Opinion
H041757
03-30-2017
THE PEOPLE, Plaintiff and Respondent, v. RALPH EDWARD BALDENEGRO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1095272)
I. INTRODUCTION
Defendant Ralph Edward Baldenegro was sentenced to life without the possibility of parole after a jury convicted him of first degree murder of Julie Bucalo (Pen. Code, § 187, subd. (a)) and found true two special circumstance allegations under section 190.2, subdivision (a)(17): that the murder was committed while defendant was committing or attempting to commit a first degree burglary and a rape.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the trial court erred by: (1) restricting his cross-examination of the prosecution's DNA expert; (2) admitting hearsay statements made by Bucalo; (3) admitting evidence of uncharged offenses; (4) admitting evidence of uncharged offenses during the prosecution's rebuttal case; and (5) excluding evidence of third party culpability involving Bucalo's boyfriend and her dog. Defendant also contends the prosecutor violated his due process rights by failing to turn over exculpatory evidence. Finally, he contends there was cumulative prejudice. For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
Defendant was tried for the 1991 murder of Julie Bucalo, who was bound with handcuffs and duct tape and strangled to death at her home. Defendant and Bucalo had been workplace acquaintances prior to the murder. Defendant was not definitively linked to the Bucalo murder until DNA analysis was performed many years later, after advances in DNA techniques. He was arrested and charged in 2010.
At trial, the prosecution introduced evidence that in the years before and after the Bucalo murder, defendant committed assaultive offenses against other women, some very similar to the Bucalo murder. In its case in chief, the prosecution introduced evidence of three assaults against Sarah G. in 1984, two assaults against Linda A. in 2006, and one assault against D.M. in 2006. In rebuttal, an additional 1984 assault on Sarah G. was introduced, along with a 1982 assault on Janet P. and additional evidence regarding one of the 2006 assaults on Linda A.
A. Discovery of Bucalo's Body - 1991
In 1991, Bucalo was living in a cottage located behind a flooring store on Meridian Avenue in San Jose. Bucalo was an accountant working for a firm with offices in Palo Alto and Menlo Park.
Bucalo's boyfriend in February 1991 was Jim Kent. Kent lived in Martinez and would often spend the weekend with Bucalo, leaving on Sunday afternoons. He visited Bucalo from Friday, February 1, 1991 until the afternoon of Sunday, February 3, 1991. Kent and Bucalo had sex at least once over the weekend.
At 4:40 p.m. on Sunday evening, after Kent arrived home, he called Bucalo to let her know he had made it back safely. Bucalo answered the phone, and they briefly chatted. Kent went to see a client, returned home, and called his sister at about 7:30 p.m. At about 9:30 p.m., Kent called Bucalo again. Bucalo did not answer the phone. Kent thought she might have been outside, so he tried calling again about five minutes later. Again, Bucalo did not answer, so Kent tried again at 10:07 p.m. Kent left two messages on Bucalo's answering machine, asking where she was. The next afternoon, he called her work number and her home number, but he could not reach her. Kent decided to call the flooring store.
On the afternoon of Monday, February 4, 1991, flooring store employee Nick Caravelli received a call from Kent. Kent asked Caravelli to look and see if Bucalo's car was at her residence. Kent said he was worried about her because he had not been able to contact her for a few days. Caravelli offered to go look for Bucalo in her cottage. He saw Bucalo's car and thought it was unusual that her dog was in the yard and that her curtains were shut, because Bucalo generally kept the dog with her and the curtains open when she was home. Caravelli tried all the doors and windows, but they were locked. Caravelli reported back to Kent. Kent told Caravelli that Bucalo kept a set of keys in the doghouse, and Caravelli offered to go into the house using the keys. However, Kent asked Caravelli to call the police instead. Kent also said he would come over.
The police responded, and Caravelli directed an officer to the keys in the doghouse. Caravelli held onto Bucalo's dog, who was "not the most friendly to strangers" and would become aggressive if he was "unfamiliar with someone." Two officers entered Bucalo's home and discovered Bucalo's body on her bed, covered up by two blankets.
Kent arrived and exited his car, screaming Bucalo's name. Caravelli thought that Kent was intoxicated. Kent's truck was later searched, and Kent was interviewed by San Jose Police Sergeant Santiago Trejo and his partner, Glenn McCourtie. Kent was interviewed again several months later as well.
Santa Clara County Sheriff's Deputy Robert Froese responded to the scene to perform a crime scene investigation. He found no signs of forced entry. There was a damp towel in the bathroom, where the showerhead was dripping. A pair of men's sweatpants and underwear were on the floor, and the washer and dryer had towels in them. In the living room and kitchen, nothing seemed disturbed. Jewelry was in plain view in the house. The set of keys from the dog house was in the front door, a key to the house was on a hook in the kitchen, and another set of keys was on a table in the living room, along with Bucalo's wallet. A stereo wire had been cut; a segment was missing. Bucalo's answering machine contained two new messages from Kent.
At the time, Deputy Froese was employed by the San Jose Police Department.
A bathrobe and a pair of sweatpants were on the floor by a bedroom closet. A pair of underwear was inside the sweatpants. A white sweatshirt was on top of a bath rug and a circular piece of duct tape. Fecal matter was in the crotch of the underwear, on the bathrobe, on the sweatshirt, and on the bath mat. Urine stains were on the sweatshirt and bathrobe.
Bucalo's dead body was face-down on the bed. The bed was made, and Bucalo's body was on top of the comforter. Bucalo was unclothed from the waist-down, wearing only a t-shirt and bra. The front of Bucalo's shirt had been severed up the middle. A piece of Bucalo's bra was on the floor. Bucalo had linear bruises on her wrists and marks consistent with handcuffs, lividity in her front torso, and feces on her crotch area, buttocks, and hands. There was blood on her cheek.
During an autopsy, more evidence was collected, including fingernail clippings and swabs from Bucalo's anus, mouth, and vagina. Bucalo had a small laceration inside her lip. Bucalo had an injury near her clavicle and two smaller bruises on her neck, all of which were consistent with firm pressure to the neck applied during manual strangulation. There were also internal injuries in her neck that were consistent with manual strangulation. Bucalo likely had a bowel movement during a struggle as a result of straining to breathe. Her cause of death was asphyxia due to manual strangulation. Bucalo had likely died 12 to 24 hours before her body had been found.
B. Defendant's Relationship with Bucalo
About two months prior to her death, Bucalo had expressed to Caravelli some concerns about a person named Ralph (defendant's first name). Bucalo said that a person at her work named Ralph had "made advances and wouldn't stop." She also mentioned receiving "hang-up calls" during the night, and that she thought the calls might be coming from Ralph. Bucalo seemed scared.
One evening around Christmas of 1990 (about a month before Bucalo's death), a man named Ralph came by the flooring store and spoke with Caravelli and Diane Palmer, who also worked at the store. Ralph wanted to know if Bucalo still lived in the back cottage and said he had a present for her. Defendant looked like the man who had come by the store. Palmer told Bucalo about Ralph's visit, and Bucalo responded, "Wow, that makes me a little uncomfortable. I haven't seen him in almost a year." Bucalo explained that Ralph had feelings for her, but that she did not have feelings for him. Bucalo said she was scared of Ralph.
Bucalo had also mentioned Ralph to Kent, and Kent had met Ralph once. At trial, Kent identified defendant as Ralph. Kent had noticed Ralph was present at an art and wine festival he had attended with Bucalo. Another time, Kent had seen Ralph drive by Bucalo's house. Kent had said to Bucalo, "[H]ey, there goes Ralph," and Bucalo had responded, "I wonder what the hell he's doing over here." Kent had also seen Ralph drive by the flooring store around Christmas of 1990.
Bucalo had told Kent that Ralph wanted to be more than friends with her. Bucalo said she would see Ralph in various places and indicated she felt uneasy. She told Kent that "it was getting creepy."
Lori Miller considered Bucalo her best friend. Miller moved out of California in 1987, but she kept in touch with Bucalo through frequent telephone calls. Bucalo had mentioned Ralph, describing him as a security guard at her company who wanted something more than a friendship with her. In a conversation around Christmas of 1990, Bucalo said she was scared of Ralph.
When the police interviewed Bucalo's friends and family following her death, the name Ralph Baldenegro (defendant) was mentioned several times. Police made efforts to locate defendant but could not find him.
C. Uncharged Offenses
In its case in chief, the prosecution presented evidence of offenses defendant committed in 1984 against Sarah G. and evidence of offenses defendant committed in 2006 against Linda A. and D.M.
1. Sarah G. - 1984
Sarah G. had a relationship with defendant from 1981 until November or December of 1983, when she broke up with him. Sarah G. and defendant had met at their workplace—the Santa Clara Fire Department. After breaking up with defendant, Sarah G. learned that she was pregnant with his child. She told defendant about the pregnancy, and they continued to have contact into 1984.
One day in January 1984, defendant came over to Sarah G.'s apartment. Defendant indicated he was going to fix Sarah G.'s car. He later returned to her apartment and pushed his way inside when Sarah G. tried to close the door. He pushed Sarah G. onto a bean bag chair and put a pillow over her head. Sarah G., who was having trouble breathing, tried to hit defendant. Defendant expressed anger at the fact that Sarah G. would not talk to him and about the fact that she planned to terminate the pregnancy. Defendant took handcuffs out from his back pocket and handcuffed Sarah G.'s hands behind her back. He put tape over her mouth. When Sarah G. continued to have trouble breathing, defendant removed the tape and walked her to the bedroom. He put her on the bed and took nylon stockings from her dresser. Defendant used the stockings to tie Sarah G.'s feet together and to tie her feet to the bed frame. He used more nylon stockings to tie her wrists to the side of the bed. Defendant then untied Sarah G., removed the handcuffs, and expressed remorse.
Following the January 1984 incident, defendant continued to pursue a relationship with Sarah G. He called her and saw her at an aerobics class, and she agreed to go to a movie with him. One evening in February 1984, Sarah G. came home to find defendant in her apartment with the lights off. Defendant pushed her down and said he wanted a chance to talk. He again handcuffed her hands behind her back and taped her mouth shut. He walked her to the bedroom, placed her on the bed, and removed her pants. Defendant said he was going to kill himself in front of Sarah G. and let his body decompose and "stink up," so that she would feel his pain. He then unhandcuffed her and removed the tape, said he was sorry, and placed a bedspread over her. Sarah G. asked defendant how he had entered her apartment. Defendant said he had used a ladder and climbed in through a window.
A third incident occurred in March 1984. Defendant had called Sarah G., saying he wanted to talk to her after their aerobics class, but he had not gone to the class. When Sarah G. arrived home and entered her bedroom, defendant jumped out at her from a closet. Defendant put his hand over her mouth, put a knife to her throat, and told her to be quiet or he would hurt her. Defendant sat her down and talked about how he loved her and wanted a chance to talk to her. Defendant pushed her onto the bed, handcuffed her hands behind her back, and placed tape over her mouth. He used the knife to rip her shirt off, removed her other clothing, and said he was going to rape her. Defendant removed his pants and underwear, then used his elbows to spread Sarah G.'s legs apart. Defendant attempted to penetrate her vagina but was unsuccessful. He then took some lubricant out of his backpack and tried again. He penetrated Sarah G.'s vagina for a few minutes and ejaculated. He later removed the handcuffs, brought her to the bathroom, and apologized. He then brought Sarah G. back to the bed and helped her put on a bathrobe.
2. Linda A. - 2006
Linda A. and defendant lived together from early October 1996 until May 23, 2006. Linda A. had a daughter from a previous relationship, named D.M., and she had a son with defendant, named E.B.
Around 1997, defendant mentioned to Linda A. that he had an "ex-fiancé" who had been murdered in her home. Defendant talked about how he had been an initial suspect but that he had given the police a work-related alibi. Defendant "laughed and joked [about] how stupid the San Jose PD were because he had been a firefighter and . . . he knew the fastest routes to get to places," and he said that "if it was something he wanted to do, he could have made it to her place and back in time to clock" in at work.
Defendant assaulted Linda A. on May 23, 2006. Defendant had been sleeping in a separate bedroom, and Linda A. had gone to bed and locked her bedroom door. Defendant pounded on the door, telling Linda A. to open it. Linda A. refused. Defendant said he would break it open, and Linda A. became scared, so she opened the door. Linda A. told defendant she did not want to talk, but defendant forced his way into the room. When Linda A. asked defendant to leave, he lunged at her, causing her to fall to the ground, and began trying to strangle her. Defendant said, "I warned you that it was going to come to this. I told you this would happen." Defendant also said that if he could not have her, "nobody else could have [her]," and that he was going to kill her.
E.B., who was six years old, came to the door, crying. Defendant "eased up" his hold on Linda A., stood her up, and told E.B. to go back to bed and that everything was okay. E.B. left, and defendant resumed his attempt to strangle Linda A. However, E.B. returned again. At that point, defendant switched his hold on Linda to a headlock and brought her out of the room into the hallway, where he started strangling her again. Linda A. tried to get defendant to stop by apologizing, but it did not work. E.B. then appeared again, and defendant loosened his grip. Defendant told Linda A. to put E.B. back to bed. He then made her sit in a chair in the living room, where he apologized and begged her not to go to the police. Defendant said he had a gun and would kill himself before ever being arrested. Defendant eventually allowed Linda A. to return to her bedroom.
The next morning, May 24, 2006, Linda A. went to the police station to report what had happened, and she obtained a restraining order against defendant. She also changed all the locks to her house.
Several months later, on November 9, 2006, Linda A. became concerned when she did not hear from D.M. after school. She arrived home at about 6:15 p.m. and entered the house to find defendant inside the front door. Linda A. screamed and tried to leave the house, but defendant grabbed her and put his hand over her mouth. Defendant told her, "I'm here to finish what I should have."
Defendant pulled Linda A. down by the hair and held her on the ground with his body weight. Defendant then brought her back to standing, handcuffed her wrists behind her back, and placed duct tape over her mouth and nose. Linda A. was able to communicate to defendant that she could not breathe, and although defendant said he did not care, he adjusted the duct tape so it only covered her mouth. He then applied a second piece of duct tape on top of the first piece. E.B. appeared, and Linda A. tried to tell him to call 911, but defendant told him not to. Defendant said "that he was there to punish mommy, mommy had been bad, and that he was going to take care of mommy." Defendant then led Linda A. to the master bedroom, where he had her lie down on the floor. Defendant then duct-taped Linda A.'s ankles. E.B. again appeared, and defendant told him "that mommy had been a bad girl." Defendant took E.B. out of the room.
While defendant was gone, Linda A. was able to stand up and hop over to the phone, but when she picked it up, she could tell that the battery had been removed. She was able to hop to the patio and exit to the backyard. She used her head and shoulders to move some fence boards to the side and fall into her neighbor's yard. The fall caused the duct tape to fall off of her face, and she began screaming for help.
Linda A. later observed that a screen had been removed from one of the windows of her house. There were also strips of duct tape stuck to the side of an armoire in the living room. A knife was caught in the strings of her patio door blinds.
3. D.M. - 2006
D.M. was 14 years old on November 9, 2006. She walked home after school and found the front door to her house unlocked. When she walked in, defendant came out from behind the door, pointing a gun at her. Defendant told D.M. it was not her lucky day and told her to get on the ground. She complied. Defendant duct taped her wrists together behind her back and made comments blaming Linda A. for what he was doing. Defendant then pulled D.M. to her feet and placed duct tape over her mouth.
Defendant pushed D.M. into her bedroom, had her sit down on her bed, and said she needed to take her clothes off. Defendant removed the duct tape from D.M.'s hands in order to take off her shirt and bra. He also took off her shoes and pants. Defendant then put more duct tape over her eyes and bound her ankles and wrists. Defendant covered D.M. with a blanket, saying he did not want her to be cold. He left the room and used a computer, then returned, uncovered D.M., and moved her into a different position. He cut the duct tape off her ankles and opened her legs. D.M. started kicking, but defendant put his hands around her neck and applied pressure. Defendant released the pressure when D.M. stopped kicking. He then cut her underwear off and put his fingers inside her vagina. He also put lotion on her and put a vibrator on her vagina. Additionally, he pinched and bit her nipples. Defendant continued to blame Linda A. for what he was doing.
At some point, defendant stopped, covered D.M. with a blanket, and brought her clothes to her. He allowed her to use the bathroom and removed the duct tape from her wrists and from one eye. Defendant then led D.M. back to the bedroom and replaced the duct tape on her wrists and eyes. He had D.M. lie down on the bed again and covered her back up with a blanket. D.M. heard E.B. enter the house, followed by Linda A. She heard noises, including the sound of someone going into the back yard and screaming for help. She then heard defendant leave the house.
D.M. managed to remove the duct tape from her face. She called 911. She ran to a neighbor's house, where the duct tape was cut from her wrists and the police found her.
The neighbor who helped D.M. testified at trial, as did two officers who investigated the crime scene. The officers found no signs of forced entry at the house. A search of defendant's vehicle two days later led to the discovery of a roll of duct tape, a bottle of lubricant, and a bag containing a knife.
D. Reopening of the Bucalo Case
San Jose Police Officer Lindsay Thompson began working on the Bucalo case in April 2004, after improvements in DNA analysis led to review of "cold cases." Thompson collected DNA from items that had been collected from Bucalo's house in 1991 and also a sexual assault kit that contained saliva and hair samples from defendant, which had been collected in the 1984 case involving Sarah G.
In October 2009, the Bucalo investigation was assigned to Gilbert Vizzusi, an investigator with the District Attorney's Office. Clothing from the crime scene was sent to the crime lab for further testing. In September 2010, based on the results of the testing, Vizzusi and his partner interviewed defendant. Defendant was read the Miranda admonishments and agreed to talk. Defendant acknowledged knowing Bucalo from their workplace in San Jose, said they had been friends, and denied having had a romantic interest in Bucalo. Defendant claimed he had been to Bucalo's house once for a Halloween party, but at no other time.
Miranda v. Arizona (1966) 384 U.S. 436.
Brooke Barloewen, a supervising criminalist at the Santa Clara County Crime Laboratory, testified as an expert in forensic DNA collection, analysis, and comparison as well as in trace evidence. Barloewen explained that since the early 1990's, DNA testing methods had improved such that DNA could be obtained from smaller samples than before. In addition, DNA is now tested at more locations than before, making it more discriminatory. One of the technology advances that helps analyze small amounts of DNA is called polymerase chain reaction (PCR). Another is Y-STR testing. Barloewen explained the lab's protocols for maintaining the integrity of evidence. Criminalists work on one piece of evidence at a time, on clean paper.
Barloewen worked on the Sarah G. case, comparing DNA found on a piece of gum and a vaginal swab to defendant's DNA. Defendant was the source of the DNA on the gum and the semen in the vaginal swab.
Barloewen also worked on the Bucalo case. Kent was the source of hair found on Bucalo's pants, semen found in the men's underwear and on Bucalo's sweatpants, and a pubic hair found in the men's sweatpants. Bucalo and an unknown male (neither defendant nor Kent) were possible contributors to DNA found on the stereo wires. Defendant's DNA matched some of the DNA found in Bucalo's fingernail clippings. Defendant was also a contributor to the mixture of DNA found on Bucalo's shirt. Defendant was also a minor contributor to DNA found on Bucalo's sweatshirt.
On cross-examination, Barloewen acknowledged that human error sometimes occurs in the lab and that changes were made following a 2011 audit. She also acknowledged that secondary DNA transfer can occur—i.e., a person can move DNA from one person to another person.
E. Defense Case
1. Defendant's Testimony: Sarah G. - 1984
Defendant began working as a firefighter for the City of Santa Clara in 1976. He met Sarah G. at work in early 1980 and began dating her. They sometimes went to an exercise class together but he sometimes went alone. In late 1983, they took several ski trips to Lake Tahoe together. Defendant moved in with Sarah G. for about six months.
In January 1984, defendant went to Sarah G.'s house to fix her car's heater. At the time, he knew Sarah G. was pregnant, and he was happy about it. However, he later found out that Sarah G. had a substance abuse problem: he saw her with narcotics paraphernalia. He was concerned about harm to the fetus. He wanted Sarah to go to a rehabilitation program. In February 1984, defendant moved out because he did not want to "be around what she was doing." At around the same time, Sarah G. terminated her pregnancy.
Defendant denied that he attacked Sarah G. on the day that he fixed her car. He also denied that he broke into Sarah G.'s house in February 1984 or in March 1984. He denied physically harming her. Defendant claimed he continued to be in a relationship with Sarah G. through the early part of March 1984. He also claimed that even after Sarah G. made allegations against him, she continued to attend the same exercise class as him. Sarah G. also blocked his car in a driveway on one occasion after she made the allegations against him.
2. Defendant's Testimony: Bucalo - 1991
In 1986 or 1987, defendant began working at a security firm. While at that job, he met Bucalo, who worked in a building where he provided security. He left the job in 1990, after sustaining an elbow injury that required surgery. At the time, he was in a relationship with Bonnie K.
Defendant and Bucalo became friends and went out for coffee and to a concert. He and Bucalo had similar tastes in music, and he told her about certain concerts. One of the bands he liked played at an art and wine festival, which Bucalo and Kent also attended. Defendant attended a party at Bucalo's house once, and they exchanged birthday gifts as well as Christmas or New Year's gifts.
Defendant believed that Bonnie K. was jealous of defendant's friendship with Bucalo. Defendant learned about Bucalo's death a few days after it happened, from Bonnie K., who said she had seen a newspaper article about it. He had a "hunch" that Bonnie K. had killed Bucalo, but he also wondered about whether Kent had been involved. During the week before Bucalo's death, Bonnie K. had driven defendant to Bucalo's house. Bonnie K. had gone into Bucalo's house, spoken to Bucalo, hugged her goodbye, and gotten back into the car. It would not have been unusual for Bonnie K. to have borrowed defendant's jacket.
Defendant acknowledged that when he was interviewed by the police in 2010, he did not say anything about going to the carpet store to give Bucalo a gift, nor did he tell the police that he and Bonnie K. had stopped by Bucalo's house a few days before she died. Defendant also admitted that at the time of Bucalo's murder, he owned a dark-colored pickup truck and a pair of handcuffs.
Defendant denied killing Bucalo. He was "probably at home" on the evening of Sunday, February 3, 1991 and on Monday, February 4, 1991. He was still recovering from his elbow surgery at the time of Bucalo's death, and his arm was still in a sling.
3. Defendant's Testimony: Linda A. and D.M. - 2006
Defendant began dating Linda A. in early 1994 and had a son with her (E.B.). By late 2005, the relationship had problems and defendant was sleeping in his son's room.
Defendant testified that the May 2006 incident began after Linda A. went to bed. Defendant was watching television, but he heard "slamming and banging" noise, which woke up E.B. Defendant knocked on Linda A.'s bedroom door and asked her why she was slamming and banging things around. Linda A. opened up the door and stabbed defendant in the arm with a pair of small nail scissors or clippers. Defendant then "bearhugged" her and they both fell down. Linda A. yelled at him, and he held her wrists so that she could not stab him again. E.B. came into the room, and defendant told him to go back to bed. Defendant tried to talk to Linda A., who said she was sorry and that she was having problems at work.
Following the May 2006 incident, defendant moved out, but he returned to the house on November 9, 2006, even though he was subject to a restraining order. During his supervised visits with E.B., defendant had seen bruises, scratches, and welts on E.B.'s arms, and he believed E.B. was being abused. He entered the house through the back patio and a window, intending to collect his belongings as well as E.B.'s belongings and get E.B. "out of there." Defendant admitted he had a handgun in his pocket when he entered the house. He denied bringing duct tape and handcuffs with him, claiming he had retrieved those items from inside the house after he arrived. He denied removing the battery from Linda's phone.
Defendant denied pointing a gun at D.M. when she entered the house, but he admitted the gun was in his hand. He admitted telling D.M. to take off her jacket and get on the floor. He admitted duct taping D.M.'s hands behind her back. Defendant claimed that he had accused D.M. of hurting E.B. and that D.M. had called E.B. a liar. Defendant admitted removing D.M.'s shoes and socks but denied he removed any other clothing. He admitted duct taping her ankles, mouth, and eyes. He denied sexually assaulting D.M.
Defendant admitted grabbing Linda A. after she entered the house, but he denied assaulting her. He admitted handcuffing Linda A., putting duct tape over her mouth, bringing her to the bedroom, and duct-taping her ankles. After realizing Linda A. had gone through the fence into the neighbor's yard, he followed her and pushed her down. When defendant heard someone say, "[S]top what you're doing," he approached the person and told him to "mind his own business." Defendant saw that the person was calling 911, so he took out his gun, pointed it at the person, demanded the phone, and threw the phone into a hedge. At that point, E.B. had come outside. E.B. tackled Linda A., who was getting to her feet. Defendant then told E.B. to get in the car, and he drove away. When a patrol car attempted to pull him over, he kept driving, until he ran over spike strips that the police had put on the road.
Defendant admitted he was convicted of a number of felonies stemming from the incident on November 9, 2006, including first degree burglary with intent to commit sexual assault, assault with a firearm, sexual assault, forcible digital penetration, infliction of corporal injury, criminal threats, second degree robbery through force or fear, and kidnapping.
4. Other Defense Witnesses: Sarah G. Incidents - 1984
Robert Gadd, a former criminalist, worked on the Sarah G. case in 1985. A pubic hair found in Sarah G.'s vaginal area did not match Sarah G. nor defendant.
Colleen Garde knew defendant and Sarah G. from an exercise class. After Sarah G. alleged that defendant had sexually assaulted her, she would sometimes come to the exercise class and gesture to defendant from the door, indicating she wanted him to come out. Garde had dinner or drinks with Sarah G. in September of 1984—after the alleged assaults. Sarah G. said that "she was going to keep [defendant] no matter what," that she loved him, and that she wanted to have his baby. On another occasion, Sarah G. came to Garde's house when defendant was there visiting. Sarah G. blocked defendant's car from leaving.
5. Other Defense Witnesses: Bucalo Homicide - 1991
Patrick Keough worked at the flooring store. On Sunday, February 3, 1991, he drove by the flooring store. He noticed a dark colored truck parked at the flooring store. He thought it was Kent's vehicle, but he was not sure.
Keough testified that he believed he had driven by the flooring store at about 6:15 p.m., but the trial court later struck that testimony because Keough admitted having no personal recollection of the time.
Caravelli was called by the defense after testifying for the prosecution. He again described Kent has having a noticeable smell of alcohol when he arrived at Bucalo's residence on February 4, 1991.
San Jose Police Sergeant Gregory Barth had contact with Kent in the late afternoon on February 4, 1991, and he believed Kent was intoxicated.
Kent was also called by the defense after testifying for the prosecution. He denied that he and Bucalo had any serious arguments on the weekend of her death.
Chelbi Kelly, an acquaintance of defendant and Bonnie K., was in a car with Bonnie K. one night in 1988 or 1989. Bonnie K. drove to a residential area on Meridian Avenue in San Jose and pointed to a house.
F. Prosecution Rebuttal Evidence
1. Linda A. and D.M. - 2006
Linda A. denied that she stabbed defendant during the May 2006 incident. She denied telling defendant she was stressed during that incident. She denied that E.B. had any bruises, scratches, or welts when defendant was having supervised visits.
Linda A. also provided further details about the November 2006 incident. After defendant grabbed her, he had hit her, punched her, pulled her hair, and banged her head into a wall. After her escape through the fence, when she was trying to get a neighbor's attention, defendant had come and pulled her to the ground. Defendant had kicked her and punched her and threatened to kill her. A man had approached and asked what defendant was doing. Defendant had told the man to go away and had gone in the direction of the man's voice. Defendant had returned and taken E.B., who had come out and pushed Linda A. down. Linda A. described the injuries she sustained during that incident.
The prior testimony of Gregory McClain was read into the record. On the evening of November 9, 2006, McClain had been inspecting a home when he heard a woman screaming for help. He ran over and looked over a fence, using a flashlight. A woman was on the ground with her hands handcuffed behind her back. Defendant was hitting her and kicking her. McClain told defendant to leave her alone. Defendant told McClain to go away. McClain again told defendant to leave the woman alone. Defendant then came towards McClain. McClain took out his cell phone and called 911. Defendant demanded McClain's cell phone. When McClain did not give defendant the phone, defendant took a gun out from his pocket and pointed it at McClain's head. Defendant again demanded the phone, and McClain gave it to him. McClain told defendant that other people were calling 911. Defendant looked around, threw the phone, and left.
Fremont Police Officer Kimberly MacDonald interviewed Linda A. in May 2006. Linda A. had scratches on her face and a lump on her forehead. She complained of soreness in her throat and head, and she provided a clump of hair that had been pulled out during defendant's assault on her. Officer MacDonald listened on speakerphone as Linda A. took a phone call from defendant. During the call, Linda A. accused defendant of having strangled her the previous night. She said that if E.B. had not walked in, defendant would have killed her. Defendant did not respond, other than to blame Linda A. for the incident.
Officer MacDonald interviewed defendant the next day. Defendant said that Linda A. had lunged at him and scratched him, so he had pinned her arms against her chest and told her to calm down. Defendant did not say that Linda A. had stabbed him with nail clippers or scissors.
2. Janet P. - 1982
Janet P. was married to defendant from 1979 to 1991, and she had three children with him. Janet P. described a March 1982 incident that began with defendant accusing Janet P. of infidelity. During the incident, defendant threw Janet P. on the bed, straddled her, held her down, slapped her face, and yelled at her. He then began choking her. Defendant released his grip after looking at the clock and apparently realizing it was time for his exercise class. Janet P. took the children and went to a women's shelter for a few days.
Janet P. also testified about providing an alibi for defendant during the March 1984 investigation of the Sarah G. incident. Defendant had asked her to make up an alibi for him, so she told the police that defendant was at home on the evening of Sarah G.'s rape, even though that was not true.
3. Sarah G. - 1984
Sarah G. denied trying to pursue a romantic relationship with defendant following the incidents in January, February, and March 1984. Sarah G. denied saying that she wanted to be with defendant or that she wanted to have his baby after she alleged that defendant had raped her. She denied motioning for defendant to come talk to her at the exercise class following the rape.
Sarah G. also testified about a fourth incident, which had occurred in May 1984 at De Anza College. Sarah G. was walking to her car after class one morning when defendant grabbed her from behind and put a knife to her left breast. Defendant said that the knife had poison on it, and he said something about killing her. Sarah G. screamed and pounded on a car to try to attract attention. Defendant pulled her down to the ground, then punched her in the head a few times. Defendant then took Sarah G.'s bag, which contained her books and wallet, and fled. Sarah G. reported the incident to the police.
Barloewen re-examined the pubic hair that Gadd had analyzed in the Sarah G. case. The pubic hair that Gadd said did not come from defendant could, in fact, have been defendant's.
James Missett, M.D. had interviewed defendant about Sarah G. in September 1987. Defendant told him that his relationship with Sarah G. had ended by January 1984.
Santa Clara Police Sergeant Patrick Kolstad had interviewed defendant about Sarah G. in March 1984. Defendant had denied assaulting, binding, and raping Sarah G. Defendant said that he had tried to break off the relationship with Sarah G. in October 1983 and did not say that they had continued their relationship through February or March of 1984. Defendant did not say anything about trying to get Sarah G. into a rehabilitation program.
4. Bucalo - 1991
Defendant's September 2010 interview with Investigator Vizzusi was also played for the jury. During that interview, defendant did not say anything about driving to Bucalo's home with Bonnie K. a few days before Bucalo's murder. Defendant did not say that Bonnie K. had hugged Bucalo while wearing defendant's jacket.
In a statement to the police, Miller (Bucalo's friend) said that Bucalo had called her around Christmas and talked about how her friend Ralph had claimed to be "madly in love with her" and that he "couldn't handle" Bucalo dating Kent. Bucalo also told Miller that she was refusing to move in with Kent until he stopped drinking.
G. Verdicts , Motion for a New Trial , and Sentencing
A jury convicted defendant of first degree murder (§ 187, subd. (a)) and found that the murder was committed during the commission or attempted commission of a first degree burglary and a rape (§ 190.2, subd. (a)(17)).
Before sentencing, defendant filed a motion for a new trial. The prosecutor had recently discovered three Corrective Action Requests (CAR's) pertaining to Barloewen. Defendant argued that if he had been able to introduce the CAR's during Barloewen's testimony, the jury would have had doubts as to the accuracy of the DNA testing. The trial court denied defendant's motion for a new trial.
On December 5, 2014, the trial court sentenced defendant to life without the possibility of parole.
III. DISCUSSION
A. Restriction on Cross-Examination of DNA Expert
Defendant contends the trial court erred by not permitting him to cross-examine Barloewen, the prosecution's DNA expert, about contamination in the Santa Clara County Crime Lab and about past errors made by a technician who worked under Barloewen's supervision. Defendant contends the error violated his Sixth Amendment right to confrontation.
1. Proceedings Below
During her cross-examination by defendant, Barloewen acknowledged that a technician named Tahnee Mahmet, whose work station was next to Barloewen's, had "tech-reviewed" Barloewen's work on the sweatshirt found at Bucalo's residence. When defendant asked whether the lab had "been contaminated through many things over the past few years," trial court sustained the prosecutor's relevance objection, and it sustained another objection "on [Evidence Code section] 352 grounds" when defendant then asked a similar question.
At a sidebar discussion, defendant's trial attorney explained that he had received a report concerning two errors Mahmet had made when she worked for a different employer in San Francisco. In one case, Mahmet had "inadvertently added water to evidence rather than to the control," but she had caught her mistake early enough to ensure the eventual result was accurate. In the second case, Mahmet's own DNA had been found in a sample. Defendant's trial attorney made an offer of proof that Mahmet had not properly documented the first incident based on instructions from her supervisors, and he argued that this showed Mahmet tended to follow her supervisors' instructions rather than doing independent work. The trial court found that the evidence had "very little probative value" and was "very likely to confuse the issues and confuse the jury in this case."
Defendant's trial attorney also sought to introduce evidence of an incident in which mold and Legionnaires' disease had been found in the crime lab. The prosecutor pointed out that there was no evidence of such contamination in the present case, and no evidence that mold or Legionnaires' disease could skew DNA results. The trial court noted that there had been no evidence that "nonhuman DNA" had been found during the DNA analysis and no evidence that mold could "create human DNA." The trial court indicated that it would reconsider its rulings based on an offer of proof that there was a connection between the outbreak of mold or Legionnaires' disease and the fact that defendant's DNA was found on Bucalo's clothing and fingernail clippings.
During the prosecutor's rebuttal argument to the jury, the prosecutor argued that the defense had not presented any evidence that the DNA analysis was affected by contamination or mistakes. The trial court overruled the defense objection, finding the argument was "appropriate."
2. Applicable Law
"A trial court may restrict defense cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.]" (People v. Whisenhunt (2008) 44 Cal.4th 174, 207 (Whisenhunt).) Under Evidence Code section 352, the trial court has discretion to exclude evidence if its probative value would be substantially outweighed by the probability that its admission would require an undue consumption of time or "create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Such rulings are reviewed for abuse of discretion. (Whisenhunt, supra, at p. 207.) " '[A] trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted.' [Citation.]" (Id. at p. 208.)
3. Analysis
Defendant contends the instant case is "nearly identical" to a Maryland case, Williams v. State (Md. 1996) 679 A.2d 1106 (Williams). In Williams, the prosecution presented evidence that the defendant's DNA was found on a drinking glass at the home of two murder victims. The DNA match had been discovered through polymerase chain reaction (PCR) testing. (Id. at pp. 1116-1117.) On cross-examination, the witness from the DNA lab acknowledged that on a prior occasion when she was performing a test at the lab, the test had been contaminated from testing solution accidentally spilling over onto a sample. (Id. at p. 1118.) The defendant then sought to ask the DNA expert how often such errors occurred at the lab generally, and after the prosecution objected that the issue was irrelevant, the trial court disallowed further questions on that topic.
Williams was disapproved on other grounds by Wengert v. State (Md. 2001) 771 A.2d 389, 396, fn. 4.
The Williams court held that the defendant "should have been allowed to fully pursue questions regarding testing errors and possible spill-over contamination in the lab." (Williams, supra, 679 A.2d at p. 1119.) The court first noted that "as a general matter, when DNA evidence is admitted against an accused in a criminal trial, questions on cross-examination regarding how that specific DNA evidence was obtained, and the laboratory conditions under which the DNA tests in that case were conducted, should be allowed. [Citations.]" (Ibid.) Citing to law review articles and a report explaining that PCR testing was particularly susceptible to spill-over contamination, which could cause misidentification, the court found that "cross-examination about incidents of spill-over errors and other contamination was especially pertinent" in that case. (Ibid.) Because "the frequency of spill-over errors and contamination in the laboratory could have been vital to the jury's determination of how much weight to give to the PCR test results," the trial court should not have restricted the defense from cross-examination on that issue. (Id. at p. 1120.)
In the instant case, evidence of prior instances of spill-over contamination that had resulted in misidentification would have been relevant to defendant's cross-examination of the prosecution's DNA expert. Such evidence would have cast doubt on the results of the DNA analysis showing that defendant's DNA was found on Bucalo's clothing and under her fingernails. However, defendant did not seek to cross-examine the DNA expert about prior instances of spill-over contamination that had resulted in misidentification. Rather, defendant sought to cross-examine the DNA expert about an incident that involved adding water to evidence, an incident that involved the analyst's own DNA, and an incident that involved mold and Legionnaires' disease. None of those incidents had resulted in misidentification. Thus, the trial court reasonably determined that the evidence had minimal probative value, which was outweighed by the probability that its admission would require an undue consumption of time or "create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
The trial court's ruling also did not violate defendant's confrontation rights. Because the evidence would not have suggested the possibility of misidentification caused by contamination at the lab, the evidence would not have given the jury " 'a significantly different impression' " about Barloewen or the results of DNA analysis at the Santa Clara County Crime Lab. (Whisenhunt, supra, 44 Cal.4th at p. 208.)
B. Failure to Turn Over Impeachment Evidence
Defendant contends the prosecutor violated his due process rights, under Brady v. Maryland (1963) 373 U.S. 83 (Brady), by failing to turn over exculpatory evidence: the three CAR's concerning Barloewen.
1. Proceedings Below
In his motions in limine, defendant sought an order compelling the prosecution to disclose "all potentially exculpatory evidence favorable to the defendant." He also requested an order compelling disclosure of "evidence relating to the witnesses to be called by the prosecution, which relates to their credibility, veracity, or character."
As noted above, after the jury's verdicts, defendant filed a motion for a new trial based on the three recently disclosed CAR's from the Santa Clara County Crime Lab.
The first CAR, from August 2011, documented a case in which Barloewen had failed to discover an error by another criminalist during her review of the other criminalist's report. The report had erroneously stated that the named suspect's DNA was found on evidence when, in fact, the DNA analysis showed that the suspect only had a possible close familial relationship with the person who had left the DNA. Barloewen had "missed the discrepancy" because she had not done a meticulous review.
The second CAR, from November 2005, documented a case in which another criminalist had found DNA from another female lab employee when testing a swab for DNA. Barloewen had been the original analyst on the case, and her work on the case had been performed in 2001. The error was determined to be "an isolated incident," which did not affect the outcome of the case.
The third CAR, from March 2002, documented a case in which Barloewen found the same female DNA in two cases, indicating "carry-over" contamination. Barloewen had brought the issue to the attention of a supervisor, and she had been counseled about strictly following the lab's procedural safeguards to prevent future contamination.
Defendant asserted that the CAR's constituted newly discovered material evidence (see § 1181, subd. (8)) and that the prosecution's failure to disclose the CAR's prior to trial constituted a due process violation under Brady. The prosecution opposed defendant's motion for a new trial, arguing that the CAR's addressed collateral issues, had little impeachment value, and were minimally relevant.
When the prosecutor responded to defendant's motion for a new trial, he also provided two additional CAR's to the defense. Neither of the CAR's concerned Barloewen or the DNA analysis in the Bucalo case, and defendant does not reference them in his argument on appeal. The first CAR, from July 2010, documented a database error at the lab. The second CAR, from February 2011, documented a case in which the analysts and reviewers had failed to identify "an off-ladder allele" when performing DNA testing in 2001.
The trial court denied defendant's motion for a new trial. The trial court noted that the defense had extensively cross-examined Barloewen about the possibility of contamination, and it found no reasonable probability that the jury would have reached a different result if it had learned that there had been two instances of contamination in Barloewen's career (leading to the 2005 and 2002 CAR's). The trial court found that it would have excluded the evidence pursuant to Evidence Code section 1101, subdivision (a) and Evidence Code section 352, and possibly under Evidence Code section 1104.
Evidence Code section 1104 provides that in general, "evidence of a trait of a person's character with respect to care or skill is inadmissible to prove the quality of his [or her] conduct on a specified occasion."
2. Applicable Law
"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) "For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. [Citation.]" (People v. Zambrano (2007) 41 Cal.4th 1082, 1132 (Zambrano), disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).) Impeachment evidence is generally material if " 'the witness at issue "supplied the only evidence linking the defendant(s) to the crime." ' " (People v. Salazar (2005) 35 Cal.4th 1031, 1050 (Salazar).) But when " 'the testimony of the witness is "corroborated by other testimony," ' " impeachment evidence is generally not material. (Ibid.)
"We utilize independent review in deciding whether Brady error occurred. [Citation.]" (People v. Uribe (2008) 162 Cal.App.4th 1457, 1473, fn. omitted.)
3. Analysis
The Attorney General does not dispute that the CAR's were in the prosecution's possession and that they were favorable to the defense. The dispute here is whether the CAR's were material: whether there is a reasonable probability that their earlier disclosure would have altered the result of defendant's trial. (See Zambrano, supra, 41 Cal.4th at p. 1132.)
Defendant cites People v. Garcia (1993) 17 Cal.App.4th 1169 (Garcia) as "implicitly recogniz[ing] that a scientist's past errors constitute material evidence for Brady purposes." In Garcia, the defendant was convicted of violating Vehicle Code section 23153: driving under the influence while concurrently doing an act in violation of law and proximately causing injury. The defendant was prosecuted on the theory that he had violated the basic speed law by driving at an unsafe speed for the conditions. (Garcia, supra, at p. 1174.) To prove his speed, the prosecution used an accident reconstruction expert from the California Highway Patrol (CHP). After trial, the prosecution stipulated to a reversal of the defendant's sentence because the CHP expert had been suspended for making faulty speed calculations in a number of cases. The defendant then sought further relief, filing a petition for writ of habeas corpus that alleged a Brady violation. The Court of Appeal found that the defendant had established that the prosecution had withheld material evidence bearing on the credibility of a key witness. (Id. at pp. 1181-1182.) The court emphasized that an independent review of cases the CHP expert had worked on "revealed a significant number of errors by him with respect to speed calculations." (Id. at p. 1180.)
The instant case is distinguishable from Garcia. In Garcia, the evidence of speed calculation errors made by the CHP expert in other cases directly impeached the expert regarding his calculation of speed in the defendant's case. Here, the evidence of Barloewen's errors did not directly impeach her testimony about discovering defendant's DNA during her analysis of Bucalo's shirt and fingernail clippings. The first CAR involved Barloewen's failure to discover a mistake during her review of work by a different analyst; it did not involve a mistake by Barloewen during her own DNA analysis. Moreover, the mistake involved attribution of DNA to a suspect instead of to a member of that suspect's family. Since Barloewen did not conduct a review of another analyst's work in this case, and there was no showing that the DNA found in this case was actually attributable to a member of defendant's family, the first CAR was minimally relevant to the accuracy of Barloewen's discovery of defendant's DNA on Bucalo's shirt and fingernail clippings. The second CAR involved contamination of a DNA analysis with another lab employee's own DNA. Since such contamination could not have resulted in defendant's DNA being found on Bucalo's shirt and fingernail clippings, the second CAR was also of very little relevance to the accuracy of Barloewen's DNA analysis in this case. The third CAR involved Barloewen's discovery of the same person's DNA in two cases, indicating there had been carry-over contamination from one case to another. In this case, there was no evidentiary showing that Barloewen had been working on another case involving defendant's DNA at the time she worked on the Bucalo case. Thus, the third CAR had very little relevance to show that the discovery of defendant's DNA might have been the result of carry-over contamination. Finally, in contrast to Garcia, the evidence showed that Barloewen had made three errors during a time period of about 10 years, not that she had made a "significant number of errors" in her career. (See Garcia, supra, 17 Cal.App.4th at p. 1180.)
We recognize that the accuracy of the DNA results was important to the jury in this trial and that evidence of Barloewen's errors in performing DNA analysis was relevant impeachment evidence. However, as explained above, the specific evidence at issue here—the three CAR's—had minimal value in terms of casting doubt upon the accuracy of Barloewen's DNA analysis in this case. Moreover, Barloewen acknowledged during her testimony that human error sometimes occurs in the lab and that procedural changes were made following a 2011 audit. Also, Barloewen did not supply the only evidence linking defendant to the crime; her testimony was corroborated by other evidence, including defendant's prior relationship with Bucalo and his uncharged similar conduct. (See Salazar, supra, 35 Cal.4th at p. 1050.) In sum, the evidence was not material under Brady because there is no reasonable probability that evidence of Barloewen's three errors would have altered the result of defendant's trial. (See Zambrano, supra, 41 Cal.4th at p. 1132.)
C. Admission of Bucalo's Hearsay Statements
Defendant contends the trial court erred by admitting—through the testimony of Caravelli (one of the flooring store employees), Palmer (another flooring store employee), Miller (Bucalo's best friend), and Kent (Bucalo's boyfriend)—statements Bucalo made about defendant's romantic interest in her and her fear of defendant. Defendant contends the statements were inadmissible hearsay and more prejudicial than probative, and that their admission at trial violated his federal constitutional right to due process.
1. Proceedings Below
Defendant filed a motion in limine to exclude Bucalo's statements. The prosecution filed its own motion in limine to admit Bucalo's statements under the "state of mind" exception to the hearsay rule (Evid. Code, § 1250) and as non-hearsay evidence of Bucalo's state of mind. The prosecution indicated Bucalo's statements would be offered to show that she had only a platonic relationship with defendant, that the relationship between defendant and Bucalo had become "strained" before the murder, that Bucalo would not have allowed defendant into her home or consented to sexual relations with him, and that Bucalo would not have provoked an assault.
The trial court held hearings on the admissibility of Bucalo's statements over several days and ultimately allowed the statements into evidence. When Caravelli, Palmer, Kent, and Miller testified about the statements Bucalo made about defendant, the trial court gave the jury limiting instructions stating that if the jury believed Bucalo made the statements, the jury could consider the statements only as circumstantial evidence of her state of mind or to explain her conduct, not to show that the conduct described was true. A limiting instruction was also given when the jury heard Miller's statement to police, and another limiting instruction was given with the post-trial instructions on evidence.
2. Applicable Law
Evidence Code section 1250, subdivision (a) provides that "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant."
" 'Evidence of the murder victim's fear of the defendant is admissible when the victim's state of mind is relevant to an element of the offense.' [Citation.] Such evidence is also admissible when the defendant claims that the victim has behaved in a manner inconsistent with that fear. [Citations.]" (People v. Kovacich (2011) 201 Cal.App.4th 863, 884-885 (Kovacich).)
"[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 723 (Waidla).)
3. Analysis
Defendant contends the trial court abused its discretion by admitting Bucalo's hearsay statements because her state of mind was not relevant to any disputed material issue. Defendant acknowledges that if he had presented a consent defense, Bucalo's statements would have been relevant to show her lack of consent. However, defendant points out, he presented an alibi defense, claiming he was not present at Bucalo's residence on the day of her murder.
Numerous cases have found a victim's statements expressing fear of the defendant admissible under Evidence Code section 1250 to show lack of consent even when the defendant presented an alibi defense. For instance, even though the defendant had an alibi defense in Waidla, the victim's statements expressing fear of him were admissible "to prove lack of consent on her part in the burglary and robbery related to her murder." (Waidla, supra, 22 Cal.4th at p. 725; id. at p. 712.) Likewise, even though the defendant in People v. Guerra (2006) 37 Cal.4th 1067 (Guerra) had an alibi defense to charges that he murdered the victim while engaged in the attempted commission of rape, the victim's statements expressing fear of the defendant were admissible because they were "clearly probative of her lack of consent to sexual intercourse in the attempted rape." (Id. at p. 1114; id. at pp. 1078, 1082.)
Guerra was disapproved on other grounds by People v. Rundle (2008) 43 Cal.4th 76, 151, which was disapproved of on other grounds by Doolin, supra, 45 Cal.4th at p. 421, fn. 22.
Other cases have found a victim's statements expressing fear of the defendant—and describing the reason for that fear—relevant for the non-hearsay purpose of showing the defendant's motive. For instance, in Kovacich, the prosecution's theory of the case was that the defendant's motive to kill the victim (his wife) was her decision to divorce him. Thus, the victim's mental state was placed in issue, and her prior statements in which she expressed fear of the defendant's response to her leaving him were admissible. (See Kovacich, supra, 201 Cal.App.4th at pp. 888-889; see also Rufo v. Simpson (2001) 86 Cal.App.4th 573, 591 (Rufo) [victim's statements about threats and prior abuse by her husband, Simpson, "were offered to explain her conduct in finally terminating the relationship, which in turn was alleged to have provoked Simpson to murder"].)
Here, even though defendant ultimately presented an alibi defense, the burglary and rape special circumstance allegations required the prosecution to prove that defendant entered Bucalo's residence without her consent and engaged or attempted to engage in sexual intercourse with her without her consent. As in Waidla and Guerra, Bucalo's statements expressing fear of defendant were admissible to show her lack of consent. Moreover, the prosecution's theory was that defendant's motive for killing Bucalo was her rejection of him. As in Kovacich and Rufo, Bucalo's mental state was thereby placed in issue, and her statements were admissible to establish defendant's motive for the murder. Thus, the trial court did not err by admitting Bucalo's statements.
D. Admission of Uncharged Offenses
Defendant contends the trial court erred by admitting evidence of the uncharged offenses involving D.M., Linda A., and Janet P., as well as the assault on Sarah G. at De Anza College. Defendant argues that the admission of this evidence was an abuse of discretion under state law and violated his federal constitutional right to due process.
Defendant concedes the trial court did not err by admitting evidence of the other three assaults on Sarah G.
1. Proceedings Below
In his motions in limine, defendant sought to preclude the prosecution from offering "prior bad acts" evidence, including evidence of incidents involving Sarah G., Janet P., Linda A., and D.M. Defendant argued that the evidence did "not meet the requirements of Evidence Code sections 1101(b), 1108 and 1109" and that the evidence should be excluded as more prejudicial than probative pursuant to Evidence Code section 352.
The prosecution filed a motion in limine seeking to admit evidence of defendant's uncharged conduct. The prosecution argued that defendant's uncharged sexual conduct involving Sarah G. and D.M. was admissible under Evidence Code sections 1108 and 1101, subdivision (b) and that those incidents were similar to the charged offense in many ways, including: the offenses were sexually motivated; the victims were Caucasian women who were significantly younger than defendant and who defendant knew already; the incidents followed a "strained" relationship; the victims were assaulted in their homes when they were alone after defendant gained access without a forced entry; the victims' hands were bound and their mouths were covered with tape. The prosecution argued that defendant's uncharged domestic violence conduct involving Janet P. and Linda A. was admissible under Evidence Code section 1101, subdivision (b) and that those incidents were similar to the charged offense in many of the same ways. The prosecution also sought to introduce evidence of defendant's violence against Bonnie K. in 1989. Finally, the prosecution sought to introduce defendant's assault on Sarah G. at De Anza College as circumstantial evidence of defendant's "guilty mind" regarding his prior sexual assaults on Sarah G.
The trial court found the sexual assaults on Sarah G. and D.M. were admissible under Evidence Code section 1108, noting there was a "high number of similarities" between the offenses. The trial court further found that the sexual assaults on Sarah G. and D.M. were admissible under Evidence Code section 1101, subdivision (b) to show identity, intent, common scheme or plan, lack of consent, motive, absence of mistake or accident. The trial court found that the probative value of the sexual assaults on Sarah G. and D.M. was not outweighed by their prejudicial effect. (See Evid. Code, § 352.) However, the trial court excluded the assault on Sarah G. at De Anza College.
The trial court found that the assaults against Linda A. were admissible under Evidence Code section 1101, subdivision (b) to show intent, but it ruled that some aspects of the November 2006 incident would be sanitized. Specifically, the trial court excluded the evidence of defendant's initial violence against Linda A., his assault on Linda A. after she escaped from the home, and his subsequent kidnapping of E.B. However, the trial court noted that if defendant's testimony "puts any of this at issue," the evidence might come in.
The prosecution sought to introduce evidence of defendant's domestic violence against Bonnie K., who had since passed away, through her son. The trial court indicated it would conduct an Evidence Code section 402 hearing with the son, who would be coming from out of state, before admitting that evidence.
The trial court considered two incidents involving Janet P.: one in which defendant put a gun to her head, and the one in which defendant strangled her after accusing her of having an affair. The trial court found the gun incident "sufficiently different" and excluded it. The trial court found the second incident "much closer," but ultimately excluded it in light of the other evidence it was allowing in: the Sarah G. incidents, the D.M. assault, the Linda A. assaults, and possibly defendant's violence against Bonnie K. The trial court indicated it might change its ruling if the defense opened the door.
During the prosecution's rebuttal case, the prosecutor sought to introduce Janet P.'s testimony. The prosecutor argued that the incidents Janet P. would describe had sufficient similarities to the charged offense as to be admissible under Evidence Code section 1101, subdivision (b) to show a common plan and scheme. The prosecutor noted that both incidents involved choking of women with whom defendant had a relationship and defendant's jealousy. The prosecutor also explained that he had decided not to bring in evidence of defendant using a pillow to smother Bonnie K. Instead, the prosecution wanted to introduce the Janet P. evidence because it involved choking and was thus more similar to the charged offense.
The trial court found the Janet P. evidence was admissible. The trial court explained that it had initially found the Janet P. incident less probative than the Bonnie K. incident because the Bonnie K. incident had occurred closer in time to the charged offense. Also, the court had initially wanted the Bonnie K. evidence to come in during rebuttal to accommodate the witness who would have been flying in from out of state. Moreover, defendant had testified and had denied choking or strangling Bucalo, so the Janet P. evidence was relevant to rebut that testimony and show a common scheme or plan. The trial court restricted Janet P.'s testimony, barring her from testifying about additional incidents of domestic violence and the incident involving a gun.
The trial court read limiting instructions to the jury before and after Sarah G.'s testimony in the prosecution's case in chief, during Linda A.'s testimony, after D.M.'s testimony, after Janet P.'s rebuttal testimony, and after Sarah G.'s testimony on rebuttal. The trial court also read limiting instructions when giving the jury post-trial instructions on evidence.
2. Applicable Law
Evidence Code section 1101, subdivision (a) provides: "Except as provided in this section and in Sections . . . 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Evidence Code section 1101, subdivision (b) provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Evidence Code section 1108, subdivision (a) provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Evidence Code section 1109, subdivision (a)(1) provides: "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
3. Analysis - Sexual Assault of D.M.
Defendant first challenges the admission of his 2006 digital penetration of D.M. to show propensity and identity. He contends the D.M. incident was dissimilar from the charged offense because D.M. was 14 years old whereas Bucalo was an adult, D.M. was defendant's step-daughter whereas Bucalo was his friend, the D.M. assault occurred during the day whereas Bucalo was attacked at night, he used duct tape to bind D.M.'s hands and feet whereas Bucalo's hands were bound with speaker wire or handcuffs, and D.M. was digitally penetrated whereas Bucalo may have been raped.
Defendant relies on this court's opinions in People v. Earle (2009) 172 Cal.App.4th 372 (Earle) and People v. Jandres (2014) 226 Cal.App.4th 340 (Jandres). Neither case helps defendant, however. In Earle, the majority held that the defendant should not have been jointly tried on charges of indecent exposure and sexual assault—crimes that "had no distinguishing characteristics in common"—because "a propensity to commit one kind of sex act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to commit a different act." (Earle, supra, at pp. 395, 399, fn. omitted.) In Jandres, a prosecution for rape, this court held that the trial court erred by admitting evidence that defendant put his finger into a young girl's mouth during an attempted kidnapping, because "[g]iven the many differences between the two offenses," the uncharged act did not show propensity to commit rape. (Jandres, supra, at p. 356.)
In contrast to Earle and Jandres, the offenses involving D.M. and Bucalo did have distinguishing characteristics in common and did not have many significant differences. Both D.M. and Bucalo were assaulted in their homes, when they were alone, with no signs of forced entry. Both victims were manually strangled. Duct tape was used to bind both victims. Both victims had items of clothing cut during the assaults. Both victims were covered with a blanket after the assaults. Considering the totality of these similarities, the trial court did not abuse its discretion in finding that the D.M. sexual assault was admissible to show defendant's propensity to commit a sexual offense. (See Evid. Code, § 1108.) Further, because the assaults on D.M. and Bucalo "share[d] common features that are sufficiently distinctive so as to support the inference that the same person committed both acts," the trial court did not abuse its discretion in finding that the D.M. sexual assault was admissible to show identity. (People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt); see Evid. Code, § 1101, subd. (b).)
The trial court also did not abuse its discretion by finding that the probative value of the D.M. sexual assault was not substantially outweighed by a danger of undue prejudice. (Evid. Code, § 352.) Because the jury learned that defendant was convicted of offenses stemming from his sexual assault on D.M., there was no danger that the jury would be "inclined to punish" defendant for that assault. (Ewoldt, supra, 7 Cal.4th at p. 405.) Also, the testimony describing defendant's sexual assault on D.M. "was no stronger and no more inflammatory than the testimony concerning the charged offenses." (Ibid.) Even though D.M. was a teenager and Bucalo was an adult, the incidents were both shocking, involving callous and calculated sexual assaults on vulnerable victims, and thus were nearly equal in their potential to inflame the jury. (See ibid.) Finally, there was strong evidence defendant committed both offenses. (See ibid.)
4. Analysis - Remaining Uncharged Acts
Defendant next challenges the admission of his assaults against D.M., Linda A., Janet P., and Sarah G. (at De Anza College) to show intent, motive, common scheme or plan, and lack of mistake, pursuant to Evidence Code section 1101, subdivision (b).
Defendant argues that the uncharged offenses could not show that he had an intent to kill Bucalo, because he did not actually kill any of the other victims. However, defendant did threaten to kill Linda A. during both the May 2006 and November 2006 incidents, and he threatened to kill Sarah G. during the De Anza College incident. Evidence of such threats was relevant to show his intent to kill Bucalo. (See People v. Lang (1989) 49 Cal.3d 991, 1015 [defendant's threat to " 'waste any mother fucker that screws with me' " was relevant to show that he intentionally killed the victim], abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176, 1190.) Defendant also strangled or choked Linda A., D.M., and Janet P., which tended to negate the possibility that Bucalo's death was accidental—i.e., the result of violent but consensual sex play—and tended to show that it was intentional. (See Ewoldt, supra, 7 Cal.4th at p. 402.)
Defendant also challenges the admission of his sexual assault on D.M. to show his intent to rape Bucalo. As noted above, however, there were distinctive common features between the two offenses. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 402.) In light of the number of distinctive common features between the two incidents, the trial court did not abuse its discretion by determining that the assault against D.M. was "sufficiently similar to support the inference" that the defendant harbored the intent to sexually assault Bucalo. (Ibid.)
Defendant next contends that the uncharged acts evidence should not have been admitted to show that his motive for assaulting Bucalo was her rejection of him, because Bucalo's statements were admitted only to show her state of mind. As noted above, however, Bucalo's statements expressing fear of defendant and describing the reason for that fear were admissible for the non-hearsay purpose of showing defendant's motive. (See Kovacich, supra, 201 Cal.App.4th at pp. 888-889; Rufo, supra, 86 Cal.App.4th at p. 591.) Thus, the trial court did not abuse its discretion by finding that the uncharged acts were admissible on the issue of motive.
Next, defendant contends the trial court should not have admitted the uncharged acts evidence to show absence of mistake. He argues that there was no evidence Bucalo's death was the accidental result of rough sex or horseplay. However, "[b]y pleading not guilty, defendant placed all the elements of the [charged offense and special circumstances] in dispute at trial." (People v. Lindberg (2008) 45 Cal.4th 1, 23.) Contrary to defendant's assertion, it would not have been absurd for the defense to argue that Bucalo's death could have resulted from rough sex or horseplay. (See People v. Walker (2006) 139 Cal.App.4th 782, 807, fn. omitted [although defendant presented an alibi defense, evidence of his prior rape and beating of a prostitute was relevant to show that another prostitute's death had not occurred "accidentally during an act of prostitution that involved rough sex"].)
Defendant contends the uncharged acts evidence was not admissible to show a common scheme or plan. "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Ewoldt, supra, 7 Cal.4th at p. 403.) Here, the November 2006 assaults on Linda A. and D.M., like the assault on Bucalo, involved a specific plan to enter the victim's home, bind the victim, and assault the victim on a bed. The same plan was not shown by the May 2006 assault on Linda A., the assault on Janet P., or the De Anza College assault on Sarah G. However, as discussed above, those incidents were admissible for other purposes specified in Evidence Code section 1101, subdivision (b): intent to kill, motive, and absence of mistake. (See People v. Myers (2014) 227 Cal.App.4th 1219, 1225 ["Because we find the prior robbery was admissible to show a common design or plan, we need not address whether it was also admissible to show intent or absence of mistake."].) To the extent defendant is arguing that the trial court erred by instructing the jury it could consider all of the uncharged acts to show a common scheme or plan, the error was harmless under any standard. (See People v. Johnson (2010) 185 Cal.App.4th 520, 542 ["Since the jury was instructed on the broader admissibility under section 1109, . . . we fail to see how the ' characteristic method, plan or scheme' instruction could have adversely affected the verdict."].)
Last, defendant argues that the uncharged acts evidence was "extraordinarily prejudicial," such that the trial court should have excluded it pursuant to Evidence Code section 352. Defendant points out that the incidents were all violent. He asserts that since the jury had already heard about the three other attacks on Sarah G., the additional uncharged acts only served to show defendant's violent character. Defendant also points out that introducing the evidence of the uncharged acts consumed numerous days of trial.
" 'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 958.) As just described, the uncharged acts were highly probative of defendant's intent to kill, his intent to rape, his motive, and the lack of accident or mistake. The trial court did not abuse its discretion by finding that this probative value was not substantially outweighed by a danger of undue prejudice. (Evid. Code, § 352.) The jury learned that defendant was convicted of offenses stemming from his sexual assaults on Linda A. and D.M., so there was no danger that the jury would be "inclined to punish" defendant for that conduct. (Ewoldt, supra, 7 Cal.4th at p. 405.) The testimony describing defendant's assaults on Janet P., Sarah G., and Linda A. "was no stronger and no more inflammatory than the testimony concerning the charged offenses." (Ibid.) Like the charged offense, the uncharged acts were all violent, and there was strong evidence defendant committed all of the uncharged acts. (See ibid.) Finally, although introducing the evidence of the uncharged acts consumed numerous days of trial, in the context of a long trial, the trial court reasonably found that introduction of the uncharged acts evidence would not consume an undue amount of time, considering the strong probative value of that evidence.
In sum, we conclude the trial court did not abuse its discretion in admitting the evidence of defendant's uncharged assaults on D.M., Sarah G., Linda A., and Janet P.
E. Rebuttal Evidence
Defendant contends the trial court erred by admitting certain uncharged offense evidence, some of which it had previously excluded, during the prosecution's rebuttal case: the assault on Sarah G. at De Anza College and the two incidents of domestic violence against Janet P. Defendant contends the admission of this evidence was an abuse of discretion under state law and that it violated his due process rights under the federal Constitution.
1. Proceedings Below
After defendant testified on direct examination, the prosecutor sought to introduce the "De Anza incident" involving Sarah G. The prosecutor noted that through defendant's testimony and the testimony of Garde, defendant had characterized Sarah G. as "not wanting to let go" and had described some "stalking behavior." Thus, the defense had "opened up the door" to evidence that defendant was the one who "couldn't let go and was consistently seeking [Sarah G.] out." Defendant objected based on Evidence Code section 352, arguing the evidence would consume an undue amount of time and confuse the jury.
The trial court noted it had initially excluded the De Anza College incident under Evidence Code section 352 because the prosecutor had offered the evidence as corroboration of Sarah G.'s testimony about the other incidents. At the time, it was unclear whether defendant would testify and admit to the Sarah G. offenses. Since defendant had testified and "strongly denied" committing those offenses, the reasons for exclusion no longer applied. The trial court found that the evidence was now "highly probative" and that its prejudicial effect was now outweighed by that probative value.
The prosecutor also sought to introduce defendant's additional acts of violence against Linda A. in rebuttal. The trial court overruled defendant's objection under Evidence Code section 352. The trial court found that her testimony "was in direct rebuttal" to defendant's testimony.
2. Applicable Law
Under section 1093, subdivision (d), parties may generally "offer rebutting testimony only" following the prosecution and defense cases. "The decision to admit rebuttal evidence rests largely within the discretion of the trial court and will not be disturbed on appeal in the absence of demonstrated abuse of that discretion. [Citations.]" (People v. Harris (2005) 37 Cal.4th 310, 335 (Harris).) Rebuttal evidence is properly " ' "restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt." ' [Citations.]" (Id. at p. 336.) These restrictions on rebuttal evidence are intended "(1) to ensure the presentation of evidence is orderly and avoids confusion of the jury; (2) to prevent the prosecution from unduly emphasizing the importance of certain evidence by introducing it at the end of the trial; and (3) to avoid 'unfair surprise' to the defendant from confrontation with crucial evidence late in the trial. [Citations.]" (People v. Young (2005) 34 Cal.4th 1149, 1199.)
3. Analysis
Defendant first argues that the De Anza College incident "shed no new light" on Sarah G.'s relationship with defendant, did not impeach defendant's testimony, and did not corroborate Sarah G.'s earlier testimony. Defendant relies on People v. Carter (1957) 48 Cal.2d 737, 754 for the proposition that a "reiterated denial of guilt" does not justify the introduction of new evidence in the prosecution's rebuttal case.
During the defense case, defendant introduced evidence intended to cast doubt on defendant's commission of the three sexual assaults on Sarah G., including evidence that defendant was the one who broke off the relationship due to Sarah G.'s drug use, and evidence that Sarah G. maintained a relationship with defendant, attended the same exercise class as him, blocked him from leaving a driveway, said she loved defendant, said she wanted to "keep" defendant, and said she wanted to have his baby. Her rebuttal testimony—in which she denied trying to pursue any kind of relationship with defendant and described defendant's assault on her in May 1984 at De Anza College—was "made necessary" by the defense evidence, because it rebutted the defense theory that Sarah G. was making up the allegations of sexual assault and was the one pursuing a relationship with defendant. (See Harris, supra, 37 Cal.4th at pp. 335-336.) The admission of that evidence in rebuttal was therefore not an abuse of discretion.
Defendant next argues that the trial court erroneously allowed Janet P.'s testimony during the rebuttal case based on the prosecutor's decision not to introduce evidence of defendant's assault on Bonnie K. Defendant asserts that the prosecutor should have sought to call Janet P. in its case in chief. Defendant also argues that Janet P.'s testimony was "of little to no probative value" because it was "a garden variety domestic violence incident."
When defendant testified, he denied committing all of the sexual assaults on Sarah G., claiming that he had rejected her. Defendant also claimed that Linda A. initiated the incident in May 2006 by attacking him, and he claimed he committed some of the November 2006 offenses in response to seeing evidence that E.B. was being abused. The evidence of defendant's assault on Janet P. in the March 1982 incident, which began with defendant accusing Janet P. of infidelity and included defendant assaulting and choking Janet P. on a bed, was relevant to rebut defendant's testimony. The evidence of the Janet P. assault helped negate defendant's innocent explanations by showing his motive and intent in committing a violent act against a woman who had spurned him. Evidence of defendant's commission of the assault on Janet P. was thus responsive to " ' "assertions that were not implicit in his denial of guilt." ' " (Harris, supra, 37 Cal.4th at p. 336.)
Defendant finally contends that he was subject to "unfair surprise" due to the introduction of the Sarah G. and Janet P. evidence during the prosecution's rebuttal case. He relies on Blackmon v. Scott (5th Cir. 1994) 22 F.3d 560 (Blackmon), but that case is distinguishable. In Blackmon, four days after the trial began, the state first gave notice of its intent to use evidence of an uncharged double homicide. (Id. at p. 562.) Here, the prosecution gave notice of its intent to introduce evidence of defendant's uncharged assaults on Sarah G. and Janet P. during motions in limine.
In sum, the trial court did not err by allowing the prosecution to introduce evidence of defendant's uncharged assaults on Sarah G. and Janet P. during the rebuttal case.
F. Exclusion of Kent's Prior Violence
Defendant contends the trial court erred by excluding evidence of third party culpability—specifically, evidence of Kent's past violence against women. Defendant contends that the trial court's exclusion of that evidence violated his Sixth Amendment right to present a defense and his Fourteenth Amendment right to due process.
1. Proceedings Below
Defendant filed a brief seeking to admit third party culpability evidence. Defendant noted that Kent had been with Bucalo shortly before her death, and that Kent's semen and DNA had been found at the scene. Defendant sought to introduce evidence of Kent's prior domestic violence, which included a 1981 arrest after Kent threatened an ex-girlfriend with an axe, a 1987 arrest for battery on an ex-wife, and a 1994 incident in which Kent put his hands around the neck of another ex-wife.
The prosecution filed a brief in opposition to the admission of the evidence defendant sought to admit. The prosecution cited cases holding that evidence of opportunity and disposition is insufficient to warrant third party culpability evidence.
During trial, the court held several hearings on whether to admit third party culpability evidence. Ultimately, the trial court ruled that while there was evidence that Kent had motive and opportunity, there was no evidence tying Kent to the commission of the offense. The trial court also determined that Evidence Code section 1109 applied only to criminal defendants. Thus, the trial court excluded evidence of Kent's prior acts of violence.
However, the trial court did give an instruction on third party culpability: "The defendant contends that a person other than the defendant, James Kent, committed the offense with which he was charged. The defendant is not required to prove Jim Kent's guilt. The People must prove that the defendant committed the crime with which he is charged beyond a reasonable doubt. If you have a reasonable doubt the defendant is guilty, you must find him not guilty."
2. Applicable Law
" '[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt[ ] must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352.' [Citations.] Evidence of a third party's prior crimes is inadmissible to establish the third party's criminal propensity. [Citations.] For evidence of an uncharged offense to be admissible to establish the third party's identity as the perpetrator of the charged crimes, ' "[t]he pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature." ' [Citations.]" (People v. Elliott (2012) 53 Cal.4th 535, 580-581.) "A trial court's ruling excluding third party culpability evidence is reviewed for abuse of discretion. [Citation.]" (Id. at p. 581.)
3. Analysis
Defendant acknowledges that in People v. Davis (1995) 10 Cal.4th 463 (Davis), the California Supreme Court held that "evidence of a third party's history of violent crime" is inadmissible when offered "merely to show that the third party was the more likely perpetrator because he had a history of violence." (Id. at p. 501.) As Davis explained, "Such evidence does not amount to direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.) Defendant asserts that we should decline to follow Davis and hold that propensity evidence is relevant to show a third party's potential guilt. As an intermediate court, however, we are bound to follow the Supreme Court's holding in Davis. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant also acknowledges that, as the trial court found, evidence of Kent's prior violence was not admissible under Evidence Code sections 1108 or 1109, because each statute expressly applies to "evidence of the defendant's commission of" sexual or domestic violence offenses. (Evid. Code, §§ 1108, subd. (a), 1109, subd. (a)(1), italics added.) Defendant contends, however, that because the trial court admitted evidence of his own propensity to commit sex offenses and domestic violence, the exclusion of similar propensity evidence regarding Kent violated his federal due process rights. Defendant relies on two cases holding that due process requires reciprocal discovery (see Wardius v. Oregon (1973) 412 U.S. 470, 478; Evans v. Superior Court (1974) 11 Cal.3d 617, 623), but those cases are inapposite. Both cases involved pretrial discovery, not evidentiary rulings. Neither case considered whether a defendant has a due process right to introduce propensity evidence at trial to support a third party culpability defense when propensity evidence has been admitted against the defendant himself. "[I]t is axiomatic that cases are not authority for propositions not considered. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
Finally, we observe that defendant was not precluded from presenting evidence of Kent's culpability simply because the trial court excluded evidence of Kent's prior violence. Defendant presented evidence that Kent's truck had possibly been seen at the flooring store on the night of Bucalo's murder and evidence that Kent was intoxicated when he arrived at Bucalo's residence the next day. Defendant was able to call Kent as a defense witness and question Kent about whether Kent and Bucalo had any serious arguments on the weekend of her death. Through cross-examination of Miller, defendant was also able to elicit evidence that Bucalo was concerned about Kent's drinking and was refusing to move in with him. Thus, "the trial court's ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense." (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
G. Exclusion of Dog Bite Evidence
Defendant contends the trial court erred by excluding evidence that Bucalo's dog had bitten three people after Bucalo's death. Defendant argues that this evidence would also have supported a third-party culpability defense by showing that Bucalo's attacker was likely to be someone familiar to the dog—i.e., not defendant. He again claims that the trial court's ruling violated his Sixth Amendment right to present a defense and his Fourteenth Amendment right to due process.
1. Proceedings Below
When Kent was called by the prosecution, he testified that Bucalo's dog, named Harry, was a good watchdog who was protective of Bucalo and who would make noise if someone he did not know approached the house. Kent also testified that after Bucalo's death, he took the dog to live with him.
When Kent was called by the defense, he was asked whether Harry had "bit about three people" after coming to live with Kent. The trial court sustained an objection to the question, finding that evidence regarding the dog bite incidents had "very little probative value, very little relevance" because "[t]he dog was in a different environment, different owner, different circumstances." Thus, the trial court excluded the evidence under Evidence Code section 352.
2. Analysis
Defendant acknowledges that, as the trial court found, the dog's demeanor may have changed after the dog moved to a different home. However, he contends he should have been permitted to present the dog bite evidence because it was still reasonable to infer that the dog would have attacked a stranger who came to Bucalo's home.
The trial court did not abuse its discretion by excluding the dog bite evidence. The fact that Bucalo's dog bit several people after moving in with Kent had little probative value in showing that defendant was not the perpetrator. There was no evidence as to the dog's behavior on the night of Bucalo's death—the dog may in fact have become aggressive with Bucalo's attacker—and evidence about the dog's behavior under other circumstances was not probative of what his behavior might have been on that night. Moreover, the jury heard other evidence establishing that the dog was aggressive with strangers. Caravelli testified that when the police arrived at Bucalo's house, Caravelli held onto the dog due to his aggressiveness with people he was not familiar with. Thus, defendant has not shown that the trial court abused its discretion or violated defendant's right to present a defense.
H. Cumulative Prejudice
Defendant contends that even if no one of the alleged trial errors was prejudicial, there was cumulative prejudice. (See People v. Hill (1998) 17 Cal.4th 800, 844 ["a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error"].) As we have not found multiple errors, we find no cumulative prejudice.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.