Opinion
A149764
11-07-2018
THE PEOPLE, Plaintiff and Respondent, v. GREGORY D. GADLIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 167072)
Defendant Gregory D. Gadlin was convicted of first degree murder with personal use of a firearm (Pen. Code, §§ 187, subd. (a), 12022.7, subd. (a), 12022.53, subds. (b), (c) & (d), 12022.5, subd. (a)) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). On appeal, defendant contends the first degree murder verdict is not supported by substantial evidence under either felony murder based on robbery or premeditation and deliberation. He also argues the trial court erred by admitting unreliable toolmark identification testimony, giving a flight instruction, and imposing improper victim restitution award and costs.
All statutory references are to the Penal Code unless otherwise noted.
We conclude the verdict is supported by substantial evidence. Nor do we find any error in the court's decision to allow the expert testimony on toolmark identification, the issuance of a flight instruction, or the victim restitution award. We do, however, find the probation investigation fee should be stricken because there is insufficient evidence of defendant's ability to pay. Accordingly, we strike the $250 probation investigation fee but otherwise affirm the judgment.
I. BACKGROUND
Evan Meisner met defendant shortly before he moved out of a home he shared with a former girlfriend. Meisner was in the process of cleaning out the home and had placed a mini-refrigerator on the curb. Defendant's wife asked Meisner if she could have the mini-refrigerator, and he agreed. Defendant and Meisner subsequently met and talked, and defendant helped move the refrigerator back to defendant's apartment in the neighboring apartment complex.
In mid-March, Meisner located a new apartment and needed to pay rent of approximately $600 on April 1. Meisner had received a quarter-pound of marijuana for doing a $600 handyman job and decided to sell it for rent money. The marijuana was low quality and packaged in one large plastic "turkey bag." One of his new roommates lent Meisner a scale so he could weigh and portion the marijuana into one-ounce packages.
The record contains various descriptions of the purchaser of the marijuana. One friend recounted Meisner stated he was meeting a big Black man from Meisner's new neighborhood who had recently been released from prison. Meisner told another friend he was meeting a neighbor who was "black, bigger than him," and "recently released from incarceration and was on parole." Meisner stated he knew where the neighbor lived and had known him for a few weeks. The evening of the arranged transaction, Meisner informed his new roommates he was "going to see [his] best friend and just get this done."
Around midnight on the evening of the planned sale, Meisner informed his housemates he was going to make the sale and would return in 15 or 20 minutes. Meisner placed his open beer in the refrigerator, walked to his bedroom, and emerged carrying a basket full of laundry. He left the house driving his truck. Approximately eight calls between Meisner's phone and a cell phone used by defendant were made between 12:13 a.m. and 1:29 a.m. When Meisner did not return after about an hour, his roommates made multiple calls to Meisner, all of which went unanswered.
Around 1:40 a.m., Willie Carter and Rodney Fisher, both of whom resided in the apartment complex neighboring Meisner's former home, reported hearing a gunshot. Carter did not think much of it. Fisher went outside to check on his car, which he had parked in the driveway of Meisner's former home with Meisner's approval. While checking on his car, he saw Meisner's truck parked behind his vehicle. He also testified he saw an individual, who he believed was defendant, run and jump over the fence separating Meisner's yard from a park that abutted the property. Fisher immediately returned to his apartment after seeing defendant.
The defense offered contradictory testimony regarding that evening. Defendant's stepson and wife, who live with defendant, both testified they never heard a gunshot and did not believe defendant left their apartment. Defendant's wife also testified she answered defendant's phone when it rang in the middle of the night and called it a few times to see whether it was a girl calling defendant. However, in a prior statement to the police, she acknowledged she did not know whether defendant left because she takes sleep medication that "knocks [her] out." She also informed police that after she fell asleep that evening she did not wake up again until the morning.
The next morning, the property owner of Meisner's former home arrived to meet a "window guy." She was surprised to see Meisner's truck and another car parked in front of the house because it was supposed to be vacant. The security door was ajar and the door unlocked. The property owner saw Meisner lying face down and called 911. The house had no signs of forced entry.
Meisner was pronounced dead when police and paramedics arrived. He had been shot once in the left side of the neck at close range and died immediately. His body was face down on the floor between the kitchen and a back bedroom. Blood spatter was located on the lower part of the door jamb and the door, and the evidence indicated Meisner had been shot where he was found. A single bullet casing from a Winchester nine-millimeter Luger was located in the bedroom behind Meisner's legs. His pants had been pulled down below his buttocks and one shoe was removed. The marijuana and Meisner's wallet, truck keys, and cell phone were not located in the house.
The same morning Meisner's body was found, defendant arranged to sell his cousin a large quantity of marijuana for $300, claiming it was worth $600. The marijuana was of poor quality and packaged in small bags inside a larger see-through bag. Defendant testified he had received the marijuana from a neighbor.
Approximately one week later, defendant was arrested on unrelated charges and a parole violation. The evening of his arrest, defendant made a telephone call from the booking area to a childhood acquaintance. Defendant requested that his acquaintance go to his car and remove something located under a box in the trunk. He stated it was "very important." The acquaintance did not follow defendant's instructions. The next day the police located defendant's car. The car appeared to be locked although one window may have been slightly ajar. The police discovered a loaded Taurus nine-millimeter gun in the car's trunk under a box. The box contained personal papers and other materials belonging to defendant. Defendant testified the gun did not belong to him, but rather was placed there by a local gang, and he was warned not to touch it. The toolmarks unique to the firearm matched those on the bullet fragment recovered from Meisner's body and the casing recovered from the crime scene.
Defendant was convicted of first degree murder and possession of a firearm by a felon. This timely appeal followed.
II. DISCUSSION
Defendant raises various challenges to his conviction. First, defendant contends the first degree murder conviction is not supported by sufficient evidence. Second, defendant argues the trial court erroneously admitted unreliable expert testimony regarding toolmark identification. Third, defendant challenges the trial court's instruction on flight. Finally, defendant disputes the victim restitution award and the order to pay a probation investigation fee. We address each argument in turn. A. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to sustain a first degree murder conviction on theories of felony murder predicated on robbery or express malice. We disagree.
Our review of any claim of insufficiency of the evidence is limited. " ' "When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." ' " (People v. Hill (1998) 17 Cal.4th 800, 848-849.) The same standard of review applies when a conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) An appellate court does not reweigh the evidence, reassess witness credibility or resolve factual questions. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " (People v. Thomas (1992) 2 Cal.4th 489, 514.)
"Substantial evidence, of course, is not synonymous with 'any' evidence." (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871.) Rather, it is "evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) The focus is on the quality, not the quantity, of the evidence. (Ibid.)
1. Felony Murder Predicated on Robbery
Defendant argues the prosecution failed to prove felony murder predicated on robbery because insufficient evidence demonstrated defendant forcibly took property from Meisner or, if defendant did so, that defendant formed an intent to steal prior to Meisner's murder.
Under the felony-murder rule, a murder "committed in the perpetration of, or attempt to perpetrate" one of several enumerated felonies, including robbery, is first degree murder. (§ 189.) "[R]obbery is the taking of 'personal property in the possession of another, against the will and from the person or immediate presence of that person, accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property . . . .' [Citation.] Both robbery and felony murder based on robbery require that the intent to rob arise before force or fear is applied. Thus, '[i]f the defendant does not harbor the intent to take property from the possessor at the time he applies force or fear, the taking is only a theft, not a robbery.' [Citation.] Similarly, 'an intent to steal that arises after the infliction of the fatal wounds cannot support a felony-murder conviction.' " (People v. Burney (2009) 47 Cal.4th 203, 253, italics omitted.) The mental state required to prove felony murder is the specific intent to commit the underlying felony. (People v. Pollock (2004) 32 Cal.4th 1153, 1175.)
Defendant argues there is no substantial evidence property was stolen from Meisner. He contends Meisner may have sold the marijuana before going to his former residence. We do not agree. The prosecution introduced evidence Meisner planned to sell a quarter-pound of poor quality marijuana, packaged in one large plastic "turkey bag" and valued at approximately $600 on the evening of his murder. Meisner told his housemates he was leaving to sell the marijuana. Meisner stated he would be back in 15 or 20 minutes, placing his open beer in the refrigerator. He used his cell phone after leaving his house and continued to use it until shortly before a gunshot was heard by his former residence. Meisner drove himself to his former residence. And testimony indicated he typically carried his cell phone and wallet on his person. The following morning when Meisner's body was discovered, the marijuana and his wallet, cell phone, and truck keys were missing, and there was no money from any alleged sale.
From this evidence, the jury could have reasonably concluded Meisner was planning to only go to the agreed location for the drug transaction and then return. The jury also could have reasonably concluded Meisner had the marijuana, his wallet, his cell phone, and his truck keys when he arrived at his former residence.
Defendant also was connected to the robbery and murder through various pieces of evidence. The morning after Meisner's murder, defendant sold a large quantity of poor quality marijuana, packaged similarly to Meisner's marijuana, and allegedly valued around $600. Defendant closely matched the description given by Meisner of the individual he was meeting: a neighbor (albeit from his old neighborhood rather than his new one), who he had known for a few weeks and was "black, bigger than him," and "recently released from incarceration and was on parole." Beginning shortly after Meisner left his house and continuing until shortly before neighbors reported hearing a gunshot, approximately eight calls were made between Meisner's cell phone number and a cell phone number used by the defendant. A neighbor reported seeing defendant run and jump over a fence away from Meisner's former home on the night of the murder. And defendant, following his arrest, requested an old acquaintance dispose of a gun hidden in his car, which was subsequently identified as the murder weapon.
Based upon this evidence, the jury could reasonably have found Meisner met defendant to sell him the marijuana, and defendant decided instead to rob Meisner of the marijuana and his wallet, truck keys, and cell phone. (Accord People v. Hughes (2002) 27 Cal.4th 287, 357 [where a defendant kills a victim and the victim's property is no longer on the victim's person, the trier of fact may reasonably infer that the killing was for purposes of robbery]; People v. Maury (2003) 30 Cal.4th 342, 402.) The lack of any marijuana on Meisner's person, along with defendant's sale of a similar amount and quality of marijuana to his cousin the following morning, supports such an inference. (See People v. Castro (2006) 138 Cal.App.4th 137, 140 [" '[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences might have reached a contrary conclusion.' "]; People v. Harris (2013) 57 Cal.4th 804, 851 ["That the evidence may also support another scenario does not render the evidence insufficient to support the verdict."].)
Defendant next argues the prosecution failed to demonstrate defendant formed an intent to steal prior to Meisner's death. Rather, the marijuana and other items could have been taken as an afterthought.
Reasonable inferences support the jury's conclusion the robbery was not incidental to the murder. There is no evidence defendant had a motive or reason to kill Meisner other than to facilitate the robbery. (See, e.g., People v. Moore (2011) 51 Cal.4th 386, 408 ["The evidence suggested no motive, spontaneous or otherwise, for defendant to attack and kill Nicole, other than to facilitate his theft."].) The sole purpose of their meeting was to engage in a drug transaction, and Meisner and defendant had no history that would give rise to an underlying motive for murder. The possibility defendant might have taken the marijuana and other items after Meisner's murder does not necessarily mean defendant formed the intent to do so after he killed Meisner. It is well established that "when one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery." (People v. Turner (1990) 50 Cal.3d 668, 688; see People v. Valencia (2008) 43 Cal.4th 268, 290 [" 'Murders are commonly committed to obtain money or other property.' "]; People v. Hughes, supra, 27 Cal.4th at p. 357 [" 'If a person commits a murder, and after doing so takes the victim's wallet, the jury may reasonably infer that the murder was committed for the purpose of obtaining the wallet, because murders are commonly committed to obtain money.' " (italics omitted)].) An inference defendant formed the intent to rob Meisner before his death was a reasonable one. Accordingly, despite contrary inferences that might be drawn from the record, substantial evidence supports the jury verdict on first degree murder based on a robbery-felony-murder theory.
Defendant speculates the murder may have been the result of a struggle rather than a robbery. First, conflicting evidence was presented as to whether a struggle occurred. While a sheriff's technician expressed a "personal opinion" there had been a struggle, the forensic pathologist testified Meisner had no defensive wounds nor trauma to his body. The jury reasonably could have concluded no such struggle occurred. Second, even if a struggle did occur, that struggle could have been related to the robbery. While Meisner informed a friend that he would not resist if the purchaser attempted to rob him of the marijuana, perhaps he decided to resist when the purchaser attempted to rob him of his cell phone, truck keys, and wallet.
2. First Degree Malice Murder
Defendant argues substantial evidence does not support the jury's verdict convicting him of first degree murder because there is no substantial evidence of premeditation and deliberation. We disagree.
" 'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.] "The process of premeditation . . . does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .' " ' " (People v. Halvorsen (2007) 42 Cal.4th 379, 419.)
Premeditation and deliberation can be established through three types of evidence. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) First, a jury can infer premeditation and deliberation from evidence of planning activity. For example, facts about activity the defendant engaged in before the killing can support a jury's finding that a defendant acted with premeditation and deliberation. (Ibid.) Second, evidence of a defendant's motive, as shown by evidence of a defendant's previous relationship or conduct with the victim, can lead a trier of fact to infer premeditation and deliberation. (Id. at p. 27.) Third, evidence about the manner of the killing can also allow the fact finder to infer the defendant acted with a predetermined plan to kill the victim. (Ibid.) No particular combination of these factors must be present in any given case, nor need they be accorded any particular weight. (People v. Sandoval (2015) 62 Cal.4th 394, 424.) Our Supreme Court has clarified the Anderson guidelines are intended to be descriptive and to provide appellate courts with "one framework for reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation." (People v. Solomon (2010) 49 Cal.4th 792, 812; Sandoval, at p. 424.)
The record in this case—and reasonable inferences therefrom—contain substantial evidence of premeditation and deliberation. First, defendant went to the drug transaction armed with a loaded gun. In People v. Young (2005) 34 Cal.4th 1149, 1183, the Supreme Court held "the jury could infer that defendant 'considered the possibility of murder in advance' and intended to kill" based on the defendant's "planned entry into the house with a loaded gun in his hand." While defendant argues possession of a loaded gun does not support such an inference, neither of the cases defendant cites contradicts this proposition. In People v. Bland (1995) 10 Cal.4th 991, the Supreme Court concluded, in part, a defendant was "armed with a firearm in the commission" of a felony drug offense if a weapon was kept with the illegal drugs. (Id. at pp. 1005-1006.) The court's dicta that drug dealers may use firearms for various purposes does not negate the Supreme Court's subsequent statement in Young that a jury can infer an intent to kill based on the defendant carrying a loaded gun. (Id. at p. 1182.) Similarly, in People v. Campbell (2015) 233 Cal.App.4th 148, one defendant shot and killed an individual during a robbery committed by other defendants. (Id. at p. 151.) The court did not discuss the intent or implication of the defendant carrying a gun. Rather, it merely assessed the defendant's conflicting statements on why he was carrying a gun to determine whether the trial court should have instructed on a lesser offense. (Id. at p. 164.)
Next, the jury could infer from the available evidence that defendant had a motive to kill Meisner. Defendant sold a similar bag of marijuana to his cousin the morning following Meisner's murder. The marijuana was similar to Meisner's in packaging, quality, and value. The jury could have drawn the reasonable inference defendant premeditated the killing in order to rob Meisner and sell his marijuana. (See People v. Valencia, supra, 43 Cal.4th at p. 290 [" 'Murders are commonly committed to obtain money or other property.' "].)
Finally, the manner in which the murder took place provides convincing evidence on which to base a finding of premeditation and deliberation. Meisner was shot at close range to the neck below his left ear. There were no defensive wounds or trauma on his body. In People v. Bloyd (1987) 43 Cal.3d 333, 348, evidence of shots to a victim's head and the absence of evidence of defensive wounds was found to "describe[ ] actions that were cold and calculated" sufficient to justify a finding of premeditation. Similarly, in People v. Hawkins (1995) 10 Cal.4th 920, 957, abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101, the court found evidence of an execution-style murder sufficient to sustain a first degree murder verdict. Here too, the evidence showed a close range shot to the neck and, arguably, no sign of a struggle. When asked how life- threatening this type of injury would be with or without medical attention, the pathologist responded "100 percent mortality." This method of killing was "sufficiently ' "particular and exacting" ' to permit an inference that defendant was 'acting according to a preconceived design.' " (People v. Halvorsen, supra, 42 Cal.4th at p. 422.)
In summary, there is substantial evidence upon which a rational trier of fact could find beyond a reasonable doubt that defendant had the requisite specific intent, and acted with premeditation and deliberation, to murder Meisner. Accordingly, we conclude the evidence is sufficient to support defendant's conviction. B. Firearm Toolmark Identification
There is no dispute both theories underlying the first degree murder conviction related to a single crime. Unanimity is only required for finding " 'the defendant . . . guilty of a specific crime.' " (People v. Webb (2018) 25 Cal.App.5th 901, 905.) " '[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis, or as the cases often put it, the "theory" whereby the defendant is guilty.' " (Ibid.) Accordingly, we need not assess whether the jury unanimously agreed on either theory because jurors only needed to find defendant guilty under one theory and both are supported by sufficient evidence. (See People v. Ortiz (2012) 208 Cal.App.4th 1354, 1375 [" 'It is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of [a crime] as that offense is defined by statute, it need not decide unanimously by which theory he is guilty.' "].)
Defendant contends the court erred in failing to exclude a firearms expert from testifying, or, at a minimum, limiting the scope of that testimony on toolmark identification, because such testimony was not reliable or accepted by the general scientific community. As a result, defendant contends admission of that testimony violated evidentiary law and his right to due process. We disagree.
1. Relevant Factual Background
Todd Weller was an Oakland Police Department criminalist, who compared the cartridge and bullet fragments with the firearm recovered from defendant's car. Defendant anticipated the prosecution calling Weller as an expert in the field of firearms examination and filed a motion in limine to exclude his toolmark identification testimony. Defendant argued a 2009 report issued by the National Research Council of the National Academy of Science, entitled Strengthening Forensic Science in the United States: A Path Forward (hereafter 2009 NRC report) constituted a material change in the prevailing scientific opinion on toolmark identification. Because of changing scientific perceptions of toolmark identification, defendant argued such an analysis is no longer reliable and is inadmissible.
At the hearing on defendant's motion, the prosecutor noted Weller would not be providing a statistical analysis of whether the toolmarks from the gun matched those on the casing and fragments. However, the prosecutor argued Weller should be allowed to state his opinion of certainty. The court ruled percentages of certainty would not be appropriate, but deferred ruling on "how he couches his words as to whether he's confident or not." The court indicated it would rule on any objections made during Weller's testimony as appropriate.
At trial, Weller was presented as an expert criminalist qualified to analyze and give an opinion on the comparison of firearms, bullets, and casings. During voir dire of Weller's qualifications, defense counsel vigorously questioned Weller on the 2009 NRC report and the reliability of toolmark identification analyses. Weller acknowledged toolmark identification is based on an individual's visual comparison, and there is no computer model that can perform the analysis. Weller also acknowledged there is no industry standard regarding how many points of similarity are required to find a match between a gun and a casing or bullet. However, Weller stated if another examiner reviewed the material, he was "confident that other examiner [sic] would get the exact same result I obtained. These types of tests have been studied by our profession, they're called validation studies, and they've been done for decades, a long time." The court accepted Weller as an expert in firearms identification and analysis of firearms, bullets, and casings.
Weller proceeded to testify for the prosecution. He described the manufacturing process of firearms to explain how two guns of the same make and model would leave distinct microscopic toolmarks. He then testified, based on various marks, both striations and impressions, that the firearm recovered from defendant's vehicle fired the casing and bullet collected from the crime scene. Weller testified he was "completely confident" in his conclusion. In discussing the similar markings, Weller explained, "So part of the training of a firearms examiner is to purposefully look at what we call known matches. These are samples that I know come from the same firearm, and known non-matches, samples that I know come from different firearms. And in non-matching cases, this level or amount of agreement is unexpected. It's considered a practical impossibility. Whereas this level of agreement is what I do expect to see in matching casings. So this is consistent with or congruent with the matching situation and is not what I would expect, or is unreasonable to expect from a non-matching situation." No objections were raised by defense counsel to any of Weller's testimony.
On cross-examination, defense counsel repeatedly probed the certainty of Weller's findings. Weller acknowledged the same gun could shoot two bullets and those bullets could have different markings that are not identifiably a match. Defense counsel also questioned Weller about the 2009 NRC report and instances in which examiners reach opposite conclusions. Weller conceded the accuracy of his conclusions "really ultimately depends on [him], on how good [he is] and consistent and experienced [he is] because [he is] the one who's making the determinations of how and what is an identifiable mark."
2. Analysis
Defendant concedes firearms leave toolmarks on bullets and examination of those toolmarks may provide some relevant information. But he argues toolmark identification is "unreliable, misleading, and discredited by the scientific community" and therefore inadmissible under People v. Kelly (1976) 17 Cal.3d 24 (Kelly).
"In [Kelly, supra,] 17 Cal.3d 24, [the Supreme Court] held that evidence obtained through a new scientific technique may be admitted only after its reliability has been established under a three-pronged test. The first prong requires proof that the technique is generally accepted as reliable in the relevant scientific community. (Id. at p. 30.) The second prong requires proof that the witness testifying about the technique and its application is a properly qualified expert on the subject. (Ibid.) The third prong requires proof that the person performing the test in the particular case used correct scientific procedures. (Ibid.)" (People v. Bolden (2002) 29 Cal.4th 515, 544-545.)
" 'Kelly is applicable only to "new scientific techniques." [Citations.]' (People v. Leahy (1994) 8 Cal.4th 587, 605.) It ' "only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law." [Citation.]' (Ibid.) As stated by the Leahy court in discussing People v. Stoll (1989) 49 Cal.3d 1136, 'by reason of the potential breadth of the term "scientific" in the Kelly/Frye doctrine, the courts often refer "to its narrow 'common sense' purpose, i.e., to protect the jury from techniques which . . . convey a ' "misleading aura of certainty." ' [Citations.]" (49 Cal.3d at pp. 1155-1156.) According to Stoll, a technique may be deemed "scientific" for purposes of Kelly/Frye if "the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury." (Id. at p. 1156, italics added.)' (People v. Leahy, supra, 8 Cal.4th at p. 606.)" (People v. Mitchell (2003) 110 Cal.App.4th 772, 782-783 (Mitchell).)
(See Kelly, supra, 17 Cal.3d at p. 30; Frye v. U.S. (D.C. Cir. 1923) 293 F. 1013, 1014 (Frye).)
"Thus, Kelly analysis is limited to situations where it will 'forestall the jury's uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate. [Citation.] In most other instances, the jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them. [Citations.]' (People v. Venegas (1998) 18 Cal.4th 47, 80.)" (Mitchell, supra, 110 Cal.App.4th at p. 783.)
" 'Once a published appellate decision has affirmed admission of a scientific technique, the technique's general acceptance is established as a matter of law. Further hearings on general acceptance are unnecessary "at least until new evidence is presented reflecting a change in the attitude of the scientific community." ' " (People v. Jones (2013) 57 Cal.4th 899, 937.)
Defendant does not argue toolmark identification testimony has not previously been recognized. Nor can he reasonably do so. Toolmark identification evidence has been admitted in California for over 60 years. (See People v. Godlewski (1943) 22 Cal.2d 677, 685.) Rather, defendant cites the 2009 NRC report as evidence of a change in the attitude of the scientific community. He contends toolmark identification is no longer generally accepted or reliable within the scientific community.
We recognize toolmark identification has come under increased scrutiny in recent years. But the 2009 NRC report, while criticizing the subjectivity of the field, does not call for abandonment of the field. We note such testimony has continued to be admitted in both California and federal courts, and our Supreme Court in People v. Cowan (2010) 50 Cal.4th 401 (Cowan), reaffirmed the admissibility of such testimony even after publication of the 2009 NRC report. Indeed, defendant has not cited a single case prohibiting such testimony. Rather, some courts have only placed limits on the degree of certainty an examiner can express in a match. (See, e.g., U.S. v. Cerna (N.D. Cal. Sept. 1, 2010, No. CR 08-0730 WHA) 2010 WL 3448528, *4 [government expert would be allowed to testify that a particular bullet or cartridge case was fired from a particular firearm " 'to a reasonable degree of certainty in the ballistics field,' rather than 'to the exclusion of all other firearms in the world.' "]; U.S. v. Willock (D.Md. 2010) 696 F.Supp.2d 536, 546-547, 549 [expert would not be allowed to characterize the degree of certainty of his opinion that the firearm was a match, and would not be allowed to testify that it was a "practical impossibility" for a firearm to have fired the cartridges other than the firearm to which he attributed the cartridges].) Other courts, however, have continued to admit toolmark identification testimony without limitation. (See, e.g., U.S. v. Casey (D.P.R. 2013) 928 F.Supp.2d 397, 399-400 [allowing expert to testify "without qualification of his degree of certainty"].) In light of such recognition, we cannot conclude the scientific community has rejected toolmark identification. Accordingly, Kelly, supra, 17 Cal.3d 24 is not applicable.
Defendant failed to pose a timely objection or move to strike Weller's testimony regarding his degree of certainty. Accordingly, any objection to the scope of his testimony has been waived. (People v. Boyette (2002) 29 Cal.4th 381, 423-424.)
Moreover, even if the scientific community did dispute the reliability of toolmark identification, Kelly only applies to "scientific" methods. (People v. Leahy, supra, 8 Cal.4th at p. 606.) Defendant argues toolmark analysis is a scientific technique, because jurors cannot "competently evaluate for themselves whether 'this gun fired this bullet.' " While defendant acknowledges the California Supreme Court found otherwise in Cowan, supra, 50 Cal.4th 401, he attempts to distinguish that opinion from the current case because he "made a strong showing that toolmark identification carries the weight of science." We find this attempt to distinguish Cowan unavailing.
Cowan resolved the exact issue defendant now seeks to relitigate. There, the Supreme Court addressed the supposedly novel technique of comparing a pistol barrel with recovered bullets by making a cast of the pistol barrel to assist in the comparison. (Cowan, supra, 50 Cal.4th at pp. 468, 470-471.) The defendant did not claim "that either the technique of ballistics comparisons or the technique of identifying tool marks using molds made of elastic material is new" but objected to the combined technique and argued a Kelly hearing was required. (Cowan, at p. 470.) The Supreme Court disagreed. The court emphasized neither technique was " 'so foreign to everyday experience as to be unusually difficult for laypersons to evaluate.' " (Ibid.) The expert's procedure in Cowan "merely 'isolate[d] physical evidence'—specifically, the pattern of lands and grooves and associated imperfections on the inside of the Colt pistol's barrel, as well as the corresponding markings on the recovered bullets—'whose . . . appearance, nature, and meaning [were] obvious to the senses' of the lay jurors." (Id. at p. 471.) "Although there was some dispute about whether the method [the expert] used produced a cast of the barrel 'without tampering or alteration' due to possible bubbling or shrinkage of the Mikrosil, that possibility was fully explored on cross-examination and the jury had the opportunity to weigh its effect on the validity of [his] conclusions." (Ibid.)
Under Cowan's reasoning, testimony matching bullet casings and firearms based on toolmarks is testimony lay jurors can readily understand. (Cowan, supra, 50 Cal.4th at p. 471.) The 2009 NRC report does not alter this analysis because it does not opine on what qualifies as a scientific determination under Kelly. The Supreme Court has, however, ruled on this issue and we are bound by such precedent.
Finally, we disagree that Weller's toolmark identification analysis should be found unreliable under Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747. In Sargon, the court held an expert " 'must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.' " (Id. at p. 770.) Here, Weller provided a reasonable basis for his opinions—namely, his observation and analysis of the gun, casing, and bullet fragments. Defendant's disagreement with Weller's conclusions does not trigger the concerns flagged in Sargon.
Barring a definitive rejection of toolmark analysis by the scientific field or binding authority to the contrary, the trial court properly admitted Weller's testimony. C. Flight Instruction
Over defense objection, the court instructed the jury on CALJIC No. 2.52 (Flight After Crime) as follows: "The flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt but is a fact which, if proved, may be considered by you in light of all the other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which the circumstance is entitled is a matter for you to decide." Defendant asserts a flight instruction was inappropriate because the only evidence of flight was unreliable testimony from a neighbor.
"[A] flight instruction 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' [Citations.] ' "[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." ' " (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) "To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence." (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
Here, Meisner's former neighbor testified he believed he saw defendant run away from the crime scene while checking on his car. Defendant argues this testimony is not sufficiently reliable because an individual standing on the sidewalk would not be able to see into the backyard. However, the former neighbor never stated he observed defendant while standing on the sidewalk. The neighbor indicated he was leaning over a brick wall between the two properties "to make sure there was no tires being popped or anything like that." Presumably such a position could have placed the neighbor at a higher elevation—one that allowed him to see into the backyard—than if he were standing on the sidewalk. Nor did anyone actually testify that an individual on the sidewalk could not see into the backyard. Rather, Meisner's ex-girlfriend only testified that she could not. Regardless of this witness's credibility, his testimony did not inherently describe an impossibility and justified the flight instruction.
In any event, even assuming it was error to give the instruction, the error was harmless under any standard because "the instruction did not assume that flight was established, leaving that factual determination and its significance to the jury." (People v. Visciotti (1992) 2 Cal.4th 1, 61.) The cautionary language in the instructions also benefits defendant because it specifically admonishes the jury that such evidence alone is insufficient to establish guilt. (See People v. Boyette, supra, 29 Cal.4th at pp. 438-439.) D. Victim Restitution Award
Defendant contends the court's restitution award violates the state constitutional prohibition against double jeopardy because the court increased the victim restitution after a successful appeal and retrial. Defendant's claim is based on the assertion that victim restitution constitutes punishment.
Defendant concedes his counsel did not raise this objection and rather agreed to the restitution calculation. Technically, the issue is not cognizable on appeal. (People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1.) However, defendant argues in the alternative that any waiver was the result of ineffective assistance of counsel. We thus must consider whether the contention has merit. (Ibid.) The California Supreme Court has stated when "applying a forfeiture rule . . . would likely have the effect of converting an appellate issue into a habeas corpus claim of ineffective assistance of counsel for failure to preserve the question by timely objection. . . . we would be loath to invoke a rule that would proliferate rather than reduce the nature and scope of legal proceedings. [Citation.] After all, judicial economy is a principal rationale of the forfeiture doctrine." (People v. Butler (2003) 31 Cal.4th 1119, 1128.) Accordingly, we address this issue.
In People v. Harvest (2000) 84 Cal.App.4th 641, our colleagues in Division Four of this court considered the propriety of a victim restitution order, which was initially imposed at a resentencing. (Id. at p. 645.) The defendant challenged the victim restitution order on due process and double jeopardy grounds. Certain expenses sought as restitution were overturned due to the lack of sufficient evidentiary support. However, the court affirmed the restitution order in all other respects. While the majority acknowledged that the rationale underlying victim restitution includes some element of deterrence, it concluded victim restitution is more analogous to a civil remedy than to a criminal fine or penalty because it provides monetary compensation for actual economic losses incurred by the victim. (Id. at pp. 647-653.) Accordingly, the majority held the double jeopardy prohibitions of the California Constitution did not bar the trial court from imposing victim restitution for the first time at resentencing. (Harvest, at pp. 647-653.) In so holding, the court specifically distinguished victim restitution from restitution fines, which are specifically termed "punishments" in the Penal Code. (Harvest, at pp. 646-647.)
Other courts have reached a similar conclusion, and we find such authority persuasive. (See People v. Kunitz (2004) 122 Cal.App.4th 652, 657 ["Victim restitution is not punishment."]; People v. Millard (2009) 175 Cal.App.4th 7, 35 ["We disagree . . . that Penal Code section 1202.4 victim restitution constitutes increased punishment for a crime."]; accord U.S. v. Behrman (7th Cir. 2000) 235 F.3d 1049, 1054 ["restitution for harm done is a classic civil remedy," not a " 'penalty for a crime' "].) Accordingly, we find defendant's reliance on People v. Hanson (2000) 23 Cal.4th 355—a case involving a restitution fine, not a direct victim restitution order—inapposite.
Because direct victim compensation is not a criminal penalty barred by double jeopardy, we reject defendant's argument the court could not increase the amount of victim restitution on retrial. E. Probation Report Cost
Defendant challenges the imposition of the probation investigation fee, asserting the implied finding of his ability to pay is not supported by substantial evidence. The People argue the trial court implicitly found defendant able to pay because it rejected defense counsel's argument that defendant "has no ability to pay and any money he receives goes toward the restitution rather [than] fines and fees." The People further contend the probation investigation fee could be based on defendant's ability to work in prison.
Section 1203.1b, subdivision (a) authorizes the court to impose certain costs of probation, including probation investigation reports. This section also commands the probation officer to make a determination of the defendant's ability to pay reasonable costs of conducting any investigation and preparing any report. Furthermore, "[t]he probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount." (Ibid.) Section 1203.1b, subdivision (a) further requires "[t]he defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver." When the defendant fails to waive that right, the probation officer shall refer the matter to the court for a hearing to determine the amount and manner of payment. (§ 1203.1b, subd. (b).) "Absent such a waiver, a court must conduct an evidentiary hearing." (People v. Hall (2002) 103 Cal.App.4th 889, 892-893.)
"The term 'ability to pay' means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the presentence investigation, preparing the preplea or presentence report . . . and shall include, but shall not be limited to, the defendant's: [¶] (1) Present financial position. [¶] (2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position. [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. [¶] (4) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs." (§ 1203.1b, subd. (e).)
Here, the probation report noted defendant last worked in 2011 as a delivery man and carpenter and "has no verifiable income." There is no evidence of any other income, assets, or resources available. The record does not indicate defendant waived his rights to a court hearing and a judicial determination of his ability to pay. Nor did the trial court conduct a hearing or receive evidence regarding defendant's financial ability to pay the probation investigation fee. While the Attorney General argues fees could be paid from prison wages, no evidence was submitted regarding defendant's ability to work, what rate defendant may earn from such work, how many hours defendant could reasonably expect to work, or whether those wages are needed to pay the other restitution orders. Accordingly, we cannot see how the record before us demonstrates defendant has the ability to pay a $250 probation investigation fee.
We recognize we could remand this issue to the trial court to conduct an evidentiary hearing on defendant's ability to pay. However, the Attorney General has not identified any evidence in the record to suggest there is a realistic possibility the trial court would determine defendant has the ability to pay all or some portion of the $250 fee. (Cf. People v. Flores (2003) 30 Cal.4th 1059, 1068-1069 [remand to determine ability to pay not pointless where People offered showing to suggest defendant could pay "something"].) Moreover, the expenditure of resources required to ascertain defendant's ability to pay would likely be greater than any fee the trial court may ultimately impose, which could not exceed $250 in any event. In the interests of judicial economy, we conclude the appropriate course of action is to strike the $250 probation investigation fee.
III. DISPOSITION
The judgment is modified to reflect the $250 probation investigation fee is stricken. The clerk of the superior court is directed to prepare a new abstract of judgment with this modification and to send a certified copy thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.