Opinion
B210418
01-24-2012
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL ALVAREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA277752)
APPEAL from a judgment of the Superior Court of Los Angeles County. William R. Pounders, Judge. Affirmed.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Juan Manuel Alvarez appeals from the judgment entered following a jury trial in which he was convicted of 11 counts of first degree murder, with a multiple-murder special-circumstance finding, and a single count of arson. Defendant contends that the evidence was insufficient to support his murder convictions and the trial court committed various evidentiary and instructional errors. We affirm.
BACKGROUND
This case concerns the horrific January 26, 2005 Glendale Metrolink crash that killed 11 people and seriously injured 185 people. (Undesignated date references are to 2005.) We briefly summarize those portions of the evidence presented in the very lengthy guilt phase trial that are essential to understanding of the crimes, the issues raised on appeal, and our resolution of those issues.
Sometime between 5:30 and 5:59 a.m. on January 26, Douglas Ross saw defendant drive his two-door Jeep Cherokee Sport off of Chevy Chase Drive and onto a right-of-way running along the western side of railroad tracks. Defendant got out and poured a jug of what was later determined to be gasoline over the hood, roof, and sides of the Jeep. He threw the jug into the Jeep and drove south along the right-of-way, past a series of metal posts that blocked access to the tracks. About 192 feet from the center line of Chevy Chase Drive, defendant turned left and drove up a steep gravel incline and onto the eight-inch-high rails of the westernmost railroad tracks, on which southbound trains travel. Defendant's Jeep was facing east with its front wheels between the two rails.
At 5:59 a.m., Edward Branch was waiting in his car on Chevy Chase Drive, behind the lowered barriers at the railroad grade crossing. He looked to his right and saw the Jeep sitting on the tracks. Its interior lights were on and defendant was standing alongside its open passenger-side door doing something to the Jeep's interior. Defendant ran toward a fence along the western side of the right-of way three or four seconds before southbound Metrolink passenger train 100 struck the Jeep.
Metrolink train 100 was led by a cab car, which is a passenger car containing a control booth from which an engineer can control the locomotive located at the rear of the train. Train 100 was traveling at about 79 miles per hour approaching the Chevy Chase crossing when its engineer, Bruce Gray, saw the Jeep on the rails. The Jeep's headlights were off, it was not moving, and no one was near it. Gray immediately activated the brakes at full capacity and shut off the throttle. About four seconds later, the cab car collided with defendant's Jeep and immediately derailed to the right. The Jeep flipped onto its roof and became embedded underneath the derailed cab car. Sparks and frictional heat emanating from both the train's brakes and defendant's Jeep as it was dragged along the tracks ignited vapors from the gasoline poured onto the Jeep and started a fire that burned both the Jeep and the undercarriage of the cab car. The derailed wheels of the cab car caught a switch and rolled the cab car onto a siding, where it crashed into a Union Pacific locomotive that had been sitting on the siding for several days. The collision knocked the Union Pacific locomotive onto its side and demolished the first 23 feet of the Metrolink cab car. Passengers were thrown violently through, and even out of, the cab car. The trailing end of the cab car and the leading end of the next passenger car jackknifed and smashed into the side of two passenger cars on oncoming northbound Metrolink train 901. The collision derailed all three passenger cars on train 901, caved in the side of one of them, and caused another car to detach and fall over on its side. The fire burning at the front end of the cab car grew to a height of 20 feet as it fed upon seats, carpet, and passengers' belongings.
Train 100's passengers Manuel Alcala, Julia Bennett, Alfonso Caballero, Elizabeth Hill, Scott McKeown, William Parent, James Tutino, Don Wiley, train 901's passengers Leonard Romero and Henry Kilinski, and train 901's conductor, Thomas Ormiston, were killed and about 185 passengers were transported to hospitals for treatment of their injuries. All of the deceased died as a result of blunt force trauma, not the fire.
Passenger trains have been passing through the Chevy Chase crossing since 1971. In January of 2005, a total of 63 Amtrak and Metrolink passenger trains traversed that crossing every day. All of the southbound Metrolink trains going through the crossing have the locomotive at the rear, pushing the train. Metrolink trains 100 and 901 regularly passed one another around the Chevy Chase crossing about 6:00 a.m. Defendant had previously ridden a Metrolink train, and for several years preceding the crimes, he had practiced Aztec dance at Cypress Park, which is adjacent to Metrolink's Glendale train yard. Around January 11, he moved into a rental house on Brunswick Avenue that was 0.39 miles from the Chevy Chase crossing. The Metrolink trains going through the Chevy Chase crossing could be heard from defendant's house. Defendant testified that he had heard trains while living in the area but thought they were freight trains.
Branch testified that after the train struck the Jeep, defendant raised his arms, appeared to yell, then dropped to the ground and grabbed his head. As workers came out of adjacent businesses and ran along the east side of the tracks toward the crashed trains, defendant got up and went in the same direction. Train 100 passenger Arthur Reis walked away from the crash and met defendant along the tracks. Defendant asked Reis what happened, and Reis told him there had been a train wreck and Reis thought there were fatalities. Defendant said, "Oh no," and fell to the ground. Reis asked defendant if he had "anything to do with this," but defendant said nothing.
Defendant went back to his house on Brunswick, broke the kitchen window, took off the poncho he had been wearing, and got a pair of scissors. He went to the nearby home of his landlady, Reymunda Barcena, and asked to use her telephone. His arm and chest were bleeding. Barcena handed defendant her telephone, and he phoned his cousin, Beto Alvarez, and estranged wife, Carmelita Alvarez. As he left messages for each, he poked the scissor points into his chest. Barcena thought defendant seemed sad. She did not smell any gasoline. Firefighter-paramedics who responded to Barcena's 911 call testified that they smelled no gasoline on defendant and his skin and eyes looked normal, not inflamed, irritated, and swollen as would be expected if he had poured gasoline over his head. They transported him to L.A. County-USC Medical Center, where they were met by police officers. Defendant told the paramedics that it was his fault and said, "I hurt those people. I jumped in front of the train."
Emergency room physician Dr. Danny Chang testified that defendant emitted no odor of gasoline and did not appear to have been doused in gasoline. Defendant repeatedly stated, "It's all my fault." Officer Tiffany Sanchez stayed with defendant in the emergency room. She testified she did not smell gasoline on him. Defendant asked her, "How are the people?" She replied, "What people?" Defendant responded, "The people on the train. I gotta pay for this, I'm going to see a judge. I was gonna kill myself. I went on the tracks with my car and stopped. I backed it up, I tried to push big rocks to try to get it out, the car didn't back up. [¶] I saw the train and the train took the Jeep away. I jumped out of the way. It was so loud. There was a train coming the other way. A train took the Jeep. I heard men screaming. They said a lot of people were hurt. I lost it, I freaked out. I want life or death row. I deserve it."
Parts from the Jeep were scattered over more than 300 yards. The remainder of the Jeep's chassis was upside down beneath the remains of train 100's cab car. The gas tank was warped by heat, but remained attached and intact with 11 or 12 gallons of gasoline in it. Numerous items collected from alongside the tracks tested positive for gasoline, including two plastic one-gallon water bottles, a headrest, upholstery from the passenger-side door and back seat, weather stripping from around the rear window, and two pieces of molding from the roof. In addition, liquid gasoline was removed from the license plate weld on the tailgate. Defendant's poncho and all of the clothing and the shoes he was wearing when he arrived at the hospital tested positive for gasoline.
A prosecution expert opined, based upon the position of the parking brake handle and the location of fire damage on the parking brake assembly, that the parking brake was set when train 100 struck the Jeep. A defense expert opined that it was impossible to determine whether the brake was set.
Glendale Fire Department arson investigator Michael Richardson testified that although the Jeep's gas tank did not contribute to the fire, it could have ruptured and made the fire worse. Irregular burns and stains on the passenger-side door and back seat were consistent with a person standing outside the open passenger-side door pouring gasoline around the interior of the Jeep. Burn patterns on the roof and the presence of gasoline on the rear window weather stripping and in the license plate weld showed gasoline had been poured over the exterior of the vehicle. Such pouring action would likely cause some gasoline to splash onto the person's clothing. Because the driver's door was still attached to the chassis and showed severe fire damage, while the passenger-side door had detached and sustained relatively little fire damage, Richardson and Glendale Police Department arson Detective Miguel Porras opined that when train 100 struck the Jeep, the driver's door was closed and the passenger-side door was open.
Richardson testified that the wheels and undercarriage of train 100's cab car sustained fire damage, including damage to parts such as hoses, electrical conduits, hydraulic lines, and the junction box, and structural damage caused by fire, such as metal fatigue and cracking. The interior of the cab car and insulation in its walls also burned, and aluminum handrails melted. Richardson and Porras opined that the fire began within three to five seconds of the cab car striking the Jeep, and both the Jeep and the undercarriage of the cab car were burning before the cab car struck the Union Pacific locomotive.
Defense expert Earle Baker testified that he had read a report by nontestifying prosecution fire investigation expert John DeHaan and agreed with most of DeHaan's conclusions. Baker disagreed with Richardson, Porras, and DeHaan regarding the timing of the fire. Baker opined that any fire burning before the impact with the Union Pacific locomotive would have been small and have caused no damage to the Jeep or cab car. He believed the Jeep began to burn five to ten minutes after the cab car struck the locomotive. Baker conceded that if a person drove a Jeep onto the rails, poured gasoline on the interior and exterior of the vehicle, and waited for a train to strike it, the person would have intended for the fire to start, using the train as the ignition source.
The parties agreed that tire impressions, "dirt spray," and black marks on a grapefruit-sized rock in one of the tire impressions were made by the Jeep's tires spinning. A defense expert testified that the rails sit atop a steep incline, and it would take significant momentum to drive a vehicle onto them. He opined that once defendant got the front wheels of the Jeep over the first rail, he lacked the momentum to get off of the rails.
A defense railroad expert testified that in his review of decades of statistics and report summaries he had found no other instance of a collision between a train and a passenger vehicle that caused the death of a person on the train. He also had never read or heard of a train passenger dying from such a collision.
As a child, defendant suffered physical, verbal, and sexual abuse and made three attempts to kill or harm himself. In his early teens, defendant began using marijuana and methamphetamine. He continued to use methamphetamine regularly until three or four days before the crimes and testified that he was addicted to it.
Defendant married Carmelita in 1999 and almost immediately began exhibiting paranoia and obsessive jealousy, accusing her of cheating on him with his friends, Beto, neighbors, her coworkers, and strangers. Defendant often threatened violence against Carmelita, anyone she was involved with, anyone who introduced her to a person she was involved with, and her brother. Defendant testified that he often thought of killing Carmelita and her coworkers, and purchased a gun to do so. Defendant's family convinced him to enter a rehabilitation program, but he left after a few weeks. Thereafter, defendant believed that people were following him, filming him, and recording him to gather evidence to commit him. On one occasion he cut skin from his chest with a knife and told Carmelita that he wanted to stab himself in the heart. Another time he stabbed himself on the side of his chest. The next morning, Carmelita ordered him to move out of the house. She obtained restraining orders against him, but he continued to phone her, visit her workplace, and threaten her and her coworkers.
On the night of January 25, Beto gave defendant the address for a drywall job defendant was supposed to start the next day in Pasadena. Beto and developer Dave Burroughs expected defendant to bring his own tools and start working about 7:00 a.m. on January 26.
Defendant testified that on the morning of January 26, he unloaded all of his tools from his Jeep and left the house about 5:30 a.m. to go to a job interview with Dave. He drove across the Chevy Chase railroad crossing to a gas station and filled the tank of his Jeep. He thought he heard Carmelita and a man in the backseat talking about how stupid he was. He considered going to her workplace and killing her and "everybody else," but he knew she would not be at work that early. He instead decided to kill himself by dousing himself with gasoline and setting himself on fire. He emptied two plastic water jugs and filled them with gasoline, then drove back across the Chevy Chase crossing to his house, eating breakfast as he drove.
Defendant parked in front of his house, but decided not to kill himself there because he did not want to damage Barcena's property. He drove around looking for a dark, quiet place to kill himself. He stopped at Chevy Chase park, which he admitted was dark, quiet, and secluded, but decided to drive to a dark street along the railroad tracks. He parked on Alger Street directly under a streetlight, got out, and dumped one gallon of gasoline over his head and body. He poured the rest of the gasoline over the interior and exterior of his Jeep. He got back in the Jeep and sat with the windows closed, holding a lighter. He felt itchy and nauseous and decided burning himself would be too painful. He drove up Alger to Chevy Chase, then down the right-of-way and onto the rails away from the grade crossing to wait for a train to strike him. He thought if he died on the railroad tracks it would get Carmelita's attention and make her feel bad. He had no difficulty getting the Jeep onto the rails. He left the headlights on. He chose the location so no one would see him, but he admitted that overhead lighting illuminated the area.
Defendant sat in the Jeep for 10 or 15 minutes, waiting for a train. He looked at photographs of his children and decided not to kill himself. He tried to back up off of the rails, but the Jeep was stuck. He attempted to push it off the rails from the front, then placed a large rock under one of the rear wheels and attempted to drive it off, but the rear wheels spun in place. He heard the horn of an approaching train, got out the driver's door, and stood on the tracks waving his arms. He jumped out of the way just before the train struck the Jeep. The passenger-side door was closed and the parking brake was off. Defendant saw sparks coming from the train as it continued down the tracks, but otherwise remembered very little until he was back at his house.
Defendant denied that he intended to harm anyone on the train. He thought the tracks were used by cargo trains, and a train would simply smash his Jeep and continue onward, not derail. He "wasn't concentrating [on] details like" whether his Jeep would catch fire after the train struck it, but he thought it was possible. He had worked as a painter in his uncle's welding shop in 2002 and knew that welding sparks could ignite flammable liquid or vapors. But when defendant was a child in Mexico, a train struck a neighbor's big rig truck, and, as far as defendant knew, no one on the train was hurt. Defendant also knew of an incident in which a taxi driver and his passengers died when a train struck their taxi. The taxi burned, but no one on the train was hurt.
Defendant told Dr. Jairo Gomez, a psychiatrist who evaluated defendant on the morning of January 26, that he wanted to kill himself by parking his Jeep on the train tracks, but he never mentioned anything about gasoline or burning himself. Defendant told Gomez he had changed his mind as the train approached and tried to get the Jeep off the tracks, but could not do so. Gomez tentatively diagnosed defendant with a mood disorder with psychotic features. Gomez opined that people with mood disorders are often impulsive and irritable.
Defendant told Dr. Suzanne Dupee that on the morning of January 26 he was going to an interview in El Monte for a job with an electric company. He also told her that as he walked down the tracks in the wake of the crimes, he was carrying a large eagle's feather because the eagle is an honored animal that guides the souls of the dead to God. At trial, defendant denied that he had the feather because he intended to kill someone.
Dr. Terence McGee testified that a methamphetamine addict coming down from a high may have disorganized thoughts or become depressed or suicidal. Dr. Lisa Firestone opined that defendant becomes easily distressed and overwhelmed, then thinks of suicide and acts impulsively. She further opined that he is not a person who plans violent action with a foreseeable goal, but he may respond to an emotional overload with aggression, hostility, and violence. Firestone explained that a person may be simultaneously suicidal and homicidal. She conceded that many of the actions defendant testified he performed on the morning of the crimes appeared to be logical, goal-oriented behavior. She also opined that he showed "particularly good reasoning" that morning by thinking through why he should not kill Carmelita.
The jury convicted defendant of 11 counts of first degree murder and found a multiple murder special circumstance true. It also convicted defendant of arson, but acquitted him of train wrecking and found train wrecking special circumstance allegations not true. In the penalty phase trial, the jury selected life in prison without parole for each count. The court sentenced defendant to 11 consecutive terms of life in prison without the possibility of parole and stayed the term for arson pursuant to Penal Code section 654. (Undesignated statutory references are to the Penal Code.)
DISCUSSION
1. Sufficiency of evidence of murder
Defendant contends that the evidence was insufficient to support his murder convictions because there was no logical connection between the arson and the deaths and because he lacked the specific intent to commit arson.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the convictions, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
a. Connection between arson and deaths
All murders committed "in the perpetration of, or attempt to perpetrate, arson . . . [are] murder[s] of the first degree." (§ 189.) The mental state required for felony murder is the specific intent to commit the underlying felony. (People v. Cavitt (2004) 33 Cal.4th 187, 197 (Cavitt).) "The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit" (People v. Washington (1965) 62 Cal.2d 777, 781), "whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony." (Cavitt, at p. 197.)
"[F]irst degree felony murder encompasses a far wider range of individual culpability than deliberate and premeditated murder. It includes not only the latter, but also a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident; it embraces both calculated conduct and acts committed in panic or rage, or under the dominion of mental illness, drugs, or alcohol; and it condemns alike consequences that are highly probable, conceivably possible, or wholly unforeseeable." (People v. Dillon (1983) 34 Cal.3d 441, 477 (Dillon).) "'Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning—if a death results from his commission of that felony it will be first degree murder, regardless of the circumstances.'" (Cavitt, supra, 33 Cal.4th at p. 197.)
There is no requirement of a strict causal or temporal relationship between the felony and the murder; the two must simply be parts of one continuous transaction. (People v. Booker (2011) 51 Cal.4th 141, 175 (Booker).) "There is no requirement that the killing occur, 'while committing' or 'while engaged in' the felony, or that the killing be 'a part of' the felony, other than that the few acts be a part of one continuous transaction." (People v. Stamp (1969) 2 Cal.App.3d 203, 210 (Stamp).) "As long as the homicide is the direct causal result of the [felony,] the felony-murder rule applies whether or not the death was a natural or probable consequence of the [felony]." (Ibid.)
"A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property." (§ 451.) "[A]rson of property does not include one burning or causing to be burned his or her own personal property unless there is an intent to defraud or there is injury to another person or another person's structure, forest land, or property." (§ 451, subd. (d).) "'Maliciously' imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." (§ 450, subd. (e).)
Defendant argues that there must be a logical nexus between the felony and the deaths, citing Cavitt, supra, 33 Cal.4th 187. Cavitt requires such a logical nexus for felony murder liability of a defendant who was not the actual killer. (Id. at p. 193.) Because defendant was the actual killer, no logical nexus is required. Instead, the killings and arson just need to be parts of one continuous transaction. That standard is satisfied here. Substantial evidence establishes that defendant chose to commit arson by parking his gasoline-soaked Jeep on the rails in the path of a train, with the intent that the train ignite the Jeep. When Metrolink train 100 struck defendant's Jeep, as defendant intended, it derailed and struck the locomotive and train 901, and the severe force of these collisions killed the victims. Their deaths were thus part of the same continuous transaction as the arson, and it is irrelevant that the fire itself was not the cause of the victims' deaths.
Defendant's contention that the deaths would have occurred without the fire is unavailing because it is undisputed and indisputable that defendant's acts initiated the sequence of events leading to the deaths. Defendant bases his claim upon People v. Gunnerson (1977) 74 Cal.App.3d 370, which held that the defendant was erroneously denied an appointed expert to attempt to show that a robbery victim who suffered a heart attack during the robbery would have died at that time even if there had been no robbery. (Id. at p. 378.) To benefit from Gunnerson, the evidence would have to show that the 11 decedents would have died on the morning of January 26 even if defendant had not put his gasoline-soaked Jeep on the rails in the path of train 100. No evidence supports this theory.
b. Evidence of intent to commit arson
Although arson is a general intent crime (People v. Atkins (2001) 25 Cal.4th 76, 84), liability under a felony-murder theory requires proof of a specific intent to commit the underlying felony. (Booker, supra, 51 Cal.4th at p. 175.) The arson charge (and thus the arson upon which the felony-murder theory depended) was a violation of section 451, subdivision (d). Thus, there must have been substantial evidence that defendant either intended to burn the train or intended that the burning of his Jeep would cause "injury to another person or another person's structure, forest land, or property." The statute does not define "injury" with respect to damage to property, but the Legislature's choice of "injury" instead of "burns," "burning," or "causes to be burned," as used in other portions of section 451, indicates that the "injury" to property contemplated by section 451, subdivision (d), may be damage other than burning, for example, damage caused by the heat of the fire. We conclude the record contains substantial evidence that defendant intended that the burning of his Jeep would cause injury to another person's property.
It is undisputed that defendant poured gasoline on the exterior and interior of the Jeep with the intent to burn it, perhaps with him inside it. The jury was entitled to credit the testimony of Ross and Branch that defendant poured something onto his Jeep while it was on the right-of-way and again while it was on the rails, where defendant was admittedly waiting for a train to come and strike it. Pouring gasoline in and on the Jeep and placing it on the rails with the intent that a train strike it supports a reasonable inference that defendant wanted the train to ignite a fire when it struck the Jeep. Defense expert Baker testified that if a person drove a Jeep onto the rails, poured gasoline on it, and waited for a train to strike it, the person would have intended for the fire to start, using the train as the ignition source. Defendant knew that sparks could ignite flammable vapors, and he even admitted in his testimony that he thought it was possible that his Jeep would catch fire when the train struck it. The jury could further reasonably infer that defendant intended the train to be damaged by its physical contact with his burning, gasoline-soaked Jeep as the train pushed it down the rails. Defendant's testimony that he did not want to burn the Jeep at home because he did not want to damage Barcena's property revealed that he understood that it was probable that his burning Jeep would damage other property in its proximity. The direct, natural, and highly probable consequence of placing a burning vehicle, especially one soaked in gasoline, against another object that is not impervious to fire, such as a train car, is that the other object will burn or at least be damaged by the fire or its heat. With respect to the likelihood of fire damage to another's property, defendant's conduct was comparable to parking his gasoline-soaked Jeep up against another car, then setting the Jeep on fire. Even if the other car did not itself catch fire, rubber and plastic parts would fully or partially melt, and there would probably be significant damage to the paint and finish. A train car is larger and heavier, but it is nonetheless a vehicle that has soft parts such as hoses and wiring, and a painted finish on the metal exterior, all of which are susceptible to damage by fire and heat. Indeed, the undisputed evidence established that the cab car's wheels and exterior suffered significant damage from the fire and heat. Accordingly, substantial evidence supported a reasonable inference that defendant intended that his burning Jeep cause "injury" to the train.
Defendant argues that it was much more likely that he wanted to commit suicide than harm the train. This contention improperly asks this court to reweigh the evidence and fails to recognize that an intent to commit suicide and an intent to damage the train are not mutually exclusive.
Citing In re V.V. (2011) 51 Cal.4th 1020, defendant also argues that there was insufficient evidence that "setting his car on fire . . . would have a direct, natural and highly probable consequence of causing the Metrolink to burn." Defendant's argument misapplies the law. He did not have to intend that the train burn, but only that it sustain "injury." (§ 451, subd. (d).) V.V., in which the Supreme Court affirmed this division's decision finding sufficient evidence of arson, concerned the sufficiency of evidence of malice where the juvenile court found that a brushfire caused by minors throwing lighted fireworks onto a hillside was unintentional. (V.V., at pp. 1023, 1030.) The minors did not own the hillside and were charged with arson of forest land under section 451, subdivision (c). The Supreme Court stated, "In determining whether the second type of malice ('intent to do a wrongful act') is established for arson, malice will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right." (V.V., at p. 1028.) Here, substantial evidence established that defendant intentionally set fire to the Jeep, through collision with the train. Even if, as defendant argues, he had a right to burn his own Jeep, he had no legal right to do so on the railroad tracks and with the Jeep in physical contact with a train. Thus, malice may be presumed here without resort to the further standard of "setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property." (V.V., at p. 1029.) Even if this standard applies (as modified to address a violation of section 451, subdivision (d)), substantial evidence established that injury to the train was a direct, natural, and highly probable consequence of causing the train to ignite the gasoline-drenched Jeep and push it down the rails.
2. Exclusion of improbability evidence
Defendant contends that the trial court abused its discretion and violated his constitutional right to present a defense by preventing him from presenting expert testimony to show that it was improbable and unforeseeable that a collision between a train and a passenger vehicle would result in derailment, a train-on-train collision, and death to a person on a train. He told the trial court that such evidence was relevant to second degree murder and involuntary manslaughter.
Defendant concedes that "the record supports that the jury convicted [him] of first degree murder based on arson felony murder," aptly given the jury convicted him of arson. Because death need not be a foreseeable consequence of the felony or attempted felony to support a felony-murder conviction (Dillon, supra, 34 Cal.3d at p. 477), the improbability of derailment, a train-on-train collision, or death of train passengers from a train and passenger vehicle collision was irrelevant to defendant's murder convictions. Thus, defendant can demonstrate no possible prejudice from the purportedly erroneous rulings.
3. Refusal to instruct on causation
Defendant contends the trial court erred by denying his request to instruct with CALJIC Nos. 3.40 and 8.55 regarding causation. As argued by defendant on appeal, CALJIC No. 3.40 would have told the jury, "The criminal law has its own particular way of defining cause. A cause of the death is an act that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act the death and without which the death would not occur." CALJIC No. 8.55 would have stated, "To constitute murder there must be, in addition to the death of a human being, an unlawful act which was a cause of that death."
Given defendant's concession that his murder verdicts were based on arson felony murder, defendant cannot demonstrate any possible prejudice resulting from the trial court's refusal to give the requested instructions. Proximate cause, natural and probable consequences, and foreseeability have no bearing on felony-murder liability. (People v. Tapia (1994) 25 Cal.App.4th 984, 1024 [proximate cause]; People v. Chavez (1951) 37 Cal.2d 656, 669 [natural and probable consequences]; Stamp, supra, 2 Cal.App.3d at p. 210 [natural and probable consequences]; Dillon, supra, 34 Cal.3d at p. 477 [foreseeability].) The relevant standard is instead whether the felony and the deaths were part of one continuous transaction, as previously discussed.
Defendant also argues his liability was terminated by a number of "intervening causes includ[ing] the southbound Metrolink being in push mode, the presence of the [siding] immediately after derailment, the presence of the locomotive on the [siding], and the arrival of the northbound Metrolink just as the southbound Metrolink jackknifed onto the northbound tracks." He is incorrect. Each factor he cites was in play before he parked his gasoline-drenched Jeep on the rails in the path of train 100; they were not intervening forces. Defendant may not have foreseen the derailment, collision with the Union Pacific locomotive, or collision with train 901, but he chose the time and place to act and is responsible for the consequences. (Stamp, supra, 2 Cal.App.3d at p. 211 [for felony-murder liability, defendant "takes his victim as he finds him"].)
4. Refusal to instruct on unlawfully causing a fire and involuntary manslaughter
Defendant contends that the trial court erred by refusing to instruct on the lesser included offenses of unlawfully causing a fire and involuntary manslaughter based on gross negligence or the misdemeanors of unlawfully causing a fire or trespass.
Unlawfully causing a fire is defined as recklessly setting fire to, burning, or causing to be burned a structure, forest land, or property. (§ 452.)
Nonvehicular involuntary manslaughter is a killing "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection" (§ 192, subd. (b)), or in the commission of a "noninherently dangerous felony . . . committed without due caution and circumspection" (People v. Burroughs (1984) 35 Cal.3d 824, 835, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89). The mens rea for nonvehicular involuntary manslaughter is criminal negligence. (People v. Butler (2010) 187 Cal.App.4th 998, 1007.) "[C]riminal negligence exists 'when a man of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm.'" (Id. at p. 1008.)
Defendant cannot show he was prejudiced by the absence of these instructions. Error in failing to instruct on a lesser included offense is an error of state law only and is subject to harmless error analysis under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, that is, the error is prejudicial if there is a reasonable probability that, absent the error, defendant would have obtained a more favorable outcome. (People v. Breverman (1998) 19 Cal.4th 142, 178.) As defendant concedes, the jury convicted him of arson felony murder, meaning the jury necessarily found that defendant had the specific intent to commit arson. That is, the jury found that defendant put his gasoline-soaked Jeep on the rails with the intent that it catch fire and damage the train. Given this finding, there is no reasonable probability that the jury would have found that defendant merely acted recklessly or with criminal negligence, even if the jury believed defendant intended to kill himself. Suicidal intent and the intent to commit arson are not mutually exclusive. In addition, defendant admitted that he poured gasoline on the Jeep with the intent to set it on fire, then parked it on the tracks in the path of a train. And defense expert Baker testified that if a person drove a Jeep onto the rails, poured gasoline on it, and waited for a train to strike it, the person would have intended for the fire to start, using the train as the ignition source. Accordingly, it is not reasonably probable that defendant would have obtained a more favorable outcome had the requested instructions been given. We note that the jury had the option of convicting defendant of second degree murder, but did not do so.
5. Exclusion of phone message defendant left Beto
Defendant and Barcena testified that before the paramedics arrived, defendant borrowed Barcena's phone and left Beto a message, in mixed English and Spanish. In the message defendant stated (as translated), "Beto take good care of my kids for me Beto. Tell them that I have always loved them. I always loved them. Take care of my wife for me Beto. I didn't mean to do this Beto. A lot of innocent people died. I don't deserve to live Beto. I apologize for everything. Please pray for me, please . . . so God would . . . . No Reyna, I want to die. . . . I would rather die Reyna." The message includes a time stamp of 6:17 a.m.
The trial court listened to the tape and found that it sounded as if it were "set up," "like somebody playing a part. Sounds like a very bad actor trying to convince the person receiving the information that he really feels as he says he does, and it doesn't ring true. [¶] That's aside from the basic idea it's not trustworthy, does not come in, and it's not an excited utterance, even though he purports to be excited as he's saying it. He didn't just witness an event, it was some time earlier." The court precluded defendant from introducing the message in the guilt phase on the grounds it was irrelevant hearsay. Defendant played the recording during the penalty phase trial.
Defendant contends that the exclusion of the recording in the guilt phase was error because it was admissible as an excited utterance under Evidence Code section 1240, which provides a hearsay exception for a statement that "(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." In order to apply this exception, (1) there must be an occurrence startling enough to produce nervous excitement and render the statement spontaneous and unreflecting; (2) the statement must be made before there has been time to contrive and misrepresent, while the nervous excitement still dominates and the reflective powers are still in abeyance; and (3) the statement must relate to the circumstance of the occurrence preceding it. (People v. Poggi (1988) 45 Cal.3d 306, 318.) Whether the requirements of this exception are satisfied in any given case is largely a question of fact. (Ibid.) We review the trial court's decision for abuse of discretion and uphold its determination of the preliminary facts if it is supported by substantial evidence. (Ibid.; People v. Brown (2003) 31 Cal.4th 518, 540-541.) The trial court's discretion is broadest with respect to the second element. (Poggi, at pp. 318-319.)
We have listened to the recording and conclude that the trial court did not abuse its discretion. If the time stamp on the message was accurate, 17 or 18 minutes had elapsed between the train wreck and the message. In that period, defendant had, at a minimum, walked down the tracks toward the resting spot of the crashed trains, spoken to Reis, heard Reis's opinion that there were "fatalities," been asked by Reis if he had anything to do with the crash, walked or run 0.39 miles home, broken his kitchen window, entered his house, removed the poncho he had been wearing when he committed the crimes, stabbed himself, walked to Barcena's house, and consciously decided to phone Beto. Defendant had sufficient time and abundant motive to contrive and misrepresent. And, as the trial court found, the message sounds as if it may have been made to convince listeners that defendant was remorseful. We cannot conclude the trial court abused its discretion in excluding the recording during the guilt phase.
Even if the trial court erred, such error would be harmless. As the defense conceded, the only statement in the recording that was potentially relevant in the guilt phase was, "'I didn't mean to do this,'" which defendant argued was consistent with his testimony, that is, he was attempting to commit suicide and did not intend to hurt anyone on the train. In addition to defendant's testimony on this point, the jury heard defense witnesses Officer Tiffany Sanchez and Dr. Jairo Gomez testify that while defendant was being evaluated at the hospital on the morning of the crimes, he repeatedly said he was trying to kill himself. Even if the jury believed defendant's many statements and his testimony that he wanted to kill himself, the jury could, and did, find that he also specifically intended to commit arson. There is no reasonable probability that defendant would have obtained a more favorable result if the trial court had admitted the message to Beto in the guilt phase of the trial.
6. Other evidentiary error claims
Defendant contends that the trial court erred by (1) sustaining the prosecutor's objection to a question to Richardson suggesting that DeHaan had no opinion about when the fire began; (2) precluding a school counselor, who did not remember defendant, from authenticating a document referring defendant for counseling; (3) preventing Justine Gurrola from testifying about defendant's behavior when he first moved to the United States around 1990 and her current opinion that he was emotionally disturbed; (4) preventing jail psychologist Dr. Monica Riederle from testifying that defendant was preoccupied with remorse and told her he was troubled by memories and tormented by spirits, heard whispers, and wanted forgiveness; (5) precluding defendant's sister from testifying about her knowledge of the train crash in Mexico involving her family's neighbor; and (6) precluding defendant's sister from stating her opinion that defendant's "condition" had improved in jail. Defendant also wanted to introduce Riederle's testimony about whether defendant was malingering, but he never made an offer of proof as to what Riederle's opinion was, or even if she had one. Thus, defendant failed to preserve the issue for review. (People v. Carlin (2007) 150 Cal.App.4th 322, 334.)
Although we do not agree that the exclusion of this evidence was error, we need not discuss the merits because defendant has not attempted to show that these rulings were prejudicial. Indeed, defendant concedes in his reply brief that he does not argue that "any of these errors, by themselves, prejudiced [defendant] to the extent that his convictions should be reversed." Instead, he argues they show a pattern of unfair rulings by the trial court. We have considered these claims and conclude that it is not reasonably probable that defendant would have obtained a more favorable result if the trial court had admitted any or all of this evidence.
7. Cumulative error
Defendant contends we must reverse his convictions due to the cumulative prejudicial effect of all of the previously discussed claims of error. But his cumulative error claim has no greater merit than his individual assertions of error, which we have rejected or found to be harmless.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur:
ROTHSCHILD, J.
CHANEY, J.