Opinion
F068691
09-14-2017
THE PEOPLE, Plaintiff and Respondent, v. BRIAN KEITH WALDRON, Defendant and Appellant.
Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Daniel B. Bernstein, Ryan B. McCarroll, and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F08906883)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Hilary A. Chittick, Judge. Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Daniel B. Bernstein, Ryan B. McCarroll, and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Brian Keith Waldron (defendant) stands convicted, following a jury trial, of first degree murder (Pen. Code, § 187, subd. (a); count 1) and mutilation of human remains (Health & Saf. Code, § 7052, subd. (a); count 2). His motions for a new trial and to reduce count 1 to a lesser offense were denied, and he was sentenced to three years plus 25 years to life in prison. On appeal, we hold: (1) The trial court did not err by excluding evidence that defendant claims would have corroborated his account of his state of mind and bolstered his credibility; (2) Any error in excluding evidence that would have corrected misleading implications created by the prosecution's abridged version of certain evidence was harmless; (3) The trial court did not err by excluding evidence of certain of the victim's prior specific acts; (4) Defendant was not entitled to the victim's contemporaneous mental health records; (5) Admission of evidence of a specific prior act of defendant is not cause for reversal; and (6) Defendant is not entitled to reversal on a theory of cumulative prejudice. We affirm.
FACTS
I
PROSECUTION EVIDENCE
Between 8:30 p.m. and 10:30 p.m. on a Friday in late October 2008, Ramona Castaneda was at her boyfriend's apartment on Fountain Way, when she walked to another location in the complex. Her path took her between the buildings running north to south. She heard very loud music coming from the apartment directly behind her boyfriend's apartment. The front door to that apartment was closed. She had never heard anything coming from that apartment before. When she walked back to her boyfriend's apartment about 15 to 20 minutes later, the loud music was still playing. She did not hear any voices either time. About 30 minutes after she returned to her boyfriend's apartment, she heard two thumps, a pause, and then two more thumps. The thumps were loud. Castaneda did not hear anything or any voices coming from the other apartment after she heard the thumps.
Undesignated dates in the statement of facts are from the year 2008.
On the evening of October 27, Fresno Police Detective Yee was notified that an attorney and his client were at the police department and wanted to provide information regarding a homicide. Upon responding to the police station, Yee and his partner contacted defendant and his attorneys, David Mugridge and Mark King, and interviewed defendant.
A video recording of the interview was played for the jury.
Defendant related that he lived in an apartment in the 4500 block of East Fountain Way, and worked as a paralegal and office manager for Mugridge. Sometime between 9:00 p.m. and 10:00 p.m. the previous Friday, he was sitting alone in his apartment when a Bulldog gang member walked inside. This person — subsequently identified as Jonathan Taylor (Taylor) — had been "bugging" defendant about a cigarette and then standing outside defendant's door. When Taylor "tried to jack [defendant] up," defendant killed him.
Defendant explained that Taylor, whom he did not know by name, had said he was the son of the woman who lived in the apartment south of defendant's residence. The woman (whose name defendant also did not know) had been living there for a few months. Someone had come around defendant's apartment two or three times before and asked defendant for a cigarette. Defendant thought Taylor was that person, but had not seen him in a couple of months. This time, Taylor had a large "B" tattooed on his cheek that defendant did not recall having seen before.
On Friday night, defendant was sitting in his apartment when Taylor came up to his door, which was open, and asked if defendant could loan him a cigarette. Defendant said no because he saw the "B" on Taylor's cheek. Mugridge's law office represented Bulldog gang members, and defendant believed Taylor was a Bulldog because of the large, scripted tattoo on his cheek.
Taylor's mother, Jane Taylor, saw Taylor about 7:00 p.m. or 7:30 p.m. on Friday, October 24. Taylor was standing in the doorway of defendant, her neighbor. When she asked Taylor what he was doing, he said he was asking for a cigarette. She told him not to be too long. She was surprised to see him there, because he had just gotten out of prison. She had seen him talking to defendant at that doorway about six months earlier, before he was locked up. When she spoke with Taylor, he seemed normal, although she could tell he had been drinking because his speech was slurred a bit. Taylor had a history of crystal methamphetamine use, but his mother was unsure if he had used drugs that day. Jane Taylor went inside her apartment and shut both the inside and the security doors, as it was chilly out. A short time later, she looked to see if Taylor was still there, but he was not. She subsequently filed a missing person report with the police. Taylor was 21 years old at the time.
Taylor stood outside, facing south and not looking into the apartment, but occasionally looking at defendant. This went on for five or 10 minutes, then defendant went outside and asked who Taylor was and what he was doing there. Taylor again asked for a cigarette and defendant again refused. Defendant did not recall telling Taylor to leave, but he explained to Taylor his feelings about the "terrorist Bulldog gang." Defendant was outside for a couple of minutes. Taylor tried to talk to defendant about something, but defendant did not follow what he said. Defendant stood looking up at the stars, and tried to make it obvious he was not interested in having Taylor around.
Finally, defendant went back inside and sat down. He was not sure how much time passed, but Taylor came in and sat down in defendant's recliner rocker. This made defendant feel "pretty upset." Although defendant's door was wide open, he had not invited Taylor in. Taylor did not say anything, but just sat in the chair, which was almost facing the door, and looked straight ahead. Defendant did not know what was going on, and was upset and scared that someone with a Bulldog tattoo on his face had just walked in and sat down.
Defendant asked Taylor what he was doing there. Taylor said to give him a cigarette, but defendant said no, and that he had told him no once. Both men continued to sit there for a while. Defendant, who had had several drinks, had his stereo on and was having a drink. He was concerned about what Taylor was doing there. Defendant was also a bit angry. At some point, he again asked Taylor what he was doing there, and Taylor said he wanted a cigarette or to give him a cigarette. Defendant said he was not going to give him one and to get out of there and leave him alone. He asked what Taylor was doing, coming into defendant's apartment and just making himself at home. Taylor did not leave.
At some point, defendant asked the meaning of the "B" on Taylor's face. Taylor said he was a member of the Bulldogs. When defendant asked if Taylor knew that was a criminal street gang, Taylor responded something like, yeah, so what. Defendant advised that if he was caught doing something, the gang enhancement could really hurt him, because he was a member of the gang. Taylor said something about doing home invasions, and defendant remembered thinking Taylor was acting like they were "homie[s]." Defendant was growing concerned, and wondered if Taylor felt he could just walk in and sit down because he had friends outside, although defendant did not see anyone.
Taylor reached into his pocket and pulled out a plastic bag with a bunch of pills in blister packs. He held one up like he was trying to read it, then lit a match and held it up. Defendant thought he was going to smoke the pill or something, but Taylor threw the match on the floor. He did this two or three times. Defendant was not sure if Taylor took any of the pills, but eventually Taylor put them back in his pocket. Defendant was pretty sure he said something to Taylor.
It was around this time that defendant shut and locked his front door. Although Taylor was still sitting in the chair, defendant was not sure if Taylor had friends outside who were going to come in and "pull some stuff" — possibly a home invasion — with defendant, who was "pretty drunk" by then. He also did not know if Taylor had a weapon.
Taylor continued to sit there. Defendant asked if he would leave if defendant gave him a cigarette. Defendant had been drinking corn whiskey. Although not "totally out of it," he was "way past legally drunk." Taylor said something about what defendant was drinking, then demanded that defendant give him some. Defendant did not know exactly how he responded, but he basically told Taylor no, and to get out of there and leave defendant alone. Defendant said that at least four or five times after Taylor came in. Defendant found the situation "bizarre" and thought Taylor "must be on something" or that there was something wrong with him.
After defendant locked the door, he went and stood in the area between the kitchen and where Taylor was sitting. Taylor got up, said he was going to get a drink, asked where it was at, and started walking toward defendant. Defendant said something like, "no you're not," and pushed Taylor. He did not push hard; he simply wanted to send the message that Taylor was not coming into defendant's kitchen. Taylor then pushed defendant up against the refrigerator. Defendant lost his balance a bit, but did not fall. Taylor grabbed a large, heavy, metal Maglite-type flashlight from defendant's computer desk. He swung it at defendant, but defendant had regained his balance by then and Taylor missed. They struggled and defendant got the flashlight away from Taylor, whom he estimated was about five feet 10 inches tall and weighed "a couple hundred" pounds. Defendant struck Taylor in the head with the flashlight. Although the blow caused Taylor to start bleeding, it did not otherwise seem to affect him.
Defendant could not recall whether he hit Taylor in the head again or swung at him, but somehow Taylor ended up face down in back of the rocker recliner. Defendant "jumped over there" and tried to put as much weight on Taylor's back as he could, and he hit Taylor in the head again with the flashlight. Taylor was trying to get up, and defendant was trying to hold him down. Defendant just wanted him to stop struggling. Defendant did not know if Taylor had a weapon and thought he was probably on drugs because he was acting so oddly. Taylor was still trying to get up, and he started saying something like defendant was dead or he was going to kill defendant now. Defendant was hoping that if he hit Taylor in the head, Taylor would pass out and defendant could call the police.
This went on for about 30 seconds. Defendant started to tire from trying to keep his weight on Taylor and hold him down, and Taylor finally managed to get defendant off him and get back up. Taylor came at defendant again. Defendant swung the flashlight, but Taylor knocked defendant off balance and defendant fell backwards into the kitchen area and dropped the flashlight. Taylor came toward him, and defendant managed to grab a metal pipe that he kept on his patio, the door to which was on the side of the computer desk. By then, Taylor was in the kitchen area and still coming at him, so defendant poked at him with the pipe. Taylor backed up, saying something. Defendant remembered getting kind of scared. He might have told Taylor that he should not have come in there and that he had told Taylor to leave. Taylor "was just like, fuck you," and came at defendant again, so defendant swung the pipe and hit him on the head. Defendant hit Taylor and knocked him back a bit, but the blow did not seem to faze him. Defendant did not really know what happened then, but he thought he came toward Taylor and swung the pipe again. Defendant did not know whether Taylor was coming toward him at that time, but he knew Taylor was not leaving, either. Defendant remembered feeling "pretty threatened" about that time, because it did not seem that anything was working in getting Taylor out of defendant's apartment. Defendant was getting "upset and scared and pissed off." He was not really sure after that; he just remembered swinging the pipe and "beating the hell" out of Taylor until Taylor was lying on the floor.
Defendant sat down in the living room. Taylor was on the floor in front of him. Defendant was trying to figure out what was going on and what he had to do. His first concern was that Taylor was a member of the "terrorist Bulldog organization" and he looked like he was dead. Defendant did not want the Bulldogs finding out. Although concerned for his own safety, defendant was more concerned about his family, friends, and coworkers. As a result, he eventually decided to try to get rid of the body so it would not be discovered.
At first, defendant was not sure what to do. There was blood everywhere, so he spent all that night and the next day cleaning up. On Saturday morning, he went to a store and bought some large plastic bags. Having seen, in hunting magazines, about charcoal absorbing scent, he went to a second store and bought two bags of charcoal. He wanted to rent a carpet cleaner, but the store did not have any available, so he bought some carpet cleaning supplies and thought he would get the machine later.
Defendant returned to his apartment, where he dragged Taylor into the bathroom and then cut him up in the bathtub using a kitchen knife and a short, curved tree saw/hacksaw. Defendant cut off Taylor's head, arms, feet, and legs. He put the body parts in plastic bags in a couple of large suitcases, then rinsed off the saw and knife and laid them somewhere to dry. The torso would not fit in a suitcase, so defendant wrapped it in a bunch of plastic bags and an old air mattress he had, then wrapped it up in a tarp and tied it up. Around 11:00 Saturday night or midnight, he took everything up to the mountains near Courtright Reservoir, went down a dirt road, dug a shallow grave, put charcoal on top, and buried everything. He then threw some dead branches on top. Defendant chose the area because he was somewhat familiar with the main roads leading to it. In addition, the elevation was fairly high. He thought there would not be too many people up there because it was chilly, and so he thought his chances of avoiding detection might be better, even though it put him more at risk to transport the body a longer distance.
Defendant accidentally cut himself while using the knife. He had no other injuries.
Defendant then returned to his apartment. There was some writing on his door that looked like gang graffiti, although he was not sure what it said and it may have been Spanish. There were about 20 or 30 first names or nicknames signed above it. Defendant thought Bulldogs had come by and left a message that they knew something was up. He took the writing as a threat. When he went inside, he noticed an odor that may have been blood, even though he had turned on the kitchen and bathroom fans. He then went and rented a carpet cleaner and returned, intending to shampoo the carpet. Instead, he started thinking about the graffiti and what to do, so he left the apartment and did not return.
Officers began searching defendant's apartment late on the night of October 27. Both the security screen door and the inner door were locked. There was no writing on either of them. The apartment itself was small, and consisted of one bedroom, one bathroom, and a small living room and kitchen. The entire apartment was very cluttered and unkempt. There was a large amount of dried blood on the carpet. There was a pool of dried blood in front of the recliner. The recliner and the love seat/couch (a double recliner) in the living room had what appeared to be bloodstains on them, as did the entertainment center and electronic equipment and items on it. The couch had what appeared to be dried blood most of the way from the footrest to the headrest. In the bathroom was what appeared to be dried blood on the side of the tub and shower enclosure, and reddish runoff going into the drain.
Among the items found in the apartment were a camouflage jacket, a crumpled piece of paper with a list of camping and cleaning supplies, and a plastic bag containing cleaning supplies and a receipt dated October 25. There was also a Rug Doctor carpet cleaner. In a backpack on the couch were a survival kit for camping, an aluminum Maglite-type flashlight with a cracked lens, and a pair of gloves, the cuff of one of which bore a drop of what appeared to be dried blood. A desk between the living room and the kitchen obstructed the entrance into the kitchen so that only one person at a time could fit through.
Inside the living room was a closed ice chest with a jacket liner and tree limb saw on top. Inside were charcoal briquettes and bits of magazine and paper that may have had dried blood on them. There was a series of blood droplets on the living room ceiling. Among the items on the bedroom nightstand was a machete in a sheath. There was also a rebar-type piece of metal. There was a piece of metal pipe, approximately 30 inches long and one inch in diameter, covered in duct tape and leaning against a bedroom wall. Just outside the bedroom closet was a tire iron. There were two large suitcases near the closet entrance. In the back of the closet were items such as dried food, a generator, and boxes of ammunition.
In the kitchen, which was extremely cluttered, was a toolbox with a hacksaw on top. In and next to the sink were multiple knives, including a meat cleaver. Leaning against the patio door was a metal pipe, approximately 30 inches in length. There was a slight bend toward the upper third of the pipe.
On October 28, officers attempted to locate the body with defendant's help. The general area was in the Sierra National Forest, about a three-hour drive from downtown Fresno. A blue tarp, which was about six to eight inches deep in an area of disturbed dirt that was covered by tree branches, contained Taylor's torso. Taylor's arms had been severed from the torso. His legs were severed from the thigh to the calf. His feet had been severed from his legs. His head had also been severed. Garbage bags contained those body parts. Charcoal briquettes were intermixed with the dirt. The hole itself was a little over two feet deep and three feet wide.
Dr. Gopal, the chief forensic pathologist of the Fresno County Coroner's Office, examined Taylor's remains. After reassembling the body, which was fairly well preserved due to the multiple layers of plastic bags in which it was packed, he determined the height was five feet seven inches and the weight 157 pounds. There was a tattoo more than an inch in size of a P overlapping a D on the left cheek. "Janesse" was tattooed above one eyebrow. "Thug life" was tattooed on one hand, and "Chuckchansi" was tattooed on the front of the left thigh. In addition, a bulldog head was tattooed on the middle of the torso.
Detective Fraizer, who had experience investigating gang cases and was familiar with the Bulldog gang and its Pinedale subset, believed it was a gang tattoo.
There were multiple lacerations to the head and forehead caused by blunt force trauma. With respect to the laceration to the right portion of the head above the ear, the underlying bone was fractured. An abrasion to the left side of the forehead showed a grid pattern, meaning the forehead contacted a surface with a grid appearance, such as carpet. Significant force was involved for the impression to be transferred to the scalp. There were multiple lacerations that crisscrossed each other in an area four inches by four inches in the back of the head. There was a corresponding depressed fracture. There were multiple lacerations on the right parietal occipital area of the head, and a corresponding depressed fracture in the right temporal region. Essentially, the right temple was caved in. This was caused by multiple impacts to the area. There was extensive injury to the right side of the brain. There were multiple fracture lines radiating from both the depressed fracture on the right side of the head and the depressed fracture at the back of the head. Either cluster of injuries could have been fatal, but there was more bone broken and more damage to the brain on the right side of the head. There was an L-shaped laceration to the upper lip. The corresponding teeth were dislodged and broken, and one was missing. There were 27 antemortem injuries to the head, although this did not mean there were 27 separate blows. The head was cut off after death with a sharp cutting instrument such as a knife.
With respect to antemortem injuries to the torso, there were at least 18 parallel-patterned contusions on the back of both shoulders and the right side back. They extended from the neck almost to the hip region and were likely caused by a pipe, baton, crowbar, or tire iron. Other than some bleeding in the ribs, there were hardly any injuries to the front of the torso. There was dismemberment at the thigh level and the shoulders. The muscles and tissues had a clean-cut appearance, meaning a sharp instrument was used, while the cuttings of the bone had serrations, suggesting some type of sawing mechanism was used.
There were antemortem abrasions to the backs of both hands and several fingers. There were no fractures, and no injuries to the palms of the hands. The hands were amputated at the lower one-third, with the bones showing serrations such that an instrument such as a saw or serrated knife was used. The only antemortem injuries to the legs were three abrasions to the top of the right foot. The legs were cut off at the lower end of the tibia and fibula.
The cause of death was head injury due to multiple blunt impacts. Gopal found a minimum of eight to 10 separate impacts to the head, and it was possible there were more. There were a minimum of 18 strike marks to the back of the body.
Blood was taken from the heart, urine was taken from the bladder, and vitreous fluid was taken from the eye for toxicology testing. The results for the blood were alcohol at .14 grams per 100 milliliters, methamphetamine at 990 nanograms per milliliter, and no amphetamine detected. The results for the vitreous fluid were alcohol at .24 grams per 100 milliliters, methamphetamine at 650 nanograms per milliliter, and no amphetamine detected. The results for the urine were alcohol at .20 grams per 100 milliliters, methamphetamine at 8,657 nanograms per milliliter, and amphetamine at 206 nanograms per milliliter. The alcohol levels suggested there would be impairment of memory and critical judgment, sleepiness, and slow reaction time. The high vitreous level suggested the blood-alcohol level was higher at some point. The methamphetamine levels were in the toxic, but not fatal, range. Whereas alcohol is a depressant, methamphetamine is a stimulant. The high level of methamphetamine would not be balanced or controlled by the counteracting effect of the alcohol. Because many variables, such as Taylor's tolerance for the drug, would affect its impact on him, the level of methamphetamine in his system would not necessarily correlate to his behavior. In the early phase of use, the drug could cause rapid speech, restlessness, hallucinations, delusions, and possibly psychosis. In the late phase, it might cause sleep disturbances, fatigue, drowsiness, and an abnormal heart rate. Gopal could not determine from the toxicology results whether Taylor was in the early or late phase.
The amphetamine detected in Taylor's urine was a byproduct of the methamphetamine that was being metabolized.
William Hawes worked with defendant between "somewhere around" 1993 or 1994 to 1998. Hawes believed they last socialized around 2002 or 2003.
When interviewed by a defense investigator in August 2009, Hawes related he had known defendant for three or four years. He said defendant loved to listen to music, and would leave his apartment door open and would play the music fairly loudly.
In October 2008, Hawes was living in Virginia when he received a telephone call from an acquaintance who said defendant had killed someone and buried him or chopped him up. Hawes searched for defendant's name on the Internet and found something that gave details of what defendant did. What he read concerned Hawes, because defendant had told him, in 2002 or 2003, what he would do to the person. They were in defendant's apartment, talking. Defendant was drinking. Hawes was not, but he asked defendant for a cigarette. Defendant told Hawes about a 17-year-old kid who was coming over, pushing his way around and always "bumming" cigarettes and alcohol and giving defendant a hard time. According to defendant, the person was coming into his apartment. Defendant was really upset that the person never had any money and would come over and "bum" off defendant all the time and kind of push him around. Hawes was under the impression the person lived in the same apartment complex as defendant, and he told defendant to "whoop his ass." Defendant said the person was a minor, so "you can't touch him." Defendant said he had a better idea: "Whack him in the back of the head, drag him in the bathroom, cut him up in pieces and bury him in a shallow grave." Defendant said he was going to use a pipe. This kind of "freaked [Hawes] out," and he said dogs or something would find the body and dig it up. Defendant said that was the point. Hawes asked what defendant was going to cut him with, and defendant said he had tools. Hawes advised defendant to just stay away from the person or smack him around a little if he walked into defendant's residence. Hawes left a short time later.
A Fresno Bee article that was posted on the Internet on October 31 was admitted into evidence to show the information about the case that was available on the Internet on that date.
Hawes contacted the Fresno Police Department and gave his information, but he did not want to testify. In Hawes's mind, the conversation with defendant really happened. When he spoke to Shelly Sweeton, an investigator for the Fresno County District Attorney's Office, in May 2012, however, Hawes said he was not sure if what he heard really occurred or if he was hearing voices.
In November 2011, Ralph Celaya was an inmate in the Fresno County Jail. Defendant's cell was near the cell occupied by Celaya. At the time, Celaya, who had a long criminal history, was affiliated with the Bulldog gang.
On November 29, 2011, Celaya appeared in court with Attorney Robert Wyrick, who was standing in for Mugridge. Celaya was not happy with Mugridge's representation. Following the court appearance, Celaya told Wyrick several things that were troubling him. Soon after that date, Celaya saw Wyrick in the jail and surmised he was visiting defendant. There was a disturbance while Wyrick was visiting. Defendant was angry and upset with Celaya. Mugridge came to see Celaya approximately nine hours later, and accused Celaya of making a potential threat regarding Mugridge's daughter. Celaya told Mugridge that if he wanted something done to the daughter, he would have acted on it and not brought it to Mugridge's attention. Celaya had not made the threat, and he told Mugridge he had told Wyrick about the potential threat to the daughter in order to warn Mugridge. When Celaya told Mugridge he (Celaya) never considered threating Mugridge's daughter, Mugridge broke down in tears.
Although court records showed Celaya was convicted, inter alia, of sexual penetration by force on July 20, 2011, Celaya maintained Mugridge lied to him, and that Celaya only intended to plead to false imprisonment.
Mugridge testified in rebuttal that on the day Celaya was scheduled to be sentenced, Wyrick appeared for Mugridge to ask for a continuance. At some point, Wyrick told Mugridge that Celaya had said defendant advised him that if he was really upset with Mugridge, the best way he could get back at him would be to have members of the Bulldog gang go after Mugridge's daughter, who was a juvenile at the time. The information contained the name of Mugridge's daughter, as well as either her school or home address. Wyrick subsequently visited defendant in jail. According to what Mugridge was told, when Wyrick related the information he had heard from Celaya, defendant became very upset, turned over a table, and started yelling. Mugridge contacted law enforcement and took steps to protect his daughter.
Sweeton interviewed Celaya on October 22, 2012. Celaya told her that defendant was a good paralegal who was helping him out and giving him advice while Celaya was in jail. Defendant told Celaya that Mugridge was "screwing [Celaya] over." Celaya told Sweeton that defendant had suggested he (Celaya) make a threat regarding Mugridge's daughter. Celaya said defendant suggested Celaya get some of his Bulldog home boys and have them make a visit to Mugridge's daughter. Celaya told Sweeton that defendant had written out a confession to murder, and it was passed from cell to cell and eventually reached Celaya. Celaya said he handed it over to a jail guard, but the jail guard destroyed the writing. Celaya said defendant was upset that Taylor kept asking him for a cigarette and a beer. Defendant said "fine, I'll get you a beer," and told Taylor to go ahead and roll a cigarette. Defendant then went into the kitchen, grabbed the pipe, came back out and said, "I've got your beer for you," and, when Taylor looked up, defendant "whack[ed]" him over the head. Celaya also told Sweeton that defendant said Taylor would light a match and throw it on the carpet and light another match and throw it on the carpet, and that defendant hit Taylor out of anger and a couple "rolly" cigarettes.
On or about July 18, 2012, defendant authored and submitted, to the court and district attorney's office, a statement that was read to the jury. In it, defendant represented that he worked fulltime for Mugridge, as paralegal and office manager, between 2002 and 2008. In the course of that employment, defendant organized and read every case file. Defendant worked on at least two cases in which multiple defendants who were Bulldog gang members were tried for torturing and murdering a minor. In addition, defendant — who had lived in Fresno County since 1979, except for two years, and in the same apartment since 1995 — had gained knowledge of the Bulldog gang from local media over the years.
Defendant represented that on Friday, October 24, he went to work by bus around 7:00 a.m. and stayed at work until around 5:45 p.m., at which time he was given a ride home. Defendant was dropped off at his 16-unit apartment complex around 6:00 p.m. Defendant got his mail, put on five music CD's, opened a new jug of corn whiskey and had a drink, and began playing a video game at his desk. He left both his security screen door and inner door wide open, as was his habit.
Around 6:30 p.m., defendant noticed a young Hispanic male standing just outside the front door, and went to ask if he could help him. Defendant then noticed a huge "B" tattooed on the man's face. Defendant assumed this probably meant the man was a member of the Bulldog criminal street gang. The man said he was waiting for his mother, who lived just south of defendant, and he asked for a cigarette. Defendant had seen a similar-appearing young man a couple of times over the last two years and the person had asked defendant for a cigarette, but that person had no facial tattoo and defendant was not sure this was the same person. Defendant refused to give this person, who turned out to be Taylor, a cigarette because of the facial tattoo. A young male neighbor walked by, and he and defendant greeted each other. Defendant then went back inside. Defendant did not recall seeing anyone else the entire night.
Defendant continued to sit at his desk, listening to music, playing a video game, and drinking whiskey until around 9:00 p.m., as was also his habit. He estimated he had consumed at least one pint, but less than two, of the corn whiskey. He had been drinking about two liters of whiskey each week over the past few years, and was intoxicated, though not heavily, by the time he quit playing the video game.
Defendant sat down on his couch and was looking at his mail when Taylor suddenly walked in through the open doors. Taylor sat down on the rocker recliner near where defendant was seated, then leaned forward and stared toward the television set, which was off. Defendant was taken aback and asked what he was doing, whereupon Taylor demanded a cigarette. Taylor never looked at anything other than the television set. Upset by Taylor's actions and attitude, defendant told him to get out, and that he had already said he would not give Taylor (who he still thought was a stranger and a Bulldog member) a cigarette. Taylor did not respond, but continued staring at the television. He was leaning forward as if ready to jump up, and his arms were resting on his thighs. Defendant, who was angry, thought about punching Taylor and trying to force him out the front door, but remembered he had been having severe back spasms all week. This in turn reminded defendant that he was 50 years old, overweight, out of shape, and intoxicated; he had no experience fighting, while Bulldogs were vicious, violent types who had to undergo a brutal beating as part of their initiation into the gang; Bulldogs frequently carried weapons and were not afraid to use them; Taylor was acting strangely and likely high on some kind of powerful drug; getting angry and reacting without thinking usually made bad situations worse; defendant could get in legal trouble and would have no witnesses to back him up; Taylor looked ready for action and was a young man who did not appear to be out of shape; Taylor had spoken and acted very aggressively, suggesting he was looking for a fight and therefore was likely ready for one; Bulldogs usually committed crimes together, so Taylor likely had help close by; since defendant was alone, he would be vulnerable should Taylor get the upper hand; and a person who would tattoo a huge gang symbol on his face was proud of being associated with such a gang, and was a hardcore member and likely one who was experienced in physical combat, since the tattoo was an extremely aggressive, overt challenge to everybody.
In addition to the foregoing thoughts, defendant saw a large bulge in Taylor's front pocket, and feared it was a gun or other weapon. Defendant's anger turned to fear as he realized what a dangerous situation he was in. He surreptitiously picked up a seven-inch-long railroad spike from his end table and put it between the seat cushion and armrest of the couch. He considered calling the police, but feared what Taylor might do if he heard. In addition, defendant did not want to involve the police in his life unless absolutely necessary, as they only seemed to make matters worse. Defendant thought it possible Taylor was the neighbor's son and might be open to reasoning, and Taylor had not voiced any direct threat.
Defendant tried to engage Taylor in conversation by asking what the "B" tattoo on his face meant. Taylor said he was a Bulldog. Defendant talked about Penal Code section 186.22 and how being in the gang could result in additional punishment if Taylor were caught committing crimes. Taylor did not seem to care, and said he and his homies had done home invasions. Defendant again calmly told Taylor to get out, but Taylor continued to sit there, staring at the television.
After defendant and Taylor had been sitting about six to eight minutes, defendant tried telephoning a neighbor to help resolve the situation, assist in a physical confrontation, or call the police, but no one answered. Defendant started to fear Taylor might call out for friends to assist him, so defendant put the railroad spike in his pocket, got up and looked outside, and closed and locked the deadbolt on both doors, even though he did not see anyone. Defendant was concerned Taylor might have friends nearby. He did not want them to know where Taylor was, and did not want Taylor to see them and become even more aggressive.
After closing the doors, defendant retrieved his drink and cigarette makings and moved to his desk. He stood looking at Taylor's back, wondering what to do. He remembered he had a three-foot-long metal pipe by his patio door that might come in handy. He got the pipe and put it on his desk chair where he could get it easily if needed. Defendant also put his large metal flashlight on the desk.
Taylor remained motionless and quiet for about four to five minutes. Defendant was afraid but not paralyzed with fear, and he felt he could get Taylor to leave if he stayed calm and used logic and reason. He considered giving Taylor a cigarette to see if he would leave then, but felt it would embolden Taylor. Also, defendant "disfavored" the idea of acting intimidated, especially in his own home.
As defendant continued to mull over the situation, Taylor leaned back and took some blister packs of pills out of his pocket. He then lit a match and held it and a pill pack close to his face. Defendant thought he was trying to smoke it, but then the match burned down and Taylor threw it on the carpet. He did this with three to five matches. Defendant concluded Taylor had come looking for trouble and was determined to keep pushing until defendant had no choice but to react like a coward or "a man of consequence."
Taylor got up and stood about three feet in front of defendant, who again tried to engage him in conversation in an attempt to resolve the situation peaceably. Defendant then told Taylor to leave. Taylor demanded a cigarette; defendant replied that he had already told him no, and to " 'get the hell out' " of his home. Taylor then asked what defendant was drinking, was told whiskey, and demanded a drink. Defendant refused and again told Taylor to leave. Taylor said he would get it himself and started to walk toward defendant, who put out an arm to block him. Taylor knocked defendant's arm aside, then shoved defendant, causing defendant to lose his balance, take a couple steps backward, and fall against the refrigerator. Taylor grabbed the flashlight and swung it hard at defendant's head, but defendant had regained some balance and was able to duck and then wrest the flashlight away. Defendant hit Taylor in the head with the flashlight, knocking him into the living room. Taylor stumbled and fell face first into the rocker, with his knees on the carpet and his head in the back of the seat. Defendant then climbed on his back and hit him in the back of the head with the 12- to 14-inch-long flashlight in an attempt to knock him out. Defendant simply wanted to knock Taylor out to keep Taylor from hurting him, but was unsure how hard to hit and so held back a lot.
When the blow had no effect, defendant struck Taylor harder in the same place. This only caused Taylor to raise his head and put his hands over the back of his skull, whereupon defendant "smacked" him in the face with the lightbulb end of the flashlight two to three times. This caused Taylor to bury his face in the cushion instead of moving his hands like defendant intended, so defendant struck Taylor's hands a couple of times with the back of the flashlight so Taylor would move his hands and defendant could knock him out.
Defendant noted Taylor had no broken bones in his hands. Defendant asserted he could have "easily broken many of them had he so desired."
Taylor began to raise himself up from the seat cushion while cursing defendant and threatening to kill him. Defendant tried to get off Taylor's back, but lost his balance and stumbled into the kitchen/dining area. At some point, he lost the flashlight. He regained his balance and his adrenaline started to kick in. He grabbed the pipe and turned back toward Taylor, who was coming at him with both arms extended straight out in front of him. Defendant poked at Taylor's midsection with the end of the pipe. Taylor turned sideways a bit, but kept coming. Defendant then struck Taylor on top of the head with the pipe. This made Taylor scrunch his face up and take a step back, but he did not lower his arms. Defendant then hit Taylor in the left side of the head, knocking him back another step.
By now, both men were in the living room. Defendant feared Taylor might pull a weapon or grab something that could be used as a weapon. He was "really scared," as he had heard of people on PCP who kept going even after being shot multiple times.
What happened next was "a little blurry." Defendant remembered being very frightened and concerned for his own safety. He "just wanted to knock this monster out." At some point, he "smacked" Taylor, who stumbled into the shelves of the entertainment center. A large stereo speaker that was about five feet off the floor fell over onto Taylor's head, and he went to his hands and knees. Although seemingly stunned, Taylor tried to stand back up. Defendant believed Taylor still posed a deadly threat to defendant and, determined not to let Taylor regain his feet, struck Taylor in the head again and then three times on the back. He told Taylor to get on the floor until the police arrived, but Taylor made no move to comply. Defendant struck him three more times and told him to stay down, but Taylor again tried to get up, so defendant struck him again. Defendant continued to walk around Taylor so Taylor could not strike out at him, telling him to lie down and "smacking" him three times in the head with the pipe each time when Taylor refused to comply and kept trying to stand up.
Defendant grew tired, confused, and scared, because nothing was working. He tried not to hit Taylor too hard, because he never intended to cause him more harm than necessary to make him stop. Defendant easily could have cracked open Taylor's skull at any time, especially while Taylor was on his hands and knees. Defendant never tried or intended to do that. "It was in utter frustration and sheer terror" that defendant struck the last blow to Taylor's skull. This blow did crack it open, although defendant never hit Taylor nearly as hard as he could have.
Defendant was extremely afraid and tired, and believed he would be unable to resist if "this monster" got up and came at him again. "It was in this frame of mind with which [d]efendant took that last swing and accidentally hit [Taylor] too hard and killed him. It was a desperate, overpowering sense of frustration and fear, which was forced on [d]efendant by Jon Taylor's words, acts, and gang tattoo."
After the last blow, Taylor groaned and rolled onto his side, then lay still. Defendant stayed ready for action for two to 10 minutes, but saw no signs of life after Taylor let out a deep breath. Defendant was scared and in a state of disbelief.
Defendant tried to calm down and come to grips with reality. He spent one to two hours smoking and thinking about what to do next. At some point, he had a vision of himself watching as Bulldog members laughed while torturing people about whom defendant cared. Defendant was filled with horror and panic, and felt that if he went to the police, everything would be revealed by the media, and nobody would be able to protect those for whom defendant cared from the gang, which would want retaliation. He decided to clean up his apartment and try to hide the corpse. To do this and not attract notice, he needed to "dismantle" the body.
All told, defendant was awake from 5:30 a.m. on Friday, October 24, worked at his job from 8:00 a.m. to 5:30 p.m., and then worked and sweated another 15 to 20 hours. He had only eaten a sandwich for lunch on Friday and an order from McDonald's on Saturday. He was stressed out and had driven about six hours in disposing of the body. Thus, he failed to realize what he thought was gang graffiti on his front door was only a trick of the light and shadows. Instead, he thought it was a personal message to him from the Bulldog gang, which somehow knew something had happened to Taylor and was letting defendant know the gang knew.
Defendant borrowed a truck from his friend, Mike. When he returned the truck, he told Mike what had happened. Mike convinced him not to return to his apartment, because the Bulldogs would kill him if they got a chance. Defendant slept at Mike's house for about six hours, then went downtown and told Mugridge what had happened. Mugridge had defendant talk to the police. Defendant was still fragile, tired, and confused, explaining why much of the information in his written statement did not make it into his statement to them. Defendant voluntarily led police to the gravesite without any expectation of consideration. He had lots of experience with the prejudicial effect of gruesome photographs, and could have prevented their production by claiming he could not remember the grave's location. He also could have claimed Taylor had a weapon, as defendant was knowledgeable in the laws of self-defense.
II
DEFENSE EVIDENCE
Dr. Burr Hartman, a board-certified physician with specialties in anatomic, clinical, and forensic pathology, explained that the blood concentrations for a therapeutic dose of methamphetamine range from 20 to 50 nanograms per milliliter. Taylor's blood concentration of 998 milligrams per milliliter constituted abuse of the drug. In those amounts, users have been observed to become agitated, paranoid, aggressive, violent, irrational, and delusional, although this depends on the individual and his or her tolerance. In chronic use, tolerance does not matter, and users get irrational. In Taylor's case, the fact the methamphetamine level was higher in the blood than in the vitreous humor implied recent use of the drug, within minutes to an hour. Because there was no amphetamine in Taylor's blood or vitreous fluid, it suggested he had not previously used methamphetamine within at least several days. In Hartman's opinion, at this dose, no one would be calm.
Falling asleep usually happens with withdrawal from methamphetamine. After the person withdraws, he or she will have a "crash," which sometimes will cause the person to sleep for two or three days at a time. Taylor's dosage was in the acute-use phase, not the withdrawal phase.
Taylor's levels of alcohol in the blood and vitreous meant he was fairly drunk, although the alcohol was decreasing. Alcohol lowers someone's inhibitions, meaning someone will do something he or she might not otherwise do. Whether methamphetamine affects inhibitions depends on the dosage. With an abusive amount — over 100 nanograms per milliliter — people can do very unpredictable things.
Defendant presented character evidence with respect to Taylor, and opinion and reputation evidence concerning himself.
On August 21, 2006, Fresno Police Officer Sturgeon encountered Taylor. Sturgeon told Taylor he was going to evaluate him for narcotics and alcohol usage. Taylor stated, several times, that he was going to get Sturgeon in a cell and "fuck [him] up." Taylor also said he was going to find Sturgeon's family and kill them, and that all the police officers lived at Shepherd and Maple and he was going to find them and kill them. Based on their contact, Sturgeon opined Taylor was under the influence of alcohol. He had mood swings, sometimes being calm and cordial, then switching to being confrontational and making threats, and then shortly afterward being calm and cordial again.
On September 2, 2006, Clovis Police Officers Amerjan and Dodd had an encounter with Taylor. Taylor claimed he was a Fresno Bulldog gang member who had been associated with the gang for five years. Taylor showed objective signs of alcohol intoxication. Asked about his drinking, Taylor said a lot of "fucking forties, mother fucker." Amerjan clarified he meant 40-ounce beers. When Dodd handcuffed him, Taylor immediately became belligerent. He told Dodd, "Fucking mother fucker, I'll kill you. I'll fucking kick the shit out of you. If I ever see you again I'll kick your fucking ass." He also told Dodd, "I'll fuck your mother too." When Dodd made a comment about his mother having passed away, Taylor replied, "I'll fuck her dead ass."
On October 24, 2007, Fresno Police Officer Williams encountered Taylor. Taylor related that he was a Bulldog gang member and was initiated by being "jumped in," i.e., beaten by several gang members as a form of initiation into the gang.
As of December 14, 2007, Staci Jones was employed by West Care, a residential drug- and alcohol- treatment facility. Taylor had been terminated from the program, and was in the office to retrieve his belongings. Taylor asked to speak to a specific person, but the person's supervisor came to the office instead. At some point after Taylor's conversation with the supervisor, Taylor said he was going to come back and "fuck this shit up." The Fresno police were called, but Taylor was gone by the time they arrived.
Judith Rober had known defendant for 25 years. He had a reputation for being very honest. Rober's personal opinion was that he was very honest. She never heard anyone speak of any violence he had done, and she never saw anything. Her personal opinion was that he was not a violent person.
Michael Parr loaned defendant his pickup on Saturday, October 25, after defendant called and asked for it. Parr brought the vehicle to defendant's residence, where defendant met Parr out front. Defendant delivered the truck to Parr the next day at a birthday party. Defendant participated in the party and spent time with Parr. Parr later learned he had not been told the truth about why defendant needed the truck. Parr allowed defendant to spend Sunday night at Parr's home, on condition defendant contact the police in the morning. On Monday, Parr dropped defendant off at defendant's place of employment.
Defendant's reputation was for being extremely honest. Parr felt him to be one of the most honest and best individuals Parr knew. Defendant also had a reputation for nonviolence and for specifically avoiding violence. Parr believed him to be a totally nonviolent person.
Mugridge was an attorney, law professor, and author in law. His primary area of practice was criminal defense. He had known defendant since approximately 2001, when defendant became his employee. At some point, in either 2001 or 2002, defendant became his office manager.
A good percentage of the murder cases in which Mugridge was defense counsel had gang involvement, including the Bulldog gang. Defendant assisted in working on the Bulldog murder cases. His primary role was to organize the file. Sometimes he was assigned to read and summarize police reports and give Mugridge a short factual synopsis, and occasionally Mugridge would have him do some legal research. In the course of these job duties, defendant would both read police reports and view physical evidence.
Defendant had a very good reputation for honesty. Mugridge's personal opinion of his honesty was that it was excellent.
At some point, Mugridge represented Celaya, who was one of the two most difficult clients Mugridge ever had. Celaya was suspicious of everything, argumentative, paranoid, violent, and a liar. Mugridge had to be very careful with him and not release any information to him about Mugridge's personal life. Celaya was a Bulldog gang member, although not as active in the gang as he once was. With respect to Celaya's case, Celaya eventually agreed with Mugridge that Mugridge had secured the best deal possible, and so Celaya pled guilty to a charge of rape with a foreign object. Celaya did not later accuse Mugridge of saying he was actually pleading guilty to false imprisonment.
On the morning of October 27, Mugridge was in his office waiting for defendant, who was a little late. Wyrick, one of Mugridge's law clerks at the time, advised Mugridge that he had met with defendant and believed Mugridge should talk to him. Mugridge spoke with defendant for 45 minutes to an hour, after which he advised defendant to surrender to the police and tell them exactly what defendant had told him. Defendant did so within 15 to 30 minutes.
According to Yee, defendant and Mugridge arrived at the police department at 5:25 p.m.
DISCUSSION
In addressing the specific issues raised by defendant, a few observations are in order in light of the nature of the parties' briefs and the case.
First, just because we do not discuss a particular authority cited by a party does not mean we have not considered it. As defendant no doubt recognizes, sister state and lower federal authorities are at most persuasive, not controlling. (People v. Chatman (2006) 38 Cal.4th 344, 381, fn. 15; People v. Avena (1996) 13 Cal.4th 394, 431; Lebrilla v. Farmers Group, Inc. (2004) 119 Cal.App.4th 1070, 1077.) This is particularly true where the issue involves the interpretation of California's Evidence Code.
Second, given the complex manner in which defendant has presented the issues, we reject the notion the Attorney General's alleged failure to address a point means that point is uncontested. Even if such an omission could be deemed a concession (see People v. Bouzas (1991) 53 Cal.3d 467, 480; People v. Isaac (2014) 224 Cal.App.4th 143, 147, fn. 4; but see People v. Grimes (2016) 1 Cal.5th 698, 719-720 ), we would not accept it (see People v. Cowger (1988) 202 Cal.App.3d 1066, 1074; People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021).
Third, errors and disagreements on immaterial points (for example, who was whose best friend and whether two or three witnesses testified concerning defendant's character) are just that, in light of the issues raised on appeal — immaterial. They warrant no discussion.
Fourth, that we may choose to present issues in a somewhat simplified, straightforward manner does not mean we fail to grasp the scope and intricacies perceived and presented by defendant. It simply means we decline to make the issues more complicated than they actually are.
Last, defendant represented himself from August 25, 2011, to August 22, 2012. During that time, he filed numerous motions. The trial court's rulings on those motions remained in place, except to the extent either party requested the court to reconsider or revisit an issue. Accordingly, we will not necessarily distinguish between defendant and defense counsel with respect to the procedural aspects of the various issues.
I
EVIDENTIARY RULINGS
Defendant raises a number of claims of error with regard to the trial court's admission and exclusion of evidence at trial. Our analysis of each is guided by certain general legal principles.
" 'Only relevant evidence is admissible [citations], and, except as otherwise provided by statute, all relevant evidence is admissible [citations].' [Citation.] 'Relevant evidence is defined in Evidence Code section 210 as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation.]" (People v. Bivert (2011) 52 Cal.4th 96, 116-117.) " '[T]he trial court has broad discretion to determine the relevance of evidence.' [Citation.]" (People v. Tully (2012) 54 Cal.4th 952, 1010.) This discretion extends to all rulings on the admissibility of evidence. (People v. Rowland (1992) 4 Cal.4th 238, 264; see, e.g., People v. Doolin (2009) 45 Cal.4th 390, 437 [§ 1102]; People v. Waidla (2000) 22 Cal.4th 690, 724 [§ 352]; People v. Loza (2012) 207 Cal.App.4th 332, 345 [§ 1103].)
Further statutory references are to the Evidence Code unless otherwise stated.
"Under . . . section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Of course, section 352 "must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 999.) As a general matter, however, "the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' [Citations.] Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Thus, we will not be persuaded by attempts "to inflate garden-variety evidentiary questions into constitutional ones . . . ." (People v. Boyette (2002) 29 Cal.4th 381, 427.) Any misstep by the trial court under such circumstances is " 'an error of law merely; there [is] no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.' [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension [citation]." (People v. Fudge, supra, 7 Cal.4th at p. 1103.) A. Limitation on Mugridge's Testimony
Defendant says the trial court erred in refusing to allow Mugridge to testify about facts and photographs in Bulldog gang cases on which defendant worked. Because exclusion of the evidence severely impaired the defense case, he says, the error was of federal constitutional magnitude and prejudicial under any standard. We conclude the trial court did not err.
1. Background
The trial court ruled, in limine, that it would permit evidence with respect to defendant's belief Taylor was a gang member, to show defendant's state of mind. In addition, it would allow some evidence of Taylor's gang membership, whether or not known to defendant, and evidence concerning the Bulldog gang, all subject to section 352, as evidence relating to the issue of whether defendant's subjective belief was objectively reasonable.
The court subsequently raised an issue with respect to the extent Mugridge would be permitted to testify about other cases he had when defendant was a paralegal in his office and the effect those may have had on defendant's state of mind or knowledge. The court noted Mugridge and, by extension, defendant, still had attorney-client obligations to people they represented, and so there might be a problem if, for example, a client who was a Bulldog gang member told them things about that gang. Defense counsel represented that Mugridge had told him there were two cases involving alleged Bulldog gang members in which there were particularly gory autopsy photos, and that defendant had worked on both. Defense counsel represented that those incidents helped to explain defendant's severe reaction to Bulldogs. Defense counsel stated he was not seeking to introduce the photographs or testimony from the trials, but he did want to introduce facts from the cases. The court directed him to submit a written offer of proof.
In his offer of proof, defense counsel represented that Mugridge said he was frequently appointed by the court to represent alleged Bulldog gang members charged with murder, and that defendant worked for him on those cases and had access to the police reports and autopsy photographs. In one particular case, the victim had been the girlfriend of an alleged prominent Bulldog gang member. She was careless in discussing alleged gang crimes. She was taken to a location where she was stripped, repeatedly shot for target practice with air pistols, raped repeatedly over a period of several days, and strangled. The autopsy photographs were bloody. In a second case, a woman was allegedly taken by Bulldog gang members, shot by them repeatedly in the genital area with a rifle, and killed. Again, the autopsy photographs were bloody.
The trial court ruled Mugridge would be allowed to testify he worked on cases that involved Bulldogs and on violent cases, but that the specific facts of those cases were more prejudicial than probative under section 352. The court noted the issue was whether defendant had information, as a result of his work with Mugridge, that Bulldog gang members were violent, and this could be presented without getting into the specific facts of the cases. The court ruled the jury could be told they were homicide cases, which jurors reasonably could conclude were violent and affected defendant. The court found the nature of the autopsy photographs and fact the victims allegedly were tortured not particularly relevant and more prejudicial than probative. The court ruled photographs should not be mentioned, but permitted testimony defendant worked on homicide cases that involved Bulldogs and that he viewed the evidence. The court reasoned that since jurors had been presented with "oodles of pictures" in the case at bench, they would understand homicide cases by their nature involve violence and a variety of evidence.
As summarized in the statement of facts, ante, Mugridge testified that a "[g]ood percentage" of the murder cases in which he was the attorney had Bulldog or other gang-related involvement. Defense counsel asked specifically about the Bulldog murders, and elicited that defendant assisted Mugridge in working on those cases, and that his work involved both reading police reports and viewing physical evidence. On cross-examination, Mugridge noted that a lot of his clients who were accused of homicides tended to be gang members, so they were "kind of violent by nature . . . ." Mugridge also testified concerning the steps he took after learning of the alleged threat to have members of the Bulldog gang go after his daughter.
2. Analysis
Defendant contends that by admitting only generic evidence, the trial court prejudicially contravened the defense's right to present its case. He says the evidence would have helped explain the "otherwise inexplicable," and would have allowed him to "provide[] jurors with evidence bearing on the context of [defendant]'s extreme mental state, as corroborating his account of an honest non-malice motive for his actions, and supporting the credibility of his explanations." He argues the trial court's ruling prevented the defense "from providing a contextual basis to corroborate why the extremeness of [defendant]'s actions could have related to extremeness of fear as he described, not sociopathic deviance." He also invokes " 'the "parity" principle,' that the parties should be treated equally when it comes to presenting evidence. [Citations.]"
The People asserted defendant killed Taylor with malice aforethought and so was guilty of murder. Defendant claimed he was not guilty because he acted in self-defense, or at most he was guilty of voluntary manslaughter. Thus, his state of mind clearly was relevant, and he was entitled to present evidence that bolstered his own statements with respect thereto. (See People v. Duran (1976) 16 Cal.3d 282, 294-295; People v. Thurmond (1985) 175 Cal.App.3d 865, 871-872; DePetris v. Kuykendall (9th Cir. 2001) 239 F.3d 1057, 1058-1059, 1062-1063; see generally Washington v. Texas (1967) 388 U.S. 14, 19.)
Jurors were instructed on express and implied malice, premeditation, self-defense, and voluntary manslaughter based on sudden quarrel or heat of passion or on imperfect self-defense.
Defendant was allowed to present such evidence here. He simply was not permitted to present details of cases that did not directly involve Taylor. Although he was not allowed specifically to elicit his viewing of photographs in such cases, jurors learned his work involved reading police reports and viewing physical evidence in Bulldog murder cases. Jurors had personal experience, through the evidence presented in defendant's case, with the gruesome nature of the physical evidence in homicide cases. In addition, there was uncontradicted evidence Bulldogs tended to be violent, and jurors were aware of Mugridge's reaction when it appeared Bulldogs were threatening his daughter. Under the circumstances, the trial court acted reasonably in concluding the probative value of the actual details of the cases on which defendant worked, including that he viewed photographs, was substantially outweighed by the prejudicial effect, including, implicitly, the probability admission of such evidence would necessitate undue consumption of time or create substantial danger of confusing the issues. (See People v. Fuiava (2012) 53 Cal.4th 622, 664-666; People v. Thompson (2010) 49 Cal.4th 79, 130-132.) Although the trial court reasonably could have permitted the proffered evidence, it did not act unreasonably in excluding it. Accordingly, its ruling did not constitute an abuse of discretion. (See People v. Giminez (1975) 14 Cal.3d 68, 72 [term "judicial discretion" implies absence of arbitrary determination; discretion is abused when court exceeds bounds of reason when all circumstances are considered].)
Our conclusion the proffered evidence was properly excluded pursuant to section 352 leads us to reject any suggestion the trial court's ruling violated defendant's right to present a defense. (See People v. Linton (2013) 56 Cal.4th 1146, 1183-1184; People v. Lawley (2002) 27 Cal.4th 102, 154-155.) There was no blanket exclusion of evidence concerning the cases on which defendant had worked and their effect upon his state of mind; moreover, defendant was able to and did strenuously argue that effect. (See People v. Linton, supra, at pp. 1183-1184.)
Defendant points out that discretionary evidentiary rules must be administered in an evenhanded manner. We agree. We do not agree, however, that this principle was violated by the trial court's specific ruling or the application of section 352 in general. (See, e.g., People v. Jones (2011) 51 Cal.4th 346, 376-377; People v. Farley (2009) 46 Cal.4th 1053, 1110; People v. Alcala (1992) 4 Cal.4th 742, 798.) B. Defendant's Conversation with Parr
Defendant says the trial court erred by permitting the prosecution to elicit evidence implying defendant gave Parr an account of events that made the homicide murder, but precluding the defense from eliciting evidence of what defendant actually told Parr. He says the trial court's ruling constituted federal constitutional error, but was prejudicial under any standard. We conclude any error was harmless.
1. Background
While representing himself, defendant made a written offer of proof with respect to Parr's testimony. Defendant represented that on October 25, he asked to borrow Parr's truck in order to help a friend in Modesto. Parr agreed. When defendant returned the truck the next morning, however, Parr could tell defendant was tired and upset. They had a discussion about the events of October 24 and 25. Parr advised defendant to tell the police, and defendant agreed to see Mugridge after he got some sleep. Parr dropped defendant off at Mugridge's office around 3:00 p.m. on October 27. In addition to the foregoing, defendant sought to have Parr testify concerning defendant's character for honesty and nonviolence. The trial court ruled the proposed evidence was admissible.
Defense counsel subsequently submitted to the court transcripts of Parr's statement to defendant's original attorneys and his statement to detectives. Counsel sought to admit defendant's disclosure of the death and description of events, made to Parr on October 26, as a prior consistent statement with respect to defendant's statement to police on October 27. The prosecutor objected that defendant had to testify before statements he made to Parr could be admitted. The trial court also noted that the general rule regarding prior consistent statements was that there had to be an intervening inconsistency or bias. The court deferred ruling to see whether the evidence was offered in compliance with sections 791 and 1236.
Parr told detectives that after returning the truck, defendant told Parr that someone had forced his way inside defendant's apartment and was bragging about being a Bulldog gang member. This person demanded cigarettes and a drink, and tried to intimidate defendant. Defendant related that he and the person got into a struggle, and defendant hit him with a pipe. Defendant admitted the person was dead, and informed Parr that he had cut up the body and buried it in the mountains. Upon learning defendant had used his truck to transport the body, Parr became upset. He said he would not have let defendant use the truck for that purpose. Parr told defendant that what defendant had done was wrong and the police needed to be notified.
Parr was called as a defense witness at a time when defendant had not yet decided whether to testify. In pertinent part, Parr testified, on direct examination, that he loaned his pickup truck to defendant on Saturday, October 25, and defendant returned it the following day.
Defendant ultimately elected not to testify.
On cross-examination, the prosecutor elicited that when defendant returned the truck, he told Parr a story. Parr was upset and angry that his truck had been used in a way other than how he had been told it would be used. Parr was angry with the circumstances. The truck was used in a manner Parr would not have allowed. Parr conceded he was lied to by the person he felt was the most honest person he ever met. The prosecutor also elicited that defendant stayed with Parr on Sunday, and Parr took him to work the next day. Parr was given some information and told defendant that what he did — "[t]he circumstances, absolutely" — was wrong and that the police needed to be notified. Parr told defendant that if defendant did not call the police, Parr would. The next day, Parr took defendant to defendant's attorney.
On redirect examination, Parr testified that defendant told him what happened. Parr explained that when defendant brought the truck back, Parr could tell he was distraught. Parr kept asking what was wrong, and defendant finally started crying and broke down and told Parr. Defense counsel then asked what defendant said happened. The trial court sustained the prosecutor's hearsay objection, even though defense counsel cited section 356. When defense counsel then asked why Parr felt what defendant had done was wrong, the court sustained the prosecutor's relevance objection.
Outside the presence of the jury, the following took place:
"[DEFENSE COUNSEL]: I wanted to put on the record the issue of Mr. Parr where I had argued it was 356 . . . . You had a ruling that it wasn't.
"THE COURT: Yes. You did have a ruling that it wasn't, and the court's thinking on that is under 356 where part of an act, declarational [sic] or conversation the whole on the same subject may be inquired into by an adverse party. And I don't believe we really had part on a subject.
"[DEFENSE COUNSEL]: I understand the court's position on that, but in thinking about it it seems to me that we do have it because what Mr. Parr said was he told me what happened and I said that's wrong, attributing those words to Mr. Parr. [¶] . . . [¶] . . . So in essence, what we have is testimony from Mr. Parr that what was said to him was essentially an admission of wrongdoing, and if we were to actually inquire more closely into what Mr. Parr heard, I think his position is actually that it was the cutting up and burial of the body that was wrong and not the killing
itself. [¶] . . . [¶] . . . And so I think we should be able to bring Mr. Parr back in and cover that with him.
"THE COURT: I don't think Mr. Parr's opinion is particularly probative of anything, so I'm not worried about Mr. Parr's opinion. And I don't think that you have a partial statement with respect to a topic which is what is required under 356, so the court's ruling on that will stand."
2. Analysis
Defendant contends that the excluded evidence was of a type found admissible by California and other state and federal courts under the "rule of completeness." Defendant says fairness requires that one party be permitted to correct misleading inferences created from prior examination by the other party, and the trial court's assertedly erroneous ruling created "fundamental unfairness by permitting the prosecution to elicit evidence that strongly implied a murder confession, without permitting the defense to elicit the explanatory evidence showing there was none." Defendant further argues the trial court's ruling violated defendant's privilege against self-incrimination, by making defendant's invocation of the right to silence costly.
Section 356 is the statutory version of the common law rule of completeness. (People v. Parrish (2007) 152 Cal.App.4th 263, 269, fn. 3.) Section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
The purpose of section 356 " 'is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed.' " (People v. Vines (2011) 51 Cal.4th 830, 861.) The statute "applies only to statements that have some bearing upon, or connection with, the portion of the conversation originally introduced. [Citation.] Statements pertaining to other matters may be excluded. [Citation.]" (People v. Samuels (2005) 36 Cal.4th 96, 130.) " 'The rule is not applied mechanically to permit the whole of a transaction to come in without regard to its competency or relevancy . . . .' [Citation.]" (People v. Perry (1972) 7 Cal.3d 756, 787, overruled on another ground in People v. Green (1980) 27 Cal.3d 1, 27-34.)
Although application of section 356 "hinges on the requirement that the two portions of a statement be 'on the same subject' " (People v. Vines, supra, 51 Cal.4th at p. 861), the California Supreme Court has taken a "broad approach" to the admissibility of the remainder of a conversation under the statute (People v. Clark (2016) 63 Cal.4th 522, 600). " ' "In applying . . . section 356 the courts do not draw narrow lines around the exact subject of inquiry. 'In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence. . . .' [Citation.]" ' [Citation.] Further, the jury is entitled to know the context in which the statements on direct examination were made. [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 334-335.)
Even given the broad reach of section 356, it is not clear the testimony elicited by the prosecutor — that Parr was given some information and told defendant that what he did was wrong — fell within the ambit of the statute such that the defense should have been permitted to elicit what defendant told Parr. (Cf. People v. Riccardi (2012) 54 Cal.4th 758, 803, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Sakarias (2000) 22 Cal.4th 596, 642-644; People v. Zapien (1993) 4 Cal.4th 929, 959-960; People v. Parrish, supra, 152 Cal.App.4th at pp. 275-276.) We need not decide this point, however. Assuming the trial court erred by refusing to permit defendant to elicit what he told Parr, the error was harmless, because it is not reasonably probable it affected the verdict adversely to defendant. (People v. Arias (1996) 13 Cal.4th 92, 156-157; see § 354.)
Insofar as it was proffered for its truth, what defendant told Parr was hearsay, and so would normally be inadmissible unless it fell within an exception to the hearsay rule. (§ 1200.) To qualify under the exception for party admissions, a hearsay statement must be introduced against the declarant. (§ 1220; People v. Gurule (2002) 28 Cal.4th 557, 605.) " ' "A defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination." ' [Citation.]" (People v. Gurule, supra, at p. 605.) Where the rule of completeness is concerned, however, section 356 requires that it be an adverse party — a party not the proponent of the evidence at issue — seeking to inquire into the whole subject. (People v. Guerra (2006) 37 Cal.4th 1067, 1122, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) Here, the prosecution was the proponent of the evidence that defendant told Parr something. Accordingly, assuming section 356 applied, reception of the evidence was not barred by the hearsay rule (People v. Barrick (1982) 33 Cal.3d 115, 131, superseded by constitutional amendment on another ground as stated in People v. Collins (1986) 42 Cal.3d 378, 393; see People v. Harris, supra, 37 Cal.4th at p. 335) or because the omitted portions of the conversation were self-serving (People v. Douglas (1991) 234 Cal.App.3d 273, 285).
Defendant sought to elicit from Parr that it was the cutting up and burial of the body, and not the killing itself, that Parr thought was wrong. As the trial court noted, however, Parr's opinion on that point was not probative. "A witness may not express an opinion on a defendant's guilt. [Citations.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) Moreover, Parr's testimony was not nearly as likely to mislead the jury as defendant contends, as Parr made it clear what upset him was the purpose for which defendant used his truck and the fact defendant lied to him about it. The prosecutor only briefly and obliquely challenged this in his summation. Significantly, there was no suggestion what defendant told Parr was any different from what defendant told detectives the next day.
In his opening summation, the prosecutor argued: "And what's really significant about Mr. Parr, and explains one reason why we're here today, is that [Parr] told [defendant] not just what you did was wrong, but if you don't tell the cops, I'm telling them, okay? And he said the deal was you tell the cops tomorrow. You tell them tomorrow. I'll take you to your employer's place of work, but you're telling the cops tomorrow. The word was the deal. That was out of his mouth. This is the deal we made, okay? Not that the defendant was afraid of a gang coming to get him. He wasn't afraid of that. There was no gang coming to get him, but he sets a story up. That's all set up by the time he gets to the cops. But he knew [Parr], his friend, was going to go turn him in. That's why we're here. That's why we're here." In closing argument, the prosecutor stated: "Mike Parr, defense puts what we call the spin on that phrase, worried about what you did was wrong and now he's trying to relate it to the mutilation. [¶] . . . [¶] So the defense put the spin on it, said it's about dismemberment, that's why he meant what he did was wrong. That's one of the bones that the defense throw you to try to chew on."
When defense counsel argued to the jury that what defendant told Parr was the same as what he told Mugridge and what he told the police, the trial court overruled the prosecutor's objection and expressly stated it was a reasonable inference from the evidence.
Defendant's attempt to turn any error into one of federal constitutional magnitude is unpersuasive. Contrary to defendant's claim, the prosecutor did not argue to the jury that defendant confessed to Parr that he committed a murder, and excluding evidence of what defendant told Parr did not, under the circumstances, result in fundamental unfairness. (See People v. Gurule, supra, 28 Cal.4th at p. 605.) Defendant contends the error violated his Fifth Amendment privilege against self-incrimination by making defendant's invocation of his right to silence costly. We assume defendant is referring to his decision not to testify, since he did not invoke his right to remain silent when accompanied by his attorney to give his statement to the police. In any event, the fact defendant's decision whether to testify may have been impacted does not automatically mean the assumed error is subject to assessment pursuant to the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. (Cf. People v. Gurule, supra, 28 Cal.4th at p. 605 [the defendant was free to present fuller picture, consisting of self-serving hearsay not otherwise admissible, by taking stand himself].) C. Taylor's Prior Acts
Defendant says the trial court erred by excluding evidence of Taylor's repeated prior acts of wanton disregard for the welfare of himself and others when intoxicated. We find no abuse of discretion.
1. Background
While acting as his own attorney, defendant moved to introduce evidence of Taylor's character. Defendant asserted the evidence would "tend to prove many things, including the conduct of Taylor in conformity with such evidence of his character traits; credibility of witnesses; bad reputation of Taylor and his Bulldog terrorist criminal street gang; Taylor's conduct in conformity with his habits and his gang customs and culture; Defendant's veracity and innocence; the reasonableness and necessity of Defendant's thoughts, beliefs and acts; ultimate facts in dispute; motives and intents of Defendant, Taylor, and his gang; specific acts of Taylor and members of his gang; and to provide a solid foundation for Defendant's need to have an expert on the Bulldog gang to testify at trial." In part, defendant argued he had the right to present relevant and material information that would corroborate his version of events. Defendant attached law enforcement and other reports of various incidents involving Taylor in support of his motion. The People responded that if evidence of Taylor's character for violence existed, defendant could attempt to present it, subject to an evidentiary hearing on any specific instances or convictions he would seek to have admitted, including the manner in which he would present such evidence to a jury.
The trial court found Taylor's character for violence admissible pursuant to section 1103. It ruled that, subject to section 352, it would permit otherwise admissible evidence (i.e., testimony concerning the facts of the incidents and not merely police reports) regarding an incident from September 2, 2006, which involved a Penal Code section 69 charge for threatening to "fuck up" and kill police officers; an incident from August 21, 2006, to the extent it involved a threat to kill law enforcement officers; the June 18, 2006, event involving Prince Anthony Hawkins; and the December 14, 2007, event in which individuals at West Care were threatened. Those were the incidents listed in defendant's motion that the court found to be reflective of violence. Pursuant to section 352, the court excluded evidence concerning Taylor's law violations that did not involve violence or threats, such as evidence of drunk in public arrests or parole violation arrests, as involving an undue consumption of time. The court reiterated its ruling after counsel was reappointed for defendant. The court reasoned that because defendant was claiming self-defense, Taylor's prior acts of violence were admissible, subject to section 352, to prove Taylor acted violently on the occasion at issue, consistent with his character as a violent man. The court found the four incidents relatively straightforward and presentable without an undue consumption of time, and found them to be the incidents most probative of violence by Taylor.
Except for the incident involving Hawkins, testimony elicited at trial concerning the various events is summarized in the statement of facts, ante. According to the police report, on June 18, 2006, Taylor and Hawkins, who were friends, got into a physical altercation while watching a movie together. Taylor, who had been drinking heavily, made comments about his Bulldog gang ties and directed racial slurs toward Hawkins. Because Hawkins was physically unavailable as a witness, the defense ultimately was unable to present this incident at trial.
2. Analysis
Defendant contends the trial court erred by excluding prior acts in which, he says, Taylor acted with wanton disregard for the welfare of himself and others while intoxicated. Defendant specifically points to the following incidents:
(1) On June 26, 2004, Taylor was found slumped in a truck that did not belong to him. He had a knife in one hand and appeared to be asleep. When police yelled at him to wake up and drop the knife, Taylor refused to comply. He was tased and taken into custody. Once placed in the patrol car, Taylor used profanity and threatened to have one of the officers fired. He also slipped off his handcuffs, and started punching and kicking the windows and banging his head on the center divider. Taylor subsequently stated that he had consumed several 40-ounce cans of Old English Malt Liquor and had smoked some marijuana. He stated he had the knife for protection, as he had been "jumped" by three men several days before. He had visible injuries that appeared to be from that incident.
(2) On August 21, 2006, a citizen reported a reckless driver who swerved into oncoming traffic, hit a curb and almost hit a jogger, drove without his lights on, and drove on the wrong side of the road. An officer illuminated the vehicle, which was reportedly stolen, whereupon the driver (Taylor), who had a blank stare on his face, made a U-turn in front of the patrol vehicle, stopped briefly, and then started moving at the patrol vehicle head on at approximately 10 to 15 miles per hour. Taylor drove past the officer, then, as the officer made a U-turn to follow, accelerated to over 50 miles per hour, ran a red light, and nearly collided with another vehicle. Taylor then fled on foot through a residential neighborhood. When taken into custody, Taylor appeared to be under the influence of alcohol and possibly a stimulant narcotic. He did not obey commands and seemed incoherent. He did not react to the "application" of Sturgeon's K-9 partner and fought with the dog before being taken into custody. Taylor subsequently stated he had had six 24-ounce cans of beer that night, and had last used drugs, consisting of marijuana and rock cocaine, several weeks earlier.
The portion of this incident, in which Taylor threatened to " 'fuck [Sturgeon] up' " and find Sturgeon's family and kill them, was admitted into evidence at trial.
(3) On September 2, 2006, Taylor, who was intoxicated, drove a vehicle into a cinder block wall. The vehicle's driver's side window had been broken and the vehicle was being driven without an ignition key. Officers confirmed it was stolen. Taylor subsequently admitted stealing the vehicle. According to one of the officers, he spoke as if he was proud of his ability to steal a car. Taylor stated he did not care that he was depriving someone of his or her vehicle.
The portion of this incident, in which Taylor threatened Dodd, was admitted into evidence at trial.
(4) On April 9, 2008, Taylor was found staggering in a roadway. He admitted he had been drinking, and officers determined he was intoxicated.
Defendant argues the foregoing evidence was relevant to corroborate aspects of defendant's account of Taylor's "aberrant and bizarre behavior" on the night he was killed. Defendant says it was further admissible as evidence of Taylor's character trait of manifest disregard for the welfare of himself and others while intoxicated, which further corroborated defendant's account of events. We conclude the trial court did not abuse its discretion by excluding the evidence pursuant to section 352.
" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) "Except as otherwise provided by statute, all relevant evidence is admissible." (§ 351.)
Subdivision (a) of section 1101 generally renders inadmissible "evidence of a person's 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) . . . when offered to prove his or her conduct on a specified occasion." Section 1103, subdivision (a)(1) provides an exception in criminal cases, allowing admission of the victim's relevant character trait(s) when the defendant offers such evidence to prove conduct of the victim in conformity with that character. " 'It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible.' [Citations.]" (People v. Wright (1985) 39 Cal.3d 576, 587.) "The law recognizes the well established fact in human experience that the known reputation of an assailant as to violence, even if specific acts are not within the knowledge of a person assaulted, has a material bearing on the degree and nature of apprehension of danger on the part of the person assaulted (and further even if the reputation is unknown) to show that one who is turbulent and violent may more readily provoke or assume the aggressive in an encounter. [Citations.]" (People v. Smith (1967) 249 Cal.App.2d 395, 404; see People v. Shoemaker (1982) 135 Cal.App.3d 442, 448.)
" '[O]f course, a defendant's evidence of self-defense is subject to all the normal evidentiary rules, including . . . [section] 352.' [Citation.]" (People v. Minifie (1996) 13 Cal.4th 1055, 1070.) The same is true of evidence offered to corroborate a defendant's account of events. (See People v. Fontana (2010) 49 Cal.4th 351, 368-369.) "We review for abuse of discretion a trial court's ruling to exclude proffered relevant evidence under . . . section 352. [Citations.]" (People v. Fuiava, supra, 53 Cal.4th at p. 663.)
The excluded evidence had, at best, only minimal probative value. Although it provided some corroboration for the notion that, when intoxicated, Taylor acted in ways that showed he had no respect for other people's property rights, it did little or nothing to corroborate defendant's account of events, since it did not suggest Taylor would go so far as to walk into someone's house uninvited and then refuse to leave. What little probative value it did have was clearly outweighed by the probability presentation of the evidence would necessitate undue consumption of time. The trial court properly tailored its ruling to admit Taylor's prior acts that were most probative of violence, while excluding those that did little more than cast Taylor in a poor light. (People v. Wright, supra, 39 Cal.3d at pp. 587-588; see People v. Kelly (1992) 1 Cal.4th 495, 523 [court is not required to admit evidence that merely makes victim of crime look bad].)
Defendant asserts that "wanton disregard for others' welfare and safety is a form of violence." Defendant's authorities for this proposition are far from compelling, as they present manifestly different factual circumstances and issues than confront us here. Even so, a trial court need not admit every prior violent act, but may exclude those it reasonably deems cumulative of other, more probative acts. (Cf. People v. Mattson (1990) 50 Cal.3d 826, 871.)
People v. Mizchele (1983) 142 Cal.App.3d 686, 689-691, stands for the unremarkable proposition that where the issue was whether the fatal shot was fired accidentally, evidence of the victim's prior violent history was admissible to corroborate the defendant's account that he sought to remove the gun from the victim's jacket, so the victim — who had pulled the gun on the defendant in the past — could not access it during the victim's argument with the defendant, and the gun accidentally discharged. U.S. v. Harris (11th Cir. 2009) 586 F.3d 1283, 1287-1288, concerns whether a Florida state conviction for fleeing from police at high speed or with wanton disregard for safety constitutes a "crime of violence" under the federal sentencing guidelines. State v. Medina (Ariz. 1999) 975 P.2d 94, 106-107, involves a state supreme court's independent review of aggravating and mitigating circumstances in a case in which the death penalty was imposed under Arizona law. Last, State v. Westphal (Me. 1975) 349 A.2d 168, 170, concerns the intent required for a conviction of armed assault under Maine's statute.
The trial court's ruling was reasonable and, contrary to defendant's claim, did not allow the prosecutor to present a misleading portrayal. By defendant's own account, Taylor was not violent when he entered defendant's home or for quite some time afterward. The acts admitted by the trial court were the most corroborative of defendant's account of Taylor being the aggressor. The prosecutor's ability to argue Taylor made threats, but there was no evidence of him ever hurting anyone, would not have been altered significantly by admission of the excluded acts. D. Defendant's Prior Act of Shooting at Someone
Defendant contends the trial court erred by permitting the prosecutor to elicit evidence defendant fired "snake shot" at two people in 1990. We conclude reversal is not warranted.
1. Background
While representing himself, defendant moved to introduce evidence of his good character for numerous traits, including honesty and peace and quiet. The court stated it was inclined to permit, pursuant to section 1102, evidence of opinion and reputation with respect to nonviolence or peacefulness. It was also inclined to permit testimony concerning defendant's character for honesty or veracity if defendant testified. The court warned that if defendant introduced evidence Taylor had a character for violence, the People could introduce evidence concerning defendant's character for violence under section 1103, subdivision (b). It also advised that to the extent the court allowed evidence concerning defendant's good character, the People could introduce evidence of defendant's bad character.
The prosecutor sought permission, should defendant introduce character evidence, to introduce an incident that took place in Visalia in 1990. According to the report in the prosecutor's possession, defendant and William Berger were driving to Visalia. Defendant was seeking to purchase marijuana. He met up with a couple of people in Visalia. There was a shooting. Defendant was the one who fired. Defendant told police the others struck him first, whereupon he ran back to his car. He was bleeding and fired the weapon. The prosecutor sought to ask defendant's character witnesses if they were aware of the incident and if it might change their minds. Defendant informed the court that he intended to introduce the incident himself, as evidence of his good character, since, despite the fact two people were shot, he was arrested but then released and given his gun back before he even went to court.
After counsel was reappointed for defendant, the court stated it had previously ruled evidence of prior incidents involving defendant would be inadmissible in the prosecution's case-in-chief; however, they would be admissible, if at all and under section 352, if the defense attempted to introduce evidence of Taylor's violent history, in which case defendant's character for violence would be admissible. The court stated it had received some information regarding incidents involving defendant, but since they would not be introduced in the People's case-in-chief, it intended to defer ruling on them.
Defense counsel observed that a lot of the evidence was potentially prejudicial to defendant. He argued it became even more unfairly prejudicial if admitted during rebuttal, because its importance would be heightened. Counsel opined its prejudicial effect would be diminished somewhat if it was admitted during the prosecution's case-in-chief, and he asked the court to direct the prosecutor to introduce it then.
The court noted there were five incidents the prosecutor sought to introduce, including events in 1990 and 2007. With respect to the event in 1990, defense counsel expressed "an especially strong viewpoint," since defendant was never charged and the prosecutor intended to present no percipient witnesses to the incident. The prosecutor stated he had the officers who stopped defendant and found him with a gun and with his face bloodied. The parties disagreed concerning whether defendant gave a statement, but Berger — who was now deceased — said one Hispanic subject hit defendant over the head with a beer bottle while another hit defendant over the head with a steel pipe. Defense counsel argued the only eyewitness thus said defendant acted in self-defense, in addition to which the witness was dead and the incident was 18 years old.
The prosecutor stated Berger told the police he did not see anything, but defendant ran back and relayed the story to him. Defense counsel represented that Berger said he got out of the car for a few minutes, but the conversation began getting heated. Berger got hit in the face by one of the subjects, and got back in the car and locked the door. Defendant continued talking to the subjects about buying marijuana and other unknown matters. Defendant then began yelling back and forth with the subjects for some unknown reason, which resulted in him being hit over the head with the beer bottle and steel pipe. At that point, Berger saw defendant pull out a gun and shoot two times, once at each of the two Hispanic subjects. Defendant then ran back to the car, got in, and they drove off. Defendant said they had to get out of there. According to the officers, defendant had large amounts of blood coming from his face and forehead. The prosecutor noted that a couple of weeks before the current court hearing, defendant was heard to tell the bailiffs that he could have killed both subjects if he wanted to.
The court next turned to a 2007 fight with law enforcement. Defense counsel represented that when defendant was arrested for driving under the influence, he resisted arrest and was taken to the ground. Defense counsel noted defendant was arrested for driving under the influence and resisting arrest, but was not charged with battery.
The next incidents were a May 2012 threat to someone named "Grace" in the jail, a June 2012 scuffle, and a June 2012 threat to Jeff Gunn. Defense counsel argued the incidents were long after the homicide, defendant's mental health had deteriorated during his time in jail, and it would be unfair to use the incidents when it was not defendant's fault his trial had been delayed so long. Counsel represented that the June 13, 2012, incident occurred near the trial court's department, when defendant was having trouble maneuvering his stack of legal papers while handcuffed. Officers were trying to hurry him out, and he started pushing backward and fell. The incident involving Gunn was simply a threat to "kick his ass." The incident in the jail actually occurred on May 22, 2013. Officer Figueroa was serving defendant his lunch, when defendant attempted to grab Figueroa's hand. Figueroa pulled his hand back and secured the food hatch. Defendant then started yelling profanities and stated he would "kick [Figueroa's] ass."
For a portion of the time defendant acted as his own attorney, Gunn was his investigator.
The court stated it did not yet know enough about any of the incidents to rule on their admissibility. With respect to the 1990 shooting, it decided to hold a section 402 hearing. The prosecutor stated there were two officers involved, one of whom would testify he stopped the car, which was full of blood, and found the gun underneath the driver's seat. The follow-up would be defendant's recent commentary on the incident. Defense counsel noted the gun had a problem with its trigger, and defendant showed the officers where it was so they would not injure themselves. Counsel remarked, "I don't know what could be more unfair than asking a man to defend an incident 18 years ago where the lone eyewitness supporting his position is dead."
The court declined to depart from the normal order of proof. It observed that the extent to which defendant's prior violence was admissible under section 352 would depend in part on what evidence was introduced in the defense case. The court was unwilling to allow introduction of bad character evidence before the character evidence of the decedent was introduced.
The court subsequently recited all the reports and information it had received and reviewed concerning the various incidents. With respect to the 1990 shooting, defense counsel argued there was a "dual aspect of unfairness," first in light of the remoteness of the incident, and second in light of the fact Berger gave two statements in which he described an act of self-defense on defendant's part, but Berger was deceased. Counsel acknowledged a central issue in the case was whether defendant was prepared to use force and violence and his character for the same, but he argued a misleading characterization of the incident would be presented to the jury since the lone neutral eyewitness was dead, and that eyewitness would have supported the fact that defendant's use of self-defense was reasonable.
Counsel represented that nobody knew the identity of the three other subjects who were present, or where they now were.
The prosecutor suggested the defense's argument would be better if the 1990 incident was the only incident of violence involving defendant. The prosecutor asserted statements made by Berger were of no value to anyone, because they could not be cross-examined. The prosecutor argued Berger was accompanying defendant to an illegal narcotics transaction, and that defendant chose to pull the weapon and fire it at two people.
The court opined that an uncharged offense had to be proven by a preponderance of the evidence, and that the People had no evidence of what actually occurred and whether it was self-defense. If jurors found the 1990 incident was self-defense, they would not be able to consider it to show defendant's character for violence. The prosecutor agreed with the trial court's reasoning. This ensued:
"[DEFENSE COUNSEL]: I just don't understand how we can use an incident from 18 years earlier where there's only one eyewitness who's given two statements that support the defendant's behavior on that occasion and who is dead and unusable. It would submit a completely misleading picture to the jury what happened. Fundamental unfairness of it is kind of shocking to me. [¶] . . . [¶]
"THE COURT: Okay. At least tentatively it does seem to the court that it is probative of a central issue in the case which is any propensity Mr. Waldron may have for violence, and so the court will permit an inquiry into it, but I think I do not want it mentioned in opening statement. [¶] . . . [¶] . . . It depends on what Mr. Waldron, how the evidence comes out during the defense case. I will permit you to reraise the question, so I don't want this cat out of the bag in opening statements. [¶] . . . [¶] . . . But at least tentatively I do believe evidence with respect to that 1990 incident is more probative than prejudicial.
"[DEFENSE COUNSEL]: I'm sorry, Your Honor. To show that if he's beaten over a head with a bottle and his face is bloodied with a metal pole that he will defend himself. It's probative of something, but I'm not sure it's —
"THE COURT: It is probative of his willingness to use force and violence, and to that extent it seems to the court it is relevant for his character for the use of force or violence, . . . which is a central issue in the case."
As for the remaining incidents, the court tentatively ruled only the 2007 incident of resisting arrest would be permissible. The court permitted it to be mentioned in opening statements, although warned it would be inadmissible if the defense did not introduce evidence of Taylor's character and defendant did not testify.
During Hawes's testimony, defense counsel elicited that when interviewed by a defense investigator, Hawes related that he said he never thought of defendant as a violent person, had not known defendant to demonstrate any violent tendencies, and believed defendant was very passive and nonconfrontational.
Outside the presence of the jury, the prosecutor argued the defense had elicited evidence of defendant's character for nonviolence, and he asserted he should have the right to explore that subject and use the incidents previously addressed. Defense counsel conceded it was appropriate for the prosecutor to inquire into the 2007 incident, but argued the 1990 incident should not be brought out at all during the trial. Defense counsel asserted section 352 precluded possibly offering an incomplete version of the Visalia incident, or the witness could be questioned about whether it would affect his opinion if defendant was first hit with a beer bottle and metal pole.
The court ruled the prosecutor could not ask about anything he would be unable to prove to the jury. Because Hawes testified he had had no contact with defendant since around 2003, he was unlikely to have heard about the 2007 incident — "have you heard" being the proper mode of inquiry under section 1102, the only basis for introduction of the evidence at this point — and so he could not be asked about it. As for the 1990 incident, Hawes could be asked if he had heard of a 1990 event in which defendant was stopped by the police in Visalia, and found with his face covered with blood and a loaded weapon in his vehicle. The court also stated it would read CALCRIM No. 351 to the jurors, which would tell them, in part, that the "have you heard" questions and answers were not evidence defendant engaged in any such conduct. Defense counsel objected to the 1990 incident even being limited to a loaded gun, but the court found the opinion counsel elicited from Hawes came squarely within the ambit of section 1102, and the incident fell within the character attributes at issue in this case.
The prosecutor subsequently asked Hawes if he had heard about a 1990 incident in Visalia in which defendant was stopped by the police and a loaded gun was found in his car. Hawes had neither heard about it nor would it change his opinion of defendant being a nonviolent or passive person. The trial court later instructed the jury the questions and answers were not evidence defendant engaged in any such conduct, but could be considered only to evaluate the meaning and importance of the character witness's testimony.
Rober testified for the defense that, in her opinion, defendant was not a violent person "at all." On direct examination, defense counsel asked if she had heard of his involvement in a 1990 shooting in Visalia. She testified she had not, and agreed with counsel that before she factored it into her evaluation of defendant's character for violence or nonviolence, she would want to know the facts of that event. On cross-examination, the prosecutor elicited that if she had heard defendant was the one doing the shooting, it would not change her opinion. On redirect examination, defense counsel elicited that it would not matter to Rober whether the shooting was in self-defense.
Parr testified for the defense that defendant had a reputation for nonviolence, and that his personal opinion was that defendant was a "totally nonviolent" person. Defense counsel elicited Parr had heard from defendant about defendant being involved in a shooting in Visalia in 1990, and that, given the circumstances as defendant described them, it "absolutely" did not affect Parr's opinion. With respect to the 2007 incident, if defendant was arrested for resisting arrest, it would not change what Parr thought, because Parr would know there had to be some other circumstance to bring forth such a reaction. Parr testified he knew defendant "really well" and knew he was not a violent person.
In rebuttal, the prosecutor called Officer McIntosh of the Visalia Police Department. McIntosh testified that at approximately 1:00 a.m. on May 3, 1990, he was on patrol when he received a dispatch to a call of shots fired in an apartment complex. He was advised a red car that was believed to be involved was seen leaving the area.
As McIntosh approached the area, he saw a red car stopped at a stop sign. He followed the vehicle for a short distance, then pulled it over. The passenger immediately jumped out. The driver — defendant — remained behind the wheel of the car and complied with McIntosh's directions. Both occupants of the car were detained. Defendant appeared to have blood on his face. McIntosh asked him about the incident, but defendant did not speak to him. When McIntosh looked in the car from outside, he saw an open bottle of beer on the right front passenger floorboard and a box of .22-caliber ammunition on the right rear seat. He searched the car and located a .22-caliber American Arms five-shot Derringer revolver under the driver's seat. The gun contained three live rounds and two that had been fired. McIntosh did not recall the nature of the live ammunition in the gun. The box of ammunition in the car contained both cartridges with solid projectiles as well as "snake shot," i.e., multiple pellets commonly used on snakes and other small animals. Other individuals involved in the incident were interviewed at the hospital.
Defense counsel sought to elicit whether McIntosh knew where the passenger was at the time of trial. McIntosh was permitted to answer that he did not, but the court sustained the prosecutor's relevance objections to questions whether McIntosh knew if the passenger was still alive or if he knew where any witnesses from 1990 were at the time of trial.
The prosecutor next recalled Sweeton. She testified that on October 21, 2013, she was in the courtroom when the Visalia incident was raised. Defendant stated, "[S]o what if I shot two punks who were trying to rob me. What does that prove, that I was trying to kill someone sucking off the public teet." He also said, "[D]o you know what I shot them with? It was [.]22. It was a [.]22 loaded with snake shot." At some point, the judge and the attorneys left the courtroom, leaving Sweeton, defendant, and the bailiff alone. Defendant commented that he had shot two people with snake shot, leaving three bullets in the gun. Defendant said, "[O]ne bang, one bang, then they dropped the pipe and ran." Defendant said nothing about being hit in the head with the pipe or why his head was bloody. At some point, defendant said one of the men yelled that he had been hit, and dropped the pipe and ran away.
The prosecutor's next witness was Fresno Police Officer Laband. Late on the night of November 4, 2007, he was dispatched to do a welfare check on a subject who was slumped over his motorcycle at Willow and Herndon. Upon arrival, Laband found defendant, who was intoxicated, propped up on his motorcycle in the bicycle lane at that location. He cursed continuously at officers. When Laband advised him that he was going to be arrested, defendant balled up his fist, puffed out his chest, and took a fighting stance. Other officers grabbed him. Defendant was advised to "go along with the program" and not resist, but he refused. One of the officers removed her Taser and pointed it at defendant. Laband advised defendant that he was going to be tased if he continued to resist, but he still refused to comply. He was then forced to the ground. It took four officers to get his hands behind his back and finally get him in handcuffs.
Defendant does not challenge admission of the 2007 incident.
Defendant was placed in the back of a patrol vehicle, where he proceeded to kick the safety glass of the rear windows. A hobble was placed on him to restrain his feet. Defendant subsequently spit through the security screen on the officer in the front passenger seat of the patrol car.
2. Analysis
Defendant contends the trial court erred by admitting evidence of the 1990 incident. He says an act of lawful self-defense is not admissible as evidence of violent character; since there was no evidence his act of shooting was anything but lawful self-defense, the evidence was irrelevant or at least should have been excluded pursuant to section 352.
Section 1102 provides: "In a criminal action, evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a)."
Pursuant to section 1102, "[i]t is well established that, '[w]hen a defense witness, other than the defendant himself, has testified to the reputation of the accused, the prosecution may inquire of the witness whether he has heard of acts or conduct by the defendant inconsistent with the witness'[s] testimony.' [Citation.] So long as the People have a good faith belief that the acts or conduct about which they wish to inquire actually took place, they may so inquire. [Citation.]" (People v. Siripongs (1988) 45 Cal.3d 548, 578.) Thus, "[a] defendant who elicits character or reputation testimony opens the door to the prosecution's introduction of hearsay evidence that undermines testimony of his good reputation or of character inconsistent with the charged offense." (People v. Tuggles (2009) 178 Cal.App.4th 1106, 1124.) "The prosecution may explore opinion-based hearsay by asking whether the witness has heard of statements at odds with the asserted good character or reputation. 'The rationale allowing the prosecution to ask such questions (in a "have you heard" form) is that they test the witness'[s] knowledge of the defendant's reputation.' [Citations.]" (Id. at p. 1125.)
"When the relevance of proffered evidence depends on the existence of a preliminary fact, the proponent of the evidence has the burden of producing evidence as to the existence of that preliminary fact. [Citation.]" (People v. Bacon (2010) 50 Cal.4th 1082, 1102; see § 403, subd. (a)(1).) In such situations, "the proffered evidence is inadmissible unless the trial court determines it 'is sufficient to permit the jury to find the preliminary fact true by a preponderance of the evidence.' [Citations.]" (People v. Tafoya (2007) 42 Cal.4th 147, 165.) In other words, "there [must] be sufficient evidence to enable a reasonable jury to conclude that it is more probable that the fact exists than that it does not. [Citation.]" (People v. Herrera (2000) 83 Cal.App.4th 46, 61.) "We review a trial court's ruling on the sufficiency of the foundational evidence under an abuse of discretion standard. [Citation.]" (People v. Tafoya, supra, at p. 165.) "A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute. [Citation.]" (People v. Kaurish (1990) 52 Cal.3d 648, 693.)
The trial court here was well aware that the relevance of the 1990 incident depended on whether the jury reasonably could conclude defendant was not acting in lawful self-defense at the time. Although the court did not expressly mention preliminary or foundational facts, the record shows it undertook the necessary determination.
The record supports the trial court's implied finding that an adequate foundation was established. (See People v. Hinton (2006) 37 Cal.4th 839, 890-891.) Jurors reasonably could have found it more likely than not that defendant's act of carrying a loaded gun in his car was not an act done in self-defense, even though, when he was stopped by police, his face was bloody. This was the only information concerning the 1990 incident that the trial court admitted initially, and we see no abuse of discretion, either under section 1102 or section 352.
It was defense counsel who elicited the fact the incident involved a shooting, as opposed to mere possession of a firearm, in his examination of defendant's character witnesses. Moreover, defendant raised no objection to the evidence the prosecutor presented in rebuttal, pursuant to section 1103, subdivision (b), concerning the incident. As a result, defendant has forfeited his claim of error with respect to admission of the rebuttal evidence. (§ 353, subd. (a); see People v. Demetrulias (2006) 39 Cal.4th 1, 19-20.)
Subdivision (b) of section 1103 provides: "In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant [to prove conduct of the victim in conformity with the character or trait of character]."
Defendant disputes this conclusion in light of defense counsel's vehement objection to admission of the incident for any purpose. The trial court made clear, however, that its ruling to admit the evidence was tentative, and it wanted to hear the defense evidence before making a final ruling. As a result, defendant was required to object at the time the prosecution presented the evidence in order to preserve for appellate review any issue with respect to admission of the fact the incident involving a shooting or the circumstances of the event, particularly in light of what defense counsel himself elicited from witnesses. "A motion in limine can preserve an appellate claim, so long as the party objected to the specific evidence on the specific ground urged on appeal at a time when the court could determine the evidentiary question in the proper context. [Citations.]" (People v. Solomon (2010) 49 Cal.4th 792, 821, italics added; see People v. Morris (1991) 53 Cal.3d 152, 189-190, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) However, "[a] tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the charged context of the trial evidence itself. [Citations.]" (People v. Holloway (2004) 33 Cal.4th 96, 133.)
Defendant argues "[t]he mere fact that the court deemed this evidentiary ruling 'tentative' did not make it tentative, when all of the proposed evidence and its sources were already before the trial court; the entirety of the defense objection was also before the trial court; the trial court stated a legal basis for its ruling that applied to all evidence of that type; and there was no further evidence on which the trial court could have changed its mind." To the contrary, we think a trial court stating its ruling is "tentative" is a fairly strong indication the issue is not settled and further objection is required to preserve it for review. This is particularly true where, as here, the trial court says it wants to hear how the actual evidence comes out. (Cf. People v. Hall (2010) 187 Cal.App.4th 282, 292-293 [no forfeiture where trial court gave final ruling, overruling objection, when evidence presented, but stated it would hear later argument concerning whether some of evidence should be stricken]; People v. Wattier (1996) 51 Cal.App.4th 948, 952-953 [no forfeiture where trial court tentatively ruled evidence would not be admitted, but gave defense an opportunity to provide further authority if it desired, at which time court would reconsider issue, and defense failed to provide additional authority].) That the evidence as actually presented may not have differed materially from what was proposed at the time of the hearing on the motion, did not somehow transform a tentative ruling into one with sufficient finality to not require further objection at such time as the evidence was offered.
Defendant says that if the issue was forfeited, then defense counsel's performance was constitutionally deficient. We disagree.
The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham, supra, 25 Cal.4th at p. 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
"If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 367.) In other words, "in assessing a Sixth Amendment attack on trial counsel's adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice. [Citations.]" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260, original italics.)
In the present case, "the appellate record sheds no light on why trial counsel acted as he did; he was not asked to explain his performance; although we may doubt that a satisfactory explanation could be provided, we are unable to conclude that it could not. Thus, we must reject defendant's point." (People v. Bell (1989) 49 Cal.3d 502, 546, fn. omitted.)
Moreover, were we to consider the issue on the merits and conclude that error occurred, we would find it harmless. It did not rise to the level of federal constitutional magnitude, because it did not render the trial fundamentally unfair. (See People v. Partida (2005) 37 Cal.4th 428, 439; People v. Hunt (2011) 196 Cal.App.4th 811, 817.) Accordingly, the admission of the rebuttal evidence, if erroneous, "would constitute reversible error only if a reasonable probability exists that the jury would have reached a different result had this evidence been excluded. [Citations.]" (People v. Whitson (1998) 17 Cal.4th 229, 251; see People v. Watson, supra, 46 Cal.2d at p. 836.)
We see no such reasonable probability. At least some of the incident itself had probative value. Although it bore little, if any, similarity to the charged offense and so might not be probative if offered to demonstrate, for instance, motive, intent, plan, absence of mistake, or accident (see, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 393, 404-405; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211), the evidence was not introduced under section 1101, subdivision (b) (see People v. Dement (2011) 53 Cal.4th 1, 35-36, overruled on another ground in People v. Rangel, supra, 62 Cal.4th at p. 1216). The incident took place more than a decade before the Taylor homicide, Taylor was not shot to death, and the jury heard evidence defendant was the victim of an attempted robbery and was injured in the process. There was no suggestion he was charged with, or convicted of, any offense as a result. (Cf. People v. Hopkins (1992) 10 Cal.App.4th 1699, 1706-1707.) Moreover, this was not the only incident introduced on the subject of whether defendant had a character for violence.
We would reach the same conclusion if we analyzed the issue as one of prejudice arising from deficient performance by defense counsel.
" ' "Evidence is substantially more prejudicial than probative [under section 352] [citation] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome.' " ' [Citation.] We conclude no such intolerable risk was present here." (People v. Dement, supra, 53 Cal.4th at p. 36.)
II
NONDISCLOSURE OF TAYLOR'S CONTEMPORARY MENTAL HEALTH RECORDS
Defendant contends the trial court erred by rejecting the defense's subpoena for Taylor's contemporaneous mental health records from the California Department of Corrections and Rehabilitation (CDCR). He says that if those records (which are sealed) contained documents indicating Taylor had a mental disorder typified by aberrant or bizarre behavior similar to how defendant described Taylor acting during their encounter, they were discoverable. He asks this court to examine the sealed records. While disputing that any error occurred, the Attorney General agrees we should examine the records. We have done so and find no cause for reversal.
1. Background
Fairly early in the case, the defense subpoenaed Taylor's juvenile mental health records from his admission to Stanislaus Behavioral Mental Health and the Fresno County Department of Behavioral Health. After defendant began representing himself, some of Taylor's CDCR records were disclosed to him. With respect to Taylor's juvenile mental health records, the court stated it would review them in camera and speak with defendant to determine whether they were privileged.
The court subsequently held an ex parte hearing with defendant, pursuant to Penal Code section 1326. The court questioned whether the records were privileged under the psychotherapist-patient privilege. It concluded it was obligated, under section 916, to find there was a privilege, inasmuch as it had no information with respect to the lack of a person authorized to assert the privilege. It then had to weigh that privilege against the need for the records.
The court then asked defendant to explain the basis for his belief the records were relevant to his defense. Defendant asserted the records were relevant because the prosecutor made them relevant. He explained that the case concerned two people alone, one of whom was now dead and the other accused of murdering him. Taylor could not say what happened, but perhaps the type of person he was and what he would say might be discerned from his records. Defendant said he was "[p]retty much" claiming self-defense, and that while he understood the records were from 2005 and earlier, he believed it was relevant that Taylor claimed to be hearing voices telling him to hurt other people.
The court ruled it would not release the records without further information that they were relevant. It did so, however, without prejudice to defendant renewing the motion. During a subsequent status hearing, the court stated it was not inclined, absent the production of authority to the contrary, to admit evidence of Taylor's psychological or psychiatric profile or diagnosis, including whether he was schizophrenic or bipolar, unless it was connected to a recent act of violence by Taylor. It also stated it would not permit generalized introduction of evidence with respect to any mental illness from which Taylor may or may not have suffered.
During a later hearing on discovery, the court observed that information was discoverable if it might lead to admissible evidence at trial. The court perceived two theories under which information with respect to Taylor might lead to admissible evidence at trial. The first was that Taylor was a violent person. The defense argument at trial would be that Taylor was a violent person and what happened was done in self- defense. Accordingly, evidence regarding any prior violent activities by Taylor generally would be relevant and admissible. The second ground was information relevant to what defendant contended was his state of mind concerning Taylor, based on what defendant knew and the reasonableness of his beliefs.
Defendant subsequently sought issuance of a subpoena duces tecum for Taylor's most recent mental health records from CDCR. He represented (and provided a supporting police report) that when Taylor's mother reported Taylor missing, she advised police that Taylor (who had been released from prison the day of his fatal encounter with defendant) had been diagnosed as schizophrenic by CDCR doctors. In addition, Taylor's parole records showed he was prescribed three kinds of psychotropic medications. Defendant included an initial assessment prepared by the Fresno County Department of Children and Family Services when Taylor was 17 years old. It reflected that Taylor reported hearing his own voice in his head, and that the voice was prompting him to hurt people. Taylor also reported having images of sexual molestation and violence. Taylor related this had been going on for about five months at the time, and he thought others who looked at him were reading his mind. Taylor related he was scared he might act on thoughts of hurting others, even though he did not want to.
The trial court refused to sign the subpoena duces tecum. The court found the mental health records were neither relevant nor likely to lead to the discovery of relevant or admissible evidence. When defendant argued the information might be relevant in light of defendant's having told the police that Taylor was acting strangely and aggressively toward defendant during the entire encounter and the prosecution apparently did not believe that happened, the court reiterated it would consider the possible admission of any prior acts of violence by Taylor while in prison. It was not, however, prepared to provide defendant with full access to Taylor's mental health records. When defendant stated he was not asking for unfettered access, but rather for the records to be made available to the court for review and possible disclosure, the court stated they would take it up at the next hearing.
At the hearing that followed, the court identified, as one of the issues, the extent to which Taylor's background was going to be admitted and so was discoverable. It stated that, generally speaking the discovery of psychotherapy records and invasion of the psychotherapist-patient privilege was governed by People v. Hammon (1997) 15 Cal.4th 1117 (Hammon) and its progeny. The court reiterated its belief there were two theories under which background information concerning Taylor might be admissible, i.e., bad acts of the victim under section 1103 and defendant's state of mind. With respect to section 1103, the court stated it was prepared to admit prior violent acts by Taylor, subject to section 352. It knew of no authority for the proposition, however, that the fact Taylor generally had mental health problems would be admissible under the circumstances. Accordingly, under Hammon, the mental health records were not discoverable because they were not reasonably likely to lead to admissible evidence. As for defendant's state of mind, evidence regarding Taylor's background — including his psychiatric history or problems — would be admissible, but only as to information of which defendant was aware at the time of his encounter with Taylor. The court stated it was not inclined to admit mental health evidence from 2005 or 2006, but if there was evidence that, for instance, Taylor was behaving strangely the day before the incident, the court was willing to consider it.
Defendant argued the information he sought was relevant, because the People were claiming defendant's account of events was a lie. The trial court responded defendant could testify regarding what occurred in his apartment and why he believed he needed to act in self-defense, and whether Taylor acted in a violent manner. It also stated it was willing to consider evidence defendant might have that Taylor previously acted in a violent manner. What it was not willing to do was "to engage in sort of a wholesale survey of all of [Taylor's] prior . . . psychiatric records absent some evidence of prior violent acts . . . ."
The trial court stated it would not sign the subpoena duces tecum. In its written ruling, it excluded evidence with respect to any alleged mental health diagnosis of Taylor on the ground it was more prejudicial than probative under section 352, unless there was evidence connecting it with acts of violence by Taylor.
At a hearing conducted after counsel was reappointed for defendant, the court reiterated its position the CDCR mental health records were only relevant to the extent they showed violent conduct, and that generic mental illness was not admissible. In other words, Taylor's mental health was irrelevant unless it was reflective of his character for violence. Defense counsel argued there were records showing Taylor recently was psychiatrically hospitalized within the prison system. Counsel asserted there was no way to know whether the hospitalization related to violence unless the court reviewed the records. Counsel proposed having the records provided directly to the court for review and determination whether they related to acts of violence or threatened violence in the prison system. Counsel argued that if the records were purely psychiatric, they would not be disclosed to the defense under the court's previous ruling. If there was evidence of violence or threats of violence, however, they should be disclosed. The trial court noted, upon the prosecutor's representation, that Taylor's mother objected to release of the records.
The defense possessed a record from October 3, 2008, which stated: "Inmate Taylor has been discharged from CDC bed number 02S and is now psychiatrically cleared for transfer."
The trial court reviewed the CDCR mental health records in camera and found none were relevant to the issues in the case, and none related to force or violence. It ordered them sealed and marked as court's exhibit 14. It declined to rule on the existence of any privilege.
2. Analysis
Defendant contends the trial court erred by rejecting the defense subpoena for Taylor's CDCR mental health records. He claims the court's finding of irrelevance was "erroneously overnarrow." We conclude that, in light of defendant's disavowal of a desire for unfettered access to the records and the trial court's acquiescence to the defense requests for in camera review thereof, we need not address extraneous matters such as whether any privilege existed. Rather, the issue is whether any of the records were material to the issues in the case and so should have been disclosed. We have reviewed the records contained in court's exhibit 14 independently, and conclude the answer is no.
" '[A] criminal defendant's right to discovery is based on the "fundamental proposition that [an accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information." ' [Citations.]" (People v. Gonzalez (2006) 38 Cal.4th 932, 960, italics omitted.) "No showing by the defendant that the material sought actually exists or that it would be admissible as evidence at trial is required. [Citations.] ' " 'A showing, however, that the defendant cannot readily obtain the information through his own efforts will ordinarily entitle him to pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears reasonable that such knowledge will assist him in preparing his defense . . . .' [Citation.]" [Citation.]' [Citation.]" (People v. Coyer (1983) 142 Cal.App.3d 839, 842.)
"We generally review a trial court's ruling on matters regarding discovery under an abuse of discretion standard. [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 299.) " ' "[T]he right of an accused to obtain discovery is not absolute." [Citation.] "[The] court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest." [Citation.] This may be particularly true when the information sought is not directly related to the issue of a defendant's guilt or innocence. [Citation.]' [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 606.)
Penal Code section 1054 et seq. applies to disclosure of materials between the prosecution and the defense. These provisions do not govern discovery from third parties, however. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315 (Barrett).) Instead, Penal Code sections 1326 and 1327, dealing with subpoenas and subpoenas duces tecum, apply. (Barrett, supra, at p. 1315.)
"A criminal defendant has a right to discovery by a subpoena duces tecum of third party records by showing 'the requested information will facilitate the ascertainment of the facts and a fair trial.' [Citation.]" (Barrett, supra, 80 Cal.App.4th at p. 1316; see People v. York (1980) 108 Cal.App.3d 779, 790.) "Third party records are required to be produced to the court rather than the attorney for the subpoenaing party because: 'The issuance of a subpoena duces tecum . . . is purely a ministerial act and does not constitute legal process in the sense that it entitles the person on whose behalf it is issued to obtain access to the records described therein until a judicial determination has been made that the person is legally entitled to receive them.' [Citation.] (Barrett, supra, at p. 1316, quoting People v. Blair (1979) 25 Cal.3d 640, 651.)
Defendant appropriately sought to obtain the CDCR records at issue here by means of a subpoena duces tecum. (See Barrett, supra, 80 Cal.App.4th at p. 1318.) CDCR files are of a "generally confidential nature," however (People v. Marshall (1996) 13 Cal.4th 799, 841; see Pen. Code, § 2081.5), and the trial court is presumed to have been aware of the law in this regard (see People v. Braxton (2004) 34 Cal.4th 798, 814). The court properly reviewed the records in camera to determine whether any should be disclosed.
Although not cited by the court or asserted on behalf of CDCR, we note the privilege for official information contained in section 1040 is applicable to prison inmate records. (People v. Landry (2016) 2 Cal.5th 52, 73.) As this privilege issue was never litigated in the trial court, we do not factor it into our analysis.
" '[P]arties who challenge on appeal trial court orders withholding information as privileged or otherwise nondiscoverable "must do the best they can with the information they have, and the appellate court will fill the gap by objectively reviewing the whole record." ' [Citations.] [¶] This court's function is to review the [CDCR] records that the [trial] court declined to disclose, in order to determine whether they were material and should have been disclosed. [Citation.] 'Although courts have used different terminologies to define "materiality," a majority of [the United States Supreme] Court has agreed, "[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." ' [Citations.] We also consider the effect of nondisclosure on the investigations conducted by counsel and on counsel's trial strategy. [Citation.]" (People v. Martinez (2009) 47 Cal.4th 399, 453-454; see, e.g., Kyles v. Whitley (1995) 514 U.S. 419, 434; Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57; Brady v. Maryland (1963) 373 U.S. 83, 87.) "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." (United States v. Agurs (1976) 427 U.S. 97, 109-110, overruled on another ground in United States v. Bagley (1985) 473 U.S. 667, 681-682.) Nor must information of " 'mere speculative value' " be disclosed. (People v. Williams (2013) 58 Cal.4th 197, 259.)
We are required to evaluate the withheld evidence in the context of the entire record. (Turner v. United States (2017) 582 U.S. ___, ___ [137 S.Ct. 1885, 1893].) Having done so, we conclude the undisclosed information was not material to the defense. (Ibid.; People v. Martinez, supra, 47 Cal.4th at p. 454.)
Defendant now lists typical symptoms of schizophrenia, as described in a commonly consulted psychiatric authority, and says many of them are consistent with defendant's account of Taylor's behavior during their encounter. These symptoms were never articulated to the trial court, however. Moreover, the defense knew Taylor previously was diagnosed with schizophrenia, which, defendant tells us, is a lifelong, incurable disease. This being the case, nondisclosure of contemporaneous mental health records did not adversely affect defense investigations and/or trial strategy such that the records were material. (See Turner v. United States, supra, 582 U.S. at p. ___ [137 S.Ct. at p. 1894; United States v. Agurs, supra, 427 U.S. at pp. 109-110; People v. Williams, supra, 58 Cal.4th at p. 259.)
III
CUMULATIVE PREJUDICE
Defendant contends he is entitled to reversal based on cumulative prejudice attendant to multiple errors. Contrary to defendant's assertion, the few errors found or assumed were not prejudicial, whether considered individually or cumulatively. (See People v. Zaragoza (2016) 1 Cal.5th 21, 60; People v. Chism (2014) 58 Cal.4th 1266, 1309.)
DISPOSITION
The judgment is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.