Defendant's jury found him guilty of first degree murder with personal use of a
Defendant claims in part that the trial court abused its discretion when it permitted the People to introduce evidence underlying his 1992 Oklahoma conviction. As we will explain, we agree that this evidence had scant-if any -relevance to this case, and any relevance it did have was vastly outweighed by its potential for unfair prejudice. This evidence was heavily relied on by the prosecutor in arguing for premeditation and deliberation in what was otherwise not a strong case for first degree murder, thus the error was prejudicial.
However, because sufficient evidence (apart from the prior acts evidence) was presented in the case-in-chief to support first degree murder, we reject defendant's claims that trial counsel should have moved to acquit and that no substantial evidence supports the verdict. Therefore, a retrial on the first degree murder charge is not precluded. In light of these holdings, we do not address the many other claims raised.
FACTS
There was no dispute that defendant killed the victim on the morning of July 8, 2014. The issues at trial were his state of mind and his sanity at the time of the killing.
People's Case
According to the victim's son, the victim was married to defendant for less than a year, but they had been together for three or four years. In July 2014, the victim lived with her daughter Taquita Lugo, but sometimes stayed with defendant in a van or a motel. The victim received Supplemental Security Income (SSI) and used crack cocaine off and on. Her son helped the victim
Three witnesses saw the victim bleeding on the ground early on July 8, and testified that when asked who did this to her, she said defendant's name or that her husband did it. One of these witnesses, a peace officer, testified that the victim also told him that she had been stabbed with a "writing pen." Another testified that he returned home from work at approximately 6:00 a.m. and saw a van parked by his property, as well as a white car, saw a man and a woman interacting, and heard music playing. He woke up at 7:45 a.m. to the sound of his dogs barking, heard screaming, and found the victim on the sidewalk.
The victim had a potentially lethal amount of methamphetamine in her system, but that did not kill her. Death was caused by two stab wounds to the neck. There was a defensive cut on her left thumb and fresh blunt force injuries on her head, neck, torso, and extremities.
A woman testified that in 1991 she lived with her mother (Betty T.) in Oklahoma. Her sister Becky W. was then married to defendant. The parties stipulated that in 1991, Becky W. was estranged from defendant and was staying with her mother, (Betty T.). One night defendant tried to bust in the door and struggled with Becky W., trying to pull her out of the house. Betty T. told defendant to leave, whereupon defendant shot Betty T. in the head. She survived.
The defense did not move to acquit after the People rested.
Defense Case
Defendant testified he was convicted of shooting with intent to kill arising from the 1991 Oklahoma incident, and he had served his time for that crime.
One day defendant returned to Lugo's house to find his things packed, and he was told he was not welcome there anymore. He then stayed in motels when he had money and in his van when he had none. He and the victim had had many short breakups-a few days long-over small arguments.
In 2014, both defendant and the victim were taking their medications about half the time. They were smoking methamphetamine together a couple of times a week, spending about $100 to $150 per week on the drug.
On July 1, 2014, the victim received $10,000 in SSI back-payments. They bought a larger than usual amount of methamphetamine and began smoking it, using continuously for the next week. On July 7 the victim went to spend time with Lugo. Defendant became worried after the victim did not return telephone messages. He wondered whether they would stay together.
Defendant stayed in his van that night, and the victim arrived in her car the next morning while it was still dark. They talked and smоked drugs for about 15 or 20 minutes. At approximately 6:00 a.m. on July 8, the victim left to be with her daughter. At that point, defendant still loved her, and thought she still loved him, though he had doubts about their future. He then called and left messages at Lugo's telling the victim he was in love with her.
While in the van, defendant asked the victim if she was going to leave him, who she was leaving him for, and why she was leaving, and he became increasingly angry when she did not answer his questions. Defendant held the victim by the shoulders and asked her more of the same questions, but she
On cross-examination, defendant explained that the victim was cut once, then she asked to go to a doctor and then was cut a secоnd time-though he did not remember how that happened-and then she was cut on the thumb while fighting for her life. He knew he was a wanted man, and planned to go back to Oklahoma to escape punishment, once his August SSI money came in. He admitted lying about his name when he was arrested. He had shaved his head, but claimed he did not do it to evade arrest. When shown a videotaped interrogation in which he told a detective he did not remember when he last saw his wife, he claimed he was being truthful, as he did not regain his memory of the events until after he received his medication in jail. However, he had also told the detective that the last time he had seen the victim was a month before and he conceded that had been a lie. He admitted that he had lied through most of the interrogation, to avoid culpability, but testified he did not intend to stab the victim.
When confronted by the prosecutor with evidence of a conversation he had engaged in while in jail, defendant admitted he knew the conversation's other participant (Gwen Nance, a friend of his) and had spoken with her on the telephone while in custody. He admitted telling her he was going to beat the case, via a strategy of saying he was mentally ill and too high to know what he wаs doing, but he testified that was a truthful statement about his condition. Defendant knew the victim had not answered his questions, but claimed he did not know she was going to leave him when she smirked, then he became very angry and put the blade to her neck. He told Nance he had "done 15 years in the joint before," which was "hard," and he wanted to flee to Oklahoma because he was guilty; he had also told Nance that he might be facing the death penalty.
Under continued cross-examination, and contrary to his prior testimony, defendant admitted that in the van he did know the victim was going to leave him, and that he had worried about that for months. He wanted a firm answer from her in the van, and responded to the prosecutor's questions:
"Q And she said no?
"A No, she didn't.
"Q And she smirked at you?
"A Yes, she did.
"Q And you killed her for it ?
"A Yes, I did. " (Italics added.)
Later, defendant again contradicted himself and denied that he had been worried for months about the victim leaving him. He then admitted that in the months leading to the killing, he had told his social worker several times that he was worried
On redirect defendant testified he did not intend to cut the victim, but said his plan was "[t]o get back with [his] wife." He claimed he did not see the injuries inflicted or try to cut her thumb, but on re-cross testified as follows:
"Q Now, you said yesterday on cross after you stabbed her the first time she tried to get up and get out of the van?
"A Correct. [¶] ... [¶]
"Q And you grabbed her and [kept] her from leaving; correct?
"A Correct.
"Q And you sat her back down; correct?
"A That's correct.
"Q And you put the knife back to her throat; correct?
"A Correct.
"Q And you stabbed her again to get the job done; right?
"A Correct .
"Q She wasn't dead yet; right?
"A No, she wasn't.
"Q And when she fought back she put her hand up to try to block you from stabbing her again; correct?
"A I believe so.
"Q And that's when you cut her hand and almost cut her thumb off; right?
"A Yes. " (Italics added.)
Dr. Gregory Sokolov, director of psychiatric services for the jail, testified about schizophrenia, schizoaffective disorder, and bipolar disorder, and the usual medications therefor. Schizophrenics can present symptoms of psychosis including hallucinations, paranoid delusions, disorganized thinking, and lack of emotion; persons with schizoaffective disorderalso have a mood disorder, such as major depression or bipolar disorder. Bipolar disorder is characterized by mood swings from "full-blown mania" to depressive moods. Some people who experience hallucinations know they are not real.
Although he had never met defendant, Dr. Sokolov had read his psychiatric records. As early as 2009, defendant was diagnosed with schizoaffective disorder, with either bipolar or major depressive disorder, with symptoms including paranoid delusions, irritability, mood swings, panic attacks, racing thoughts, and depression, with auditory hallucinations and occasional paranoia. Medications can help control delusions, hallucinations, disorganized speech and behavior, but not "negative symptoms" like flat affect or lack of emotion.
Defendant had been prescribed Risperdal to treat his psychotic symptoms (delusions, hallucinations, disorganized thoughts and behaviors), Depakote to stabilize his mood swings, and sertraline, an antidepressant also used for panic disorders, as well as Cogentin to treat the side effects of Risperdal. Stopping such drugs can lead to a recurrence of the symptoms, and for a longtime user, stopping the drugs puts the person at an "extremely high risk for redeveloping psychosis and mood disturbances," which can manifest in "days to weeks." Methamphetamine can cause short-term and long-term psychotic symptoms, including hallucinations.
On cross-examination, Dr. Sokolov agreed that defendant's records of a July 2, 2014 meeting with his social worker at a psychiatric clinic reflected he was well-groomed, had good hygiene, and had denied
Allen Lee, defendant's former social worker at the mental health clinic, testified he met with defendant for 50 minutes on July 2, 2014, and defendant did not report any suicidal or homicidal thoughts, and said he had been taking his medications. In a telephone conversation on May 28, 2014, defendant told Lee he wanted to divorce his wife and he was taking his medication. About a week before, he had told Lee his wife was cheating on him.
Monte Chavez, defendant's friend, testified there was nothing unusual about defendant's demeanor the night before the killing. From both defendant and his wife for the prior few weeks, Chavez understood that they were going to break up, but defendant did not seem worried about it.
The parties stipulated that Dr. Matthew Pitcher, a jail psychiatrist, would testify that he had been treating defendant for schizoaffective disorder, and had prescribed defendant Trazodone, Risperdal, and Depakote.
There was no rebuttal case by the People.
Closing Arguments
The prosecutor began his closing argument by giving two reasons why "this is first degree murder every single day of the week." First, because defendant stabbed the victim twice in the neck and admitted on the stand that he stabbed her the second time because he wanted to finish her off; second, "we know he premeditated and he deliberated because he's been in the same situation before. He's gone over it in his head for 23 years what he's going to do if he's in the same situation again with another woman that's going to leave him."
The prosecutor also argued that when defendant moved the van, changed his appearance, followed news about the case in the library, and planned to flee to Oklahoma, his аctions reflected his consciousness of guilt.
The defense argued defendant fled the scene because he was guilty of a crime, but only voluntary manslaughter because he acted in the heat of passion. This was based on defendant's mental illness and drug usage, his dependence on the victim, and growing stress of the impending break-up that culminated in her smirking defiance when he asked her directly about divorce. Defendant's mental illness made him "easy prey" for the prosecutor, and his inculpatory testimony was adduced via the prosecutor's skilled questioning. There was no way to know what happened in the van, except that defendant inflicted the victim's wounds. Defendant had known the marriage was in doubt for some time, so it was not something the victim surprised him with the morning of the killing. There was evidence from a neighbor that suggested the couple had been in the van for quite some time, listening to music, suggesting an amicable meeting that negated premeditation. "So if [defendant] was planning on killing his wife why would he wait at least an hour and 45 minutes before stabbing his wife? [¶] If [defendant] was planning on killing his wife that morning, why wouldn't he drive to a
In reply, the People argued defendant did not show "one drop of emotion" on the stand nor in his jailhouse calls did he reflect any love for the victim. The fact defendant's plan was a bad plan does not mean he did not form a plan to kill the victim. "What this guy planned was to confront his wife. And he knew what he would do if she did not comply. And how do we know that? Because he's been there before. He's been in almost this exact situation." Defendant had replayed his 1991 actions in his head many times.
Verdict and Sanity Trial
After returning its first degree murder verdict, and after a brief sanity trial that is
DISCUSSION
I
Evidence of Premeditation and Deliberation
In different ways, defendant contends no substantial evidence supports premeditation, deliberation, or malice. We disagree.
In assessing defendant's claims we will not consider evidence presented in the defense case (due to defendant's clаim of ineffective assistance based on trial counsel's failure to move for acquittal under Pen. Code, § 1118.1 ) or evidence of the 1991 Oklahoma incident (due to our holding, post , that this evidence was admitted in error).
Much-but not all-of defendant's briefing reweighs evidence or chooses between competing inferences, matters within the province of the jury. " 'On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a
A. Deliberation and Premeditation
" 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. ..." [Citations.]' [Citation.]" ( People v. Koontz (2002)
Our Supreme Court has established guidelines for our review, as follows:
"The type of evidence which this court has found sufficient to sustаin a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing-what may be characterized as 'planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of 'a pre-existing reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed' [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2).
"Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)." (People v. Anderson (1968) , 26-27, 70 Cal.2d 15 , 73 Cal.Rptr. 550 ( Anderson ), original italics.) 447 P.2d 942
The above passage did not change the definition of murder or establish elements that had to be proven in each case; it established "guidelines to aid reviewing courts in analyzing the sufficiency of the evidence to sustain findings of premeditation and deliberation." (
Here, there is evidence of motive: rage at the collapse of the marriage. There is also evidence of the intentional and deliberate manner of killing: two neck stabs, with an implied interval to reflect, as well as the infliction of blunt force trauma in different areas of the victim's body. (See People v. Stitely (2005)
The jury could have reasonably found that the victim's injuries reflected an emotional, berserk, attack, as suggested by defendant's briefing. But it was permitted to find otherwise. A case discussing manner evidence, repeatedly cited by defendant's briefing, cuts against his position. The case (quoted more fully than reflected in the briefing) provides as follows:
"Manner of killing is the least strong of the Anderson categories as the case comes to us. The manner of killing here-stabbing two victims more than two times each, including around the face, the neck and lungs-is, at least in a vacuum, associated with someone losing his mind and going berserk, which is not a state of mind we associate with premeditation or deliberation . We note an irony here: The more genteel the form of dispatch, the more readily premeditation may be inferred. Vicious brutal knifings, particularly when the victim is awake and fighting back, tend to fall on the opposite side of the spectrum from, say, the administration of arsenic in a guest's tea. That said, our Supreme Court has , in [ Perez , supra ,, 2 Cal.4th 1117 , 9 Cal.Rptr.2d 577 ], upheld a first degreе murder conviction in a vicious knife attack no less gruesome than the ones here. 831 P.2d 1159
"To be sure, [the defendant] did not have the element of surprise, as shown by the 'defensive' wounds sustained by both victims. Even so, the numerous blows to the neck and vital organs of both victims, including a blow that penetrated [one victim's] eye, supports the reasonable inference, similar to Lewis , that the blows were intended to kill rather than merely wound. (See [ People v. Lewis (2009) , 1293, 46 Cal.4th 1255 , 96 Cal.Rptr.3d 512 ] [the 'additional act of slashing her throat "is indicative of a reasoned decision to kill" '].)" ( People v. Nazeri (2010) 210 P.3d 1119 , 1118, 187 Cal.App.4th 1101 , first italics added, second in original.) 114 Cal.Rptr.3d 730
Defense counsel repeatedly relies on the italicized sentence of Nazeri , which muses academically about whether such manner of killing necessarily reflects deliberation and premeditation. But the holding of the case is that the manner of killing described did manifest those mental states. Read in context, this passage of Nazeri supports the conclusion that the manner of killing here shows premeditation and deliberation.
Although there was not a great deal of evidence of planning by any measure, the jury could rationally find defendant talked his wife into the van to induce her to remain in the marriage or-failing that-to kill her. And, as the Attorney General points out, strong evidence of planning is not always required. (See, e.g., People v. Hernandez (1988)
Further, the jury did not have to conclude defendant's consciousness of guilt pertained only to a lesser offense, but instead could find defendant knew he had killed the victim and had desired that outcome. Defendant abandoned his van, prepared to flee to Oklahoma, and gave a false name when arrested weeks later. That postkilling conduct, as well as the implication from the People's case-in-chief that defendant did nothing to help the victim after he stabbed her, speaks volumes as to his mental state. (See People v. Lasko (2000)
Defendant relies heavily on People v. Boatman (2013)
Accordingly, substantial evidence shows premeditation and deliberation.
B. Malice
In another portion of his brief, faulting trial counsel for not moving to
From the evidence showing the victim was stabbed twice in the neck, coupled with a defensive stab and blunt force injuries, the jury could infer that defendant acted with implied malice, that is, a conscious disregard for a high probability of death. (See People v. Knoller (2007)
Aсcordingly, the case-in-chief provided substantial evidence of malice.
Admission of Evidence of the Oklahoma Incident
Defendant contends evidence of the Oklahoma incident should not have been admitted, and in an overlapping claim contends the jury should not have been instructed that it could use that evidence to determine whether the evidence showed premeditation and deliberation, intent to kill, motive, or absence of mistake.
Defendant argues that "[t]he fact that [he] reacted violently to the breakup of his marriage in 1991 and shot his mother-in-law while struggling with his estranged wife does not support a reasonable inference that he killed his current wife with premeditation and deliberation 23 years later." We are compelled to agree.
First, the dissimilarity between the two incidents is so great that the evidence of the uncharged act had no (or very little) "tendency in reason" ( Evid. Code, § 210 )
Because the case for first degree murder-while adequate (see part I, ante )-
A. Background
Before trial, defense counsel conceded defendant had been released from an Oklahoma prison in 2005 and had been convicted of felon in possession of
The parties then discussed in some detail the People's mоtion to admit evidence of the Oklahoma incident to show premeditation and deliberation, intent, motive, and lack of mistake or accident. Although section 1101, subdivision (a) generally bars "evidence of a person's character or a trait of his or her character ... when offered to prove his or her conduct on a specified occasion," the People relied on subdivision (b) of that statute, which provides in part:
"Nothing in this section prohibits the admission of evidence that a person committed a crime ... when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ...) other than his or her disposition to commit such an act ." (§ 1101, subd. (b), italics added.)
In his written motion the prosecutor repeatedly likened the two cases by arguing defendant was trying to preserve the "status quo" of his married life in each one, which tended to show motive, intent to kill, and deliberation and premeditation. The prosecutor represented that "[t]his might be the most important evidence in this case "; and that "[i]t is also relevant for the doctrine of chances or to negate mistake or accident. ... The doctrine of chances is based on a combination of similar events, and it teaches that the more often one does something, the more likely something was intended and even premeditated rather than accidental or spontaneous. [¶] Specifically, the more often one kills, especially under similar circumstances-and that is what is key in this case-circumstances are very similar-the reasonable inference [is] that the killing was intended and premeditated. That is what this entire case is going to be about ...."
The prosecutor acknowledged that the 1991 attack was a shooting and the current offense involved a knife, but argued they were committed "under very similar circumstances where this defendant is about to lose his wife and his family, his status quo, this is how he reacts, and this is how he punishes the people that are going to take that away from him." He also acknowledged the victim in 1991 did not die, but argued that minimized the inflammatory nature of the evidence in comparison to
After considering the moving papers and oral arguments, the trial court ruled the evidence was admissible fоr the purposes sought to be proven under section 1101, subdivision (b).
The testimony about this incident consisted of former victim Betty T.'s daughter's testimony, accompanied by an initial limiting instruction. Defendant also testified that he had served his time for that crime, which was referenced in his telephone call to Nance as a 15-year sentence. As we noted (see fn. 1, ante ), defendant also admitted in his testimony that he had "played that over" in his head a thousand times and thought about what he would do differently if placed in the same situation, although he did not agree with the prosecutor that he had "chos[en] the same path" in committing the instant offense.
At the end of the trial, the trial court gave the pattern limiting instruction, CALCRIM No. 375, tо which no objection was interposed.
B. Analysis
"We review the trial court's decision whether to admit evidence, including evidence of the commission of other crimes, for abuse of discretion. [Citation.]" ( People v. Harris (2013)
"Except as otherwise provided by statute, no evidence is admissible except relevant evidence. ( Evid. Code, § 350.) Relevant evidence is evidence 'having any tendency in reason to prove or disprove any disputed fact ....' (Id ., § 210.) The trial court is vested with wide discretion in detеrmining the relevance of evidence. [Citation.] The court, however, has no discretion to admit irrelevant evidence. [Citation.] 'Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose.' [Citation.]" ( People v. Babbitt (1988)
"As a general rule, evidence of uncharged crimes is inadmissible to prove the defendant had the propensity or disposition to commit the charged crime. [Citations.] 'The reason for this rule is not that such evidence is never relevant; to the contrary, the evidence is excluded because it has too much probative value.' [Citations.] ' "The natural and inevitable tendency" ' is to give excessive weight to the prior conduct and either allow it to bear too strongly on the present charge, or to take the proof of it as justifying a conviction irrespective of guilt of the present charge. [Citations.]
"Evidence of other crimes is admissiblе, however, when relevant for a noncharacter purpose-that is, when it is relevant to prove some fact other than the defendant's criminal disposition, such as 'motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake [of fact] or accident.' [Citations.]
"Although a prior criminal act may be relevant for a noncharacter purpose to prove some fact other than the defendant's criminal disposition, the probative value of that evidence may nevertheless be counterbalanced by a section 352 concern. Evidence may be excluded under section 352 if its probative value is 'substantiallyoutweighed by the probability that its admission [would] ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'
"Thus, the admissibility of uncharged crimes depends upon three factors: (1) the materiality of the facts sought to be proved; (2) the tendency of the uncharged crimes to prove or disprove the material fact (i.e., probative value); and (3) the existence of any rule or policy requiring the exclusion of relevant evidence (i.e., prejudicial effect or other § 352 concern). [Citations.]
"Courts subject other crimes evidence to ' "extremely careful analysis" ' [citation] and review the admission of such evidence for abuse of discretion [citation]. 'Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an "abuse" of discretion. [Citation.]' [Citations.] Thus, '[t]o determine if a court abused its discretion, we must ... consider "the legal principles and policies that should have guided the court's actions." [Citation.]' [Citation.]" ( People v. Hendrix (2013), 238-239, 214 Cal.App.4th 216 ( Hendrix ).) 153 Cal.Rptr.3d 740
"The reasons for exclusion are: 'First , character evidence is of slight probative value and may be very prejudicial. Second , character evidence
We find very little, if any, similarity between the two incidents, and certainly none that would allow a fact finder to infer anything about defendant's conduct in the present case based on his actions in the prior case other than improper reliance on the evidence as character or propensity evidence.
The People's in limine motion argued the evidence would show that "defendant had '1991' in mind when [the victim] attempted to take away his
As we have set forth ante , at argument in the trial court the prosecutor posited the shooting was properly admitted under the "doctrine of chances." The Attorney General does not even attempt to defend the admission on that ground, nor can he. Instead, he argues that the evidence was relevant to prove defendant's mental state, i.e., that defendant acted with premeditation and deliberation, and with the intent and motive to kill as well as in the absence of mistake or accident.
The discretion to admit prior acts evidence to show intent is broad, but not unbounded. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result ... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act ....' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance ." [Citations.]' [Citation.]" ( People v. Ewoldt (1994)
Put another way: "In ascertaining whether evidence of other crimes has a tendency to prove the material fact, the court must first determine whether or not the uncharged offense serves ' "logically, naturally, and by reasonable inference" ' to establish that fact. [Citations.] The court 'must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference
The Attorney General argues that the two incidents were sufficiently similar because both "involved a domestic violence situation," and any differences in the circumstances merely go to the weight of the evidence, not its admissibility to show intent. But there was nothing suggesting premeditation or deliberation about the 1991 incident; there, defendant suddenly shot his former mother-in-law when she intervened on behalf of her daughter. The People's theory in the 2014 incident was that defendant lured the victim into the van in order to kill her, or at least formed the deliberate and premeditated intent to kill her while conversing inside the van. Apart from the fact that a troubled marriage was involved in both cases, they are completely different kinds of incidents. They are not of the kind where the formеr sheds any probative light on the latter, as in the three cases relied on by the Attorney General. (Cf. People v. McCurdy (2014)
This case is nothing like the three cases relied on by the Attorney General. Application of his broad "domestic violence" theory would allow any prior
Further, contrary to a claim made in the prosecutor's moving papers, there was no claim of accident or mistake in the 1991 case. Unlike the instant case, there defendant admitted by his plea that he shot his former mother-in-law with the intent to
As for motive, the Attorney General properly cites authority for the proposition that prior acts are admissible where there is "a direct logical nexus" between them. (See People v. Demetrulias (2006)
Even if we stretched section 1101, subdivision (b) to find a preliminary showing of relevance, for reasons we discuss in more detail post the evidence was far more prejudicial than probative. Further, the prosecutor's closing arguments consistently tied the current incident to defendant's purported state of mind in 1991. This raises the real likelihood that the jury-albeit in derogation of its instructions-would use the prior incident to improperly shore up the thin case for premeditation and deliberation.
In People v. Harris (1998)
As stated, we perceive little permissible probative value in this evidence, because the dissimilarities between the two cases means there is little to no strength to the chain of inferences leading one to conclude defendant bore any particular mental state in this case based on what happened in 1991. It appears both crimes were about equally heinous, because although only the current victim died, the other case reflected an admitted intent to kill by means of shooting. Although the direct testimony about the Oklahoma incident was brief, it occupied a grossly disproportionate part of the People's cross-examination and closing arguments. As the prosecutor had represented to the trial court at the hearing on the motions in limine, it was the "most important evidence" of his case. This means the jury would very likely be confused,
In this connection, defendant correctly points out that the strength of an inference from prior act evidence dissipates over time. (See, e.g., People v. Dancer (1996)
The prosecutor urged the jury to infer defendant had been planning how he would react to a wife leaving him for 23 years. He argued the present offense posed the "exact same situation" to defendant as that posed in 1991. "What this guy planned was to confront his wife. And he knew what he would do if she did not comply. And how do we know that? Because he's been there before. He's been in almost this exact situation."
We hold the trial court should not have permitted the introduction of this evidence.
C. Prejudice
We consider whether the error is prejudicial under the Watson standard.
We conclude the error was prejudicial, i.e., that it is reasonably probable defendant would have obtained a more favorable result in the absence of the error. (See Watson , supra ,
DISPOSITION
The judgment is reversed and the cause remanded for a new trial.
We concur:
Blease, Acting P.J.
Hull, J.
Notes
This argument was based on the following cross-examination of defendant: "Q And you've been in the situation bеfore; right? In 1991, [defendant], Becky [W., your former wife] was leaving you; right? [¶] A Yes. [¶] Q And you went over to her mother's house to try to get Becky [W.] back, didn't you? [¶] A Yes. [¶] Q And when [Becky's] mother stepped out of the back of the house and tried to intervene you shot her in the face, didn't you? [¶] A That's correct. [¶] Q And in 1992 you admitted shooting Betty [T.] in the face with the intent to kill? [¶] A Correct. [¶] Q And since that night you must have played that over in your head a thousand times? [¶] A Yes. [¶] Q And thought about what you would have done different if put back in the same situation; right? [¶] A Correct. [¶] Q And in 2014, when you're in that van with Tanganyika facing the same situation of her leaving you, you chose the same path, didn't you? [¶] A No, not exactly."
We recognize, as defendant emphasizes, that Hernandez involved an egregious double murder. We cite it merely to illustrate that clear planning evidence is not always needed, a point also made in Anderson , supra , 70 Cal.2d at pages 26-27,
Our conclusion that sufficient evidence supports first degree murder based solely on evidence in the case-in-chief apart from the Oklahoma incident resolves defendant's claim that trial counsel provided ineffective assistance of counsel by failing to move to acquit at the close of the People's case. Such a motion would have failed. (See People v.Constancio (1974)
Further undesignated section references are to the Evidence Cоde.
The 1992 conviction (by plea) was for violating a statute that then provided in part: "Every person who intentionally and wrongfully shoots another with or discharges any kind of firearm, with intent to kill any person, is punishable by imprisonment in the penitentiary not exceeding life." (Former Okla. Stats., tit. 21, ch. 21, § 652 ; Okla. Laws 1987, ch. 58, § 1, eff. Apr. 30, 1987.) The felon-in-possession conviction was also ruled admissible for impeachment over the objection that it was a mere "status" crime that had little impact on credibility, but it does not appear that it was used at trial.
The trial court later ruled the evidence was also admissible under section 1109. This was incorrect and is not defended by the Attorney General. That statute permits evidence of prior " 'domestic violence' " and defines that term by referencing two other statutes. (§ 1109, subd. (d)(3).) One cross-referenced statute, Penal Code section 13700, subdivision (b), defines the term so that it would include defendant's former wife, but not his former mother-in-law. The other, Family Code section 6211, subdivision (f), would include the former mother-in-law (a person "related by ... affinity within the second degree"), but does not apply to incidents "more than five years before the charged offense." (§ 1109, subd. (d)(3).) Therefore, as defendant correctly notes, section 1109 does not apрly herein. Despite this (erroneous) ruling, the trial court did not instruct the jury that the evidence was admissible for consideration of propensity under section 1109.
That instruction reads as follows: "The People presented evidence that the defendant committed the offense of shooting with intent to kill that was not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to kill in this case or premeditated and deliberated; or [¶] The defendant had a motive to commit the offense alleged in this case; or [¶] The defendant's action was not an accident or a mistake. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense. [¶] Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant's credibility. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder or that the shooting with intent to kill has been proved. The People must still prove the charge and every allegation beyond a reasonable doubt." (CALCRIM No. 375.)
Thompson was later disapproved to the extent it suggested that something more than a not guilty plea was necessary to place in issue all elements of an offense. (See People v. Scott (2011)
Remoteness for purposes of sections 352 and 1101, subdivision (b) is measured differently than remoteness for purposes of impeachment. For the latter, the question often turns on whether the person has led a blameless life, demonstrating that thе person no longer has the propensity to lie generally imputed to convicted felons. (See People v. Burns (1987)
Defendant contends any error in admitting this evidence violated his federal due process rights, thereby triggering the Chapman standard of prejudice. (See Chapman v. California (1967)