Opinion
NOT TO BE PUBLISHED
Superior Court County, Super. Ct. No. F374260, of San Luis Obispo, John A. Trice, Judge
Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Ralph Anthony Yates appeals his conviction after a jury trial of one count of poisoning a spring, well or reservoir in violation of Penal Code section 347, subdivision (a)(1). We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
James and Michelle Cross (the Crosses) live in a home in a rural part of San Luis Obispo County. Their home is on a dirt road that can only be accessed by entering a code on a security gate. There are only six residences on the road. The sole water supply to the Crosses' home is a 12-foot steel water tank. Access to the inside of the water tank can be had by climbing a ladder and lifting the tank lid. A ladder was kept near the tank.
In March 2005, Jim Cross (Cross) noticed the water system repeatedly became clogged with a white substance that resembled toilet paper. In April 2005, Cross began feeling ill when he worked around his house, but not when he worked away from home.
Yates lived on a neighboring parcel. Yates and Cross had been friendly. Yates had assisted Cross with various projects, including building a fence on Cross's property in May of 2005. The fence did not encroach on a roadway easement Yates owned on Cross's property. Yates never told Cross he believed the fence encroached.
As Cross worked, he drank from a hose connected to the water tank. Yates did not drink from the hose. After a few days, Cross became ill with symptoms of a gastrointestinal illness. A doctor prescribed medication to alleviate his diarrhea. To rehydrate himself, Cross ceased drinking from the hose and began drinking sports drinks. His symptoms subsided.
At the end of May 2005, Yates told Cross he was sick and could not help with the fence. Cross decided to do the work by himself. On Friday, May 27, 2005, at 5:30 a.m., Cross was preparing to work when he heard a metallic noise by the water tank. Cross saw Yates standing on the ladder with his waist level with the tank. As Cross ran toward the tank, he heard another metallic noise, like the lid being replaced.
Cross reached the tank in about two minutes and saw Yates running toward Yates's house. Cross called Yates's name, but Yates continued on his way home. It was only when Yates reached the door of his home that he turned to look at Cross. Yates did not say anything.
Cross called Yates at home, but there was no answer. Cross threatened that if Yates did not call back, he would call the sheriff. Yates called back, but denied he was at the water tank.
Later, Yates called again and spoke to Michelle Cross. He said, "I didn't do anything to your water, but the beast in me may have . . . . The last time the beast was out and the rabbits were killed and the rabbits were slaughtered, and there was blood everywhere, and there was a footprint, but they couldn't prove it was me. And that was the last time the beast was out, so maybe the beast is here again."
Michelle was frightened and called the sheriff. Two sheriff's deputies went to Yates's home. One of the deputies brought a rifle in the car, but neither deputy drew a weapon at Yates's home. As the deputies approached Yates's home, he appeared in an upstairs window. Yates refused to come down, stating the deputies came there to murder him. Eventually, Yates came down and spoke with the deputies.
The deputies asked Yates about the beast. Yates explained that he worked at Atascadero State Hospital and he would fight on a regular basis. The beast would make him mean, which allowed him to succeed in the fights. He said he was addicted to the adrenaline rush. He said sometimes he does not recall what the beast does. The deputies believed Yates was delusional. They took him into custody under Health and Safety Code section 5150 for a 72-hour mental health evaluation.
Later that morning, Cross called the deputies. He said he had inspected the water tank and it appeared Yates put trash in the tank. The deputies went to the tank and retrieved from it a newspaper in which there appeared to be feces, and toilet paper with what appeared to be feces on it.
The deputy returned to Yates's home. They asked Yates if he put something in Cross's tank. He replied, "I don't think so." Yates admitted, however that the beast may have put the items in the tank. Yates stated that he was taking medication, that he may have been sleepwalking, and that he may have done something and not remember. Yates never told the deputies directly that he did not do it.
The deputies brought the items from the tank to the health department for tests. The tests showed the items contained fecal matter. It was not determined whether it was from a human. The slide was preserved in the laboratory, but the evidence was destroyed in August 2005, when the laboratory was remodeled.
Laboratory tests showed that Cross had been exposed to "E. coli" bacteria. Doctors Frank Mazzone and Thomas Maier both opined that drinking from a water tank contaminated with feces was the most likely cause of the infection.
On June 15, 2005, District Attorney's Investigator, Dan Breshnahan, spoke with Yates outside Yates's home. Yates denied he put fecal matter in the Crosses' water tank. Yates admitted, however, that he is the beast and that the beast may have put fecal matter in the water tank.
Defense
Yates testified on his own behalf. He denied he placed anything in the Crosses' water tank. He did not recall telling Cross anything about the beast. He denied saying anything to Michelle Cross about massacred rabbits.
Yates said that when he met the deputy sheriffs, he was ill with a sinus infection and could hardly hear them. When they asked if he had been to the Crosses' water tank, he said, "Absolutely not. I was asleep." When they asked if he put anything in the tank, he replied, "Absolutely no way." When the deputies asked about the beast, Yates laughed. It was a reference to 1975 and 1976 when he worked as a psychiatric technician at Atascadero State Hospital. He worked in maximum security where the most assaultive patients were concentrated. He and other psychiatric technicians adopted such names as a way of getting ready to go into an assaultive situation. Calling himself the beast was only a joke. He denied telling the deputies the beast may have put something in the Crosses' water tank. Yates also denied telling the district attorney's investigator that the beast may have done it.
Yates testified that the day before the incident, he had reported Cross to the fire department. He reported that the road to his property was being narrowed by Cross's fence to 12 feet. He understood the road was supposed to be 18 feet wide.
DISCUSSION
I
Yates contends he was denied effective assistance of counsel. Yates claims counsel failed to make an in limine motion to preclude testimony about a search of his home.
Prior to trial, the prosecutor represented to defense counsel that there would be no mention at trial of a search of Yates's house. During a direct examination of Michelle Cross, the prosecutor asked if she had seen the deputies leave Yates's property. Michelle Cross replied, "[The deputies] had just searched his house and found guns and marijuana . . . ." The trial court sustained Yates's hearsay objection and instructed the jury to disregard the testimony.
The prosecutor said the testimony was not elicited by her. It was a "thrown-in comment" by Michelle Cross. The prosecutor said she did not "see it coming."
The defendant has the constitutional right not only to counsel, but to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15; In re Cordero (1988) 46 Cal.3d 161, 180.) To establish ineffective assistance, the defendant must show that trial counsel failed to act in a manner to be expected of reasonably competent counsel, and that it is reasonably probable that a more favorable result would have occurred in the absence of counsel's omissions. (People v. Lewis (1990) 50 Cal.3d 262, 288.)
Here the prosecutor represented she would not introduce evidence about the search of Yates's home. In fact, she kept her word. Nothing in the prosecutor's examination of the witness elicited the testimony.
Yates claims that his counsel should have made a motion in limine. But competent counsel may rely on the representations of opposing counsel. In our adversary system, it is not unreasonable for counsel to rely on opposing counsel's representations.
Yates argues that relying on counsel's representations was foolhardy, given that witnesses often blurt out what they should not. It is true that witnesses often blurt out what they should not, but it is difficult to see how an in limine motion would prevent them from doing so.
In any event, there is no reasonable probability Yates would have obtained a more favorable result. Yates told Michelle Cross that the beast may have put something in her water tank. When the sheriff's deputies asked Yates if he put anything in the water tank, instead of an outright denial, Yates said, "I don't think so." Yates admitted to the deputies, and later to a district attorney's investigator, that the beast may have done it. Yates also admitted that he is the beast. Thus Yates essentially admitted that he poisoned the Crosses' water tank. In light of his multiple, separate admissions, Yates's outright denial while testifying lacks credibility.
II
Yates contends the prosecution's failure to preserve exculpatory evidence deprived him of his state and federal due process rights.
Yates brought a motion pursuant to California v. Trombetta (1984) 467 U.S. 479 (Trombetta), arguing that the prosecution's failure to preserve the toilet paper obtained from the water tank for DNA testing requires dismissal. Yates concedes that in order to succeed, he must demonstrate that the exculpatory value of the evidence must have been apparent before the evidence was destroyed. (Id. at p. 489.) He further concedes that pursuant to Arizona v. Youngblood (1988) 488 U.S. 51, 57 (Youngblood), it is not sufficient to show only that the material could have been subjected to tests the results of which might of exonerated him.
Here the evidence had no apparent exculpatory value before it was destroyed. No more can be said than that if the material had been tested, the results might have been exculpatory. It is equally likely the test results might have been incriminating. Yates cannot prevail under Trombetta and Youngblood.
Yates believes that Trombetta and Youngblood must be reexamined. He acknowledges, however, that we are bound to follow them. He raises the issue here only for the purpose of preserving the issue for federal review. Under the state of the law, as it now exists, the prosecution's failure to preserve the evidence did not deprive Yates of due process.
In any event, given that Yates essentially admitted he poisoned the Crosses' water tank, any error is harmless beyond a reasonable doubt.
III
Yates contends the trial court should have imposed the low term of two years, instead of the midterm of four years. He claims the factors in aggravation relied on by the court are not supported by the evidence.
The trial court found two factors in aggravation: that the victims were particularly vulnerable (Cal. Rules of Court, rule 4.421 (a)(3)), and that the manner in which the crime was carried out indicates planning (rule 4.421 (a)(8)). The trial court also found two factors in mitigation: that Yates had an insignificant record of criminal conduct (rule 4.423 (b)(1)), and that his prior performance on probation was satisfactory (rule 4.423 (b)(6)).
All reference to rules are to the California Rules of Court.
Yates argues the Crosses were not particularly vulnerable. He points out that the victim must be vulnerable in a special or unusual degree, to an extent greater than in other cases. (People v. Levitt (1984) 156 Cal.App.3d 500, 514-515.) Here the Crosses live in the country with the tank as their sole source of water supply. Moreover, Yates posed as the Crosses' friend, leading them to trust him. There is substantial evidence to support the finding that the Crosses were particularly vulnerable.
Yates argues there is insufficient evidence of planning. But the Crosses noticed their water lines were plugged with toilet paper and Cross became ill prior to the time Cross saw Yates at the tank. The trial court could reasonably conclude that Yates had been poisoning the tank long before he was discovered by Cross.
The factors in aggravation cited by the trial court are supported by substantial evidence. Yates's counsel was not ineffective for failing to object to the factors in aggravation found by the court.
IV
Yates contends the trial court abused its discretion for failing to order a diagnostic study.
Section 1203.03 gives the trial court discretion to order a diagnostic study for a defendant convicted of a felony if the court concludes that "a just disposition of the case requires such diagnosis and treatment services . . . ." (Id. at subd. (a).) A denial of a request for a diagnostic study is reviewed for an abuse of discretion. (People v. McNabb (1991) 228 Cal.App.3d 462, 471.) Where a court has sufficient information on the defendant's mental problem, it does not abuse its discretion in refusing to obtain further information by ordering a diagnostic study. (See People v. Swanson (1983) 142 Cal.App.3d 104, 111 [where the court had a great deal of information on defendant's alcohol problem, it did not abuse its discretion in refusing to order a diagnostic study].)
Here the trial court had two probation reports noting that, at the time of the poisoning, Yates was under stress due to his father's terminal illness and that Yates was physically ill and on medications. Yates's attorney told the probation department that the medications affected Yates's hearing, sleep and his ability to process information. More importantly, Dr. William Fisher wrote to the trial court stating that Yates has been under his psychiatric care since August 2005, and has been evaluated and treated nine times since his initial visit. The most recent visit was in July 2006. Fisher stated that Yates has benefited greatly from his treatment in the management of his anxiety and depression and that he has never shown anger or hostility while in the doctor's office.
The trial court could reasonably conclude that it had sufficient information on Yates's' mental condition and that a further diagnostic study is not required for a just disposition.
V
Yates contends the trial court erred in setting the amount of restitution at $23,372.
The evidence showed that the Crosses' insurance company paid $23,372 to replace the water tank and lines. Yates relies on evidence that the problem could be remedied by flushing the tank and lines with bleach. In awarding the full $23,372, the trial court stated, "If this happened to me or if this happened to someone I knew and if it happened to the Crosses, like it did, and they were told tat their water supply is poisoned by the introduction of feces into their water supply, I don't think they would have just have put some Clorox in the tank and cleaned it out. They did what I would do and I think any person in their right mind would do: They tapped off that tank and put in a new tank."
We agree with the trial court. Any reasonable person faced with the same circumstances would replace the tank and lines.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.