffocation. A plastic bag was placed over her head. Vistro's fingerprints are on the bags found in her bedroom. These bags came from Vistro's residence. Vida's hair was found inside one of the trash bags. Taylor conceded this fact was consistent with the prosecution's theory that a bag had been placed over her head. Moreover, Vistro made highly incriminating statements after Vida's death. He told Deputy Johnson that he "had never hurt anyone before," and that he was very sorry. He said he was "surprised how [Vida] could violate his trust" by filing for divorce and that "they had argued about it." His statements to Officer Schneider were equally incriminating.
III. Prosecutorial Misconduct
Vistro claims there were several statements in the prosecutor's closing argument to the jury which constituted misconduct. The Attorney General contends that Vistro waived these claims by not raising them at trial. The Attorney General is correct. To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition. (People v. Farnam (2002) 28 Cal.4th 107, 167.) Vistro did not raise this issue at trial. But even on the merits, the result is the same.
Prosecutors are allowed a wide range of descriptive comment on the evidence. (People v. Farnam, supra, 28 Cal.4th at p. 168.) Misconduct is shown where their remarks were so unfair, they denied the defendant a fair trial or where the prosecutor used deceptive or reprehensible methods to persuade the jury. (Id. at pp. 167-168.)
A. Misstating the Burden of Proof
Vistro claims the prosecutor committed misconduct by minimizing the significance of the beyond a reasonable doubt standard. A prosecutor may not present an argument which "trivializes" the reasonable doubt standard. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36.)
Here the prosecutor made an analogy to a puzzle in her closing argument when discussing reasonable doubt. She said, "[T]he standard in a criminal case is beyond a reasonable doubt, and it is my job and my job alone to prove the defendant[] [is] guilty beyond a reasonable doubt. So what does reasonable doubt mean? The best way to think about it is, everybody has done a jigsaw puzzle in your life, right? . . . [I]t's a bunch of little pieces, and you never get it done all in one sitting . . . . Finally, you're able to finish the puzzle one day, but you're always missing pieces . . . . It doesn't mean that you have reasonable doubt as to what the picture of the puzzle is. You can still look at the puzzle and you know what it is. You just are missing a piece here or a piece there. Maybe you're missing five pieces together, so you can't tell if they're really all clouds or trees. But you still know that there's a farmhouse, and you know that the cow[] [is] there and the house is there. You know what the picture of the puzzle is. As long as you can see the bigger picture and know what it looks like, you don't have a reasonable doubt as to what those little pieces are. They're insignificant."
References to puzzles may mislead jurors where, for example, the prosecutor states they do not need all the pieces of the puzzle to convict, but then compares those pieces to the elements of the crime. That could lead jurors to believe that some of the elements are insignificant. But that is not the case here. The prosecutor's analogy was a circuitous attempt to explain that the prosecution had to prove guilt beyond a reasonable doubt. But it did not have to eliminate all possible doubt or prove facts about irrelevant issues. In other words, if the issue is only whether a farmhouse exists and the prosecution proves this, it does not also have to show that the sky was blue or the trees were green. The prosecutor never stated that she was relieved of her burden of proving all the facts necessary to establish murder. She said she had that burden. Her remarks were an introduction to her argument that there was no evidence to support the defense claim that Vida committed suicide. The prosecutor was trying to show that that defense theory, or piece of the puzzle, was insignificant because it had no evidentiary support.
Here no reasonable juror would interpret the prosecutor's remarks to mean that the jury could ignore the elements of the crime or disregard the burden of proof. The trial court instructed the jury on the reasonable doubt standard. Vistro concedes this instruction was proper. The court also instructed jurors, "If you believe that the attorney's comments on the law conflict with my instructions, you must follow my instructions." We presume the jury followed the court's instructions. (People v. Nguyen, supra, 40 Cal.App.4th at p. 37.) Even if the reference to the puzzle was ill-advised, Vistro has not demonstrated that the jury was misled. Nor has he shown any prejudicial prosecutorial misconduct. (Ibid.)
B. Prosecutorial Vouching
Vistro claims that the prosecutor improperly vouched for her case by continually using the phrase, "we know," when addressing the jury. He argues that the jurors would interpret this phrase to mean they could rely on the prestige of the district attorney's office to find guilt. We disagree.
"Although a prosecutor may state his [or her] opinion formed from deductions made from evidence . . ., he or she may not express a personal opinion as to guilt if there is a substantial danger that a juror will interpret it as being based on information not in evidence." (People v. Heishman (1988) 45 Cal.3d 147, 195.)
In discussing the evidence, the prosecutor often prefaced her remarks with the phrase, "we know." For example, she said, "We also know that the defendant had sexual intercourse with Vida Vistro on her bed. We know that because the bottom sheet of the bed has a very small stain which contains a mixture of nucleated epithelial cells with DNA of Vida Vistro and semen with DNA of the defendant."
Here the phrase, "we know," does not refer to the district attorney's office. The prosecutor was addressing the jury. "We" is a commonly used term when addressing a group. Here it refers to the jurors and the prosecutor was asking them to consider the evidence. There was no misconduct.
C. Misstating the Evidence about Non consensual Sex
Vistro claims that the prosecutor committed misconduct by telling jurors that he and Vida had non consensual sex before she was murdered. He claims there was no evidence to support that claim and she raised this issue solely to create "drama," and "stir up sympathy" by the jurors. We disagree.
Here the defense claimed that Vistro and Vida had consensual sex before she died. It asked the jury to draw the inference that Vistro would not murder her after having consensual sex. But the prosecutor was entitled to ask jurors to draw reasonable inferences from the evidence which refuted the defense theory. (People v. Farnam, supra, 28 Cal.4th at p. 168.) She did this by showing there was evidence that the sex was not consensual. For example, she said, "Vida Vistro also had a full bladder when she died on the floor that morning. What woman has consensual sexual intercourse with somebody with a full bladder?" There was no misconduct.
D. Violating the Court's Limiting Order
Vistro contends that the prosecutor used Vida's chat room statements to urge jurors to find that Vistro killed her. He notes that the court issued a limiting order stating that those statements could only be used to show her state of mind.
The prosecutor said, "Now, in order for the defense theory to work, she had to have wanted to kill herself. What we know is that she was scared to death of this man. She didn't want him to touch her sexually in any way, and she was scared of him. She was scared of what he would do when she finally told him she wanted a divorce." After quoting from some of Vida's e-mails, the prosecutor said, "We also know that Vida Vistro was a woman who was making future plans. She had a lot of aspirations."
Vistro notes that the prosecutor's argument initially focused on a lack of motive for Vida to kill herself to refute a defense theory. He argues, however, that the reference Vida's fears about what Vistro might do was not relevant to that issue and her argument consequently went beyond the limiting order. He claims, the prosecutor used Vida's "professed fear" of Vistro to indirectly urge that Vistro had a motive to kill her.
The Attorney General responds that some of these statements supported the prosecution's theory and explained why Vida detested Vistro and would therefore never have consensual sex with him. But he claims that even if the prosecutor went beyond the order, any misconduct is harmless. He is correct. Had Vistro objected, an instruction to the jury would have cured the problem. (People v. Arias (1996) 13 Cal.4th 92, 161.) The Attorney General correctly notes that the court repeatedly instructed jurors that Vida's e-mails could only be used to show her state of mind. We presume the jury followed this instruction. (People v. Nguyen, supra, 40 Cal.App.4th at pp. 36-37.) Moreover, given the compelling evidence against Vistro, any misconduct is harmless. (Ibid.)
E. Appeals to Passion by Referring to the Victim and Her Children
Vistro contends the prosecutor appealed to the passion of the jury by stating, "I am now asking you to go back into the deliberation room and do your job as jurors. Consider the evidence, talk about what you've seen and heard, and use your common sense. Find this man guilty of first degree murder of his wife, the mother of his three children, and do it in her memory."
Vistro contends the reference to the children was an appeal to passion. The Attorney General responds that the prosecutor mentioned them to support the claim that Vida "would not have killed herself when she had three children to care for." But the Attorney General's position is not supported by the record. The reference to the children was coupled with a request to find Vistro guilty "and do it in [Vida's] memory." This was an appeal for sympathy in the name of the victim which should not have been included in the prosecutor's argument. (People v. Arias, supra, 13 Cal.4th at p. 160.) But any misconduct is harmless because the remarks were brief and there was overwhelming evidence of Vistro's guilt. (Id. at p. 161.)
We have reviewed Vistro's remaining contentions and conclude he has not shown reversible error.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.