Opinion
F059648 Fresno Sup. Ct. No. F08902920
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. CANTRELL DEON ELLIS, Defendant and Appellant.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On December 16, 2008, the Fresno County District Attorney filed an information in superior court charging appellant Cantrell Deon Ellis as follows: count 1 - murder of Charlotte Mae Ellis (Pen. Code, § 187, subd. (a)) with personal use of a deadly weapon (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)); count 2 - attempted murder of Sadon Cornel Scott (§§ 187, subd. (a), 664); count 3 - first degree residential burglary (§§ 459, 460, subd. (a)); and count 4 - assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise stated.
On January 8, 2009, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegation.
On November 16, 2009, jury trial commenced.
On December 2, 2009, the court partially granted the defense motion to acquit "pursuant to 1118.1 ... to strike from the jury's consideration ... the portion of Count 1 dealing with first degree murder." (§ 1118.1).
On December 4, 2009, the jury found appellant guilty as charged of counts 1, 3, and 4 and found the special allegation as to count 1 to be true. The jury found appellant not guilty of count 2, the attempted murder of Sadon Cornel Scott.
On February 2, 2010, appellant filed a motion for new trial based on lack of sufficient evidence (§ 1181, subd. (6)).
On February 23, 2010, the court denied appellant probation and sentenced with to a total term of 16 years to life in state prison. The court imposed the term of 15 years to life on count 1 and a determinate term of one year on the related enhancement. The court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and awarded 656 days of custody credits. The court imposed a concurrent term of four years on count 3 and stayed the middle term of imprisonment on count 4 (§ 654).
On February 26, 2010, appellant field a timely notice of appeal.
We affirm.
STATEMENT OF FACTS
Testimony of Officer Barbara Cambria
On May 2, 2008, Clovis Police Officer Barbara Cambria was working the graveyard shift when she was dispatched to a domestic disturbance call at a residence on Sierra Madre Avenue. She arrived at the location at 2:29 a.m. and saw light streaming through an open front door. As she approached the open front door, she saw droplets of blood on the tiled entry way just inside the door and more blood on the carpet inside the home, along with a broken vase in the living room. Cambria heard a commotion and an angry male voice. She elected to enter the home without waiting for another field unit. As Cambria entered the home, she heard sounds coming from the master bedroom. She approached the bedroom, looked through the partially open door, and saw the foot-end of the bed was shattered and broken. As Cambria continued toward the threshold of the master bedroom, she saw appellant come around the edge of the bed. Cambria said he seemed shocked or surprised to see her.
Cambria pointed her duty weapon at appellant and asked him to stop. He put his hands up and she could see they were covered with blood. He appeared to have a cut on the palm of his left hand. Appellant was dressed in a blue nylon-type sweat suit or jogging suit. Appellant complied with Cambria's order to stop. Cambria said there appeared to have been a struggle in the room, and the window on the north side of the room was shattered. She saw a female's body on the bed. The female had an injury to her leg and Cambria saw blood on the bed. Cambria contacted emergency medical services (EMS) and then asked appellant what was going on. Appellant angrily said something to the effect of, " 'A husband comes in to find his ex-wife having sex with another man. What do you think happened?' " He also told Cambria, " 'I messed up. I messed up bad.' "
At some point, Cambria's backup officer, Corporal Lewis Jackson, arrived at the residence. Upon Jackson's arrival, appellant said something about helping the female to stop the bleeding. Appellant told the two officers he could stop the bleeding because his hands were already bloody. Cambria asked appellant to step back, and he turned around and placed his bloody hands on a wall. Jackson moved past him, walked toward the head of the bed, checked the condition of the female, and shook his head from side to side. Jackson then placed appellant in handcuffs and removed him from the residence. Cambria believed the female was dead based upon Corporal Jackson's assessment. Cambria checked the remainder of the home, room-by-room, for officer safety. She found an infant standing up in a crib in the bedroom nearest the master bedroom. She found a little boy asleep in a bunk bed in another bedroom.
Cambria subsequently took pictures of the interior of the home to document the scene as accurately as possible. Appellant was removed from the home before EMS personnel arrived. Cambria said EMS personnel eventually arrived, removed the female from the bed in the master bedroom, and attempted life-saving efforts. As they lifted the female's body, a firefighter pointed out a knife on the bed. The knife was located between the victim's legs and under a comforter. Cambria said a second knife, similar to the first, was stuck in a wall on the north side of the bed. After EMS personnel worked on the female, they advised Cambria the woman was deceased. Cambria heard the little boy in the other bedroom ask whether "anyone was out there." Cambria entered the boy's room, and he asked her why she was there. Cambria told him they had received a call and were at the house to help. The infant in the crib began to cry, and Cambria comforted her until Community Service Officer Robin Husler arrived to care for the children. Testimony of Officer Christopher Peters
Clovis Police Officer Christopher Peters testified he was dispatched to the home on Sierra Madre Avenue a little after 2:00 a.m. on May 2, 2008. Officer Cambria and Corporal Jackson were present at the home when Officer Peters arrived. Cambria and Jackson were taking a handcuffed subject into custody when Peters entered the home. Cambria and Jackson turned the subject over to Peters. Peters said appellant was the handcuffed subject. Peters had appellant sit in the backseat of a patrol car. Peters noticed blood on both of appellant's hands and a laceration on the palm portion of appellant's left hand. Peters requested an ambulance. As they waited for the ambulance, appellant repeatedly asked, " 'Is she okay? Is she going to be all right? I know I'm not going to be. Is she still alive?' " Peters did not tell appellant anything about the victim's condition. An ambulance arrived at the scene and took appellant to a hospital. Peters followed the ambulance in his patrol vehicle and was present when emergency room personnel evaluated appellant's injuries. Peters saw a four-inch laceration on his left hand, between his thumb and forefinger. He also saw a smaller laceration to the palm of his left hand and abrasions to his right knee. Testimony of Corporal Lewis Jackson
Corporal Jackson testified he was dispatched to a domestic disturbance call at the Sierra Madre address during the morning hours of May 2, 2008. Officer Cambria had arrived at the scene ahead of Corporal Jackson. He approached the residence and saw some blood on the sidewalk and a broken glass table in the living room area. He also saw blood spatter and heard Officer Cambria giving orders in another room. Jackson entered the master bedroom and saw Cambria pointing her gun and taser at appellant, who had his hands raised in the air. A female was lying motionless on the bed. Appellant said in a pleading manner, " 'I've got to stop the bleeding. Let me stop her bleeding.' " Jackson walked past the suspect, approached the far side of the bed, and saw a big window had been broken out. Glass was strewn inside the room, and Jackson assumed the window was broken from outside to inside. Jackson said the female's eyes were wide open and staring up at the ceiling. He checked her carotid artery, but she had no pulse. He saw large lacerations on her body but no blood flowing from those lacerations. Jackson removed appellant from the home before EMS personnel arrived. At a later point in time, Officer Grotto advised Jackson that he had been contacted by an unnamed male. That male said he had been in the residence. Jackson spoke with the male, and the male voluntarily accompanied Jackson to the police station. Testimony of Deanna Waits
Deanna Waits testified she lived on Sierra Madre Avenue next door to the home where the homicide occurred. At midnight on May 2, 2008, Waits heard the sound of a large crash coming from her backyard and thought an accident had occurred on nearby Shaw Avenue. Waits then heard a man yelling the muffled phrase, " 'Get out, get out.' " Waits opened the window to her bedroom and heard a man repeatedly yelling, " 'Why did you lie? Why did you lie?' " At first, Waits did not hear a response to the yelling. At that point Waits picked up the telephone and called 911. The 911 dispatcher advised that an emergency call was coming in from the residence next door to Waits's residence. Waits then heard a woman screaming. The dispatcher advised Waits he could hear the woman screaming and eventually instructed Waits to hang up the telephone because the police had arrived. Waits then heard the man say, " 'Why did you do it, Char? Why did you do it, Char?' " Waits then heard a female voice say, " 'Where did you put the gun?' " After Waits heard that statement, she heard the sound of broken glass. Testimony of Officer Kim Radke
Kim Radke testified she was a police services officer with the City of Clovis and worked as a dispatcher during the early morning hours on May 2, 2008. Officer Radke received a cell phone call from a person named Charlotte at an address on Sierra Madre at 2:25 a.m. She dispatched Officers Cambria, Chavez, and Peters and Corporal Jackson to the address. A neighbor on Sierra Madre Avenue called dispatch at 2:28 a.m. That caller was still on the line with Radke when Officer Cambria arrived at the scene. Testimony of Detective John Willow
Clovis Police Detective John Willow testified he was called to the crime scene on Sierra Madre Avenue at 3:30 a.m. on May 2, 2008. Willow said he acted as the lead detective and oversaw a crime scene team consisting of officers and community service officers. Detective Willow said the victim was on the bed in the master bedroom when he arrived. He testified, "She was originally on the bed when the officers arrived, and I was advised by my sergeant that in order to administer first aid the emergency medical personnel pulled her from the bed and put her on a flat surface so they could start to tend to the wounds." Detective Willow testified he and fellow detectives processed the scene for about 15 hours. They collected a knife set and Community Service Officer Downs advised Willow that he had located "a little bit of blood on an additional knife that was inside the butcher block." Willow said there was bloody glass scattered around the interior of the master bedroom, but Willow did not collect that glass due to the hazardous nature of the material.
Detective Willow testified that two other knives were recovered at the scene. The knives were not identical. One was located on the master bedroom dresser and the other was located stuck in the drywall of the north wall of the bedroom. Testimony of Sadon Scott
Financial planner Sadon Scott testified he had known appellant since they attended junior high school together in Fresno. Scott met appellant's wife, Charlotte, in 2000 when the Ellises lived on Jensen Avenue and Scott made a financial services presentation to them. Scott later shifted employment from financial services to automobile sales and sold the Ellises a vehicle. In 2003 or 2004, the Ellises lost their oldest son, Terrell, in an accident. Scott went to their home and consoled them. Sometime later, Scott returned to the financial services industry and advised the Ellises on the investment of a financial settlement arising from Terrell's passing. In 2006, about two years after Terrell's death, the Ellises moved to Scott's neighborhood. The Ellis home was about six houses away from the Scott home, and Scott and his wife got together with the Ellises as couples. The Scotts had children who were the approximate age of the surviving Ellis children and the two families would go to the lake together. Sometime after the settlement, Scott and his wife sold the Ellises their beauty salon, Hair Affair International at First Street and Bullard Avenue in Fresno. Scott's wife agreed to stay on to ensure a smooth transition.
In the fall and winter of 2007, Scott began having difficulties with his wife and was attracted to Charlotte. They talked about personal problems "quite a bit" in November and December 2007. Scott's relationship with Charlotte became sexual in early 2008. In January or February 2008, Scott received a text message from Charlotte stating: " 'I love you too.' " The text was in response to a conversation he and Charlotte had at a poker party at the Ellises' home. Scott's wife saw the text message, became angry, called appellant, and that day packed up and left Scott. Appellant called Scott and accused him of having sex with Charlotte. Scott said his wife later saw appellant and Charlotte at a Costco store. They discussed the situation and resolved the issue of the text message.
According to Scott, Charlotte said she had had a bad day when a group gathered together for a poker party at the Ellis home. As Scott and his stepfather departed the party, they each gave her a hug and said, " 'Keep your chin up. We love you.' " Scott said the text message was her response to the hug and words of encouragement.
Scott said Charlotte telephoned him on April 20, 2008. She was crying, upset, and scared. Charlotte said she and appellant got into an argument and she was thrown on the floor and hit her head. Charlotte told Scott the appellant said, " 'You're not leaving me.' " She said appellant grabbed her and said, " 'No one's going to have you. I'll kill you if you leave me.' " The phone call lasted about three minutes. About a half-hour after their phone conversation, Scott and Charlotte met behind the Save Mart store at Shaw and Armstrong Avenues. Scott told Charlotte that appellant was not going to kill her. Scott said he knew appellant was not a violent person and therefore did not fear for Charlotte's life. Scott said appellant was just trying to scare her. Scott advised Charlotte to call the police. Scott testified that Charlotte did call the police, but he was not present when she made the call. Scott did see police cars at her home shortly after he and Charlotte had their conversation behind the Save Mart.
On April 22 or 23, 2008, Charlotte moved from the home she shared with Ellis to a residence on Sierra Madre. Charlotte took her two surviving children to the residence on Sierra Madre. Scott's wife had already left him at that point in time. He visited Charlotte at the Sierra Madre home on four or five occasions, even though his relationship with appellant was strained.
On May 1, 2008, Scott went to Charlotte's Sierra Madre home between 11:00 p.m. and midnight. He parked in the garage of the home and closed the garage door. Charlotte's two children were asleep. He had a conversation with Charlotte in the living room. They later went into the master bedroom and had intercourse. He then dressed and prepared to leave but dozed off.
Scott was awakened by a loud crash and felt the sensation of being choked. At first he did not know whether he was dreaming or whether the noise and choking were real. After a brief time, he realized the situation was real. Scott said someone threw him on the floor and against the wall by his neck. Scott got up and the other person slung him into a dresser. The lights on the bedroom and bathroom were off when this took place. He did not know where Charlotte was but did hear her say, " 'Stop. Stop it.' " He also heard Charlotte call the police on her cell phone. Scott then heard the assailant repeatedly say, " 'I'm gonna kill you,' " and realized it was appellant. Scott said appellant was generally a calm person, and he was surprised by his rage.
Scott said he wrestled with appellant on the floor of the master bedroom and finally pinned him down and told him to calm down. Scott could smell alcohol on appellant's breath and told him to "calm down, get out ... you've been drinking." Appellant eventually said he was calm, and Scott released his hold on him. Appellant attempted to resume his attack. Scott pinned him against the wall, and then attempted to push him through the door. Scott reminded appellant the children were asleep. Scott eventually forced appellant out of the master bedroom. In the living room, appellant threw a vase at Scott. Scott lost his hold and appellant ran to the kitchen, where Scott knew there was a supply of steak knives on the counter.
Scott went out the front door of the house, turned to the right, and ran two houses down. Appellant followed Scott and yelled that he was going to kill Scott. Scott stayed down the street until he saw police lights. Scott finally climbed a fence and onto a residential roof. Scott eventually made contact with police down the street from Charlotte's home. According to Scott, as police arrived the appellant kept saying, " 'I'll kill you. I'm going to kill you.' " Clovis police officers placed Scott in handcuffs, and he accompanied them to the police department. Scott said he sustained cuts to his neck and arms and had bloody feet. Scott said he saw appellant's truck parked on a corner as police drove him to the station. Scott learned of Charlotte's death several hours later. Testimony of Venu Gopal, M.D.
Dr. Venu Gopal, a forensic pathologist, testified he performed an autopsy on the body of Charlotte Ellis on May 3, 2008. Dr. Gopal did not find any injuries to the face, neck, or back. However, he did find five stab wounds and 42 "incised" wounds. He said incised wounds are typically caused by applying a knife "in a longitudinal way." Dr. Gopal said one of the stab wounds to Charlotte's body went through the upper lobe of the right lung. A second stab wound went through the right ventricle of the heart. A third stab wound went through the right front side of the abdomen. A fourth stab wound, went through the lower lobe of the right lung. The fifth stab wound went into the right side of the abdomen, including the anterior abdominal wall and the fat attached to the intestines. Dr. Gopal said any of the first four stab wounds, by itself, could have caused death because the wounds went through vital organs such as the lungs, liver, and heart. Dr. Gopal also testified he found defensive wounds to Charlotte's hands. Testimony of Robert Glougie
Robert Glougie testified he was a real estate agent and property manager in the spring of 2008. On April 21, 2008, he arranged for Charlotte Ellis to lease a home on Sierra Madre Avenue in Clovis. Glougie prepared a one-year written lease, Ellis signed it on that date, and she took occupancy on April 22 or 23 with her two children. Testimony of Jennifer Pluto
Jennifer Pluto testified she and Charlotte Ellis were friends since childhood and always confided in one another. Pluto met appellant in 1993 when Charlotte and appellant helped her move. Pluto said she and Charlotte were roommates in 2003 or 2004, when Charlotte separated from appellant for a period of time. Pluto said Charlotte and two of her children lived with her for a brief period. Pluto also said the Charlotte and appellant separated again about 18 months after the first separation. On April 20, 2008, she and Charlotte had plans to go shopping.
When Charlotte did not arrive on time at Pluto's home, Pluto called Charlotte's cell phone. Pluto said Charlotte sobbed on the phone and said she and appellant had an altercation. Charlotte told Pluto that appellant slammed her to the ground and she hit her head. Charlotte also told Pluto that appellant said he would kill her if she left him this time. Charlotte cut off her phone conversation with Pluto because she said she was on the other line with Sadon Scott. Pluto was aware that Charlotte was involved with Scott, but Pluto had only met and spoken with him in passing. Pluto said she and Charlotte eventually met up at the mall, and Charlotte had calmed down at that point. Pluto also said that Charlotte moved into the home on Sierra Madre shortly after the incident with appellant.
Approximately one week after Charlotte's death, Pluto contacted the Clovis Police Department and gave information to their investigators. However, she did not mention appellant's April 20 threat against Charlotte. Pluto told investigators that appellant's behavior changed drastically between the time of his second separation from Charlotte and the time of her death. Pluto said appellant was normally mild-mannered and did not get mad or lose his temper. Pluto also reported that Charlotte confided in her about Charlotte's relationship with Scott. According to Pluto, Charlotte said she and Scott had intercourse as early as sometime between October and December, 2007. Appellant was suspicious that Charlotte was having an affair with Scott. However, Pluto maintained appellant's change in behavior occurred before the affair started. Pluto also said that Charlotte had admitted another sexual affair with a man named Kenny while she was still with appellant. This affair took place between 2002 and early 2004 and continued even after Charlotte reconciled with appellant. Pluto said the Ellises' marriage was a tumultuous one.
Pluto said she went to Charlotte's new house on Sierra Madre several days before she died. Charlotte told Pluto she had shown appellant the house and did not express any fear of appellant. According to Pluto, it appeared that appellant's visit with Charlotte was congenial. Testimony of Lori Jones
Lori Jones testified she had known appellant since childhood and had been a close friend and confidante of Charlotte prior to her passing. Jones was aware of problems in the Ellises' marriage and knew that Charlotte had moved from appellant's home to a home on Sierra Madre Avenue in Clovis. Jones, her then-husband, and her brother-in-law helped Charlotte move. Jones was at Charlotte's Sierra Madre home at 6:00 p.m. on May 1, 2008. Jones and Charlotte visited and Jones departed at 9:00 p.m. Jones said Charlotte's children had gone to bed. Jones did not see Sadon Scott at Charlotte's home that evening.
Defense Evidence
Testimony of Shannon Burrow
Shannon Burrow testified she first met appellant in high school and had known him for 23 or 24 years. Burrow said she lived in Fresno for about 10 years after high school and would see appellant occasionally. She said appellant had a reputation for being a peaceful person. Burrow moved away but would visit Fresno and stay with appellant and Charlotte about one weekend a month. Burrow said she grew apart from the Ellises about eight months after Terrell passed away. She said, "I saw new people coming into the situation, new friends, and with the lawsuit coming and the settlement coming I didn't want to be part of that." Burrow said both appellant and Charlotte were emotionally withdrawn and deeply affected after their son's death. Burrow said appellant was insecure at times, and she was aware that he and Charlotte had separated at certain points in their marriage. Testimony of Lena Martin
Lena Martin testified she was appellant's mother. On April 20, 2008, Charlotte called Martin to say appellant had shoved her and she fell and hit her head on a table. Charlotte never mentioned anything about appellant threatening to kill her if she left him. Charlotte did not specify the time of the incident to Martin but did say she had spoken with police. Martin said Charlotte was calm during their conversation and asked Martin if she could watch her children. Charlotte also told Martin she was looking for "a place." Testimony of Officer Scott Monteiro
Clovis Police Officer Scott Monteiro testified he responded to a domestic violence call at the home of appellant and Charlotte on April 20, 2008. Charlotte told Officer Monteiro that she and appellant had an argument about their pending marital separation. During that argument, which took place in the master bedroom, appellant pushed her down. Appellant told Officer Monteiro that Charlotte had been the one to attack and hit him in the past. Charlotte confirmed there were other acts of violence and she was the aggressor in the past. Charlotte told Officer Monteiro the police did not take those past incidents seriously. Testimony of Officer Max Garces
Clovis Police Detective Max Garces testified he participated in the investigation of the homicide of Charlotte Ellis and conducted an interview with Sadon Scott. Scott told Detective Garces he had a sexual relationship with Charlotte and first had intercourse with her on the Friday prior to her death. Near the end of the interview, Garces informed Scott that Charlotte "did not make it." Scott put his head down and became quiet. During the interview, Scott never said that appellant had threatened Charlotte prior to the date of her death.
Detective Garces said he attempted to interrogate appellant in a Clovis Police Department holding cell after he was returned from a hospital during the early morning hours of May 2. Appellant first asked whether Charlotte had survived. Garces said she did not make it. Appellant put his head down, walked to a countertop, and began to sob and cry. After Garces gave appellant the Miranda advisements, appellant repeatedly said he wanted to die. At some point, Garces requested that appellant be returned to his holding cell. As appellant did so, he threw his body into the Plexiglas window, hitting his head. He was still stating he wanted to die. Officer Garces feared for appellant's safety, and a fellow officer prepared paperwork for a 72-hour hold for mental evaluation. Garces thought appellant was suicidal.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)
Detective Garces said he first learned of prior domestic violence between appellant and Charlotte when Jennifer Pluto testified at trial. Garces conducted research of police records and found a prior incident report. Testimony of Appellant Cantrell Deon Ellis
Appellant testified his son, Terrell, passed away in 2004 when he was run over by a construction vehicle. Appellant said he became upset at himself because he did not awaken Terrell on time for school and Terrell rode his bicycle without the company of his normal group of friends because of his tardiness. Appellant said he always experienced feelings of guilt following his son's death. Appellant said there was never a time he could share his feelings about Terrell's passing with Charlotte because he was afraid she would break down.
Appellant said he and Charlotte sought professional help as a couple on one occasion and that he sought personal help on two occasions. Appellant said he and his wife did not join a support group or go to marriage counseling because Charlotte did not want to attend. The lawyer who represented him in Terrell's wrongful death case referred appellant to Dr. Errol Leifer, but appellant said the consultations did not do him any good because "no one can feel what I feel because they didn't go through what I went through." Appellant said his marriage was troubled even before Terrell's passing and that he and Charlotte separated four or five times. In 2004, Charlotte left appellant and engaged in an affair with a man named Kenny. After she returned from her affair, appellant suspected she was unfaithful by engaging in affairs with two other men.
Appellant and Sadon Scott were good acquaintances through high school. Prior to Terrell's passing, appellant bought a car from Scott. After Terrell died and a lawsuit was filed, Scott began visiting appellant on more occasions and eventually advised what appellant and Charlotte should do with a settlement, should they receive one. Appellant and Charlotte ultimately settled with the construction company that was liable for Terrell's death. They obtained a $2.7 million dollar settlement, and Scott advised them how to invest and spend the money. Appellant and Charlotte bought adjoining businesses, a barbershop and a beauty salon, from the Scotts for a total of $115,000. The Ellises arranged for Gwen to continue to manage the shops in exchange for free use of a salon booth. With Scott's assistance, appellant also purchased insurance from and invested funds with Primerica.
Appellant first became suspicious of a romantic relationship between Scott and Charlotte at a Super Bowl party in the Ellis home because of how they were acting toward each other. Appellant said Charlotte declined to prepare plates of food for most of the men at the party but did prepare such a plate for Scott. Appellant said Scott's wife, Gwen, telephoned one night and awakened appellant. Gwen was hysterical and asked appellant about a text message that had been sent to Scott's phone. The message read, " 'I love you too,' " and came from Charlotte's old phone number. Appellant confronted Charlotte, but she denied having an affair with Scott. Appellant said he called Scott the next day and claimed that Charlotte had admitted to an affair with Scott, which Scott denied. The two couples eventually met at a Costco store, and Charlotte told Gwen there was nothing between Scott and her. Appellant said Gwen accepted the explanation and the two couples became closer.
Appellant said Charlotte started moving away from him after Terrell's death. They were not physically intimate, and she started spending more time with friends than with appellant. Appellant said friends started gathering at their home before he arrived home from work. When it first occurred, appellant would socialize with them because it was just after Terrell passed away. As a result of the constant visits by friends, appellant said he began to frequent bars. Appellant said there were times he stayed out until the early morning hours and this behavior frustrated Charlotte. Appellant said when he was 16, he had a girlfriend who was 23. They shared a residence, and her ex-husband began to live with them for a time. This arrangement led to an argument, and appellant ran across the street and threw himself through a French door. Appellant was placed in a psychiatric hospital after that incident.
Appellant said he never threatened to kill Charlotte when they had arguments. However, he did threaten to kill himself more than once. On the morning of April 20, 2008, appellant was sitting in bed watching Charlotte preparing to go out with her friend, Jennifer Pluto. Charlotte finished getting ready and held their infant daughter in her hands. Appellant said he wanted to talk to Charlotte, but she declined. Appellant took their daughter out of Charlotte's hands and placed the baby in her crib. Appellant again said he wanted to talk to Charlotte. When Charlotte made a move to the door, he grabbed her with too much force and they both "went falling back over and she hit her head and we both hit the ground." Charlotte left him for the final time the following week. At that point, appellant knew that Gwen Scott had left her husband, Sadon. However, he had mixed feelings as to whether Charlotte and Sadon were interested in one another. Several friends advised appellant to give Charlotte some space.
After Charlotte left, appellant did go to her Clovis home to obtain the return of the remote control for the garage door at the home he had shared with Charlotte. Charlotte showed appellant the layout of the Clovis home and the rooms where the children would sleep. Appellant said he went to the home on other occasions because it helped him deal with the separation. Appellant said he would look through her window for awhile, watch his wife, and then go home and go to bed. Appellant said he did this on three occasions prior to May 2. On the evening of May 1, appellant and Charlotte spoke by phone and they had a friendly conversation. During the early morning hours of May 2, appellant went to Grogg's Bar and Jimbo's Bar in Clovis before going home with his brother, Darnell. Appellant left the house at 2:30 a.m. to go to Charlotte's Clovis house. His intent was to again look at Charlotte through the windows. Appellant explained, "... I was used to that person, and I just needed to see her so I can go home and sleep peaceably."
Appellant said he did not have a plan to deal with the possibility that Charlotte was with someone else when he went to her home. Appellant parked his truck around the corner, walked to the house, and looked through several windows. When he went to the bedroom window, he saw Charlotte in bed with Sadon. Appellant said he experienced overwhelming feelings of anger, hurt, and surprise. Appellant said he did not feel as though he had any control over himself. He described the situation by saying, "It's like I'm watching a movie and I'm watching myself do things."
Appellant broke a window, entered the house, and got into an altercation with Scott. Scott jumped out of bed and lunged toward appellant. The two men exchanged words and wrestled on the ground. They ended up on the floor between the dresser and the bed. Scott grabbed appellant from the back, held him down, and told him to calm down. Appellant asked Scott, " 'How come you have your shoes and shirt off?' " Scott said, " 'I'm just here to console her.' " That made appellant even angrier. Appellant broke free and the two men continued to wrestle. Scott got appellant from behind again, put his arm around appellant's neck, and tried to choke appellant. Scott grabbed a vase from a nearby table and appellant tried to swing it back to hit Scott. Appellant could not recall how he cut his hand. Appellant said Scott went through the front door and ran down the sidewalk to the right. Appellant said he was unaware that Charlotte telephoned 911 at some point in time. He also said he did not hear her at all.
Appellant said he felt puzzled and anger as Scott departed. Appellant also felt a "huge, overwhelming surge of more emotions com[ing] over me." Appellant said he did not intend to kill or hurt Scott. He explained, "It was just a rush of emotions, all different type of emotions that came over me. And [I] wasn't thinking like that." Appellant said, "I remember standing there and then a ton of stronger emotions poured over me and ... I blacked out, I guess." The next thing appellant remembered was responding to the orders of an officer. Appellant said he had no recollection of what occurred with his wife. Corporal Jackson said Charlotte was already dead when he arrived at the scene. Appellant said he put his hands up in front of him and saw that they were bloody. Appellant then saw his wife on the bed and asked the officers to help her. Appellant told the officers he could stop the bleeding on her body because his hands already had blood on them. Appellant said he asked about Charlotte's condition but could not recall the response of the officers. Appellant recalled Officer Cambria asking what was going on and appellant replying, "[A] husband catching a wife with another man."
Appellant said his mother and several brothers reside in Fresno. At the time of Terrell's accident, appellant worked for a homebuilder, and Charlotte worked as a cashier for a grocery store. Appellant described the four or five occasions when Charlotte separated from him prior to Terrell's death. She would leave their home for a period of about four months and would take the children with her. Charlotte would go to a friend's house. On several other occasions, she left appellant for a day or two. Appellant said he never left Charlotte; she was the one who always left him. However, appellant admitted to engaging in two affairs during his marriage to Charlotte. One of the affairs involved Charlotte and Jennifer Pluto, which appellant said the two women initiated. Appellant said that during his relationship with Charlotte he told her he was going to kill himself when Charlotte was separating from him. Testimony of Albert Howsepian, M.D., Ph.D.
Dr. Albert Howsepian, a forensic psychiatrist, testified he interviewed appellant for a total of seven hours in the summer of 2008 and summer of 2009 and reviewed and analyzed the discovery and police and medical records in appellant's case. At the request of defense counsel, Dr. Howsepian conducted the clinical interviews and evaluated appellant to determine his mental state at the time of the May 2, 2008, incident. Dr. Howsepian said appellant was suffering from dissociative disorder/NOS at the time of the incident and had chronic posttraumatic stress disorder (PTSD) prior to the incident. The PTSD was attributed to Terrell's death. Dr. Howsepian also concluded that appellant had borderline personality disorder. Dr. Howsepian said appellant had a history of dissociating, as reflected in the way he dealt with the incident with the girlfriend when he was 16, the death of Terrell, and the incident with Charlotte and Sadon Scott. Although Dr. Howsepian did not diagnose appellant with "depersonalization disorder," he did see strong evidence of depersonalization and "derealization" in appellant's life beginning with the incident in appellant's teenage years. Dr. Howsepian elaborated:
Dr. Howsepian explained that an "NOS" diagnosis means the patient fits a diagnostic category but does not fit into the standard subtypes specified in that category.
"And what gets layered in this case is that his perception was not only that he was losing his wife to Sadon Scott, but in losing her, he ends up losing a lot of other things as well. He has to be reminded in a big way of the loss of Terrell [by] virtue of losing her.
"Again, one way he soothed himself is he knew that she, if anybody else in the world, understood how it felt to lose a son, and now he didn't have that solace any longer. He didn't have that comfort any longer, and that comfort ... meant to him ... that he was going to have to suffer alone
for the rest of his life dealing with the death of his son that he feels, you know, responsible for.
"So he loses his hope for healing. He loses his son all over again. He loses his wife. And as I said, at one point it's like I've lost everything, the whole world I've lost. And so in the context of that kind of overwhelming sense of loss, the emotional chaos and the mixture of feelings, it was not at all surprising that he dissociated in just the way he did."
Dr. Howsepian broadened his opinion later in his testimony:
"Losing her was emotionally, for him, tantamount to reliving, at an emotional level, the loss of his son. And losing her at an emotional level caused him [to] feel like he is being resigned to forever living with these feelings that he can't, on his own, handle, and he doesn't want to go to anyone else for the help because it's so painful to talk to anyone, or maybe they don't understand.... There was a symbolic emotional sense of loss. Really, loss of his son, the loss of his wife, the loss of any hope for his own recover, and a loss of, really, everything that was important to him."
Dr. Howsepian said appellant also experienced a "localized [dissociative] amnesia," in which appellant did not remember the most traumatic aspects of his experience. He also noted that appellant displayed profound remorse and regret - to the point of being suicidal - right after the incident. He said appellant exhibited psychotic, delusional symptoms during their interviews and these symptoms reflected his profound sense of regret and remorse. He determined that appellant was not malingering. In response to a hypothetical question posed by defense counsel, Dr. Howsepian said someone in appellant's position could not have premeditated or deliberated the death of another human being. He also testified that someone in appellant's position could not have intentionally committed an act, the natural consequences of which were dangerous to human life, and would not have known that his act was dangerous to human life, and would not have deliberately acted with conscious disregard for human life.
Dr. Howsepian further testified that he tested appellant's cognitive abilities, such as his ability to think and perceive. He concluded that appellant was not suffering from any type of cognitive problems. However, appellant did tell Dr. Howsepian that he was in a haze and "it was as if he was watching a movie or a play." Before conducting interviews with appellant, Dr. Howsepian reviewed various reports and determined that appellant had some dissociative experiences, a history of alcohol abuse, and depression, and PTSD symptoms. He also testified that appellant experienced symptoms of dissociative amnesia between the time Sadon Scott left Charlotte's Clovis home to the time Officer Cambria entered the house and started giving appellant orders.
Rebuttal Evidence
Testimony of Jane Doe
Testifying under a grant of use immunity, Jane Doe said she first met appellant at a nightclub. Appellant asked her whether she was Brittany from Redbook, an escort website for dancing. Doe said she was not Brittany but later communicated with appellant by phone and e-mail. Appellant said he was interested in booking Doe's services. Although appellant did not ultimately book any dancing services, he did offer to exchange an apartment for Doe's services, but she declined. Testimony of Officer Max Garces
Officer Garces testified he engaged in a detailed interview with appellant at Fresno County Jail about a day and a half after the incident. The audiotaped interview took place at Fresno County Jail on May 5, 2008, and lasted for about 30 minutes. During the interview, Garces said appellant spoke in the first person as opposed to the third person or talking about out-of-body experiences. Appellant told Garces that Scott had spoken to him during their wrestling encounter in the bedroom. Scott claimed he was trying to save appellant's marriage. Appellant spoke in the first person and told Garces that Sadon Scott was the aggressor.
DISCUSSION
I. THE PROSECUTOR DID NOT MISSTATE THE LAW OF VOLUNTARY MANSLAUGHTER IN HIS ARGUMENTS TO THE JURY
Appellant contends reversal of the judgment of conviction is required because the prosecutor repeatedly misstated the law of voluntary manslaughter in his arguments.
A. Relevant Instructions
The court instructed the jury in CALCRIM No. 570 [voluntary manslaughter: heat of passion - lesser included offense (§ 192(a))] as follows:
"Voluntary manslaughter is a lesser included offense to murder, as charged in Count 1. A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant killed someone because of a sudden quarrel or in the heat of passion if, one, the defendant was provoked; two, as a result of the provocation the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and, three, the provocation would have caused a person of average disposition to act rashly and without deliberation; that is, from passion rather than from judgment.
"Heat of passion does not require anger, rage, or any specific emotion. It can be violent or intense emotion that caused a person to act without due deliberation and reflection.
"In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under ... the direct and immediate influence of provocation, as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or a long period of time. It is not enough that the defendant simply was provoked.
"The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether that provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition in the same situation, knowing the same facts, would have reacted from passion rather than from judgment.
"If enough time passed between the provocation and the killing for a person of average disposition to, quote, cool off, end quote, and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.
"The People have the burden of proving beyond a reasonable doubt the defendant did not kill as a result of sudden quarrel or heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
The court also instructed the jury in CALCRIM No. 200 [duties of judge and jury], in pertinent part, as follows:
"You must follow the law, as we discussed early on, as I explained it to you, even if you disagree with it. If you believe that any comments made by the attorneys - comments on the law conflict with my instructions, you must follow my instructions."
B. Challenged Portions of the Prosecutor's Argument
In a lengthy opening argument, the prosecutor advised the jury he would focus on the law of murder and voluntary manslaughter. As he addressed the crime of murder, he noted the trial judge would give the jurors the relevant instructions in packet form, and he encouraged the jurors to look at CALCRIM No. 520 [murder with malice aforethought (§ 187)] for themselves. The prosecutor told the jurors, "I'm going to put up certain portions of the instructions that are important but, really, the instructions need to be considered as a whole." After outlining the elements of murder, the prosecutor attempted to apply those elements to the facts of this case. The prosecutor then addressed the lesser offense of voluntary manslaughter and the following exchange occurred:
"[By Mr. Frye, Deputy District Attorney:] What I want to do now is talk a little bit about voluntary manslaughter. If after your review of the evidence you conclude that defendant intended to kill Charlotte Ellis - you conclude that, first of all, it was him and that he intended to kill her, and you believe that beyond a reasonable doubt, then the verdict is murder. Okay?
"There's a second part to the analysis because there's clearly been evidence of - of passion and anger, things like that. And you have to kind of go through this separate analysis. And what happens is you find him guilty of murder, and then the question is, well, does the fact that he experienced this rage, does that make a difference?
"And under circumstances if the rage was of such a degree and certain elements are met, then you will say, well, you know what? It was murder, but we're going to call it voluntary manslaughter.
"MR. SCIANDRA [defense counsel]: Your Honor, I'm going to object. This is a total misstatement of the law.
"THE COURT: The jury will be guided by the Court's instructions and their recollection of the evidence.
"MR. FRYE: Go to the law. That was just my synopsis. And I'm going to go in to the law in just a minute. [¶] But the ... general idea is if you conclude that he is guilty of murder, then you also have to look at issues of voluntary manslaughter."
The prosecutor then focused on three elements of voluntary manslaughter: (1) whether defendant was provoked; (2) whether defendant, as a result of the provocation, acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and (3) whether the provocation would have caused a person of average disposition to act rashly and without due deliberation, i.e., from passion rather than from judgment. The prosecutor then broke down the various elements and interrelated the facts of the case with the law of voluntary manslaughter.
The prosecutor stated during his closing argument:
"When you're looking at the voluntary manslaughter instructions, and, again, those are going to be found at [CALCRIM No.] 570. And the Judge actually is going to number the instructions for you, and it's found on Page 36. It's really addressing the very first issue - the first two issues, really, of did the defendant act with provocation. Right?
"Was his ... mind more susceptible to provocation? That's all it addresses. It does not address the real core issue of would a person in the same position as the defendant acted - would a reasonable person have
acted the same way the defendant did? And that's really where this case comes down to. And I submit to you that the answer is no.
"Would a reasonable person - Mr. Sciandra said that I suggested a reasonable person would walk away and somehow the integrity of marriage is at issue - would the person have simply walked away? Maybe he would have walked away. Maybe [he] would have banged on the window. He would have, you know - just to let you know I'm watching and then walk away. Or maybe that person is going to go bang on the front door ... and there's going to be a confrontation there. That's what a reasonable person might do acting - having been provoked. But still, they would have had to have been sufficiently provoked. Would they even have been in the backyard? No.
"This is a case about control, about the defendant not knowing how things lie, knowing that his wife has been unfaithful, her asking for a separation, her moving into a new house, her making a long-term rental, and him recognizing that and simply not giving her the space that at that point she needed. He should not have been in the backyard peeking through the windows. That was not right.
"The issue in this case is about control, him wanting to have her, and if he doesn't have her no one else will.
"A reasonable person may have gone to the front door, who is sufficiently provoked, banged on the front door, maybe even got into a fist fight with Sadon Scott, called him out to the front and they got into a fist fight. But the question is does a reasonable person, when all is said and done with Sadon Scott - because that's where the focus was. Would a reasonable person have then grabbed knives and gone in and stabbed his wife to death? No.
"Am I saying that a reasonable person confronted by those facts would not be upset? Absolutely not. [T]hat is an unfathomable situation. It's a distressing situation. But what would a reasonable person in his position acting with due diligence have done?
"If you conclude that he acted under heat of passion, that he acted as a reasonable person would have done in going back into that bedroom, stabbing her to death, that's what a reasonable person under the circumstances would have done, then you come back with voluntary manslaughter.
"If you conclude that he didn't have the opportunity to cool off, a reasonable person would have had the opportunity to cool off and if a reasonable person - if a reasonable person had the opportunity to cool off and wouldn't have cooled off, then I would submit to you that's voluntary manslaughter.
"But that's not how a reasonable person would act. A reasonable person has those internal restraints ... is not a robot, not an automaton, feels things but also knows when to hold back and knows when - far - when you've gone too far, and that's what this case is about."
C. Postargument Proceedings
After counsel concluded their arguments, the court read final instructions to the jury and the jurors retired for deliberations. That afternoon, the jurors requested CD recordings of three 911 phone calls, transcripts of those calls, photographs, and the knives. The court played the recordings for the jurors and gave transcripts as a listening aid. The following morning, the court noted the jury had been provided with two complete copies of all of the instructions and 12 copies of the instructions governing homicide (CALCRIM No. 500), murder (CALCRIM NO. 520), and voluntary manslaughter (CALCRIM NO. 570). The following exchange then occurred:
"MR. SCIANDRA: ... Your Honor, I'd like to put on the record a request that I made yesterday afternoon that we be allowed to reopen arguments for a very brief period of time to argue the issue of whether the provocation - the adequate provocation meant provocation motivating the person to commit an act .... [¶] ... [¶] Whether adequate provocation would cause the defendant to act rashly without due deliberation. And my position is that, that adequate provocation . just has to be the motivating factor to cause a person to act rashly, not as the District Attorney argued quite vehemently in his rebuttal closing argument that it would have to cause a reasonable person to commit that particular act.... The law finds mitigation in the motivation for the act but by no means forgives or condones as reasonable the act chosen.
"And the way I read that statement is very supportive of my position and that is that it is the motivation for acting rashly and killing - for acting rashly that has to be caused by adequate provocation. It is not that a person of average disposition would have killed because of that disposition. That's
two separate things. And I think it's quite well set out in [People v. Coad (1986) 181 Cal.App.3d 1094] case that it is only what motivated him to act rashly that has to have adequate provocation and not the act itself. In other words, the District Attorney is saying unless you think the infidelity in this case would have caused . . . any person of average disposition to go in and stab his wife and try and kill her lover, then you can't find a manslaughter. And I would point out that then he gave illustrations of what a[n] average person might have done, broken the window, fought with Sadon, ran around to the front door -
"THE COURT: I don't want to interrupt you ... but a reasonable person may have gone to the front door who was sufficiently provoked, banged on the front door, maybe even . called him out in the front and got into a fist fight. Does a reasonable person, when all is said and done, would a reasonable person then grab knives and gone in and stabbed his wife to death[?]
"MR. SCIANDRA: Well but the point is would a reasonable person have done that, and that's not what the law is. The law is would a reasonable person have been provoked to act rashly rather than out of deliberation.
"THE COURT: Mr. Frye?
"MR. FRYE: Your Honor, I think it's an artificial distinction. I don't think you can separate the fact that a person is provoked from the way the person acts. I think you look at the third element in instruction 570, and it seems to combine the feelings with the action. The provocation would have caused a person of average disposition to act rashly so the act and the provocation are not separate so.
"THE COURT: Anything else, counsel? [¶] ... [¶]
"MR. SCIANDRA: I'm specifically requesting that there be supplemental instruction to the jury in instructional type language based on this case [Coad] and the quote that I gave out of the [Coad]case. [¶]...[¶]
"THE COURT: The Court would first note the jury has been instructed more than once that arguments of counsel, A, are not evidence. And to the extent ... counsel's description, use, or discussion of the instruction is contrary to what the Court has instructed, they are to disregard what counsel says . and abide by the instructions given by the Court. Which thirdly, as the Court has reviewed on real time as least some of the comments ... made in Mr. Frye's closing argument ... it appears to the Court, A, that they have been properly instructed as to what they are to consider and how they are to consider deliberations. You both said as the professionals that you are - in the opening parts of your closing arguments that if anything you say is contrary to their recollection of the evidence or ... the instruction of the law, they're to look to the law that the Court has given them and to the evidence as they recall it.... I have in previous trials not only allowed supplemental argument, although usually that has been in the context of a question from a jury. I think the record should also reflect as I set forth earlier that the jury has requested copies of the murder instruction and the voluntary manslaughter instruction.... I am, of course, loathe to do anything that might be deemed to probe into their deliberative process which is, of course, out of our purview, and I don't intend to now. It seems to me in the totality of the closing arguments, there may well have been any number of comments that, taken by themselves, might be argued to be an incorrect assessment of the law or ... incomplete recollection of the evidence. That's what we have jurors for. I do not believe the comment made by Mr. Frye, if at all incorrect, is other than argument that is properly before the jury. I would only point out when I found that case [Coad] last evening . it is not on all fours with this case at all. My recollection is that Coad goes to an issue of murder in the course of another felony.... I got entirely the contrary conclusion that Mr. Sciandra properly places on the record. [I]t further buttresses in the Court's mind that a further instruction utilizing that would be . at best confusing and ultimately . not necessary."
Defense counsel maintained that People v. Coad (1986) 181 Cal.App.3d 1094 (Coad) stood for the proposition: "[A] jury presented with the question of adequate provocation is asked to decide whether a reasonable person in the circumstances would have acted out of passion rather than judgment. [T]he jury, is not asked to determine that a reasonable person's responsive act would have been an intentional killing. The law finds mitigation in the motivation for the act but by no means forgives or condones as reasonable the act chosen. [¶] And the way I read that statement is very supportive of my position and that is that it is the motivation ... for acting rashly that has to be caused by adequate provocation. It is not that a person of average disposition would have killed because of that disposition."
D. New Trial Motion
On February 2, 2010, appellant moved for new trial in the superior court, alleging the verdict on count 1 was contrary to law or evidence because of prosecutorial misconduct. Appellant argued:
"The prosecutor committed prejudicial misconduct when in his closing argument he argued repeatedly that a reasonable person would not have reacted the way that Mr. ELLIS [did]. In particular, the prosecutor argued that a man of average disposition may have run around to the front door and pounded on the front door, stood there by the window and yelled or even broken into the bedroom and fought with Mr. Scott. [¶] It is evident that the misstatement of the law by the prosecutor is prejudicial in this case because it can be gleaned from the fact that [the] jury expressed a desire for the court to point out all of the instructions that related to manslaughter."
On February 18, 2010, the People filed written opposition to the new trial motion. The People maintained the heat of passion analysis of CALCRIM No. 570 consists of a subjective prong and an objective prong. As to the latter prong, the People maintained the prosecutor "argued, generally, that a person of average disposition placed in these circumstances would have operated from judgment and not passion and therefore would have walked away or dealt with the situation in a more restrained manner." The People also noted that the prosecutor relied on a PowerPoint presentation in his argument and projected portions of the actual language of CALCRIM No. 570 onto a courtroom screen. The People attached photocopies of those PowerPoint slides to the written opposition to new trial motion.
On February 23, 2010, the court conducted a contested hearing on the new trial motion and appellant's counsel set forth the crux of his argument:
"[W]hat [the prosecutor] is saying is that would a reasonable man have killed his wife? And that's not, that is simply not the law. The law is was the provocation such that the man would have been thinking rationally rather than from reason, and once that is established, how the person responds to that rash thinking. It doesn't have to be how a reasonable
person would respond, it's whether a reasonable person would have responded rationally and his thought process would have been disturbed to the point that he would engage in irrational thinking, not whether the same person, whether an objective person would go murder his wife.
"How the person responds to that rash thinking does not have to be objectively reasonable. [W]hat has to be objectively reasonable is that he would be thinking rationally [] because of what the provocation was. That's what has to be objectively reasonable, that's two different things. One is a thought process and the other is his actions. The actions do not have to be objectively reasonable, his thought process in the sense of being affected so that he's acting rationally, that has to be objectively reasonable."
At the hearing on the motion for new trial, the court and counsel discussed CALCRIM No. 570 [voluntary manslaughter; heat of passion] and People v. Moye (2009) 47 Cal.4th 537 (Moye), in which the Supreme Court reviewed the sudden quarrel/heat of passion theory of voluntary manslaughter. CALCRIM No. 570 states in relevant part: "The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." (Italics added.) At this point in the exchange, the court reporter began transcribing the word "rationally" in lieu of the word "rashly." We cannot determine from the record whether this was due to indistinct pronunciation by the court and/or counsel or due to misperception and/or incorrect transcription on the part of the court reporter. In any event, a review of the reporter's transcript of the hearing on the motion for new trial reveals that while use of the word "rationally" may make some sense in the context of some of the discussion, the trial court and counsel were well aware that the operative statutory term was "rashly" and not "rationally."
Defense counsel went on to argue: "[I]t is the cumulative effects of the deceit of actions of Charlotte and Mr. Scott that affected [appellant] in that way. [¶]...[¶] And I think based on all that, that it is a legally justifiable provocation and objectively reasonable provocation and he certainly was provoked, there's no question about that." The court heard additional arguments from both counsel and then read a passage from Moye, supra, 47 Cal.4th 537, regarding the objective and subjective components of the heat of passion theory of manslaughter. Both defense counsel and the prosecutor agreed with the following passage attributed to the Moye opinion:
" '[T]he accused must be shown to have killed while under the actual influence of a strong passion induced by such provocation .... Heat of passion arises [when] at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rationally and without deliberation and reflection and from such passion rather than from judgment.' "
Defense counsel attempted to clarify his position by stating:
"[F]rom an objective standpoint, the provocation has to be such that it would cause a person to think rationally rather than out of reason, the language that is in, in Moye. But it doesn't have to cause a person of average disposition to become homicidal and I think that's what Mr. Frye is arguing."
The prosecutor responded:
"Your Honor ... in looking at the third element, the objective, the provocation would have caused a person of average disposition to act rationally. The focus has been here on the word 'act' but the act is ... the fact that he killed. [W]e are required in arguing to argue exactly what the act was and that's where I do not agree with Mr. Sciandra.
"... I think it's splitting hairs to say, oh, you can talk about whether ... a person of average disposition would become rash or ... lose their ability to judge and not talk about the act itself. I think the instructions themselves required that kind of analysis."
Defense counsel replied: "[W]hat Mr. Frye is arguing [is] that every person who would have seen this would have killed, that's what the average reasonable person would have done and that's not the law."
The court ultimately denied the new trial motion on this ground, explaining:
"[T]he Court finds this to be a very sophisticated and very subtle argument when you being to talk about subjective and objective and work your way through that, that avenue.
"It does not seem to this Court on review of the moving papers[,] the evidence[,] and the Court's recollection of the evidence, and the Court's notes that the Prosecution in this case misargued or incorrectly argued the
law. The Court references ... the instructions were placed not only in the hands of the jury but were used as argument.
"Now, whether there was a word or a phrase that the Prosecution used that may have been contrary, I point out that the jury is instructed to follow the law and ... if what the attorneys say is different in what the law is, is that upon which their instructions they are to follow the law.
"The Court believes the jury adequately followed the law. The Court does not find that the argument of Counsel, in the Prosecution's closing argument was such to create the basis for a new trial."
E. Analysis
On appeal, appellant contends the prosecutor committed misconduct by misstating the law and the trial court erred by refusing to remedy the misstatements of law by way of a supplemental instruction as requested by the defense.
1. Alleged Prosecutorial Misconduct
To constitute a violation of the federal Constitution, prosecutorial misconduct must infect the trial with such unfairness as to make the resulting conviction constitute a denial of due process. Under state law, conduct by a prosecutor that does not render a criminal trial fundamentally unfair constitutes prosecutorial misconduct only if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) " '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 829-830.) A defendant may not make an appellate assertion of prosecutorial misconduct in the trial court unless " 'in a timely fashion - and on the same ground - the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety [Citation].' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 952.) An objection may be excused if it would have been futile or if an admonition would not have cured the harm. (People v. Dykes (2009) 46 Cal.4th 731, 760.)
Appellant contends the prosecutor engaged in misconduct in two respects:
"First, he improperly told the jurors that they could find appellant guilty of murder before they considered the issues of passion and anger, but then 'call it voluntary manslaughter' after they considered the issues of passion and anger. Second, he erroneously contended that the jurors could find appellant guilty of voluntary manslaughter only if they were to find that under the circumstances in this case, a reasonable person would have broken into the victim's house and repeatedly stabbed her to death."
As to the first claim of prosecutorial misconduct, the trial court instructed the jury in CALCRIM No. 200: "You must follow the law, as we discussed early on, as I explained it to you, even if you disagree with it. If you believe that any comments made by the attorneys - comments on the law conflict with my instructions, you must follow my instructions." We presume the jury followed the court's instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) More specifically, the Supreme Court held in People v. Sanchez (1995) 12 Cal.4th 1, 70, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22: "[W]e presume the jury treated the court's instructions as statements of law, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade. [Citation.]" Here, the court instructed the jury in the general principles of homicide (CALCRIM No. 500), murder with malice aforethought (CALCRIM No. 520), voluntary manslaughter (CALCRIM No. 570), and deliberations and completion of verdict forms for multiple levels of homicide (CALCRIM No. 640). Second, the prosecutor highlighted portions of the relevant instructions using a PowerPoint presentation, expressly advising jurors: "I'm going to put up certain portions of the instructions that are important but, really, the instructions need to be considered as a whole."
Third, when defense counsel challenged the prosecutor's expression of the relevant law, the court reminded the jurors of the principles of CALCRIM No. 200 and the prosecutor frankly admitted to the jurors: "Go to the law. That was just my synopsis."
Despite these factors, appellant contends the prosecutor initially misstated the law by telling jurors: "And under certain circumstances if the rage was of such a degree and certain elements are met, then you will say, well, you know what? It was murder, but we're going to call it voluntary manslaughter." Despite appellant's protestations, this comment was the prosecutor's shorthand reference to the following statements in CALCRIM No. 570 as read by the trial judge to the jury: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion .... [¶]...[¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted ... under the direct and immediate influence of provocation, as I have defined it.... [¶]...[¶] If enough time passed between the provocation and the killing for a person of average disposition to, quote, cool off, end quote, and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis." (Italics added.)
In framing his contention, appellant cites to a prosecutor's alleged misstatement of law during argument in People v. Najera (2006) 138 Cal.App.4th 212 (Najera). In Najera, the defendant was charged with first degree murder with personal use of a deadly weapon. The enhancement was dismissed at trial and the jury convicted the defendant of second degree murder. The trial court denied his motion to reduce the conviction to voluntary manslaughter. He appealed, asserting six categories of prosecutorial misconduct during closing argument. One of those categories related to the prosecutor's statements that determination of heat of passion should be based on the defendant's conduct rather than the circumstances in which the defendant was placed. The Fourth Appellate District held an unlawful homicide is upon a sudden quarrel or heat of passion if the killer's reason was obscured by a provocation "sufficient to cause an ordinary person of average disposition to act rashly and without deliberation. [Citation.]" (Id. at p. 223.) The court went on to note:
"The focus is on the provocation - the surrounding circumstances - and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (Ibid.)
The Fourth District held the prosecutor interspersed correct statements of the law with incorrect ones, creating confusion for the jury. Nevertheless, the reviewing court observed the trial court correctly instructed the jury to follow the court's instructions, not the attorneys' description of the law, to the extent there was a conflict. Thus, the Fourth District presumed the jury followed that instruction and affirmed the judgment of conviction.
The Supreme Court has observed: "When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' (People v. Clair [(1992)] 2 Cal.4th [629,] 683, fn.8)." (People v. Osband (1996) 13 Cal.4th 622, 717.) Here, the trial court also gave CALCRIM No. 200, instructing the jury to follow the court's instructions. We must presume the jury followed that instruction. Reversal for alleged prosecutorial misconduct is not required.
2. Failure to Give Supplemental Instructions
Appellant contends the court committed reversible error by failing to correct or remedy the alleged misstatements of the prosecutor.
a. Background of Contention
At the conclusion of arguments, defense counsel requested leave to reopen arguments to address "[w]hether adequate provocation would cause the defendant to act rashly without due deliberation." Defense counsel maintained adequate provocation "has to be the motivating factor to cause a person to act rashly ...." Defense counsel further maintained the prosecution took a different view at argument, i.e., that the provocation would have to cause a reasonable person to commit the particular act. Defense counsel explained:
"[I]t is the motivation for ... acting rashly that has to be caused by adequate provocation. It is not that a person of average disposition would have killed because of that disposition. That's two separate ... things. And I think it's quite well set out in [Coad, supra, 181 Cal.App.3d 1094].... In other words, the District Attorney is saying unless you think the infidelity in this case would have caused ... any person of average disposition to go in and stab his wife and try and kill her lover, then you can't find manslaughter. [¶] ... [¶] ... The law is would a reasonable person have been provoked to act rashly rather than out of deliberation."
Defense counsel requested a supplemental instruction based on the principles of the Coad case. The court declined the request noting (1) the jury had been instructed more than once that arguments of counsel are not evidence; (2) the jurors had been instructed that they were to abide by the instructions given by the court; (3) both counsel encouraged jurors to rely on the court's instructions and their recollections if counsel were to say anything contrary to those instructions and recollections; (4) the jurors requested copies of the murder and voluntary manslaughter instructions; (5) the prosecutor's statements constituted "argument that is properly before the jury"; and (6) the Coad case was "not on all fours with this case at all."
b. The Rule of Coad
In Coad, supra, 181 Cal.App.3d 1094, the defendant was charged with the substantive offenses of possession of a concealable firearm (§ 12021), assault with a deadly weapon while on bail pending felony trial (§§ 245, subd. (a)(1), 12022.1), vandalism resulting in less than $1,000 in damage (§594, subd. (b)(2)), and misdemeanor battery of a police officer (§§ 242, 243, subd. (b)). He was also charged with a prior voluntary manslaughter conviction (§ 667). The substantive crimes arose out of three separate incidents that occurred over a period of eight months. Upon conviction of the charges, defendant appealed, alleging the trial court erroneously allowed the prosecution to impeach his exculpatory testimony with the prior serious felony conviction of voluntary manslaughter. The First District Court of Appeal modified the sentence and affirmed the judgment of conviction.
In discussing the use of a voluntary manslaughter conviction for impeachment purposes, the First District observed:
"A jury presented with the question of adequate provocation is asked to decide whether a reasonable person in the circumstances would have acted out of passion rather than judgment. (See CALJIC No. 8.42 (1979 rev.).) It is not asked to determine that a reasonable person's responsive act would have been an intentional killing. (Ibid.)The law finds mitigation in the motivation for the act but by no means forgives or condones as reasonable the act chosen. The killing is punished (§ 193, subd. (a)), not excused or justified (§§ 195, 197, 199)." (Coad, supra, at p. 1107.)
Appellant contends the trial court's failure to give the foregoing quotation as a supplemental instruction constituted error "because it left the prosecutor's misstatements uncorrected."
A trial court has the duty to instruct the jury on general principles of law. (People v. Booker (2011) 51 Cal.4th 141, 179.) A reviewing court determines the correctness of jury instructions from a reading of the entire charge of the court and not just from a consideration of parts of an instruction or from consideration of a particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) When a criminal defendant claims that instructions were misleading, he or she must show a reasonable likelihood the jury misunderstood the instructions as a whole. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) A reviewing court presumes that jurors are intelligent and capable of understanding and correlating the instructions given by the court. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.)
If a trial court's instructional error violates the United States Constitution, the standard stated in Chapman v. California (1967) 386 U.S. 18, 24, requires the People, in order to avoid reversal of the judgment, to "prove beyond a reasonable doubt that the error ... did not contribute to the verdict obtained." (See People v. Simon (1995) 9 Cal.4th 493, 506, fn. 11.) But if a trial court's instructional error violates only California law, the standard is that stated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), which permits the People to avoid reversal unless "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (See People v. Simon, supra, 9 Cal.4th at p. 506, fn. 11.) Ordinarily, instruction error is assessed under the Watson reasonable probability standard unless the appellant's claim implicates his or her constitutional rights, such as the constitutional right to counsel. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1296, fn. 6.)
Here, the trial court instructed the jury about homicide, murder, and voluntary manslaughter (CALCRIM Nos. 500, 520, and 570) and gave individual copies of those written instructions to the jurors at their request. Given these circumstances, we conclude that the trial court did not err by declining to give the supplemental instruction under Chapman.
II. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY ON THE LESSER - INCLUDED
OFFENSE OF INVOLUNTARY MANSLAUGHTER
Appellant contends reversal is required because the trial court erroneously refused to instruct the jury on the lesser-included offense of involuntary manslaughter. Appellant contends evidence of his posttraumatic stress disorder (PTSD) and dissociative disorder negated the element of malice and supported the giving of an instruction on involuntary manslaughter as a lesser included offense of murder.
Involuntary manslaughter is not a lesser included offense of voluntary manslaughter. (People v. Orr (1994) 22 Cal.App.4th 780, 784.) Involuntary manslaughter is a lesser included offense of murder. (People v. Turk (2008) 164 Cal.App.4th 1361, 1371.)
A. Procedural History
At trial, appellant's expert witness, Albert Howsepian, M.D., Ph.D., testified appellant was suffering from PTSD and dissociative disorder at the time of Charlotte's death. In response to a hypothetical question, Dr. Howsepian testified a person similarly situated to appellant could not have premeditated or deliberated the death of another human being. Dr. Howsepian further testified such a person could not, as phrased by defense counsel, "intentionally commit an act, the natural consequences of that act to be dangerous to human life, and at the time he acted he knew that his act was dangerous to human life and that he deliberately acted with conscious disregard to human life[.]"
At the December 2, 2009, conference on jury instructions, defense counsel requested a jury instruction on involuntary manslaughter on two theories. First, counsel theorized a heat of passion raised to the point where appellant could not consider or form the mental state of intent to kill or have the knowledge that he was engaged in an act that could lead to the death of another. Second, counsel contended appellant suffered from a mental disorder at the time of the incident such that appellant "harbored neither intent to kill nor had the knowledge necessary for the mental state of voluntary manslaughter ...."
The prosecutor opposed the request on the ground that the facts of appellant's case did not satisfy the statutory elements of involuntary manslaughter, i.e., "number one, a lawful act committed in an unlawful manner [or] an unlawful act not amounting to a felony that resulted in death."
The court denied the request for the instruction, stating:
"[I]n reaching its decision not to include involuntary manslaughter as a lesser included offense under the evidence presented in this case, [this court] relies on the plain language of Penal Code Section 192(b) that says involuntary, dash, in the commission of an unlawful act not amounting to a
felony, semicolon, or in the commission of a lawful act which might produce, dash, in an unlawful manner, comma, or without due caution and circumspection, comma, this subdivision shall not apply to acts committed in the driving of a vehicle.
"That, the Court notes, is clear language. The Court does not believe that the CALCRIM instruction dealing with involuntary manslaughter as a lesser included offense carries with it the grace and clarity that the code section itself sets forth.
"Further, as referenced by Mr. Frye [deputy district attorney], the Court has reviewed, as has counsel, People versus Parras, 152 Cal.App.4th 219 [(Parras)].[] This is a June 19, 2007, case from the Fifth District Court of Appeal emanating out of a trial court in this county. Though there are some different nuances regarding unintentional killing committed during the commission of another crime, but it appears to this Court in reviewing that carefully and trying to analyze the case before this Court in light of the instruction provided by the Fifth District Court of Appeal that the elements are not sufficiently in place to bring ... the involuntary manslaughter to the jury as a lesser included offense to Count 1."
In Parras, the defendant was acquitted of second degree murder but convicted of the lesser offense of voluntary manslaughter in the beating death of Raquel Lombera. The jury was instructed on two theories of involuntary manslaughter: (1) that appellant was so drunk he was legally "unconscious" of his actions when he committed the offense (CALJIC No. 8.47) and (2) that appellant was engaged in a lawful acting a criminally negligent manner (CALJIC Nos. 3.36, 8.51). The defendant argued the court committed reversible error by failing to instruct sua sponte on three other theories of involuntary manslaughter: (1) that, if the defendant lacked an intent to kill, the appropriate crime would be involuntary manslaughter; (2) that voluntary intoxication sort of "unconsciousness" might have prevented defendant from forming an intent to kill, thus supporting an involuntary manslaughter verdict; and (3) that an unintentional killing committed during the commission of another crime could be involuntary manslaughter. This court disagreed and affirmed the judgment of conviction. Appellant contends his case is distinguishable from Parras and the trial court improperly relied upon it. While appellant's case is factually distinguishable from that of the defendant in Parras, this court did discuss the general law of involuntary manslaughter in Parras, and the trial court in appellant's case properly relied upon our expression of the governing law.
As noted above, the court instructed the jury on homicide (CALCRIM No. 500), murder (CALCRIM No. 520), and the lesser included offense of voluntary manslaughter based upon provocation and heat of passion (CALCRIM No. 570). The court also instructed the jury in CALCRIM No. 3428 [mental impairment; defense to specific intent or mental state (§ 28)] as follows:
"You have heard evidence that the defendant may have suffered from a mental disorder. You may consider this evidence only for the limited purpose of deciding whether at this time of the charged crime the defendant acted with the intent or mental state required for that crime.
"The People have the burden of providing beyond a reasonable doubt the defendant acted with the required intent or mental state, specifically as to Count 1, malice aforethought.
"If the People have not met this [burden], you must find the defendant not guilty of murder.
"The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state specifically as to Count 2, malice aforethought.
"If the People have not met this burden, you must find the defendant not guilty of attempted murder.
"The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically as to Count 3, entering an inhabited dwelling with the intent to commit a felony. If the People have not met this burden, you must find the defendant not guilty of burglary."
B. Appellant's Contention
Appellant contends he presented substantial evidence of PTSD and dissociative disorder through the testimony of Dr. Howsepian to negate the existence of malice aforethought at the time of Charlotte's death. Therefore, he maintains he was entitled to have the jury instructed on the lesser included offense of involuntary manslaughter.
C. Applicable Law
Involuntary manslaughter is the "unlawful killing of a human being without malice ... in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b)). Involuntary manslaughter is a lesser included offense of murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422.) Involuntary manslaughter is the unlawful killing of a human being without malice aforethought and without an intent to kill. An instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant did not actually form an intent to kill. (People v. Rogers (2006) 39 Cal.4th 826, 884.) Substantial evidence is evidence which a reasonable jury could find persuasive. (People v. Halvorsen (2007) 42 Cal.4th 379, 414.)
D. Analysis
During his testimony in response to defense counsel's hypothetical question, Dr. Howsepian testified a person similarly situated to appellant could not have premeditated the death of another human being or deliberately acted with conscious disregard for human life. After Dr. Howsepian so testified, the court and counsel conferred outside the presence of the jury, and defense counsel initially proposed to ask "did that hypothetical person premeditate or deliberate, or did that hypothetical person harbor malice[?]" Before the proceedings resumed before the jury, defense counsel withdrew that request.
As respondent points out, "the evidence stopped short of addressing the issues of intent to kill and malice." In the absence of such evidence, the court's refusal to instruct on involuntary manslaughter did not constitute error. (People v. Steele (2002) 27 Cal.4th 1230, 1254.) Even if we assume that an involuntary manslaughter instruction should have been given, the failure to do so did not constitute reversible error. The erroneous omission of a jury instruction on a lesser included offense compels reversal only when an examination of the entire record establishes a probability that the error affected the outcome. (People v. Breverman (1998) 19 Cal.4th 142, 165.)
In this case, direct and circumstantial evidence established that appellant entered Charlotte's Clovis home, went into her bedroom and stabbed her to death through the infliction of numerous wounds. Although the court did not instruct on involuntary manslaughter (CALCRIM No. 580), the court did instruct on mental impairment (CALCRIM No. 3428). The latter instruction called upon the jury to consider evidence of appellant's mental disorder for "the limited purpose of deciding whether at [the] time of the charged crime the defendant acted with the intent or mental state required for that crime." By finding appellant guilty of murder, the jury implicitly concluded that evidence of PTSD and dissociative order did not negate the mental state for murder.
The trial court did not commit reversible error by failing to instruct in involuntary manslaughter as a lesser included offense of murder.
III. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY ADMITTING HEARSAY STATEMENTS OF THE HOMICIDE VICTIM ABOUT APPELLANT'S PRIOR ASSAULTIVE CONDUCT AND THREATS
Appellant contends the trial court committed reversible error by admitting Charlotte's hearsay statements that appellant had assaulted her and threatened to kill her.
A. Procedural History
Prior to trial, appellant moved in limine to exclude evidence of acts of violence by appellant against Charlotte before the evening of the homicide. Appellant asserted such evidence would be irrelevant and prejudicial. At a pretrial hearing, the court indicated it would exclude statements or physical evidence relating to acts of violence by appellant, but noted its ruling was "subject to change." On November 24, 2009, during trial, the court and counsel met outside the presence of the jury. The prosecutor noted that Charlotte made statements to Jennifer Pluto and Sadon Scott on April 20, 2008. Charlotte allegedly told Pluto and Scott that appellant pushed or threw her to the ground, she hit her head, she and appellant engaged in a scuffle, and then she contacted Pluto and Scott. The trial court tentatively ruled the statements were nontestimonial for purposes of Crawford v. Washington (2004) 541 U.S. 36 (Crawford)and then conducted an Evidence Code section 402 hearing at which Pluto and Scott testified. Testimony of Jennifer Pluto
On appeal, appellant does not contend that Charlotte's hearsay statements were admitted in violation of his rights under the Confrontation Clause of the Sixth Amendment and Crawford.
Jennifer Pluto testified she had known Charlotte since they were both nine years of age. Pluto said they would speak to each other twice a week and see one another once a month during the six-month period before Charlotte died. They spoke almost daily in the two weeks before Charlotte's death. At one point in their lives, Pluto and Charlotte shared an apartment, and appellant told them he had broken into the premises. Pluto and Charlotte had plans to meet on April 20, 2009, and go shopping at a mall. They had originally planned for Charlotte to pick up Pluto from the latter's home between 11:30 a.m. and noon. When Charlotte failed to arrive as scheduled, Pluto contacted her via cell phone. They spoke between 5 and 10 minutes. Pluto said Charlotte was sobbing. Charlotte said her husband threw her to the ground, caused her to hit her head, and he threatened to kill her if she "left him this time." At the time of the call, Charlotte was in her vehicle at a park in the vicinity of her home.
Charlotte eventually told Pluto she would talk to her later because she was on the other phone line. Pluto told Charlotte she should call the police. Pluto said she met Charlotte at the mall about four hours later. She had calmed down at that point and they went shopping. Charlotte told Pluto she had contacted the police but did not tell them about appellant's threat to kill her.
Pluto also said she visited Charlotte at the latter's new house in Clovis. Pluto said Charlotte did not appear to be frightened of appellant at that time. Pluto said she was aware of Charlotte's relationship with Sadon Scott beginning in December 2008. Pluto said she spoke with Clovis Police Officer Max Garces after Charlotte's death and said the Ellises had problems in their marriage, but Pluto was not aware of any physical violence prior to the April 20, 2008, incident. Pluto also told Garces about one occasion when appellant physically grabbed Charlotte, put her in a car, and drove away. Testimony of Sadon Scott
Sadon Scott testified something happened between Charlotte and appellant about a week after she moved out, but he could not recall the exact date. Scott first learned of the incident when Charlotte called him. She was crying and upset. Charlotte told Scott that appellant had thrown her down and she hit her head. Charlotte said appellant was upset that she wanted to leave him. According to Charlotte, appellant said, " 'You're not going to leave me. I'll kill you. No one is going to have you.' " Charlotte told Scott the incident occurred "[a] little while ago."
About a half-hour after the call, Scott met Charlotte behind a grocery store that was located a half-mile from Charlotte's Clovis home. Scott said they met in a car and Charlotte was crying, scared, and upset. Charlotte told Scott that she was scared, that appellant had hurt her, and that he had threatened to kill her. Scott told Charlotte that appellant was "just saying that to scare you so you don't leave. You need to just call the police." Scott said that Charlotte accepted his answer, and he later saw police cars at her Clovis residence when he drove home. Scott said on the evening of the incident, he did not tell Officer Garces or any other officer that appellant had threatened to kill Charlotte before.
After hearing the arguments of counsel, the court ruled:
"The Court, as the finder of fact, is convinced in listening to the testimony of Ms. Pluto that the comments made on the telephone, the initial telephone call, were spontaneous statements. And if you look, a spontaneous statement is one made without deliberation or reflection, and
was that declaration sufficiently reliable to be admissible. What is the mental state of the speaker[?]
"[T]he Court finds the telephone conversation between Charlotte and Ms. Pluto and the initial telephone conversation between Mr. Scott and Ms. Ellis to be both credible and spontaneous. [¶] ... [¶]
"[T]he Court believes that the initial statement between Charlotte and Ms. Pluto on the telephone would be admissible. [¶] The Court believes the first statement of Mr. Scott and Ms. Ellis [on the telephone] would be admissible under [Evidence Code section 1240]."
After the court's Evidence Code section 402 ruling, Pluto and Scott testified about their phone conversations with Charlotte.
B. Appellant's Contention
Appellant contends the trial court abused its discretion in admitting Charlotte's statements under Evidence Code section 1240 because nothing in the record indicated (a) that Charlotte's statements were made at or shortly after the time of the alleged altercation with appellant; (b) that Charlotte had no time to reflect between the time of the alleged altercation and the calls to Pluto and Scott; and (c) that Charlotte was in such an excited state that she was unable to reflect or deliberate at the time of her phone call.
C. Applicable Law
Evidence Code section 353 states:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
"(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
"(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."
A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.) A trial court's erroneous admission of evidence does not require reversal unless it is reasonably probable defendant would have obtained a more favorable outcome had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878.)
D. Analysis
Appellant offers a lengthy discussion of the elements of Evidence Code section 1240, dealing with the spontaneous declarations exception to the hearsay rule. We need not discuss or determine the applicability of that statute in this case. Even if the trial court erroneously admitted Charlotte's statements through the testimony of Jennifer Pluto and Sadon Scott, we cannot conclude the admission of that evidence resulted in a miscarriage of justice (Cal. Const., art VI, § 13) or rendered appellant's trial so " 'fundamentally unfair' " that it constituted a deprivation of due process. (People v. Holloway (2004) 33 Cal.4th 96, 128.) The prosecution marshaled strong and graphic physical and circumstantial evidence inculpating appellant in the homicide of Charlotte, and it is not reasonably probable a result more favorable to appellant would have occurred had the trial court excluded evidence of Charlotte's statements to Pluto and Scott. (People v. Rains, supra, 75 Cal.App.4th at p. 1170.)
IV. THE TRIAL COURT DID NOT COMMIT REVERSIBLE EVIDENTIARY ERROR BY ALLOWING THE PROSECUTION TO CROSS-EXAMINE APPELLANT AND INTRODUCE REBUTTAL EVIDENCE ABOUT HIS EXTRAMARITAL RELATIONSHIPS
Appellant contends the trial court erroneously allowed the prosecution to cross-examine appellant about his extramarital relationships and to introduce rebuttal evidence on that subject.
A. Procedural History
Prior to trial, appellant moved in limine to exclude evidence of alleged sexual misconduct by appellant. Appellant defined such conduct to include frequenting bars with other women, viewing sexually explicit Internet sites, and solicitation or involvement with prostitutes. Appellant maintained such evidence was irrelevant and prejudicial. At a contested hearing on the motion, the prosecutor suggested that "extra marital types of things would be ... fertile ground for cross-examination of Dr. Howsepian as to his opinions." The court excluded such evidence but noted that the testimony of a defense witness might make it relevant for cross-examination or impeachment.
Before Dr. Howsepian took the stand, appellant testified on his own behalf. He said it disturbed him when he learned that Charlotte had affairs with other men. When asked what he wanted out of his marriage to Charlotte, appellant said, "A good family. A wife that will stand by you no matter what. Me to stand by her. To grow old with someone and have kids and love our kids and see them grow up together." On cross-examination, appellant said that Charlotte had affairs with other men and acknowledged that he was bothered by her lack of fidelity. Appellant said it was important for him to be faithful to her but, in response to questioning by the prosecutor, admitted two affairs. He said one affair involved both Charlotte and Jennifer Pluto and the other affair involved a woman in Las Vegas.
On redirect examination, appellant said Charlotte had invited Pluto to join appellant and her in a sexual "threesome." Appellant also said he sometimes looked at advertisements for erotic services. On one occasion at a local bar he recognized a woman whose photograph had appeared on Craigslist. He talked to the woman but she denied that her photo appeared there.
After appellant testified, the court and counsel met outside the presence of the jury. The court summarized the sequence of events leading to appellant's testimony about extramarital affairs, noted that defense counsel had properly and timely lodged an objection to the testimony, and further noted that court and counsel agreed to make a record outside the presence of the jury. Defense counsel interposed objections based upon Evidence Code section 352 and the U.S. Constitution. Counsel maintained the evidence of extramarital affairs were totally irrelevant and purely prejudicial. The prosecutor argued that the evidence of affairs related to the anticipated testimony of defense expert Howsepian who, in the words of the prosecutor, "essentially has taken the position that the [victim was] ... the one person he was looking toward for comfort out of Terrell's death .... [¶] Well, the fact that a person is having other liaisons would suggest otherwise. And that's the underlying relevance."
After hearing the arguments of both counsel, the court overruled the defense objection, stating:
"The Court certainly agrees that . there's some prejudice [from] the specter of any kind of marital relationship.... [¶] ... [¶]
"I believe on balance that it was sufficient probative value. I believe on balance, certainly, the comments about the - the anticipated comments about Ramona and Lena [the purported parties to appellant's extramarital relationships], as they were referred to by the questioners, frankly were far more mundane, if you will, than the Court has anticipated based on our discussion. So the Court does believe it entertained the appropriate balancing under [Evidence Code section] 352.
"I will accept the blanket due process Federal objection for the record but do not believe ... that the prejudice outweighed the probative value. It will be [up] to the jury ... how they might evaluate the activities testified to and cross-examined on as part of their purview."
Citing "sufficient probative value," the court admitted the evidence and subsequently instructed the jury in CALCRIM No. 303 [limited purpose evidence in general] as follows:
"During the trial certain evidence regarding marital infidelity was admitted for the limited purpose of establishing the state of mind of
Defendant Mr. Ellis. You may consider that evidence only for that purpose and for no other."
As noted in the statement of facts, Dr. Howsepian testified at length on appellant's behalf and stated at one point:
"Losing her [Charlotte] was emotionally, for him [appellant], tantamount to reliving, at an emotional level, the loss of his son. And losing her at an emotional level caused him [to] feel like he is being resigned to forever living with these feelings that he can't, on his own, handle, and he doesn't want to go to anyone else for the help because it's so painful to talk to anyone, or maybe they don't understand.... There was a symbolic emotional sense of loss. Really, loss of his son, the loss of his wife, the loss of any hope for his own recovery, and a loss of, really, everything that was important to him."
Jane Doe testified on rebuttal under a grant of use immunity. Jane Doe said she first met appellant at a nightclub. Appellant asked her whether she was Brittany from Redbook, an escort website for dancing. Doe said she was not Brittany but later communicated with appellant by phone and e-mail. Appellant said he was interested in booking Doe's dancing services. Although appellant did not ultimately book any such services, he did offer to exchange an apartment for Doe's services, but she declined.
B. Appellant's Contention
Appellant contends the trial court abused its discretion by permitting the prosecutor's cross-examination of appellant and the testimony of rebuttal witness Jane Doe because they concerned an irrelevant and prejudicial topic. He submits the evidence about his own experiences with extramarital affairs was irrelevant "because it neither contradicted any of appellant's testimony about his feelings toward Charlotte, nor did it logically disprove the defense theory that appellant killed Charlotte while under the influence of his PTSD and dissociative disorder. Moreover, the evidence was unduly prejudicial, insofar as it tended to portray appellant as an unfaithful husband and a solicitor of prostitutes who had little regard for the sanctity of his marriage, thereby defaming appellant's character."
C. Applicable Law
Evidence Code section 352 states:
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. (Evid. Code, § 352; People v. Douglas (1990) 50 Cal.3d 468, 509, dispproved on another point in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) "On appeal, an Evidence Code section 352 ruling is subject to the deferential abuse of discretion standard of review. [Citation.] Only if the record shows an exercise of discretion in an arbitrary, capricious, or patently absurd manner that caused a manifest miscarriage of justice will an Evidence Code section 352 ruling be overturned. [Citation.]" (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1081.)
Once again, no judgment shall be set aside in any cause, on the ground of the improper admission of evidence, unless, after examination of the entire cause, including the evidence, the court shall be of the opinion the error complained of has resulted in a miscarriage of justice. A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached absent the error. (People v. Rains, supra, 75 Cal.App.4th at p. 1170.)
D. Analysis
We need not address appellant's claim of an alleged abuse of discretion by the trial court in rendering its evidentiary ruling. Even if the trial court erred, we cannot conclude the prosecutor's cross-examination of appellant and the testimony of rebuttal witness Jane Doe caused a miscarriage of judgment (Cal. Const., art. VI, § 13) or rendered appellant's trial so " 'fundamentally unfair' " as to constitute a deprivation of due process. (People v. Holloway, supra, 33 Cal.4th at pp. 128-129.) This is particularly true where the court gave an appropriate limiting instruction (CALCRIM No. 303) directing the jury to consider evidence of marital infidelity solely for the purpose of establishing appellant's state of mind. An appellant must show, absent the error, it is reasonably probable a more favorable result would have been reached at trial. Prejudice is never presumed; it must be affirmatively demonstrated. (People v. Zunis (2005) 134 Cal.App.4th Supp. 1, 4.) Appellant has not made such a showing in the face of extremely strong prosecution evidence of guilt of the charged offenses. Reversal for alleged evidentiary error is not warranted.
DISPOSITION
The judgment is affirmed.
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Poochigian, J.
WE CONCUR:
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Cornell, Acting P.J.
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Franson, J.