Opinion
G028930.
11-14-2003
THE PEOPLE, Plaintiff and Respondent, v. ERIC CHRISTOPHER BECHLER, Defendant and Appellant.
Law Office of William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Anthony Da Silva and Laura Stilwell Studebaker, Deputy Attorneys General, for Plaintiff and Respondent.
Introduction
Pegye Bechler (Pegye) disappeared while on a boating excursion with her husband Eric Christopher Bechler (Eric). Her body was never found. A jury convicted Eric of the first degree murder of Pegye (Pen. Code, § 187, subd. (a)) and found true the special circumstance allegation of murder while lying in wait (Pen. Code, § 190.2, subd. (a)(15)). The jury found not true the special circumstance allegation of murder for financial gain. (Pen. Code, § 190.2, subd. (a)(1).) Eric was sentenced to life in prison without the possibility of parole.
To avoid confusion, and not out of disrespect, we refer to Pegye Bechler and Eric Bechler by their first names. We use first names of other persons when convenient or when the context justifies it.
Eric appeals from the judgment of conviction. We affirm, and conclude with respect to Erics contentions:
1. California has territorial jurisdiction over the crime charged because it was committed in the waters between the Channel Islands and the mainland, which are within Californias territorial waters. (Cal. Const., art. III, § 2; Gov. Code, §§ 170, 171.)
2. The prosecution produced sufficient evidence of a corpus delicti aside from Erics extrajudicial statements despite the fact Pegyes body was never found.
3. The police did not violate Erics Sixth Amendment rights by surreptitiously recording his conversations with Tina New because: (1) Eric had not been charged with Pegyes murder at the time the conversations were recorded; and (2) by recording the conversations as part of a criminal investigation, the police did not interfere with Erics relationship with his counsel, did not obtain any attorney-client information, and did not engage in outrageous conduct.
4. The trial court did not err in admitting: (1) the testimony of Traci Nunez that Eric had her perform a topless lap dance and asked her to have sex with him; and (2) the testimony of Pegyes cousin that he overheard a fight between Eric and Pegye. The evidence was relevant to show marital discord and to impeach Erics statements to the police that his marriage to Pegye was a happy one. If the evidence was inadmissible, its admission was not prejudicial.
5. The jury instructions for murder by means of lying in wait (CALJIC No. 8.25) and for murder while lying in wait (CALJIC No. 8.81.15) are neither unconstitutional nor ambiguous.
6. The trial court did not err in failing to instruct on manslaughter. Erics counsel made a deliberate, tactical choice to object to any instructions on lesser included offenses. Moreover, the evidence did not warrant giving manslaughter instructions.
7. In 1997 and in 1999, various so-called "sea trials" were conducted in the ocean with the same boat Eric and Pegye rented on the day she disappeared. The purpose of the sea trials primarily was to determine whether and how Pegye could have accidentally fallen out of the boat. Evidence of the sea trials was admissible experimental evidence because the sea trials were conducted under substantially similar conditions as those under which Pegye disappeared.
8. Substantial evidence supports Erics conviction.
9. There was no cumulative error.
Facts
We view the evidence in the light most favorable to the judgment of conviction and resolve all conflicts in its favor. (People v. Barnes (1986) 42 Cal.3d 284, 303; In re Roark (1996) 48 Cal.App.4th 1946, 1948, fn. 3.)
I. Eric Is Found Alone off the Coast; Pegye Has Disappeared.
In the late afternoon of July 6, 1997, Gary Greene was sailing his boat, the "Greene Machine," with family and friends in the open ocean off the coast of Newport Beach. Ocean conditions were calm: There was a one- to three-foot swell with a light chop, but no big waves. About four miles off Abalone Cove, Greene saw a man holding onto a boogie board. Nearby, a motorboat was going around in circles at a fast speed. As the Greene Machine approached the man, Greene could hear him yell, "my wife, my wife, my wife."
The man on the boogie board seemed distraught or in shock. Greene heard him yell that his wife had fallen out of the boat. Greene called the Coast Guard, threw the man a life jacket, and tried to calm him down. During the 40- to 45-minute wait for the Coast Guard to arrive, the man held onto the boogie board, stared straight ahead, and said nothing.
Orange County Sheriffs Harbor Patrol Deputies Dawn Arthur and Gary Gough responded to the distress call from the Greene Machine. They arrived on the scene and pulled the man onto their vessel.
The man told the deputies his name was Eric Bechler. He said, "My wife, my wife . . . . [¶] . . . [¶] . . . She fell overboard, she fell overboard. I cant find her." Eric told the deputies he and his wife, Pegye, had rented the boat to celebrate their fifth anniversary and his wifes birthday. They drank margaritas, ate snacks, and sunbathed, and then he rode the boogie board while his wife drove the boat back to shore. He told the deputies that while on the boogie board, he hit a wave or a wake and went under. When he came up, he could not see his wife. The boat was going around in circles and he could not catch up to it. He said he last saw his wife seated on the top of the back part of the drivers seat.
II. A Search Is Unsuccessful. Pegye Is Never Seen or Heard from Again.
Deputies Arthur and Gough summoned emergency vessels and, under Coast Guard supervision, searched the surrounding area for about two hours. At times during the search, Eric appeared to be sobbing, but he seemed to shed no tears. Eric asked a couple of times whether the deputies had checked the shore because "maybe she swam to shore." Pegye was a triathlete and a terrific swimmer, and the ocean conditions had been relatively calm.
Pegye was not found in the search. An extensive search on August 4 and 5, 1997 also was unsuccessful. Pegye has not been seen or heard from since July 6, 1997.
III. Eric Tells Investigators Pegye Accidentally Fell Out of the Boat.
The deputies managed to stop and secure the boat that had been going in circles. The boat was neat—there were no wrappers, chips, or crumbs on the deck. While others continued the search, Deputies Arthur and Gough took Eric back to shore, with his rental boat in tow. Within Erics earshot, Deputies Arthur and Gough talked about the media possibly being present on the dock when they returned. Eric was quiet on the trip back to shore, but upon disembarking, became very upset. He sobbed, his shoulders heaved, and Deputies Arthur and Gough had to help him walk up the gangway. Once inside the sheriffs office, Eric calmed down and could walk on his own. No member of the media was present.
The next morning, Coast Guard Special Agent Danny Motley and Lieutenant Kathy Moore went to Erics house to talk with him. Eric told Motley and Moore that Pegye was operating the boat and towing him on the boogie board. Eric said a large wave knocked him off the board. When he resurfaced, he could not see Pegye in the boat. Eric said Pegye had been sitting on the top of the seat. Eric appeared to be crying as he spoke, but the agents saw no tears.
The agents then left to examine the boat. They noticed the boat was very clean and had no trash or other visible dirt on it. The agents found one towel laid out in front of the motor, two duffel bags, a cooler containing a canteen half filled with margarita mix, a pair of sunglasses on a seat, and a backpack. The large duffel bag contained only a magazine. The other duffel bag contained various items, including chips and other snacks, toiletries, and clothes. Erics backpack contained black plastic bags, lubricant, and a vibrator. The agents also found a rope measuring 44 feet 8 inches. The agents found no blood on the boat or on any item of clothing retrieved from the boat.
Later on July 7, after calling ahead, Special Agent Motley and Lieutenant Moore returned to Erics home. Eric was lying on a couch and curled into a fetal position. He again appeared to cry, but the agents again saw no tears. When a man and a woman arrived at the house, the agents left. As the agents left, they noticed Eric sit up, smile, and laugh with the couple.
On July 8, 1997, Special Agent Motley and Lieutenant Moore interviewed Eric at the police station. Eric told them the following. He and Pegye rented the boat to belatedly celebrate their anniversary. Around noon, they loaded their things onto the boat and traveled to another dock to pick up the boogie board and a bag containing a towrope. They then headed out of the channel and into the open ocean. After 15 to 20 minutes, they stopped to drink margaritas, eat some snacks, and sunbathe. They had sex on the boat. Around 2:00 p.m., Eric decided to ride the boogie board while they headed back to shore. Over the spray, Eric could hardly see Pegye. Eric fell off the boogie board. When he surfaced, the boat was starting to turn and Pegye was not in it. He tried to get to the boat but could not. Another boat came along after 15 to 30 minutes. He asked the people on the boat to look for Pegye.
Eric related virtually the same story on July 12, 1997 to Orange County Sheriffs Sergeant Roger Neumeister. Eric told Sergeant Neumeister he could barely see Pegye driving the boat, but he thought she was standing and watching him, and she may have sat up on the edge of a seat. The last time Eric saw Pegye, he thought she was straddling the chair with her back to the water, looking over the inside of the boat. Eric said he did not see Pegye hit her head. Eric also told Sergeant Neumeister that he saw "a couple splotches," a "pool" or a "couple drops" of blood on the cushions in the front of the boat after he and Pegye had sex. Eric said he also saw blood in the back of the boat and on the vibrator. He thought Pegye might have been on her period.
On July 8, a Newport Beach Police Department crime scene investigator had found several small drops of a substance that looked similar to blood on the right rear portion of the boat. On July 14, 1997, Orange County Sheriffs Crime Laboratory Forensic Scientist Elizabeth Thompson examined the boat and found what appeared to be blood underneath the seat cushion on the right side. The substance tested presumptively positive for blood. Thompson sprayed the boat with Luminol, which luminesces when reacting with blood, and the area in front of the motor mount lit up. Thompson could not recover DNA from the blood sample. She saw no blood on the vibrator.
IV. Eric Was Unhappy in His Marriage to Pegye.
Eric also told investigators he and Pegye rarely fought, were "so happy," and had a "[v]ery strong, wonderful" marriage. But coworkers and neighbors heard Eric and Pegye argue frequently and heatedly. Friends testified that Eric never told Pegye he loved her and that they never saw Pegye and Eric be affectionate. Eric sometimes refused to take Pegyes calls while he was at a friends house. About one year before Pegyes disappearance, the police twice were called because of fights between Pegye and Eric.
Two or three years before Pegye disappeared, Eric told one of his best friends, Daren Kobi Laker (Kobi), that he was having trouble in his marriage, that Pegye was selfish, controlling, and manipulative, and that he did not want to be around her. Eric also complained to Kobis wife, Tammy, that Pegye nagged him about staying home to help take care of the children—something Eric did not want to do. Sometime during the year before Pegye disappeared, Eric told Kobi and Tammy he wanted to portray Pegye as an unfit mother by videotaping her using cocaine so that he could gain custody of their children in a divorce. When, on another occasion, Kobi and his wife talked to Eric about divorcing Pegye, Eric said he did not want a divorce because he "would lose the money and the kids."
Three to four months before Pegye disappeared, Eric asked Kobi, "What do you think about the possibility of killing my wife?" Kobi asked in response if things had really "gotten that bad." Eric replied, "yes." Kobi asked, "[d]o you have a methodology that you are thinking about." Eric said he was thinking about taking Pegye out to sea and dumping her in the ocean, possibly in a barrel. Kobi asked Eric if he would be able to act "as the distraught and bereaved husband [who] just lost . . . his wife." Eric said "yes." Kobi said he did not want to hear about it again. After Pegye disappeared, Eric told Kobi not to say anything and to see Erics lawyer.
Eric used to frequent strip clubs with Kobi. In July 1996, when Pegye was pregnant, Eric met Traci Nunez at a topless bar, bought her a few drinks, and asked her to perform a topless lap dance for him for money. Eric took Nunez to a hotel room, where she performed a topless lap dance. Nunez refused Erics request to have sex. Several days later, Eric asked to see Nunez again, but she declined.
Employment and financial issues also strained the Bechler marriage. Pegye had started and built up a lucrative company called Gericare. Another company bought Gericare in 1996. Pegye and Eric stayed on as employees with the acquiring company, but were let go in March 1997. After March 1997, the Bechlers had to dip into reserves to make house payments and pay bills. The Bechlers did make sure they were secure in the event of a tragedy: Eric and Pegye each was the beneficiary of $2.6 million in life insurance on the others life.
V. Shortly After Pegyes Disappearance, Eric Behaved Consistently with Guilt.
Pegyes friend, Glenda Mason, noticed Eric appeared solemn and upset around Pegyes family, but outside their presence he appeared more jovial and happier than she had ever seen him. Tammy Laker also noticed that during the first few weeks after Pegyes disappearance, when Pegyes family was present, Eric acted "serious," but once Pegyes family left, he smiled and seemed happy. The regular babysitter saw Eric cry only when someone else was around.
Three months after Pegye disappeared, Eric started seeing Tina New (New). Eric told New his wife died in an accident. He retold the story of the surprise boating trip, falling off the boogie board, and resurfacing to find Pegye gone. Throughout their relationship, New questioned Eric about Pegyes disappearance. Over time, some details of Erics story changed, such as the condition of the water, whether he saw Pegye hit her head, and how long he waited in the water before being rescued. When New asked Eric how he knew Pegye had not been rescued or failed to contact him because of amnesia, Eric said he knew for sure his wife was not coming back.
VI. Eric Tells New What Really Happened.
On October 16, 1999, after a night of drinking and taking ecstasy, New told Eric he needed to be honest with her about his wife. Out of the blue, New said to Eric, "You hit her." According to New, Eric acted shocked and asked, "how did you know that[?]" Over the next three hours, Eric told New a very different story from his previous ones.
Eric related how, when Pegye was sunbathing on the boat, he walked up behind her and "hit her over the head so hard that she didnt feel a thing." Blood was everywhere. Eric described how he bent Pegyes torso over her feet, tied her hands and ankles together, covered her body with a trash bag, anchored her body with weights, and dumped her body overboard. Eric said he washed out the boat, drove back toward shore, jumped off the back of the boat with the boogie board, and let the boat drag him until he was found. Eric said he had to "act like an actor" and "scream and panic." He said he was "diving in and out of the water and screaming her name and looking for her for a long time, and then the Coast Guard came."
New asked Eric how he managed to get the weights, rope, and trash bags on board without Pegye noticing. Eric replied he put the rope, weights, and trash bags in a separate bag that was left with the boogie board at the second dock. Eric said he had planned the trip three days in advance. New asked whether Pegyes body would ever be found. Eric replied, "[t]hey will never find her." New asked whether Pegyes body would float to the surface. That could not happen, Eric explained, because Pegye had low body fat and he anchored her with 70 pounds of weight.
A few days before July 4, 1997, Pegyes cousin, Kevin Marshall (Kevin), went with Pegye to the Bechlers storage unit. He saw a complete dumbbell set on the floor of the unit. A few days after Pegye disappeared, Kevin and other members of the Marshall family saw the weight set in the Bechlers garage. Two 35-pound dumbbells were missing.
VII. New Wears a Body Wire to Obtain Incriminating Statements from Eric.
New told the police about Erics revelation. On October 29, 1999, she agreed to let the police bug her phone to intercept conversations with Eric and to wear a body wire to tape her conversations when she met him later that night. By that time, Eric had been convicted of a domestic violence charge involving New and placed on probation. He had been charged with a probation violation and had retained counsel to defend the charge.
The bugged telephone conversations and the conversations while New wore the body wire were recorded and played for the jury as exhibits 4, 6, 8(A), and 8(B). Transcripts of the conversations were given to the jury.
The police told New to talk to Eric about "the incident" when she and Eric spoke. During the bugged telephone conversation, Eric said he was thinking about leaving the state and asked New not to say anything more to the police. New asked Eric if he had told his attorney what really happened. Eric replied, "[n]o. It was an accident. [¶] . . . [¶] It was an accident. It was an accident. Thats what really happened." New asked Eric if his attorney knew "the truth." When Eric replied "[n]o," New said "[w]ell maybe you should tell your . . . lawyer the truth because you need someone to know." Eric told New she should call his attorney, but she refused.
After the bugged telephone conversation, New agreed to a police request to wear a wire to tape her conversations with Eric when she met him later that night. The police asked New to induce Eric to repeat the incriminating statements he made on October 16, 1999 and to try to get him to talk about Pegyes disappearance.
New and Eric went to a Mexican restaurant. Eric again told New he wanted to leave the state. He also mentioned he had spoken with his attorney. New asked "why would your attorney tell you to leave the state unless you told your attorney what happened?" Eric answered, "I didnt tell him what happened." Eric expressed his concern that once he was in jail for the probation violation, he would be charged with murder, and he would be in jail for years "even if I am innocent." New said, "[s]o your attorney doesnt know [¶] . . . [¶] about the murder though. So why [¶] . . . [¶] would he tell you to leave the state?" Eric responded, "no he didnt say to leave the state. He told me . . . thats a hard life if I decided to do that."
The attorney referred to in these discussions did not represent Eric at trial and does not represent Eric in this appeal.
New expressed concern about keeping her story straight. She told Eric she had four stories in her head, including the original story and "the real story." Eric told New not to say anything unless called to the stand to testify. New asked for "a structured story, one story" if she was called to testify. Eric and New tried to work out a story. New became frustrated that the facts were becoming confused; Eric said, "[y]ou dont need to worry about details, details are not important." Eric said, "[t]hey dont know anything, fuck `em. You just tell them you . . . cant remember." Later that night, New said, "Im not a good liar and you know that." Eric instructed her to "just tell them that [¶] . . . [¶] we never [¶] . . . [¶] talked about it, we talked about it once two years ago, you cant remember details, and thats all you have to say."
Eric announced he was "gonna head to Vegas, start over." New asked Eric whether he told his friend Jay. Eric replied, "I didnt tell him, Im never telling anybody else ever. [¶] . . . [& para;] . . . I promised I wouldnt tell you either." New said, "[y]ou probably shouldnt of."
New asked Eric: "[Y]ou could have just got a divorce, why would you go to that degree. I mean how long till you get so mad at me, and you might want to kill me." Eric said he had "been way more mad at you than I ever was." When New asked if Eric had done it for the money, he responded, "no partly for money, partly its about the kids." When pressed for a reason why he would "go [to] that extreme" instead of getting a divorce, Eric said he felt like he was "backed in a corner like [Pegye] was gonna steal the kids away and Id never see them again," but he "would never, ever do anything to harm anybody ever again." When New asked how Eric could hit his wife over the head, Erics only response was, "[w]ell." When New commented "you had to get rid of her," Eric responded, "I know yes, you know. I mean she was just super controlling the children."
Later, New asked if Eric was sure the weights would be enough. Eric answered, "[o]h yeah, I thought it out pretty well." New also asked Eric if he was "sure she didnt feel it"; Eric replied, "[u]h-hum." New asked Eric why he would "pre-think something so awful" when he could have just gotten a divorce. "I think I was stressed, the pressure with the kids," Eric replied.
While driving home from the restaurant, New said, "You know what makes me sick Eric, you killed Peggy [sic] `cause she was gonna leave you well why the fuck couldnt [you] divorce her, huh? Thats sick. Youre sick." Eric replied, "I guess youre turning me in, huh?" Eric was arrested on October 30.
VIII. New Is Urged to Lie and Change Her Story.
A few days after Eric was arrested, he called New and asked her to go with his mother to a motel in order to keep away from the police and the media. New felt guilty about her part in Erics arrest and agreed to go. At the motel, Erics mother told New she needed to get her story straight. The next morning, Erics mother told New that she and Eric had worked out a strategy on what to do next.
First, Erics mother took New to visit Eric in jail. They used notes to communicate. Eric instructed his mother to keep New with her at all times, to help her, and to keep her from talking to the police. He asked New to lie by saying she had been on drugs, she made up the whole story, and she was upset with Eric for cheating on her. New wrote to Eric she did not want to lie; Eric answered that if she did not lie, "he would never get out of jail."
Next, Erics mother took New to meet with Erics attorney and investigator. They wanted New to recant her story. She met privately with the attorney and the investigator and recanted.
New then was taken to an attorney whom Erics mother had hired to represent her. New told the attorney she felt she could not speak with him honestly because Erics mother was paying her fees. The attorney told New the communications were confidential and she should be honest. New then told the attorney the story Eric had told her on October 16, and the story Eric had just told her to use. She told the attorney "about what was going on."
Finally, according to the plan, New changed her story and told the press that on October 16 she was under the influence of methamphetamine, was having psychic visions, made up the story about Eric killing his wife, and prodded him into agreeing with her story. New told the press she believed Eric was innocent. At trial, New testified she told the press a lie.
IX. Eric Denies Killing Pegye and Claims News Story Is a Drug-induced Fantasy.
Eric testified at trial. He denied killing Pegye. He testified he and Pegye rented the boat, and then drove the boat to another dock to pick up the boogie board, a towrope, and another bag. They left the harbor and headed toward Catalina, but it was hazy, so they turned around and stopped somewhere between Santa Catalina Island and Corona del Mar. While on the boat, he and Pegye had sex and drank margaritas. He eventually jumped in the water to ride the boogie board. Once when he was trying to get onto his knees on the boogie board, he crashed, and when he came up, the boat was moving in a corkscrew fashion. He tried to paddle toward the boat and was yelling Pegyes name. Eric said he never saw Pegye again.
Eric testified he last saw Pegye straddling the back of the drivers seat. He said that when Pegye sat that way, above the windscreen, nothing prevented her from falling into the water. Eric testified Pegye was "happy" from drinking margaritas.
Eric testified he was distraught when picked up by Deputies Arthur and Gough. He became more distraught when Deputy Arthur told him it was highly unlikely they would find Pegye, that she probably drowned and was run over by the boat, and that because Pegye was athletic, her body would sink.
Eric testified that he and Pegye did fight and that on occasion he refused to take her telephone calls while he was at Kobis house. Eric also testified he discussed with Kobi the possibility of filming Pegye using drugs, and the possibility of throwing Pegye off a boat. But, according to Eric, he was not serious about doing those things; he said them to emphasize how angry he was with Pegye. Eric denied asking Kobi if he knew of another way to kill Pegye, and denied saying he was going to fake his grief. Eric acknowledged he and Pegye were having financial problems after March 1997.
Eric testified he was in love and infatuated with New. He learned News ex-boyfriend had killed someone and her ex-husband was abusive and was a drug dealer. Because New continued to see both her ex-boyfriend and ex-husband, Eric believed New was attracted to "bad" boys, and tried to live up to a "bad boy" image.
In April 1999, Eric pleaded guilty to a domestic violence charge involving New and was placed on probation. The case resulted in a temporary restraining order prohibiting Eric from seeing New.
Eric testified that on the night of October 16, 1999, he, his friend Jay, and New patronized several nightclubs. Eric said New smoked marijuana before they left. At one nightclub, Eric became jealous and argued with New after he saw her flirt with another man. At the next nightclub, Eric, Jay, and New took ecstasy. Each of them took more ecstasy later that evening. After returning home that night, Eric and New continued to drink. New then claimed to have a "psychic vision" and declared "I think when you were boating in the accident that Pegye fell off, that you saw her but you couldnt help her." Eric replied, "[n]o, . . . thats not what happened, it was an accident." New yelled at Eric, insisting "[t]his is how I see it, . . . this is what happened." In response, Eric said, "Okay, whatever." Eric testified that from there News story "just degenerated into her fantasy of what she described up here on the stand."
According to Eric, New eventually said that in her vision, she saw Eric hit Pegye over the head, tie her up with the weights, and dump her body overboard. Eric disagreed with that vision, saying "it was an accident." New screamed at Eric, saying it was "her vision" and "that was how she was seeing it." When Eric told New her vision was "nonsense," she screamed at him again. Eric finally agreed with New "to just satisfy her fantasy" and because he thought she would be more attracted to him as a "bad boy." When New asked how much weight it would take to make Pegye sink, Eric "guessed" 70 pounds.
Eric was at News house on October 28, 1999, even though he knew it was a violation of his probation to see her. He and New argued that night until the police arrived. Eric fled out the back of News apartment because he thought the police would take him to jail for a probation violation if they caught him there. Eric later worried that New might tell her "psychic vision" to the police, even though she knew it was not true.
Eric testified that during one of the bugged telephone conversations with New on October 29, he told New her "fantasy" was not true and Pegyes death was an accident. Because New yelled at Eric again and told him to shut up, Eric felt she would never accept the fact Pegyes death was an accident. Eric decided to meet with New that evening so he could reason with her and "bring her back to reality." When they later met at a restaurant, Eric appeased New by agreeing with her that he killed Pegye. He felt he had no choice but to do so because New insisted on believing her drug-induced fantasy even though he had told her the truth. He also feared New would become volatile and start screaming in a public place and therefore he agreed with her fantasy to keep her quiet.
Eric denied asking New to lie when she visited him in jail. Eric was not present when his mother wrote to New to tell her to say something that was not true.
Eric testified his weight set was never complete and he kept it in the solarium of his house. Several days before the Bechlers Fourth of July party, Eric moved the weights to the garage. He denied the weights were ever in the storage unit. On rebuttal, the Bechlers window washer testified he never saw a weight set in the solarium.
DISCUSSION
I. California Has Territorial Jurisdiction over the Crime Charged.
Eric contends his conviction must be reversed because the evidence shows no crime was committed within Californias territorial jurisdiction. California had jurisdiction, we conclude, because the crime was committed within Californias territorial waters.
Any person who commits a crime "in whole or in part" within California is subject to punishment under its laws unless the crime falls within exclusive federal jurisdiction. (Pen. Code, §§ 27, subd. (a), 777.) Californias territorial waters extend three miles oceanward from the outer sides of the outermost islands and include the inland waters. (Cal. Const., art. III, § 2; Gov. Code, §§ 170, 171.) The "inland waters" of the state are "[a]ll waters between the mainland and the outermost of the islands" and "all waters between the islands." (Gov. Code, § 171.) California has authority to enforce its criminal laws anywhere within its state law boundaries. (People v. Weeren (1980) 26 Cal.3d 654, 669.)
Federal law defines Californias territorial waters more narrowly, as extending three nautical miles from the coast and including a three-mile band around each island, but excluding waters between the islands and the mainland. (43 U.S.C. §§ 1301(b), 1312.) "In defining Californias federal law boundaries, Congress did not, however, suggest that California lacked power to regulate conduct outside those boundaries and within broader state law boundaries." (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 564.) Where state criminal law does not conflict with federal law, the State of California may enforce its criminal law anywhere within the broader state law boundaries. (People v. Weeren, supra, 26 Cal.3d at pp. 669-670.)
In Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th 557, 564-565, the California Supreme Court held the state constitutional and statutory definition of Californias territorial waters gave the state power to regulate conduct within the entire Santa Barbara Channel, which lies between the easternmost channel islands (San Miguel, Santa Rosa, Santa Cruz, and Anacapa) and the mainland. By the same reasoning, California has the power to regulate conduct within the entire San Pedro channel, which lies between Santa Catalina Island and the mainland, and the entire Outer Santa Barbara Channel, which lies between San Clemente Island and Santa Catalina Island, and between San Clemente Island and the mainland.
Eric testified he and Pegye headed from Newport Harbor toward Santa Catalina Island, but it was hazy, so they turned around and stopped somewhere between Santa Catalina Island and Corona del Mar. On July 8, 1997, Eric told Special Agent Motley and Lieutenant Moore he and Pegye headed toward Catalina but after 15 or 20 minutes stopped because it was hazy. On October 16, 1997, Eric told New the boat was 8 to 12 miles offshore when he dumped Pegyes body overboard.
Gary Greene testified he and his boating companions left Newport Dunes Marina in Newport Beach between 2:30 p.m. and 2:45 p.m. on July 6, 1997 and headed through the harbor into the ocean. They traveled 25 to 30 minutes at a speed of 20 to 22 miles per hour (about seven to eight miles) before stopping. They followed a group of dolphins for five to ten minutes before heading back to the harbor at a speed of 20 to 22 miles per hour. They found Eric five to ten minutes later.
Deputy Arthur testified that when responding to the distress call from the Greene Machine, she and Deputy Gough traveled down the coast from Newport Beach toward Laguna Beach. They found Eric four and a half to five miles off Abalone Point.
Under any set of facts derivable from these accounts, Eric killed Pegye somewhere between Santa Catalina Island and the mainland, or, alternatively, between San Clemente Island and the mainland. The crime therefore occurred within Californias territorial waters, and Eric was subject to punishment under the laws of this state.
II. The Evidence Was Sufficient to Establish the Corpus Delicti.
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause." (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.) Eric argues the prosecution failed to prove the corpus delicti of murder.
The corpus delicti must be proven independently of the accuseds extrajudicial statements, confessions, or admissions. (People v. Alvarez, supra, 27 Cal.4th at pp. 1168-1169; People v. Weaver (2001) 26 Cal.4th 876, 929.) But proof of the corpus delicti may be circumstantial and need not be beyond a reasonable doubt. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1127.) The amount of evidence necessary to prove the corpus delicti is "not great" and need only be "`a slight or prima facie showing permitting an inference of injury, loss, or harm from a criminal agency." (People v. Alvarez, supra, 27 Cal.4th at p. 1181; People v. Jennings (1991) 53 Cal.3d 334, 368.) If murder is charged, the burden of proving the corpus delicti is met by "evidence which creates a reasonable inference that the death could have been caused by a criminal agency [citation], even in the presence of an equally plausible noncriminal explanation of the event." (People v. Jacobson (1965) 63 Cal.2d 319, 327; see also People v. Mattson (1990) 50 Cal.3d 826, 874.) The prosecution need not eliminate all inferences tending to show a noncriminal cause of death but need only introduce evidence from which a reasonable inference can be drawn that a criminal agency could have caused the death. (People v. Ochoa (1998) 19 Cal.4th 353, 406-407.)
In People v. Alvarez, supra, 27 Cal.4th 1161, the Supreme Court held that Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) abrogated the corpus delicti basis for excluding the defendants extrajudicial statements from evidence, but did not abrogate the corpus delicti rule requiring proof of a crime independent of those statements. The court stated: "The result of our conclusions is as follows: Because of the adoption of section 28(d) through Proposition 8, there no longer exists a trial objection to the admission in evidence of the defendants out-of-court statements on grounds that independent proof of the corpus delicti is lacking. If otherwise admissible, the defendants extrajudicial utterances may be introduced in his or her trial without regard to whether the prosecution has already provided, or promises to provide, independent prima facie proof that a criminal act was committed. [& para;] However, section 28(d) did not eliminate the independent-proof rule insofar as that rule prohibits conviction where the only evidence that the crime was committed is the defendants own statements outside of court. Thus, section 28(d) did not affect the rule to the extent it (1) requires an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements or (2) allows the defendant, on appeal, directly to attack the sufficiency of the prosecutions independent showing." (People v. Alvarez, supra, at p. 1180.)
The corpus delicti of murder consists of two elements: (1) the death of the alleged victim and (2) the existence of some criminal agency as the cause. (People v. Cullen (1951) 37 Cal.2d 614, 624; People v. Bolinski (1968) 260 Cal.App.2d 705, 714-715.) Production of the missing persons body or of evidence of the means used to produce death are not essential to the establishment of a corpus delicti or to sustain a murder conviction. (People v. Bolinski, supra, 260 Cal.App.2d at p. 715.)
The prosecution presented sufficient evidence of Pegyes death. Pegye and Eric left together on a boating trip. Testimony established that on July 6, 1997, at approximately noon, Eric and Pegye rented a boat from Balboa Boat Rentals in Newport Beach. About four hours later, Eric was found in the ocean waving his arms while the boat was going around in circles. The boat was empty. Pegyes body was never recovered despite an extensive search of the area in which Eric was found. Pegye has not been seen or heard from since the boating trip.
Eric contends there was testimony that Pegye disembarked before he set sail. Mary Gay Kelly testified that on the day of the boat trip, she saw a boat tied to a dock near her house and saw a medium-sized Caucasian man with straight brown hair in the boat. Kelly also saw a blond-haired woman sitting on either the dock or the edge of the boat. Kelly left, and when she returned, the man and the woman were gone. Kelly could not identify Eric as the man in the boat. This testimony does not show much of anything, and certainly fails to establish Pegye disembarked before the boat left the dock—a theory contrary to Erics theory Pegye accidentally fell out of the boat.
There was sufficient evidence of a criminal agency as the cause of Pegyes death. Pegyes body was never recovered, and "[t]he fact that [the victims] body was never recovered would justify an inference by the jury that death was caused by a criminal agency. It is highly unlikely that a person who dies from natural causes will successfully dispose of his own body." (People v. Manson (1977) 71 Cal.App.3d 1, 42.) Pegye was an athlete, and swimming was her "main sport." On the day of the boating trip, the ocean conditions were calm: There was a one- to three-foot swell with a light chop and no breaking waves. A police inspection of the boat revealed bloodstains underneath the seat cushion on the right side of the boat. A police forensic scientist sprayed the boat with Luminol (a chemical which luminesces when reacting with blood), and the area in front of the motor mount lit up. Two 35-pound dumbbells, which could have been used to kill Pegye and weigh down her body, were missing from Erics weight set. From this evidence, the reasonable inference could be drawn that Pegye did not accidentally fall off the boat and drown, but died as a result of a criminal agency.
In addition, there was evidence that Eric was not happy in his marriage and stood to gain financially from her death. Eric and Pegye fought frequently. Evidence that Eric and Pegye fought was not limited to Erics extrajudicial statements. For example, a neighbor testified she overheard Pegye crying hysterically after repeatedly asking Eric the same question in a loud voice. On at least one occasion, while Pegye was pregnant, Eric took another woman to a hotel room, where she performed a topless lap dance. Eric was the beneficiary of insurance policies in the sum of $2.6 million on Pegyes life.
Eric argues proof of the corpus delicti relied heavily upon his extrajudicial statements and the sea trials evidence. We have omitted Erics extrajudicial statements, including his nonverbal communications, in our analysis of proof of the corpus delicti. Although we conclude, post, the sea trials evidence was admissible, even without this evidence considered, the prosecution met its low burden of proving the corpus delicti.
Eric posits the evidence of the corpus delicti failed to resolve the question whether Pegye fell off the boat and drowned accidentally. In proving the corpus delicti, the prosecution was not required to eliminate inferences tending to show a noncriminal cause of death. The prosecution met its burden of proving the corpus delicti with evidence creating a reasonable inference that Pegyes death could have been caused by a criminal agency.
III. The Police Did Not Violate Erics Sixth Amendment Right to Counsel or Interfere with His Defense.
A. Background
Eric argues the judgment should be reversed because the police obtained recorded statements from him in violation of his rights under the Sixth Amendment to the United States Constitution. On October 29, 1999, New permitted the police to bug her phone and wore a wire to tape her conversations with Eric later that evening. Eric claims her conduct violated his Sixth Amendment right to counsel and interfered with his attorney-client relationship. We disagree.
When the police bugged News telephone, Eric had been charged with a probation violation and had retained counsel to defend the charge. The police told New to talk to Eric about "the incident" when she and Eric spoke. In the middle of the conversation, Eric suggested New go with him to see his attorney so they could "try and work something out." New asked Eric if he had told his attorney what really happened. Eric replied, "[n]o. It was an accident. [¶] . . . [¶] It was an accident. It was an accident. Thats what really happened." New told Eric "[d]id you tell your attorney `cause right now you might need to tell your attorney." Later in the conversation, New asked whether Eric thought she should get an attorney. Eric replied she did not need one and she could talk to his attorney. When New asked what Eric wanted her to say to the attorney, Eric told her to say she would like to cooperate.
New asked Eric if his attorney had given him any advice. Eric replied: "No. Well he doesnt seem to think its that big a, I mean I, he thinks its, you know its a probation violation." New asked Eric if his attorney knew "the truth." When Eric replied "[n]o," New said, "[w]ell maybe you should tell your . . . lawyer the truth because you need someone to know." Eric told New she should call his attorney, but she refused.
On October 29, 1999, New agreed to a police request to wear a wire to tape her conversations with Eric when she met him later that night. The police asked New to induce Eric to repeat the incriminating statements he made on October 16, 1999, and to try to keep him talking about Pegyes disappearance. At the preliminary hearing, Officer Sean Murphy testified he never asked New to question Eric about his attorney.
During the taped conversation, Erics attorney was mentioned about eight times. The first time occurred when Eric, after saying he wanted to leave the state, told New he had spoken with his attorney. New asked "why would your attorney tell you to leave the state unless you told your attorney what happened[?]" Eric answered, "I didnt tell him what happened." Eric expressed his concern that once he was in jail for the probation violation, he would be charged with murder, and he would be in jail for years "even if I am innocent." New said, "[s]o your attorney doesnt know [¶] . . . [¶] about the murder though. So why [¶] . . . [¶] would he tell you to leave the state?" Eric replied, "no he didnt say to leave the state. He told me . . . thats a hard life if I decided to do that."
Much later in the conversation, Eric mentioned he had called his attorney to find out if New was in jail. New did not ask about the conversation. Instead, she expressed concern because her implants were leaking and she did not have the money to get them fixed.
On the third occasion, New mentioned that Erics attorney had asked her what she and Eric were fighting about and why she hit him. On the fourth occasion, New said she needed to get an attorney. Eric told her to talk to his attorney.
New next mentioned Erics attorney as the first person she talked to on the morning after the police came to her house. Later, after some intervening conversation, New asked: "If your lawyer doesnt know hows he gonna even defend you? Lawyers have to keep their silence[,] right?" Eric replied, "[y]eah youre probably right, I should probably tell him." New then told Eric he should get a better lawyer because the one he had was "stupid" and "sucked."
Eric asked New to "pack up" and leave the state with him. After talking awhile about leaving the state, New asked, "whats your attorney doing for you?" Eric said his attorney was going to find out whether a warrant for his arrest was outstanding and discuss "options." New asked, "[w]ell what do you think hes gonna say?" Eric replied, "Hell probably say stay here but [& para;] . . . [¶] [h]e doesnt know anything."
After some intervening conversation, Eric said he was going to ask his attorney about extradition. New said Erics attorney was stupid but would wonder why Eric wanted to flee when he was facing only six months in jail. New told Eric he needed to be honest with his attorney.
At the outset of trial, Eric moved to dismiss the case or, in the alternative, to exclude his statements made during these taped conversations. Eric argued the police violated his Sixth Amendment right to counsel and the attorney-client privilege by obtaining the taped conversations.
The trial court denied the motion. Although the court found that New was acting as a police agent when her conversations with Eric were recorded, the court concluded Erics Sixth Amendment right to counsel had not been violated because Eric had not yet been charged with killing Pegye when the conversations were recorded. The court also found "there has been no egregious or outrageous interference by the police with the attorney/client privilege," any police interference was not prejudicial, and if there were prejudice, dismissal of the charges was unwarranted.
B. Sixth Amendment Right to Counsel
The Sixth Amendment provides, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." (U.S. Const., 6th Amend.; People v. Slayton (2001) 26 Cal.4th 1076, 1079.) Once the defendants Sixth Amendment right to counsel attaches and is invoked, the state may not use an undercover agent to circumvent that right. (Illinois v. Perkins (1990) 496 U.S. 292, 299; Maine v. Moulton (1985) 474 U.S. 159, 176; Massiah v. United States (1964) 377 U.S. 201, 205-206.) Incriminating statements obtained by the government in such a manner are inadmissible at the defendants trial. (Massiah v. United States, supra, 377 U.S. at pp. 205-207; People v. Slayton, supra, 26 Cal.4th at p. 1079.)
The Sixth Amendment right to counsel does not attach, however, until the initiation of adversary judicial criminal proceedings, which could be by way of formal charge, preliminary hearing, indictment, information, or arraignment. (McNeil v. Wisconsin (1991) 501 U.S. 171, 175; People v. Slayton, supra, 26 Cal.4th at p. 1079; People v. Clair (1992) 2 Cal.4th 629, 657.) The existence of an attorney-client relationship does not itself trigger Sixth Amendment protections (Moran v. Burbine (1986) 475 U.S. 412, 429-431), and "[i]t is not enough, for example, that the defendant has become the focus of the underlying criminal investigation" (People v. Clair, supra, 2 Cal.4th at p. 657).
The Sixth Amendment right to counsel is "offense specific," meaning it applies only to those offenses as to which adversary criminal proceedings have been initiated. (McNeil v. Wisconsin, supra, 501 U.S. at p. 175; People v. Slayton, supra, 26 Cal.4th at p. 1079; People v. Clair, supra, 2 Cal.4th at p. 657.) Thus, if a defendant has retained counsel with regard to a particular charged offense, the police may question the defendant regarding separate uncharged offenses, and any incriminating statements are admissible at a subsequent trial of the yet-uncharged offenses. (Maine v. Moulton, supra, 474 U.S. at p. 180; People v. Slayton, supra, 26 Cal.4th at p. 1079.)
The surreptitiously recorded conversations between Eric and New took place on October 29, 1999. Eric was charged with murdering Pegye by a felony complaint filed on November 1, 1999. By October 29, Eric had been charged with a probation violation relating to his conviction for domestic violence. Eric had retained counsel to represent him in the probation violation matter, but the probation violation was an entirely separate offense from murdering Pegye. Thus, Erics Sixth Amendment right to counsel with respect to the charge of killing Pegye had not attached when Erics conversations with New were recorded. For that reason, the Sixth Amendment did not bar admission of Erics incriminating statements made during those taped conversations.
Eric argues he had become "`the accused" for all intents and purposes by the time his conversations with New were recorded. The fact Eric had become the focus of a police investigation does not mean his Sixth Amendment right to counsel had attached. (People v. Clair, supra, 2 Cal.4th at p. 657.) Eric had neither requested nor been denied access to counsel when he spoke with New. (See Spano v. New York (1959) 360 U.S. 315, 327 (conc. opn. of Stewart, J.).)
C. Interference with Defense
Eric contends the police violated his right to counsel under the federal and state Constitutions by using New to interfere with his defense and invade the attorney-client privilege. In support of this contention, Eric relies upon Barber v. Municipal Court (1979) 24 Cal.3d 742 (Barber), United States v. Levy (3d Cir. 1978) 577 F.2d 200 (Levy ), and Boulas v. Superior Court (1986) 188 Cal.App.3d 422 (Boulas).
In Barber, supra, 24 Cal.3d 742, the defendants were charged with trespassing and unlawful assembly for participating in a "`sit-in" near a nuclear power plant. Before the date set for trial, the defendants learned one of the codefendants was an undercover police officer. (Id. at p. 745.) The defendants moved to dismiss the case on the ground the presence of the undercover police officer at confidential attorney-client meetings deprived them of the right of effective assistance of counsel. (Ibid.) The court recognized "the right to counsel guaranteed by the California Constitution embodies the right to communicate in absolute privacy with ones attorney." (Id. at p. 751.) The court concluded this right was violated when the undercover agent attended confidential attorney-client meetings. (Id. at p. 756.)
In Levy, supra, 577 F.2d 200, the court held the defendants right to assistance of counsel was violated when undercover federal agents obtained confidential defense strategy from a codefendant. (Id. at p. 209.) "Free two-way communication between client and attorney is essential if the professional assistance guaranteed by the sixth amendment is to be meaningful." (Ibid.) The proper remedy, the court concluded, was to dismiss the indictment because defense strategy was actually disclosed and entered into the "public domain." (Id. at p. 210.)
In Boulas, supra, 188 Cal.App.3d 422, the defendant was charged with the sale of cocaine. A sheriffs deputy directly conveyed to the defendant the deputy district attorneys decision to negotiate a plea bargain only if the defendant fired his current attorney. (Id. at pp. 426-427.) The appellate court concluded the prosecution had engaged in outrageous conduct interfering with the defendants right to due process and had violated the defendants Sixth Amendment right to counsel of his choice. (Id. at pp. 429-431.)
Barber, Levy, and Boulas hold the prosecutions intentional interference with the attorney-client relationship constitutes a violation of the defendants constitutional right to effective assistance of counsel. (See People v. Garewal (1985) 173 Cal.App.3d 285, 292.) Such interference in a defendants relationship with counsel may constitute conduct so outrageous as to violate the defendants right to due process. (Boulas, supra, 188 Cal.App.3d at p. 429; see Rochin v. California (1952) 342 U.S. 165, 172; People v. McIntire (1979) 23 Cal.3d 742, 748, fn. 1 ["[s]ufficiently gross" police misconduct may violate due process].)
In Barber, Levy, and Boulas, the defendants had been formally charged or indicted with respect to the subject crime at the time the intentional interference with the attorney-client relationship occurred. In contrast, Eric had not been charged with murdering Pegye when his conversations with New were surreptitiously recorded. Accordingly, with respect to the charge of killing Pegye, Eric had no constitutional right to counsel with which the prosecution could interfere by having Erics conversations with New recorded. In addition, assuming New was acting as a police agent, the evidence did not show the police used her to intentionally interfere with Erics relationship with his counsel or obtain attorney-client communications. The evidence established the police did not instruct New to uncover defense strategy, but to induce Eric to repeat his statements made to her on October 16, 1999. By having Erics conversations with New recorded as part of a crime investigation, the police did not engage in outrageous or gross misconduct amounting to a due process violation.
Although we find no constitutional violation, we point out Eric has not shown any prejudice. Eric did not tell New the substance of any conversations with his attorney or reveal to her any defense strategy.
IV.The Trial Court Did Not Err by Admitting Evidence of Marital Discord.
Eric argues the trial court erred by admitting evidence for the purpose of showing he is of bad character. Eric does not challenge the admission of all evidence purportedly bearing on his character. Rather, Eric asserts the following evidence was inadmissible:
• Traci Nunez testified she met Eric in a strip club in July 1996. Eric bought her a few drinks and then asked her to perform a topless lap dance for him for money. Eric took Nunez to a hotel room, where she performed a topless lap dance. Eric asked Nunez to have sex with him, but she refused. Tammy Laker, Kobis ex-wife, testified Kobi and Eric went to strip clubs.
• Pegyes cousin, Kevin Marshall, testified he overheard an argument between Pegye and Eric over sunglasses Eric bought for $300. According to Marshall, Pegye said, "Why did you spend so much money on those glasses," and Eric replied, "well, you dont want me to hurt my eyes." Eric asserts Marshall also testified that Pegye told him Eric was a "financial drain." The prosecution represented that Marshall would so testify, but his testimony on the subject was limited to the argument over the sunglasses.
The Attorney General argues that testimony was admissible to show motive and to impeach Erics statements that he and Pegye were happily married. We agree the testimony was admissible for those purposes.
Evidence of a persons character, including evidence of past misconduct, is not admissible when offered to prove the persons conduct on a particular occasion. (Evid. Code, § 1101, subd. (a).) But evidence that a person committed "a crime, civil wrong, or other act" is admissible to show "motive, opportunity, intent, preparation, plan," or to support or attack a witnesss credibility. (Evid. Code, § 1101, subds. (b), (c).) Admission of evidence pursuant to Evidence Code section 1101, subdivision (b) lies within the trial courts discretion. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609.)
Evidence of marital discord may be admissible to prove one spouse had a motive and the intent to harm or murder the other. (E.g., People v. Cartier (1960) 54 Cal.2d 300, 311; People v. Linkenauger, supra, 32 Cal.App.4th at pp. 1609-1614; People v. Zack (1986) 184 Cal.App.3d 409, 413; People v. Daniels (1971) 16 Cal.App.3d 36, 46.) In those cases, evidence of marital discord consisted of quarrels as well as threats, physical assault, or attempted murder. The testimony of Nunez and Marshall did not show marital discord rising to such a level, but that did not make their testimony inadmissible. "[A] broader range of evidence may be presented to show motive, intent, and identity where the prior misconduct and charged offense involves the identical perpetrator and victim." (People v. Linkenauger, supra, 32 Cal.App.4th at p. 1613.) The question is whether the evidence "had a tendency in reason" to show Eric intended to or had a motive to commit a premeditated murder. (Ibid.)
The prosecutor offered Nunezs testimony to show "[Eric] wanted to have sex with another woman while he is married." The prosecutor wanted the jury to draw the inference that Eric was not happy in his marriage to Pegye. That is a reasonable inference.
The prosecutor also offered Marshalls testimony for the purpose of showing discord in the marriage and to impeach Erics statements to the police that Eric and Pegye were happily married. Although any spat could indicate an unhappy marriage, couples disagree even in the most blissful of marriages over an extravagant purchase. Marshalls testimony nonetheless was relevant and admissible because the argument over the sunglasses added to the body of testimony showing Eric and Pegye fought frequently, and from this evidence the jury could draw the inference Eric was not happy in his marriage. Eric does not argue other testimony of marital discord (other than Nunezs testimony) was inadmissible. We therefore conclude the trial court did not abuse its discretion in admitting Marshalls testimony regarding the argument over the sunglasses.
Even if inadmissible, the testimony about the argument over the sunglasses was harmless. The standard for assessing harmless error in the admission of evidence is whether "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Cahill (1993) 5 Cal.4th 478, 492.) A reasonable jury would not leap to the conclusion that Eric was a bad person and convict him simply because he had an argument with his wife over a pair of expensive sunglasses. In light of the strong evidence of guilt, the jury would not have reached a result more favorable to Eric without Marshalls brief testimony about the fight over the sunglasses.
Eric argues the prosecutor engaged in misconduct by commenting on Nunezs and Marshalls testimony in closing argument. The prosecutor commented that Eric frequented strip clubs and took Nunez to a hotel to "try to have sex," that Eric was cheating on Pegye, and that Eric and Pegye argued about his spending.
A prosecutor is given wide latitude during argument. (People v. Hill (1998) 17 Cal.4th 800, 819.) A prosecutors argument may be vigorous so long as it amounts to fair comment on the evidence. (Ibid.) Fair comment includes reasonable inferences or deductions drawn from the evidence, as well as matters drawn from common knowledge or experience. (Ibid.) We have concluded Nunezs and Marshalls testimony was admissible. The prosecutor made fair comment on that evidence in closing argument and used the evidence for the proper purposes of showing motive and intent and of countering defense evidence that Eric and Pegye were happily married.
V. The Lying-in-wait Instructions (CALJIC Nos. 8.25 and 8.81.15) Were Neither Unconstitutional nor Vague.
The jury was instructed with CALJIC No. 8.25, defining first degree murder by means of lying in wait, and CALJIC No. 8.81.15, defining the special circumstance of murder while lying in wait. The jury convicted Eric of first degree murder and found true the special circumstance of murder while lying in wait. Eric contends the "lying in wait" instructions violate due process, equal protection, and the Eighth Amendment to the United States Constitution because they make no meaningful distinction between murder by means of lying in wait and murder while lying in wait.
"`[M]urder by means of lying in wait requires only a wanton and reckless intent to inflict injury likely to cause death." (People v. Gutierrez, supra, 28 Cal.4th 1083, 1148-1149.) "In contrast, the lying-in-wait special circumstance requires `an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage." (Id. at p. 1149.) The lying-in-wait special circumstance requires "`that the killing take place during the period of concealment and watchful waiting, an aspect of the special circumstance distinguishable from a murder perpetrated by means of lying in wait, or following premeditation and deliberation." (Ibid.)
Eric argues that California law and the jury instructions given make no meaningful distinction between first degree murder by lying in wait and the special circumstance of murder while lying in wait. The California Supreme Court "ha[s] repeatedly rejected" that argument. (People v. Gutierrez, supra, 28 Cal.4th at p. 1148.) "The distinguishing factors . . . that characterize the lying-in-wait special circumstance constitute `clear and specific requirements that sufficiently distinguish from other murders a murder committed while the perpetrator is lying in wait, so as to justify the classification of that type of case as one warranting imposition of the death penalty." (Id. at p. 1149.)
The Attorney General argues Eric lacks standing to raise his claim regarding the "lying in wait" instructions because he was not sentenced to death. (See Godfrey v. Georgia (1980) 446 U.S. 420, 428.) Put another way, Eric suffered no harm from any constitutional infirmity in the lying-in-wait instructions because the special circumstance finding of murder while lying in wait did not increase his sentence from life without parole to death. (See Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 906-907.) Eric probably lacks standing to make the claim—he does not argue to the contrary—but we need not address the issue in light of established California Supreme Court authority rejecting Erics constitutionality argument.
Eric argues the instructions given were unconstitutionally vague because they gave the jury the impression no meaningful distinction exists between murder by lying in wait and the special circumstance of murder while lying in wait. CALJIC No. 8.25 states "[m]urder which is immediately preceded by lying in wait is murder of the first degree," while CALJIC No. 8.81.15 states the killing must commence "no later than the moment concealment ends" to constitute murder while lying in wait. Eric contends these phrases say the same thing, thus establishing no meaningful distinction exists between the instructions.
In reviewing a purportedly ambiguous jury instruction, we ask whether there is a reasonable likelihood the jury has applied the challenged instruction in a way that violates the state or federal Constitution. (People v. Welch (1999) 20 Cal.4th 701, 766; People v. Prettyman (1996) 14 Cal.4th 248, 272.) Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury rather than by reference to parts of an instruction or from a particular instruction. (People v. Smithey (1999) 20 Cal.4th 936, 963-964.)
The instructions given here were not vague or ambiguous. Both CALJIC No. 8.25 and CALJIC No. 8.81.15 define "lying in wait" as "a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise." The difference between murder by lying in wait and the special circumstance of murder while lying in wait is the temporal relationship between the period of lying in wait and the killing. (People v. Superior Court (Maciel) (1982) 134 Cal.App.3d 893, 897; Domino v. Superior Court (1982) 129 Cal.App.3d 1000, 1011.) Murder while lying in wait must take place during the period of concealment or watchful waiting and therefore does not take place "[i]f a cognizable interruption separates the period of lying in wait from the period during which the killing takes place." (Domino v. Superior Court, supra, 129 Cal.App.3d at p. 1011.)
CALJIC Nos. 8.25 and 8.81.15 plainly make this distinction. CALJIC No. 8.25 states "[m]urder which is immediately preceded by lying in wait is murder of the first degree." The word "preceded" explains the temporal relationship between the "lying in wait" period and the killing: The former must precede (be completed before) the latter. CALJIC No. 8.81.15, in contrast, states, "for a killing to be perpetrated while lying in wait, both the concealment and watchful waiting as well as the killing must occur during the same time period, or in an uninterrupted attack commencing no later than the moment concealment ends." (Italics added.) We conclude CALJIC Nos. 8.25 and 8.81.15 are not unconstitutionally vague.
Eric also contends the requirement of a "substantial period of watchful waiting" is imprecise. The versions of CALJIC Nos. 8.25 and 8.81.15 read to the jury here do not contain the phrase "substantial period of watchful waiting," but state "[t]he lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation."
VI. The Trial Court Did Not Err in Failing to Instruct on Manslaughter.
Eric contends the trial court erred in failing to instruct the jury sua sponte on the lesser offense of manslaughter. We conclude Eric invited any error, but the evidence did not warrant a manslaughter instruction.
A. Eric Invited Any Error.
The trial court has a duty to instruct sua sponte on lesser included offenses that are supported by substantial evidence and are not inconsistent with the defendants theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 162, People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The trial court is not required to instruct on offenses and theories having no evidentiary support. (People v. Breverman, supra, 19 Cal.4th at p. 162; People v. Sedeno (1974) 10 Cal.3d 703, 715.)
The trial courts duty to instruct on lesser included offenses exists even when a defendant, as a matter of trial tactics, objects to their being given. (People v. Duncan (1991) 53 Cal.3d 955, 969.) "But the doctrine of invited error will operate to preclude a defendant from gaining reversal on appeal because of such an error made by the trial court at the defendants behest." (Ibid.) For the doctrine of invited error to apply, "`"it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it must also be clear that counsel acted for tactical reasons and not out of ignorance or mistake."" (Ibid.)
In discussing a proposed second degree murder instruction, Erics counsel stated, "with respect to the second degree murder [CALJIC No.] 8.30, and the instructions which discuss the differences between the two, we are objecting to any lesser included or lesser related or lesser degree instructions." (Italics added.) Eric did not request any instructions on lesser included offenses.
Defense counsels objection reflects an express objection to any instructions on lesser included offenses. The fact counsel did not object specifically to a proposed manslaughter instruction is not dispositive in light of the objections scope. Erics counsel did not merely object to the proposed second degree murder instruction; counsel objected to "any" instructions on lesser included, lesser related, or lesser degree offenses. Defense counsel did not propose instructions on any lesser included or lesser related offenses. It is clear defense counsel made "a deliberate choice . . . to utilize an all-or-nothing tactical strategy." (People v. Bunyard (1988) 45 Cal.3d 1189, 1235.)
B. The Evidence Did Not Warrant Giving Manslaughter Instructions.
Regardless whether Eric invited error, the evidence did not warrant manslaughter instructions. Erics claim he was entitled to manslaughter instructions is based upon News testimony relating one of Erics various stories of what occurred on July 6, 1997. New testified that in September 1999, Eric told her the water was not calm on July 6, Pegye was driving the boat and pulling him on a boogie board, and a big wake knocked him off the board. About a week later, Eric told New that when he came up out of the water after being knocked off the boogie board, he saw Pegye hit her head and fall over. Eric said "I didnt see her hit her head." New testified: "[S]o I said to him, I said, `but you told me at first that you say you saw her hit her head and you could have helped her but you didnt, and he said, `I could have, but I didnt." In a page out of An American Tragedy, Eric insisted Pegye fell out of the boat accidentally, but confessed to New, "[y]eah, I could have helped her, but I didnt want to."
(Dreiser, An American Tragedy (Signet Classic 2000) p. 836.)
The law imposes no criminal liability for failure to act unless there is a legal duty to act. (People v. Heitzman (1994) 9 Cal.4th 189, 197; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 22, p. 228.) A spouse is under a legal duty to provide financial support, sympathy, protection, nursing-type care, and physical assistance. (E.g., Borelli v. Brusseau (1993) 12 Cal.App.4th 647, 651-654.) It may be logical to argue such duties include a duty to rescue, although we have found no case precisely saying so.
If Eric were under no legal duty to act, his failure to help Pegye could not result in criminal liability of any degree, and manslaughter instructions would have been unwarranted.
If Eric did have a legal duty to act, his criminal liability would depend upon whether the evidence established his failure to act was willful or malicious. To back up for a moment, manslaughter is the unlawful killing of a person without malice. (Pen. Code, § 192.) Voluntary manslaughter is an unlawful killing "upon a sudden quarrel or heat of passion." (Id., § 192, subd. (a).) Involuntary manslaughter is a killing: (1) in the commission of an unlawful act, not amounting to felony; or (2) in the commission of a lawful act which might produce death, in an unlawful manner. (Id., § 192, subd. (b).) There was no evidence here of a sudden quarrel or heat of passion, so any manslaughter instructions would have to have been for involuntary manslaughter.
"The omission of a duty is in law the equivalent of an act and when death results, the standard for determination of the degree of homicide is identical." (People v. Burden (1977) 72 Cal.App.3d 603, 616.) The omission of a duty is murder if the omission was malicious and there was deliberate intent to cause death, or where the omission must necessarily lead to death. (Id. at pp. 617, 619.) The omission of a duty is manslaughter if it is not malicious but the result of gross or culpable negligence. (Id. at p. 619; see also People v. Penny (1955) 44 Cal.2d 861, 879-880.)
If Eric had a duty to help Pegye, the evidence did not permit the jury to conclude he acted with criminal negligence. New testified Eric told her in one of his versions of the story that he saw Pegye hit her head and fall overboard. Eric told New, "I could have helped her, but I didnt want to." Under this version of the story, Eric knew he could have helped Pegye and knew Pegye would die if he did not help her, but made a calculated decision not to help her because he "didnt want to." If a reasonable jury believed this version of Erics story, it could only have concluded Erics omission was willful and malicious, resulting in murder. The jury could not have concluded Erics omission was criminal negligence resulting in manslaughter. The evidence therefore did not support giving manslaughter instructions.
C. Any Error Was Harmless.
Finally, any error in failing to instruct the jury on manslaughter was harmless. "Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086.)
By finding true the special circumstance of murder while lying in wait, the jury necessarily rejected Erics claim that Pegye drowned after accidentally falling out of the boat. The jury was instructed "[t]he term `while lying in wait within the meaning of the law of special circumstances is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise." For a murder to be perpetrated while lying in wait, "both the concealment and watchful waiting as well as the killing must occur during the same time period, or in an uninterrupted attack." By finding true the special circumstance of murder while lying in wait, the jury found Eric intentionally killed Pegye during the period in which he concealed his purpose and waited for an opportunity to kill her by surprise or ambush. Such a finding precludes a finding that Eric failed to help Pegye after she accidentally fell overboard.
VII. The Sea Trials Evidence Was Admissible.
Eric argues the so-called sea trials evidence was inadmissible. We conclude the sea trials evidence was admissible.
A. Background: The Sea Trials
On July 9, 1997, three days after Pegye disappeared, Coast Guard Special Agent Motley and Lieutenant Moore conducted a series of maneuvers using the same boat Eric had rented. During the mid-afternoon, Agents Motley and Moore drove the boat out of Newport Harbor and several miles into the open sea. The sea conditions were about the same as on July 6: calm, with a two- to three-foot swell and a one- to two-foot chop.
On the open ocean, the agents conducted various maneuvers with the boat. They ran the boat while holding the steering wheel straight, turning the steering wheel to the right, and turning it to the left. They turned the boat sharply to the right and to the left, and ran the boat in circles over its own wake. Motley steered while Moore moved through the boat assuming different positions, then Moore steered while Motley assumed the same positions. The driver steered while sitting in the drivers seat, while sitting on back of the drivers seat, and while standing. The driver steered with one hand, steered with one foot, then did not steer the boat. They conducted these maneuvers at each throttle position.
When the driver let go of the steering wheel while the throttle was in forward position, the boat would pull to the right and continue in a circle, and the driver would be pulled toward the inside of the boat. As the boat circled, it would vibrate. The vibrating did not make the boat unstable. In forward position at full throttle, the boat bounced a bit when going over a wave.
Lieutenant Moore is about five feet tall and weighs 110-115 pounds. When sitting on the back of the seat, she could not reach the steering wheel. Agent Motley is six feet four inches tall and weighs about 250 pounds. When sitting on the back of the seat, he had difficulty reaching the steering wheel. For Agent Motley, standing to the left side of the steering wheel was the most comfortable position from which to steer the boat. In one of the maneuvers, Motley sat on the back of the seat and steered with his right foot while the boat was at half throttle. He did not become unstable.
Agent Motley lost his footing once, when facing the back of the boat, and slipped into the inside of the boat. When the boat was traveling at half throttle, Agent Motley did not have to support himself to keep from falling down. Motleys body did not gravitate toward the outside of the boat during any of the maneuvers. Turning the boat sharply to the left would cause the driver to fall into the dashboard and the high part of the windshield. Lieutenant Moore once fell into the drivers seat, but otherwise she never slipped and never lost her balance.
In February 2000, Orange County Sheriffs Deputies Gary Gough and Janet duMonceau-deBergendal (duMonceau) also conducted maneuvers with the same boat Eric had rented. Gough and duMonceau took the boat to the area where Gough found Eric on July 6, 1997. The ocean conditions were approximately a swell of three feet and a chop of one foot to one and one-half feet. First, Deputy duMonceau, who is five feet six inches tall, steered the boat while sitting on the top of the back of the drivers seat. She could reach the steering wheel by leaning forward.
Next, Deputy duMonceau drove the boat towing a boogie board carrying Deputy Gough. When the boat was traveling at 12 miles per hour, there was a lot of splash and Gough was barely able to get onto the boogie board. At 15 miles per hour, there was not much splashing and Gough was able to climb onto the boogie board. Gough lost control of the boogie board when the boat accelerated past 15 miles per hour.
The boat made a couple of turns while Deputy Gough was on the boogie board. When the boat turned right and traveled over its own wake, Gough let go of the rope and went into the water. As the boat turned right, Gough could see only the top part of the back of the passenger seat and could not see the floorboard.
Deputy Gough then took his turn to steer the boat; he steered the boat in a circle while sitting on the top of the back of the drivers seat. Gough let go of the steering wheel after turning it to the right and raised his arms. As the boat traveled over its wake, Gough felt "a gentle rocking."
Finally, Deputy Gough operated the boat up to full throttle for about 15 minutes making a series of sharp turns and crossing over the boats wake. Gough never lost his balance. Gough leaned only toward the inside of the boat. A videotape of the maneuvers conducted in February 2000 was played for the jury.
Eric made all necessary objections to the sea trials evidence. The trial court found the sea trials evidence was relevant to whether Pegye fell off the boat, found the conditions under which the sea trials were conducted were substantially similar to those on July 6, 1997, but ruled any opinion based on the sea trials as to whether Pegye did fall out of the boat was inadmissible.
B. The Sea Trials Were Admissible as Experimental Evidence.
The trial court has discretion to admit "`experimental evidence" such as the sea trials evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1326.) The proponent of such evidence bears the burden of production and proof on the question whether an adequate foundation supports admission of the evidence. (Ibid.) "`Admission of such evidence depends upon proof of the following foundational items: (1) [t]he experiment must be relevant; (2) it must have been conducted under at least substantially similar, although not necessarily absolutely identical, conditions as those of the actual occurrence; (3) the qualifications of the individual testifying concerning the experimentation must be demonstrated with some particularity; and (4) evidence of the experiment will not consume undue time, confuse the issues, or mislead the jury." (Ibid.) "`The standard that must be met in determining whether the proponent of the experiment has met the burden of proof of establishing the preliminary fact essential to the admissibility of the experimental evidence is whether the conditions were substantially identical, not absolutely identical." (People v. Bonin (1989) 47 Cal.3d 808, 847.)
The sea trials evidence was relevant because, presuming substantial similarity, it had a "tendency in reason to prove or disprove" whether Pegye could have accidentally fallen out of the boat. (Evid. Code, § 210.)
The prosecution established the sea trials were conducted under substantially similar conditions as those of July 6, 1997. The same boat was used, the weather and ocean conditions were about the same, and the trials were conducted at about the same time of day at which Pegye disappeared. Agents Motley and Moore drove the boat at every throttle level while sitting or standing in every conceivable position from which the boat could be steered. They turned the boat right and left and drove it in circles over its own wake. They steered with both hands, one hand, no hands, and with one foot. Deputy Gough took his hands off the steering wheel and thrust them into the air after turning the boat to the right.
Except for the one instance when Lieutenant Moore slipped back into the seat, the results were uniformly the same in each situation. No matter which way the boat was steered, no matter how the boat was steered, no matter what the drivers position, and regardless of the throttle position, neither the driver nor the passenger lost his or her balance or gravitated toward the outside of the boat. Motley, Gough, and duMonceau had difficulty reaching the steering wheel while sitting on the top of the back of the drivers seat, while Moore could not reach the steering wheel at all from that position.
Similarly, Deputy Gough rode the boogie board while the boat traveled at different speeds. When Gough let go of the rope and fell into the water as the boat turned right, Gough could see only the top part of the back of the passenger seat.
There are variables, to be sure. Assuming the truth of Erics story, we do not know where Pegye was seated while driving the boat, how she maneuvered the steering wheel, or at which throttle level she was driving the boat. But the sea trials were conducted to account for those variables.
Eric does identify several variables that the sea trials did not account for completely. First, he points out, the officers conducting the sea trials were focused on what they were doing and trying not to lose their balance, to slip, or to fall overboard. In contrast, Eric asserts, Pegye had been sunbathing and "partying" and therefore was not consciously trying to maintain her balance. Even so, Pegye could have been focused on driving the boat and maintaining her balance despite the seemingly festive nature of the outing and despite the fact she might have been watching Eric on the boogie board. Nonetheless, the point is well taken: The sea trials did not account for all of Pegyes possible states of mind and levels of attention.
Second, Eric asserts Pegye was slight of build and on July 6, 1997, had been drinking margaritas throughout the day. In contrast, Eric asserts, the officers conducting the sea trials were sober and the male officers were large in build. We do not know how much, if any, alcohol Pegye consumed on July 6 and the extent to which alcohol consumption impaired her ability to maneuver the boat and maintain her balance. Because the officers were sober throughout the sea trials, they did not account for all potential levels of intoxication. The male officers were larger than Pegye; however, the female officers were her size or smaller.
Finally, Eric asserts the videotape of the February 2000 sea trials reveals two other men were in the boat when Deputy Gough leaned into the boat, and "these factors resulted in the driver of the boat benefitting from stabilizing factors which were not, or not necessarily present in the real event." The two men were in the boat for a brief portion of Deputy Goughs sea trial. Deputies Gough and duMonceau both conducted maneuvers with no one else on board.
In sum, the sea trials did not completely account for (1) all of Pegyes possible states of mind and levels of attention while driving the boat, and (2) all potential levels of Pegyes intoxication. The question is whether those variables rendered the test conditions less than "`substantially similar" to the actual conditions of July 6, 1997. We do not believe they did. The sea trials used the same boat and were conducted in the same ocean conditions and at the same time of day as when Pegye disappeared. The tests were conducted at every throttle position. The driver sat or stood in every conceivable position from which the driver could steer. The passenger moved throughout the boat and assumed various sitting and standing positions. The sea trials thus had "tendency in reason to prove" that Pegye likely did not accidentally fall out of the boat.
The variables Eric has identified do not make the sea trials less than substantially similar to the actual events. Variables are not necessarily dissimilarities. Pegye might have been in precisely the same condition and had precisely the same attention level as the officers conducting the sea trials—in which case the sea trials would have proved Pegye could not, and therefore did not, accidentally fall out of the boat. Thus, the variables do not render the sea trials irrelevant to showing Pegye likely did not fall out of the boat. The variables went to the weight of the evidence. In closing argument, Erics counsel highlighted the differences between the conditions during the sea trials and actual conditions. The jury could take these variables into consideration and determine the weight to give the sea trials evidence.
In addition, other conclusions drawn from the sea trials were not subject to the variables Eric has identified. The sea trials showed that steering the boat while sitting on the top of the back of the drivers seat (the position in which Eric claimed Pegye was driving) was difficult or impossible. The sea trials showed the top of the drivers seat was not visible after Gough fell off the boogie board into the water.
Finally, the sea trials evidence did not consume undue time, confuse the issues, or mislead the jury. To the contrary, the sea trials evidence addressed the important issue of whether Pegye could have fallen out of the boat accidentally.
The trial court did not abuse its discretion in admitting the sea trials evidence.
VIII. The Evidence Supports Erics Conviction.
Eric contends substantial evidence does not support the judgment. The evidence was sufficient to support the verdict.
"`The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] `Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.) The standard of review is the same when the prosecution relies mainly on circumstantial evidence. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Testimony established that on July 6, 1997, at about noon, Eric and Pegye rented a boat from Balboa Boat Rentals in Newport Beach. About four hours later, Eric was found in the ocean waving his arms, and the boat was going around in circles. The boat was empty. Pegyes body was never recovered despite an extensive search of the area in which Eric was found. Pegye has not been seen or heard from since the boating trip. Luminol detected blood in the boat.
Witnesses testified the ocean was calm in the area in which Eric was found. The boat had not capsized. Pegye was a triathlete and a fine swimmer. The sea trials evidence tended, in reason, to show Pegye could not have fallen out of the boat accidentally.
Eric had a motive to kill Pegye—he was very unhappy in his marriage. Eric wanted to kill Pegye. He had talked to Kobi about taking Pegye out to sea and dumping her in the ocean. He expressed a desire to portray Pegye as an unfit mother by videotaping her using cocaine so that he could gain custody of their children in a divorce.
Eric acted suspiciously after Pegyes death. Several witnesses testified Eric seemed to be faking bereavement. Only a few months after Pegyes death, he took up with New. He told New he was sure Pegye would never return.
Eric made damning statements to New. He told her he killed Pegye by hitting her with weights. He told New he tied up Pegyes body, wrapped it in a plastic bag, weighted it with two 35-pound dumbbells, and tossed it overboard. Testimony showed two 35-pound dumbbells were missing from Erics weight set. Eric told New he put on an act by yelling and screaming while hanging onto the boogie board waiting for help. When New asked whether Pegyes body would ever be found, Eric replied, "[t]hey will never find her." Eric made more damning statements during the two bugged telephone conversations and while New wore the body wire.
After Eric was arrested, both he and his mother urged New to lie and recant her story. When New met with the lawyer Erics mother had retained for her, she told him "what was going on."
To a large extent, this case turns on the credibility of witnesses. Significant testimony was in conflict. Most significantly, Kobis testimony and News testimony were in sharp conflict with Erics testimony. Eric argues News story was a drug-induced fantasy and portrays New as a drug abuser and an unwholesome person. But it is the exclusive province of the jury to assess witness credibility and to resolve conflicts in the testimony. The jury apparently believed New and Kobi, and disbelieved Eric. The record, viewed in the light most favorable to the judgment, contains substantial evidence from which a reasonable trier of fact could find Eric guilty beyond a reasonable doubt.
IX. There Was No Cumulative Error.
Because there was no error, there was no cumulative error. (See People v. Bolin (1998) 18 Cal.4th 297, 335.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J. and MOORE, J.