Opinion
B292849
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO HINOJOSA MEDINA, Defendant and Appellant.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. SA091348) APPEAL from a judgment of the Superior Court of Los Angeles County, Mark E. Windham, Judge. Affirmed with directions. Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Alberto Hinojosa Medina (Medina) of first degree murder, arson of an inhabited structure, two counts of first degree burglary, and cruelty to an animal. The jury further found true a felony-murder special circumstance allegation and a firearm-use allegation. The trial court sentenced Medina to a term of life without the possibility of parole (LWOP), plus 11 years.
On appeal, Medina contends the trial court erred by: (1) denying two pretrial continuance requests sought by the defense; (2) admitting gruesome photographs and graphic testimony concerning the victim's body; (3) permitting the prosecution to call a DNA criminalist as a witness when he reported no positive test results; (4) denying a posttrial defense request for juror identifying information; (5) ordering direct victim restitution in the amount of $45,326.62 for funeral expenses; and (6) imposing a parole revocation fine.
As we explain, we find no merit to any of Medina's contentions, but order the abstract of judgment be modified to conform to the court's oral pronouncement of the restitution amount. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On Monday, September 21, 2015, Medina committed two separate residential burglaries near the UCLA campus, and the murder of Andrea Del Vesco, a 21-year-old UCLA student. The crimes were committed in apartment buildings directly across the street from each other on Roebling Avenue, in the Westwood area, between 4:30 a.m. and 7:00 a.m.
The first burglary occurred at 10943 Roebling Avenue, apartment No. 2, where Medina stole a laptop, two large "Sonos" speakers and other items. The second burglary and murder occurred at 10954 Roebling Avenue, where Andrea shared an apartment with five other female UCLA students and sorority sisters. Medina killed Andrea in her bedroom by stabbing her multiple times, including two stab wounds to her neck. Medina then started a fire in the bedroom in an attempt to destroy evidence of the killing. The fire also caused the death of Andrea's dog.
A. Events of September 21, 2015
1. Murder at 10954 Roebling Avenue
On September 21, 2015, Andrea was living with five other members of her sorority in an apartment at 10954 Roebling Avenue. Andrea had her own bedroom, and her roommates included Abigail S., Samantha S. and Jessica W. Andrea also lived with her dog Shay, a Chihuahua mix dog she adopted from a shelter. Andrea's bedroom was connected to a ground floor balcony that was accessed through French doors. The French doors were broken and did not entirely shut.
On the evening of Sunday, September 20, Andrea and her roommates were working on their sorority's recruitment process in the living room of their apartment. Andrea, wearing her red Snuggie blanket, fell asleep on the living room sofa around 3:00 a.m.
When Andrea's roommate, Samantha, left the apartment at 5:50 a.m. to go to work on the UCLA campus, Andrea was still asleep on the living room sofa. When Samantha returned to the apartment at 6:30 a.m., however, Andrea was not on the sofa and the door to her bedroom was closed; this was unusual since Andrea would generally let her dog roam free in the apartment.
At about 5:30 a.m., Julio O., a cook at UCLA, was collecting recyclable cans on Roebling Avenue, when a man exited the driver's seat of a small red car parked directly across from 10954 Roebling Avenue and approached him; the man had a large tattoo on his arm and was wearing a sleeveless t-shirt and dark jeans. Julio noticed another male seated in the front passenger seat of the red car. Both men appeared to be intoxicated and laughing together. The man asked whether Julio knew how to fight, explaining that he needed help to enter an apartment with women in the event that men were also inside the apartment. The man looked drugged or drunk. After Julio answered, "No," the man walked towards Andrea's apartment building and went up the building's stairwell. Julio went to work.
Medina had a large tattoo on his right arm.
At about 5:35 a.m., Sarah M. was coming home to her apartment, after dropping off her boyfriend at the airport. Sarah's apartment was directly above Andrea's apartment. While unlocking the door to her apartment, Sarah saw a man in a black baseball cap, a red and blue tank top and dark jeans at the bottom of the stairwell. When she turned to face him, he ran away into the courtyard in the direction of Roebling Avenue.
Sarah went inside her apartment, deadbolted her door, and texted her boyfriend. She told him she'd seen a man at the bottom of her stairs, and wasn't sure if she should notify campus police. After speaking to her boyfriend on the phone, Sarah felt a little better. She went out on her balcony and looked into the courtyard, but saw no one there. Sarah then went to bed. She awoke at around 6:15 a.m. to the sound of a woman screaming, and a high-pitched dog bark she had never heard before. Sarah called 911 and then heard a dog whimpering from Andrea's apartment. The female screams had stopped at this point. Sarah looked down over her balcony, and noticed the window pane of Andrea's bedroom was open.
Four officers arrived, and one spoke to Sarah. She told him she heard screams she believed came from the girl below, and gave the police directions on how to access the front door of the unit below. Sarah subsequently saw the officers in the courtyard shining their flashlights towards various apartment windows. About a minute later, they were gone.
According to Los Angeles Police Department (LAPD) Officer Thomas Montague, he and three other officers arrived to the scene at 6:23 a.m. Officer Montague used a flashlight and attempted to look inside Andrea's apartment. He was able to make out the shape of a bed, but could not tell whether or not there was anyone on the bed, as it was too dark. He did not hear any sounds coming from the bedroom. The balcony window panes appeared to be closed, the front door was closed, and everything appeared to be normal. The officers left the location a few minutes later, at around 6:30 a.m.
Sarah tried to call and text Andrea, but her calls went directly to voicemail, and she received no response. At this point it was around 6:45 a.m. Sarah then walked to her balcony and called out Andrea's name, but received no response.
At about 7:00 a.m., Sarah heard a loud bang that sounded like the French doors slamming open. Sarah ran onto her balcony and saw smoke coming out of Andrea's bedroom. A man then ran out of Andrea's bedroom, jumped over Andrea's balcony railing, and ran out of the courtyard towards Roebling Avenue. Sarah recognized him as the man she had seen earlier on the stairwell, except this time he was wearing a red blanket around his shoulders like a shawl. Sarah called 911 and ran after the man. During the 911 call, Sarah saw a red car, with a Lamda Chi Alpha sticker on its rear window, back out of the carport and drive down the street.
Meanwhile, inside Andrea's apartment, Andrea's roommate, Samantha S., heard a faint alarm sound and then later a female voice from the apartment above loudly state, "Where are you going? What are you doing?" Samantha opened Andrea's door and saw Andrea lying on the bed and the room engulfed in flames. Samantha noticed blood on Andrea's neck, shoulder, and chest. Samantha repeatedly called out to Andrea, but Andrea did not move. The other roommates then exited the apartment.
Sarah testified she yelled "Oh my God, what are you doing" when she saw the man running out of Andrea's bedroom.
Andrea's roommate Abigail S. returned from work on September 20, at about 10:20 p.m., and went to bed around 1:30 a.m. She awoke around 6:00 a.m. to the sound of loud voices and the dog barking. She went back to sleep. Around 7:00 a.m., the fire alarm sounded. As she passed Andrea's room and opened the door, she saw a large fire in her room. All of the roommates left the apartment and called 911.
Roommate Jessica W. recalled going to bed around 3:15 a.m., and being awakened a few hours later when a roommate yelled that the apartment was on fire. She saw that Andrea's bedroom was engulfed in flames.
After Medina's preliminary hearing, Jessica told police she would often accompany Andrea on her walks with Shay. Jessica recognized Medina as someone they encountered that weekend, possibly on Sunday during a dog-walk, and thought Andrea may have told Medina she lived in the Pi Phi Sorority apartments.
2. Emergency Personnel Respond to the Fire
At about 7:10 a.m., Los Angeles City Fire Department Captain Alfred Hernandez and other firefighters arrived at Andrea's apartment. The fire was "fully consuming" Andrea's bedroom and firefighters could not determine if anyone was inside the room because of the flames. After the firefighters extinguished the fire, they found Andrea lying on the bed, near the headboard. Her body had been fully incinerated and she was no longer capable of being resuscitated. At 8:00 a.m. that morning, Andrea was officially pronounced dead.
Selena Barros, a coroner's investigator, recovered and removed the victim's body. The body was charred and had apparent blood spots and puncture wounds. The body had a top garment, but no underwear. There was a great deal of blood on the bed.
In the bedroom, the firefighters found Andrea's dog, Shay, lying near the foot of the bed. Shay was burned and nearly comatose; Shay had suffered smoke inhalation and burn injuries to the head and left ear, and his state was one stage above coma level. Shay was taken to an animal hospital where his condition worsened and he was eventually euthanized.
3. Burglary at 10943 Roebling Avenue
Nicholas V., Mahir S., and Diego R. lived in an apartment at 10943 Roebling Avenue. On the evening of September 20, 2015, Nicholas left his car keys on a living room desk and Mahir left a laptop computer in the living room on a futon or coffee table. Two Sonos brand speakers belonging to Mahir were also in the living room. In order to operate, the speakers required an internet connection and an email address provided to the Sonos company.
The following day, on September 21, 2015, the roommates noticed that the Sonos speakers, Mahir's laptop, and Nicholas' car keys were missing from the apartment. Nicholas checked his car and noticed it appeared someone had rifled through the glove compartment. Nicholas and Mahir reported the burglary to a police officer at 9:00 p.m., and Mahir provided an Internet Protocol (IP) address for the speakers to the police.
B. Investigation
1. Online Registration of Stolen Speakers
On September 22, 2015, one day after the crimes, Medina's roommate, Joseph M. went online to register one of the Sonos speakers stolen from 10943 Roebling Avenue. On September 26, 2015, LAPD detectives were notified by Sonos about Joseph M.'s online registration of the Sonos speaker. Detectives drove to Fresno that same day to speak with Joseph M.
At his Fresno home, Joseph M. told police he got the speakers from his roommate Medina. Medina had driven to Los Angeles on Friday, September 18, 2015, and returned to Fresno on the morning of Tuesday, September 22, 2015. After Medina returned from Los Angeles, he placed numerous items in their garage, including the Sonos speakers, silverware, dishware, towels, liquor bottles. Medina told Joseph M. he was given the items by a friend in Los Angeles who was in the process of moving. Joseph M. put the speakers in his room and registered them online so he could use them.
Joseph G., Medina's other roommate, told police that after Medina returned from Los Angeles, Medina told him about a girl who had been murdered near UCLA. Medina said it appeared someone had broken into the girl's apartment, the perpetrator may have raped the girl, and that the perpetrator burned the body and apartment to get rid of the evidence. Medina was "glorifying the burning of the body" and adamant that the perpetrator would "get[ ] away with it."
2. Interview with Medina on September 26, 2015
Police arrested Medina on September 26, 2015, and brought him to the Fresno Police Station where he was questioned by LAPD detectives. The interview with Medina was video-recorded and the recording was played for the jury.
Medina told police he was a Fresno State University student who drove a red Nissan with a Lamda Chi Alpha fraternity sticker on the back of the car. On the previous weekend, he went to Los Angeles and stayed with his friend Eric Marquez at UCLA. Medina and Marquez went to parties and spent time with two women during the weekend, and Medina returned home to Fresno on Monday around 6:00 or 7:00 a.m.
When confronted with the stolen speakers found in his home, Medina stated Marquez came back with him to Fresno and brought the speakers, but subsequently admitted Marquez remained in Los Angeles. He then stated he and Marquez went to an "engineer party" and ended up "getting a few things" and brought them back to Marquez's apartment. However, before they made it to Marquez's place, they encountered a man at a dumpster who pulled a gun on them and demanded Medina give him the speakers. Medina refused and the man shot at him, but missed. Medina ran from the scene. The man was wearing jeans and a tank top.
Medina later admitted his story about the man at the dumpster shooting at him, was all "bullshit."
When the conversation turned to the situation involving the girl in the UCLA apartments, Medina told police he was the one who took the speakers from the engineer party, while Marquez went across the street with a blond girl he met at the party. When asked what the girl was wearing, Medina responded "a little shirt" "high top socks" "a little bra" and some "underwear"—"that's about it." Medina told police he "knew" the girl and Marquez were having sex, while he himself was busy across the street taking the speakers and a laptop. After Medina put the speakers in his car, he came back and saw Marquez running out with plastic bags around his hands, and "knew [Marquez] did something that wasn't right." Marquez took off the plastic bags and threw them in a dumpster, and they left. Marquez was wearing jeans and a tank top.
Medina later found out "a hundred percent" that Marquez committed the murder because he confronted Marquez who then admitted he killed the girl. Marquez also told Medina that he had sex with the girl. When asked about a red blanket, Medina said Marquez did have a red blanket around his neck, but then took if off and put it around Medina's neck, or put it in Medina's car and then Medina wrapped it around his own neck.
Medina told police that Marquez didn't show any emotions; he was "like a stick."
3. Search of Medina's Fresno Home and Vehicle on September 27, 2015
Police conducted a search of Medina's home in Fresno on September 27, 2015.
In Medina's bedroom closet, police found a knife with blood stains underneath a black trash bag. Inside the trash bag, police found a red Snuggie blanket, a tank top containing bloodstains, and a pair of women's underwear. A white trash bag with a bloodstain was recovered near the black trash bag.
The DNA profile from the bloodstains on the recovered knife and white trash bag both matched Andrea's profile. The major DNA profile from a bloodstain on the collar of the tank top matched Andrea's profile. A partial DNA profile from a sample taken from the woman's underwear was consistent with Andrea's profile.
The following day, September 28, 2015, various items were recovered from Medina's red Nissan Sentra. A black sock with a bloodstain was recovered from the trunk, and the DNA profile from that bloodstain matched Andrea's profile. A partial DNA profile from a bloodstain on the exterior door handle of the driver's door was consistent with Andrea's DNA profile.
4. Evidence Recovered from Marquez's Apartment
Marquez lived in an apartment at 11015 Strathmore Drive, near the UCLA campus. The police obtained surveillance video from Marquez's apartment building recorded between midnight and 8:00 a.m. on September 21, 2015, and various portions of that surveillance footage were played for the jury.
At 7:03 a.m., a red car was in the garage, with persons walking around the car. At 7:11 a.m., the video showed two individuals exiting the elevator and heading towards Marquez's apartment; one was wearing a red blanket. At 7:21 a.m., the video showed a man with an arm tattoo carrying a white plastic bag near the elevator.
Kristin Rocco, an LAPD criminalist, went to Marquez's apartment on September 24. Blood found in multiple locations was consistent with the profile for Andrea.
5. Autopsy and Forensic Examination
Dr. Matthew Miller, a deputy medical examiner, performed the autopsy on Andrea's body. The cause of death was multiple sharp force injuries, and the manner of death was homicide. Dr. Miller found a total of 19 sharp-force injuries made by an object with a sharp edge or point, including wounds to the neck, chin, chest, abdomen, arm, lower back, and left lung. Two separate wounds could have been individually fatal: (1) a stab wound, three inches in depth, that perforated the right carotid artery, and (2) a stab wound to the left side of the neck that perforated the left carotid artery. Based on the amount of carbon monoxide present in the blood, the victim was most likely deceased before the fire began or very shortly after it began.
Criminalist Jessica Gadway collected a modified sexual assault kit from Andrea's body. The body was significantly charred and impeded a full exam. Gadway collected swabs from the vagina, anus, and mouth. The samples were tested for the presence of sperm and male DNA. There were no positive results for either, though the vaginal sample for male DNA was deemed inconclusive.
6. Forensic Exams Conducted on Medina and Marquez
On September 27, 2015, Megan Forcum, a forensic nurse examiner, performed a sexual assault examination on Medina. Medina had bruises on his left arm and left knee and multiple abrasions on his body, including abrasions on his scalp, left cheek, left shoulder, left hand, and right arm. Medina also had two linear abrasions that appeared to be scratches to the left arm, a linear abrasion or scratch to his left torso, and an abrasion that appeared to be a scratch on the right wrist. Medina told her he had been in a fight a couple of days earlier, and Forcum could not date any of the injuries. Forcum obtained a DNA swab from Medina and swabbed several parts of his body.
Detective Chris Marsden collected a sexual assault evidence kit from Marquez. Mara Landa, a forensic nurse, examined Marquez on September 28. He had no tattoos. He had no injuries anywhere on his body. She took swabs of his mouth, hands, and genitals.
7. Fire Examination
Robert McLoud is an arson investigator with the LAPD. He responded to the fire on Roebling Avenue and determined it was intentionally set as an incendiary fire. The source of the fire was in the bed area and appeared to be in the location where the trash can was sitting on top of the bed. He believed the trash can was placed on the bed and the material inside was intentionally ignited. In his opinion it was arson.
C. Defense Evidence
In September 2015, Zhane Ochoa was a UCLA student. Zhane and her roommate, Gabby, spent the weekend of September 18 to 21 "partying" with Medina and Marquez. Zhane had never met Medina prior to that weekend, but knew Marquez.
On Sunday, September 20, the four spent the evening at Marquez's apartment and played a drinking game. At some point they all went to get food at Tommy's Taco. Medina had a cup with him as they left the apartment. At about 1:53 a.m., an Uber-company driver dropped off Medina and Marquez at Marquez's apartment. According to Zhane, Medina was "really drunk" at this point. Zhane testified that in speaking with the Uber driver she made it clear that she wanted the driver to drop off Medina and Marquez first, and then take her and Gabby home. Medina was "yelling" that he wanted to go to her apartment.
D. Charges and Jury Verdict
In a second amended information, Medina was charged with five counts: murder (Pen. Code, § 187, subd. (a); count 1); arson of an inhabited structure (id., § 451, subd. (b); count 2); two counts of first degree burglary (id., § 459; counts 3 & 4); and cruelty to an animal (id., § 597, subd. (a); count 5).
Codefendant Marquez and Medina were jointly charged in counts 1, 3, and 4 (murder and burglary), and Marquez was solely charged in count 6 (accessory after the fact). Prior to trial, Marquez pleaded guilty to first degree burglary and accessory after the fact. The second amended information was filed on November 6, 2017.
As to count 1, the information further alleged the special circumstance that Medina committed the murder while engaged in the commission of burglary (Pen. Code, § 190.2, subd. (a)(17).) It was also alleged as to count 1 that Medina personally used a dangerous and deadly weapon (to wit: a knife), in the commission of the offense (id., § 12022, subd. (b)(1).)
On May 29, 2018, the jury found Medina guilty of first degree murder and the remaining counts as charged. The jury also found true the special circumstance and deadly weapon allegations.
The trial court sentenced Medina to a term of LWOP, plus one year on count 1 and imposed a consecutive term of 10 years on the remaining counts. The court imposed various fines and fees, including a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), and a $300 parole revocation fine (id., § 1202.45). The court ordered direct victim restitution to Andrea's mother, Leslie Del Vesco, in the amount of $45,326.62.
Medina filed a timely notice of appeal.
DISCUSSION
I. DENIAL OF PRE-TRIAL CONTINUANCES
Medina contends the trial court erred in denying two defense requests for continuances prior to trial, thereby depriving him of his right to effective assistance of counsel and a fair trial. In light of the many continuances granted by the trial court—and the court's careful consideration of each request—we disagree.
A. Background Facts
1. Continuances Granted By Trial Court
The original information was filed on March 28, 2016, and the public defender's office was appointed to represent Medina on the same day. On December 14, 2016, the prosecution formally announced it would not seek the death penalty.
a. June 28, 2017 Continuance
On June 23, 2017, defense counsel filed a continuance motion, supported by both sealed and unsealed declarations. In her motion, defense counsel noted that until the end of November 2016, she was focused on exploring possible mitigation evidence for the death penalty phase, and once that was off the table, began concentrating on the guilt phase of the trial. Counsel pointed out the discovery was voluminous, with over 4000 pages of material from the murder book, numerous audio witness interviews and video recordings of surveillance footage from the crime scene neighborhood. While counsel had reviewed almost all pages of discovery and most audio recordings once, she still needed to review the surveillance footage. Counsel hoped to have all discovery reviewed and additional experts appointed by October 2017 and, at that time, determine a reasonable trial date.
To the extent any facts reported herein derive from matters ordered sealed by the trial court, the orders are vacated.
At the June 28, 2017 hearing, the court acknowledged that defense counsel had indicated she would not be ready to set a trial date until October, but inquired whether a trial date of November 6 was "plausible." Defense counsel responded, "I can't promise it but that's going to be my goal." The court stated it would "strictly scrutinize any motion for a continuance beyond this date" and asked defense counsel to "inform your office that this case must have priority."
b. October 10, 2017 Continuance
On October 2, 2017, defense counsel filed another continuance motion, supported by sealed and unsealed declarations by counsel. Counsel stated she was no longer receiving new cases as of August 1, 2017, but needed more time to review surveillance footage which was turned over on June 28, 2016 in a terabyte of data, and had resulted in various technical problems during viewing. Defense counsel added she was currently suffering from pain and numbness in various parts of her body and was scheduled for medical testing. Counsel concluded by stating she hoped to have all discovery reviewed and any experts appointed by December and, at that time, determine a reasonable trial date.
At the October 10, 2017 hearing, the court noted it was "scrutinizing this carefully" and pointed out counsel had had the case for 18 months at this point. The prosecutor noted counsel for codefendant Marquez was able to view the surveillance footage video without problems; however, the prosecution nevertheless gave defense counsel another copy which also included videos of areas that had nothing to do with the trial, including hallways in the back of the building.
After an in camera hearing, the trial court stated defense counsel had described tasks that were not unreasonable, and that the court believed the discrete tasks identified by defense counsel could be completed by the beginning of January. Over the objection of codefendant Marquez and the prosecution, the trial court continued the matter to November 6, 2017 for a pretrial hearing and to set a trial date. The pretrial hearing was subsequently continued to December 13, 2017.
c. December 13, 2017 Continuance
On December 8, 2017, defense counsel filed yet another continuance motion, with a supporting declaration filed under seal. Counsel stated she needed additional time to complete reviewing the terabyte data drive, interview and locate several witnesses, and was still in the process of consulting with forensic experts. Counsel further noted she continued to have some health problems and concluded by asking the court to set the trial date in July of 2018, but noted "[if] pushed" she could possibly be ready by April 16, 2018. On December 13, 2017—over the prosecutor's objection—the trial court continued the matter for pretrial hearing on January 29, 2018, and set the trial date as February 26, 2018.
d. January 29, 2018 Continuance
On January 29, 2018, the trial court conducted an in camera hearing with defense counsel as she relayed her reasons to again continue the matter. Counsel told the court she had learned from codefendant Marquez's attorney that at one point it appeared that the young blond woman had walked her dog past Marquez's apartment and that Andrea's roommate Jessica had stated she recognized Medina as someone they had met while walking Andrea's dog. Counsel needed to review the video to determine if there were any other times Medina and Andrea appear in the video. Counsel was also working with a cell phone expert. On February 2, the trial court granted counsel's continuance motion, vacated the trial date of February 26, and continued the matter for trial to May 7, 2018. The court set a pretrial hearing date for April 10, 2018.
2. Continuances Denied by Trial Court
a. April 10, 2018 Denial
On March 29, 2018, defense counsel again filed another continuance motion and the prosecution filed a written opposition. On April 10, 2018, the date set for the pretrial hearing, the prosecutor noted defense counsel had previously indicated she could be ready in April, and he had previously indicated how the delays had burdened the family and witnesses in this case. The prosecutor stated that at this point he was becoming concerned they would lose some witnesses, and he was hoping to avoid that. The prosecutor noted the court had already been generous and they were still a month away from trial.
During an in camera proceeding, defense counsel stated, inter alia, that she needed to complete reviewing all of the surveillance footage which was taken from 32 different cameras over several days. Counsel noted that any videos showing Marquez and Medina in a drunken state were relevant on the issue of intent, and that any footage showing Medina interacting with Andrea was also relevant to the question of whether he entered her apartment with the intent to commit rape or theft. The trial court noted consent to entry is not a defense to burglary, but acknowledged it may be relevant to Medina's intent to commit any felony at the time of entry. However, the court questioned whether this was a shot in the dark in terms of searching for other times they might have met. The trial court subsequently denied the motion, determining there was no good cause to grant any further continuance at this juncture. The court stated the May 7, 2018 trial date would stand.
b. May 7, 2018 Denial
On May 4, 2018, prior to the May 7 trial date, defense counsel filed yet another continuance motion, with a declaration under seal. On May 7, 2018, the trial court held an in camera hearing with defense counsel, and then denied the motion.
In open court, defense counsel stated she was not fully prepared and pointed out she had recently been provided a police report for an incident of moral turpitude relating to Medina's roommate Joseph G. that she might be able to use at trial, and told of another recent arrest incident that might be admissible for impeachment as well. Defense counsel noted there was an additional cell phone report, though it might simply be a summary of the evidence and that the prosecution stated he might not use it. However, most importantly, counsel wanted to continue watching the entire surveillance footage before she was confident she was ready for trial. She stated she was not yet ready to cross-examine all witnesses in this case and asked the court to continue the trial to the beginning of July.
During an in chambers hearing, the trial court observed there was too much speculation by defense counsel that she needed to review all possible video footage from all cameras, noted the cell phone data is moot since she was admitting Medina was in the crime area, and that any impeachment evidence was remote, but could be addressed if it became an issue. The trial court noted (as it had tentatively in open court) that the continuance was not justified when weighed against the burdens on witnesses. The court noted defense counsel had been working on the case for two years and observed "the defendant is receiving not ineffective assistance but outstanding assistance of counsel." Back in open court, the court noted it heard defense counsel on the confidential parts of her continuance motion, and denied the motion.
The court heard the prosecution's evidentiary motions later that day, and jury selection procedures began the next day.
B. Governing Legal Principles
A continuance in a criminal case may be granted only for good cause. (Pen. Code, § 1050, subd. (e).) "[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court." (People v. Beames (2007) 40 Cal.4th 907, 920.) "The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance [motion] is seldom successfully attacked." (Ibid.) "Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (Ibid.)
While a trial court may not exercise its discretion "so as to deprive the defendant or his attorney of a reasonable opportunity to prepare" (People v. Sakarias (2000) 22 Cal.4th 596, 646), only an unreasoning and arbitrary " 'insistence upon expeditiousness in the face of a justifiable request for delay' " can violate a defendant's right to due process or the effective assistance of counsel. (Morris v. Slappy (1983) 461 U.S. 1, 11-12 [103 S.Ct. 1610, 75 L.Ed.2d 610]; Ungar v. Sarafite (1964) 376 U.S. 575, 589 [84 S.Ct. 841, 11 L.Ed.2d 921].)
C. The Trial Court Properly Exercised its Discretion in Denying Medina's Requested Continuances on April 10 and May 7, 2018
Penal Code section 1050, subdivision (a), provides, among other things: "The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time. To this end, the Legislature finds that the criminal courts are becoming increasingly congested with resulting adverse consequences to the welfare of the people and the defendant. Excessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses. . . ."
Applying these concepts to the instant case, we conclude the trial court did not abuse its discretion in denying defense counsel the two continuances challenged on appeal. At the time these continuances were denied, defense counsel had represented Medina for two years. During those two years, the trial court carefully evaluated the numerous continuance requests sought by defense counsel, and granted several continuances over the objections of the prosecution and the codefendant. During in camera hearings, the trial court thoroughly considered the grounds documented by counsel in her sealed declaration and ultimately determined that no further continuances were warranted in light of the speculative nature of any remaining asserted tasks measured against the burden to the many prosecution witnesses and their schedules. (People v. Jenkins (2000) 22 Cal.4th 900, 1037 [the court must consider " ' "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion" ' "].)
In his opening brief, Medina, however, insists there was "little if any inconvenience to the court" and cavalierly proclaims the following: "While some witnesses or the victim's family may have had to change plans, they had done it before and it would have been no greater burden to do it again. . . . At the time the defense sought another continuance, both those groups had already experienced the delays, were familiar with the procedure and would have handled another continuance as easily as they had in the past." (Italics added.)
Not so. In his December 2017 objections to any further continuances, the prosecutor included several emails from potential witnesses detailing the hardships the delays were causing, including the impact on their employment and graduate school schedules. In these emails, witnesses also described the heavy psychological toll exacted from the delay, as exemplified by an excerpt from one such email: "I have flashbacks and panic attacks often. I get migraines now too. . . . [¶] Every time I receive an email from you, or anyone within the case, my heart drops—no offense. . . . Every continuance granted is a postponement of us, her family and dear friends getting some form of closure. The prolongment of this trial prevents us from fully processing and coping from the psychological and emotional trauma we have experienced. It is now 10 days shy of 27 months since that terrible day, and we still have to wonder what's next. When will this end? I want this case to go to trial, so that I can heal."
In contrast to the burdens outlined above, Medina points to no specific or concrete prejudice that resulted from the court's refusal to continue the trial date beyond May of 2018. Instead he simply points out that defense counsel asserted below that "the defense would be greatly prejudiced if forced to proceed" and that in light of the trial court's remarks that defense counsel was hard-working (as opposed to dilatory)—"it seemed appropriate to give counsel the benefit of the doubt."
These general and vague assertions, however, are insufficient to make out the requisite showing of prejudice. (People v. Doolin (2009) 45 Cal.4th 390, 450 [reversal for denial of continuance unwarranted absent showing of both abuse of discretion and prejudice]; see also People v. Zapien (1993) 4 Cal.4th 929, 972-973 [no basis to reverse for denial of continuance where the defendant failed to show denial had actual bearing upon evidence introduced at trial or otherwise deprived the defendant of fair trial].)
According substantial deference to the trial court's determination of these issues, as we must, we discern no reversible error. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 509.)
II. ADMISSION OF VICTIM PHOTOGRAPHS
Medina contends the trial court erred by failing to exclude photographs of the victim's burned body, arguing the evidence was irrelevant, prejudicial and deprived him of his constitutional right to a fair trial. We disagree. The admitted photographs were relevant to material issues in dispute, and the trial court acted well within its discretion in excluding some, but not all, of the challenged photographs.
A. Relevant Facts
1. Objection to Photographs Used In Prosecution's Opening Argument
Before opening statements, the prosecutor noted he had shown his PowerPoint slides to defense counsel to determine whether she had any objections to any particular slide.
Defense counsel stated she was objecting to two crime scene photographs, as more prejudicial than probative: (1) a photograph showing the victim's "burnt body falling halfway off the bed," and (2) a close-up photograph of the victim's burnt leg. The prosecutor explained the first photograph showed the position of the victim's body on the bed after firefighters initially attempted to rescue her but then realized she was deceased. The prosecutor stated the second photograph was relevant to prove the arson because it focused on the relative positions of the trash can (as the source of fire) to the victim's body. The trial court ruled the prosecutor could show the photographs during opening statement, as they would be admissible at trial. The court explained the photographs were admissible because the photograph of the victim's burned body was relevant to prove she was deceased, that she was burned, and the motive of the crime—which "supposedly is to prevent an investigation of circumstances of the death by disposing of the body by burning it, which was intentional." The court observed that the placement of the trash can "helps prove the arson" and the prosecution had the right to prove that.
Defense counsel also objected to the use, in opening argument, of two autopsy photographs that showed injuries to the victim's neck. The prosecutor noted the victim sustained 19 stab wounds, and he was showing the jury the two main stab wounds to her neck that caused her death and the two stab wounds to the back. The trial court overruled the defense objection. On appeal, Medina limits his challenge to the photographs focused on the injuries from the fire.
2. Objection to Autopsy Photographs Introduced During Testimony of Medical Examiner
Prior to the testimony of the medical examiner, defense counsel objected to the 18 autopsy photographs, arguing it was more prejudicial than probative to "show that many" photographs. The prosecutor argued the photographs were relevant to the cause of death, the location of the stab wounds, the positioning of the body, and the corroboration of Medina's statements to Joseph G. that the killer destroyed the evidence by burning the room.
After reviewing the photographs, the trial court excluded five of the 18 autopsy photographs. The medical examiner then discussed the admitted photographs regarding the burn injuries during his testimony.
At the conclusion of the prosecution's case-in-chief, defense counsel again objected to the admission of a photograph (showing the victim's burnt head and face), which was referenced during the medical examiner's testimony but not displayed to the jury. The trial court overruled the objection, explaining that it had reviewed the photographs, exercised its discretion as to those photographs "that were not absolutely necessary," and found that the particular photograph "show[ed] the damage caused by what appears to be an intentional burning of the body" which was "a circumstance of the crime."
B. Governing Legal Principles
"In a prosecution for murder, photographs of the murder victim and the crime scene are always relevant to show how the charged crime occurred, and the prosecution is 'not obliged to prove these details solely from the testimony of live witnesses.' " (People v. Pollock (2004) 32 Cal.4th 1153, 1170.)
Evidence that is technically relevant may, however, still be excluded when its probative value is outweighed by its tendency to create undue prejudice to the defendant. (Evid. Code, § 352.) " 'The court's exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect.' " (People v. Heard (2003) 31 Cal.4th 946, 976.) Prejudice does not refer to damage to a defense that naturally flows from relevant, highly probative evidence. (People v. Zapien, supra, 4 Cal.4th at p. 958.)
"The trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value." (People v. Horning (2004) 34 Cal.4th 871, 900.) C. The Trial Court Acted Well Within its Discretion in Ruling That Some, But Not All, of the Victim's Photographs Proffered by the Prosecution Were Admissible
In arguing the photographs depicting Andrea's burn injuries were inadmissible, Medina points out that the coroner testified Andrea did not die as a result of the fire, but rather the stab wounds inflicted prior to the fire. He further points out that the arson charge itself was limited to arson of an inhabited structure. Given these facts, argues Medina, "the horrific photographs showing the burns to the victim's body were not relevant" and "could prove nothing of consequence." Not so.
"The test of relevance is whether the evidence tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." (People v. Garceau (1993) 6 Cal.4th 140, 177, italics added.) Here, as the trial court observed, the photographs depicting the burn injuries—and their severity—were relevant to show the motive for the arson, which was "supposedly . . . to prevent an investigation of circumstances of the death by disposing of the body by burning it, which was intentional."
The photographs were also relevant to corroborate the testimony of the responding firefighters and law enforcement about the condition in which the body was found, and to illustrate the testimony of the medical examiner. (See People v. Pollock, supra, 32 Cal.4th at p. 1170; accord, People v. Heard, supra, 31 Cal.4th at p. 974.)
To the extent Medina argues the photographs were rendered irrelevant by defense counsel's concession in closing argument that Medina killed the victim and burned the apartment, Medina is incorrect. Counsel did not stipulate to, nor concede these issues at the time of the court's ruling and, in any event, "the absence of a defense challenge to particular aspects of the prosecution's case or its witnesses does not render victim photographs irrelevant." (People v. Lewis (2001) 25 Cal.4th 610, 641.) Nor is it material, " 'for purposes of determining the relevance of evidence that other evidence may establish the same point.' " (People v. Heard, supra, 31 Cal.4th at p. 975; see also People v. Price (1991) 1 Cal.4th 324, 441 ["We have often rejected the argument that photographs of a murder victim should be excluded as cumulative if the facts for which the photographs are offered have been established by testimony"].)
We also note that counsel vigorously challenged the prosecution's theory that Medina entered the victim's apartment with the intention of committing rape. The photographs showing the extent of the burns—and incendiary material in close proximity to the body—were, in conjunction with other circumstantial evidence, relevant to explain the intent and motive behind the arson. (People v. Garceau, supra, 6 Cal.4th at p. 177.) The latter, in turn, also rendered the photographs illustrative evidence with regards to the challenges encountered by law enforcement in conducting victim examinations and collecting rape kit evidence. (See section III, post; People v. Caro (2019) 7 Cal.5th 463, 502 [" 'the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case' "].)
As to whether the photographs had an unduly prejudicial effect, the prejudice referred to in Evidence Code section 352 is one that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. (People v. Garceau, supra, 6 Cal.4th at p. 178.) As our high court has observed, the fact that "victim photographs and other graphic items of evidence in murder cases always are disturbing" "does not render the introduction of those images unduly prejudicial." (People v. Heard, supra, 31 Cal.4th at p. 976; see also People v. Montes (2014) 58 Cal.4th 809, 862 [observing that admitted photographs confirmed that " 'murder is seldom pretty' "].)
To the extent Medina relies on cases such as People v. Gibson (1976) 56 Cal.App.3d 119, 134-135 and People v. Burns (1952) 109 Cal.App.2d 524, 541-542—to argue the gruesome or graphic nature of the photographs commands their exclusion under Evidence Code section 352—the high court has explained that while the "general rule" (that a trial court can abuse its discretion by admitting particularly gruesome photographs) "may be true" "cases of more recent vintage have recognized that photographs of murder victims are relevant to help prove how the charged crime occurred, and that in presenting the case a prosecutor is not limited to details provided by the testimony of live witnesses." (People v. Booker (2011) 51 Cal.4th 141, 170, italics added; see also People v. Heard, supra, 31 Cal.4th at p. 977, fn. 13 [summarily rejecting cases cited by the defendant, including Gibson and Burns, as distinguishable and unpersuasive]; cf. People v. Powell (2018) 6 Cal.5th 136, 163 [noting that " ' "the admission of allegedly gruesome photographs" ' " is basically a question of relevance over which the trial court has broad discretion].)
Here, the trial court carefully reviewed each autopsy photograph and excluded almost a third of the challenged photographs. Out of the 13 photographs it deemed admissible, only three focused on the burn injuries to the victim; the remaining 10 photographs were focused on the stab wounds. (People v. Mendez (2019) 7 Cal.5th 680, 708 ["if the record demonstrates the trial court was 'aware of [its] duty to weigh the prejudicial effect of the photographs against their probative value' and performed that duty 'carefully,' that too weighs against finding an abuse of discretion"].) To the extent Medina argues the "jury should not have suffered the second-hand horror of having to see and hear this gruesome evidence," this is an unfortunate consequence of his own actions, rather than any error in the trial court's ruling. (People v. Brooks (2017) 3 Cal.5th 1, 55 [noting any " 'revulsion' " induced by photographs was " 'attributable to the acts done, not to the photographs' "]; People v. Riel (2000) 22 Cal.4th 1153, 1194 ["The fact that the exhibits involved blood was due to the crime, not the court's rulings"].)
We discern no abuse of discretion in the trial court's decision to admit the photographs into evidence. (People v. Booker, supra, 51 Cal.4th at p. 170.) As such, there was no violation of defendant's constitutional rights. (People v. Cage (2015) 62 Cal.4th 256, 284.)
D. Trial Counsel Was Not Ineffective For Failing to Object to the Medical Examiner's Testimony
Medina argues that given the trial court excluded some of the autopsy photographs, "[t]here is a reasonable likelihood that the same result might have been obtained by the defense had counsel objected to the testimony related to Andrea's burnt body." Medina asserts "[i]t was enough for any witness to say the body was burned" and trial counsel's failure to seek exclusion of the medical examiner's testimony "relat[ing] to Andrea's burned body" resulted in prejudice to his defense. We disagree.
As noted, ante, in section II, subsection A.2., after the testimony of the medical examiner, the trial court rejected defense counsel's challenge to a photograph not shown by the prosecution during the examiner's testimony, but previously deemed admissible by the court. In so ruling, the trial court pointed out it had previously exercised its discretion as to those photographs that "were not absolutely necessary."
Given that the trial court evaluated these photographs in anticipation of the medical examiner's testimony, trial counsel could have reasonably believed the court would not have excluded the very testimony that accompanied these photographs. (People v. Thompson (2010) 49 Cal.4th 79, 122 ["Counsel is not ineffective for failing to make frivolous or futile motions"].)
III. DNA TESTIMONY
Medina claims the trial court erred in permitting the prosecution to present the testimony of DNA Criminalist Ernest Park because his testing of the samples from the sexual assault kit yielded nothing of consequence and served only to inflame the jury. Recognizing that trial counsel objected to specific portions of Park's testimony, but not the "witness himself," Medina alternately argues counsel rendered ineffective assistance by failing to seek exclusion of Park's testimony. We disagree.
A. Park's Testimony
Park testified he analyzed the samples from Andrea's sexual assault kit, which included a vaginal swab, anal opening swab, rectal swab, oral swab and a vaginal aspirate. The kit was screened for both male sperm and male DNA. There was no sperm or male DNA in the samples tested, with the exception of the vaginal sample which yielded an "inconclusive" result on the male DNA test. An inconclusive result means the detected level was above zero, but below the threshold standard for the conclusion that male DNA was detected. Park further explained that "various factors" could impact the presence of male DNA after intercourse, including the absence of ejaculation and whether or not the person "came into contact" in such a manner as to leave a deposit of DNA in any form.
The oral sample was tested for the presence of male DNA, but not for sperm.
As acknowledged by Medina in his opening brief, the only testimony by Park to which defense counsel objected, concerned a query regarding whether DNA is always found after a male and female have intercourse. The trial court sustained the objection, subject to the prosecution laying a proper foundation. After the prosecutor did so and continued the inquiry, counsel interposed no further objection.
B. Medina Has Forfeited His Challenges to Park's Testimony
In his opening brief, Medina argues that "[t]he prosecutor knew what the tests showed prior to Park testifying, which noted that no evidence was found" and that "[b]y knowingly and intentionally proceeding with Park's testimony, this prosecutor committed misconduct that deprived [Medina] of due process and a fair trial." He further argues that "[h]aving heard testimony that was not only irrelevant, but also highly inflammatory and prejudicial, it was incumbent on the trial court to strike the testimony and instruct the jury to disregard it." Having raised neither of these claims in the trial court, Medina has forfeited both claims on appeal. (People v. Clark (2016) 63 Cal.4th 522, 602 [general challenge to relevance of evidence not raised in trial court deemed forfeited on appeal]; People v. Williams (2013) 56 Cal.4th 630, 671 [stating that in order to preserve claim of prosecutorial misconduct, " 'a defendant must make a timely objection and request an admonition' "].)
C. Trial Counsel Was Not Ineffective For Failing to Object to the Admissibility of Park's Testimony
Medina insists that "[h]ad counsel objected or sought exclusion of the offending testimony there is a reasonable likelihood the trial court would have concluded that having Park testify to 'nothing' was indeed admissible, irrelevant evidence." Not so.
First, the fact that the test results to which Park testified were negative or inconclusive, did not render his testimony irrelevant. As explained by our high court in People v. Horning, supra, 34 Cal.4th 871, "sometimes scientific examination of evidence is inconclusive. . . . That circumstance does not make it irrelevant. . . . [¶] . . . Indeed, excluding the evidence might have been unfairly prejudicial to the prosecution. The jury would naturally wonder if anyone had tested the bullets and barrel. If told nothing on the question, some jurors might have assumed no one had bothered to test the evidence, to the prosecution's substantial—and unfair—detriment." (Id. at pp. 900-901; see also People v. Cooper (1991) 53 Cal.3d 771, 813 [relevant for the jury to learn that two cigarette butts found in the victim's car were tested scientifically even though the results were inconclusive].) In light of the rationale explained in Horning, counsel could have reasonably determined that any attempts to exclude Park's testimony would have proven futile. (People v. Maury (2003) 30 Cal.4th 342, 389 [defendant cannot prevail on ineffective assistance of counsel claim, if satisfactory explanation exists for counsel's conduct].)
In Horning, ballistics tests were conducted on a weapon found on the defendant's parent's property. (People v. Horning, supra, 34 Cal.4th at p. 900.)
Second, defense counsel's own closing argument reveals a tactical reason for her inaction. In her closing statement to the jury, defense counsel argued that in light of the DNA results, the prosecution could not establish beyond a reasonable doubt that Medina entered Andrea's apartment with the intent to commit rape or attempted rape—as relevant to the felony murder charge and special circumstance allegation. Counsel pointed out the prosecutor did not file separate rape or attempted rape charges because they did not have enough evidence to do so, but nonetheless was "asking [the jury] to use that as a reason to believe there was a burglary." Defense counsel suggested the rape theory was "being presented to inflame this jury and to make that an issue" despite the lack of evidence.
Given that Medina told one of his roommates after returning from Los Angeles that the perpetrator of the murder likely raped Andrea and was going to get away with it (and Medina was found in possession of Andrea's underwear), defense counsel could have reasonably determined that excluding Park's testimony would leave the jury curious as to whether such an examination was done and inclined to speculate about the results. (People v. Horning, supra, 34 Cal.4th at p. 901 ["It would have been truly odd, and would only have puzzled the jury, to tell it that testing had been done, but withhold the results"].)
Finally, to the extent Medina characterizes Park's testimony as "infused with emotional rhetoric" because it "expose[d] the jury to the minutiae of collecting the swabs from every one of Andrea's intimate body parts," Medina is mistaken. Park's testimony, which spanned a mere five pages, was straightforward and clinical and delivered only the test results collected by the swabs. It was criminalist Jessica Gadway who collected the rape kit evidence and testified to the procedures used to collect such evidence. During that testimony, Gadway explained she was only able to conduct a "modified" rape kit "due to the charred state of the body," leaving her unable to examine the body for any scratches, unable to use an "A.L.S" (alternate light source) light which is normally used in conjunction with filtered goggles to be able to identify possible biological fluids, and requiring her to first artificially wet the tip of the swab prior to swabbing the oral cavity, when normally "the interior of the mouth is already wet."
Though Medina rails against the inflammatory effects of trial testimony regarding how the swab samples were obtained from "Andrea's intimate body parts"—referring to the testimony as "emotional fireworks" and "embarrassing, awkward, upsetting, troubling, and distressing" he makes no mention of Gadway. This is likely because her testimony highlights another flaw in Medina's "non-relevance" refrain. That is, a perpetrator who takes extreme measures to destroy evidence to avoid detection of his crimes cannot reasonably expect a trial court to prevent a jury from hearing about the forensic challenges caused by his destructive efforts. To argue otherwise would result in a windfall for the perpetrator and unfairly prejudice the prosecution's case. (People v. Horning, supra, 34 Cal.4th 871 at p. 901.)
For all of the reasons discussed, trial counsel was not ineffective for failing to seek exclusion of the DNA related testimony. (People v. Maury, supra, 30 Cal.4th at p. 389.)
To the extent Medina accuses defense counsel of "thinking of what she was going to have for dinner instead of zealously advocating on [Medina's] behalf," we observe that Medina's opening brief is littered with such flippant remarks, as well as hyperbolic rhetoric. (In re Ross (2009) 170 Cal.App.4th 1490, 1513-1514 [noting the unhelpful nature of hyperbole in briefing and cautioning that " 'unwarranted personal attacks on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct' "]; see also Truong v. Orange County Sheriff's Dept. (2005) 129 Cal.App.4th 1423, 1429-1430.)
IV. PETITION FOR RELEASE OF JUROR INFORMATION
Medina contends the trial court erred by denying his petition to disclose juror information. Medina points out that following the verdict, a juror indicated to a reporter the jury had reached its decision on first degree murder based on a predicate crime not included as a theory for felony murder, and argues that "an inquiry was necessary to find out exactly how far the transgressions extended." Respondent disagrees, arguing that any inquiry sought by Medina would be prohibited as an improper intrusion on the juror's mental processes and reasoning in reaching their verdict. We agree with respondent.
A. Background Facts
Prior to sentencing, Medina filed a petition for disclosure of juror information pursuant to Code of Civil Procedure sections 206, subdivision (g), and 237. In the petition, Medina argued there existed good cause to communicate with jurors because "statements by at least one juror in the trial have indicated that the jury's decision to convict Mr. Medina was based on a misunderstanding and incorrect application of the law."
The petition was supported by a declaration from defense counsel and a postverdict article from the Daily Bruin that included an interview with Juror No. 7. In her declaration, defense counsel pointed out Juror No. 7 told the reporter the jury was initially not in agreement as to whether it should convict Medina of first or second degree murder, but that this changed when they considered the testimony of UCLA cook Julio O. After referencing Julio's testimony that Medina asked him if he knew how to fight because he was about to go into an apartment with women and may need help, the reporter quoted Juror No. 7 as stating, " 'We all (then) agreed that (Medina) went with intent to pick a fight.' "
The article referred to Julio by his middle surname.
In her declaration, counsel explained that in order to be guilty of first degree murder on a felony-murder theory, Medina must have entered with the intent to commit a burglary, which meant he harbored the intent, per instructions, to commit larceny, rape, or attempted rape. Thus, if the jury decided that Medina "was guilty of first degree murder because he went in with the intent to pick a fight, they applied [the] law incorrectly and did not follow the judge's instructions."
During deliberations, the jury sent a note to the trial court requesting "[a]n explanation of burglary" and whether the intent element "applies to any crime (for example - fighting) or is specific to only intending burglary, rape, or intended rape?" After consulting with counsel, the court responded as follows: "The crime of burglary requires entry with the intent to commit theft (larceny) or any felony within (see [CALCRIM No.] 1700). You have received definitions of crimes which may be supported by the evidence: theft (larceny), rape and attempted rape."
CALCRIM No. 1700, given by the court and referenced in the court's answer, stated that defendant was charged with burglary in counts 3 and 4, and the People had to prove the defendant (1) entered a building, and (2) when he entered a building, he "intended to commit theft or rape or attempted rape."
Defense counsel declared "[t]he defense must be able to contact all jurors in this case to discuss [Juror No. 7's] statement and their decision to find Mr. Medina guilty."
At the hearing on the petition, the trial court pointed out that even assuming the Daily Bruin accurately reported the juror's remarks, "the processes of the jurors in reaching their verdict are not subject to scrutiny in this fashion." The trial court denied the petition.
B. Governing Legal Principles
After the recording of a jury's verdict in a criminal trial, the trial court must seal the "record of personal juror identifying information," including "names, addresses, and telephone numbers." (Code Civ. Proc., § 237, subd. (a)(2).) A criminal defendant may "petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose." (Code Civ. Proc., § 206, subd. (g).) "The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information." (Code Civ. Proc., § 237, subd. (b).) Good cause requires " 'a sufficient showing to support a reasonable belief that jury misconduct occurred.' " (People v. Cook (2015) 236 Cal.App.4th 341, 345.) " 'Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror's right to privacy outweigh the countervailing public interest served by disclosure of the juror information . . . .' " (People v. Carrasco (2008) 163 Cal.App.4th 978, 990.) We review a trial court's denial of a petition for the release of juror information for abuse of discretion. (Id. at p. 991.)
C. The Trial Court Properly Denied the Petition for Lack of Good Cause
Medina's request "to contact all jurors in this case to discuss [Juror No. 7's] statement and their decision to find Mr. Medina guilty" would not have produced any relevant or admissible evidence of jury misconduct.
Evidence Code section 1150 prohibits any evidence that seeks "to show the effect of [any] statement . . . upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Id., subd. (a).) Evidence that violates Evidence Code section 1150 is not merely inadmissible, it is irrelevant—"of no jural consequence." (People v. Steele (2002) 27 Cal.4th 1230, 1264.) A trial court can properly consider the extent to which the proffered evidence would be admissible or excludable under Evidence Code section 1150. (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.)
As explained by our high court, " 'The mental processes of deliberating jurors are protected, because "[j]urors may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny." ' " (People v. Nelson (2016) 1 Cal.5th 513, 568-569; see also People v. Engelman (2002) 28 Cal.4th 436, 443 [" ' "As a general rule, no one—including the judge presiding at a trial—has a 'right to know' how a jury, or any individual juror, has deliberated or how a decision was reached by a jury or juror" ' "].)
Evidence Code section 1150 "may be violated not only by the admission of jurors' testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations." (People v. Hedgecock (1990) 51 Cal.3d 395, 418-419) As such, "when a juror in the course of deliberations gives the reason for his or her vote, the words are simply a verbal reflection of the juror's mental processes." (Id. at p. 419.)
Citing People v. Lavender (2014) 60 Cal.4th 679, 686-687 and People v. Johnson (2013) 222 Cal.App.4th 486, 495-496, Medina asserts that the jury's failure to follow instructions constitutes misconduct and argues that any evidence of such failure is "admissible under Evidence Code section 1150 to state a prima facie case of misconduct." Medina is mistaken.
Both Lavender and Johnson involved the jury's violation of a blanket directive to not discuss or consider " 'for any reason at all, the fact that the defendant[ ] did not testify.' " (People v. Lavender, supra, 60 Cal.4th at p. 686-687; People v. Johnson, supra, 222 Cal.App.4th at p. 495.) As such, "the mere making of such a statement in the jury room was an overt act of misconduct and admissible as such under Evidence Code section 1150." (People v. Johnson, supra, at p. 495.)
Here, by contrast, defense counsel based her request on the juror's discussion of testimony that Medina indicated he may be seeking a fight prior to entering Andrea's apartment. No instruction wholly prohibited the jury from considering this evidence or testimony. As such, "the mere making of" any statements by jurors about this testimony would not in and of itself violate the court's instructions (cf. People v. Johnson, supra, 222 Cal.App.4th at p. 495; see also People v. Cleveland (2001) 25 Cal.4th 466, 484), while any statements reflecting how this evidence factored into the jury's deliberations and final determination of guilt would run squarely against the prohibitions contained within Evidence Code section 1150. (In re Manriquez (2018) 5 Cal.5th 785, 799 [" 'Evidence of a juror's mental process—how the juror reached a particular verdict, the effect of evidence or argument on the juror's decisionmaking—is inadmissible' " (italics added)].)
Indeed, in articulating her rationale for further inquiry, trial counsel stated the defense had the right to ask the jury: " 'Did you agree because of' and refer to the statement that [Juror No. 7] made."
In light of the prohibitions contained within Evidence Code section 1150, Medina failed to establish good cause for the release of the juror identifying information, and the trial court acted within its discretion in denying the petition. (People v. Steele, supra, 27 Cal.4th at p. 1264; People v. Cook, supra, 236 Cal.App.4th at pp. 345-346.)
To the extent Medina relies on People v. McNeal (1979) 90 Cal.App.3d 830 and People v. Burgener (1986) 41 Cal.3d 505, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 756, neither case has any application here.
In McNeal, the trial court was informed during trial that a juror informed the foreperson she may have some personal information about the case—and had mentioned "couple of names"—but the court refused to inquire into the nature of that information with the juror. (People v. McNeal, supra, 90 Cal.App.3d at pp. 835-836.) In Burgener, there was a report that a sitting juror may have been intoxicated during the trial, possibly on drugs, yet the trial court failed to conduct an inquiry into the matter. (People v. Burgener, supra, 41 Cal.3d at pp. 516-517.)
V. DIRECT VICTIM RESTITUTION
Medina claims the trial court's order requiring him to pay restitution for the victim's funeral expenses in the amount of $45,326.62 was unreasonable and violative of the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. We discern no abuse of discretion in the amount of restitution ordered by the trial court, and deem any challenge under the Excessive Fines Clause forfeited for lack of objection in the trial court.
A. Background Facts
At the hearing on victim restitution, defense counsel objected to the requested amount of $45,326.62, expended for the funeral and memorial service for Andrea. Counsel explained she was not objecting to the authenticity of the claim—i.e., contending the charges were unsubstantiated or undocumented—but rather arguing that the expenses incurred were "beyond that reasonableness limit which should be set on the amounts of restitution." Counsel pointed out the itemized expenses for a planning consultant, catering, and flowers as examples of unreasonable expenses.
In response, the prosecutor noted Andrea's mother had "thousands of dollars more of expenses that she has not asked for," and that the amount sought was "reasonable because this is actually what they incurred without anticipating that they would ever ask for this." The prosecutor added that the family had "catered to hundreds of people that wanted to be there for her."
Citing the victim impact statements at the sentencing hearing and the numerous letters received by the court, the court commented that "[k]illing a person who is a cherished member of a large community, it's going to attract many, many people to that funeral," and "[c]ircumstances like this, I think, would dictate a very substantial event." The court explained that "the reasonableness requirement is designed to prevent windfalls . . . [and o]bviously this is not that [situation]." The court stated it imposed the minimum restitution fine to allow Medina to devote himself to pay the direct victim restitution amount rather than the restitution fine. Finally, the court stated it was unaware of any authority "that holds that an elaborate funeral after a shocking and untimely death that rocks a large community and the family tries to bring that community together to recognize the loss and celebrate the life of their loved one—I know of no authority for limiting that."
B. Governing Legal Principles
Trial courts have broad discretion in ordering restitution to a victim. (People v. Mearns (2002) 97 Cal.App.4th 493, 499.) "In examining the restitution statute, '[t]he intent of the voters is plain: every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss.' " (People v. Keichler (2005) 129 Cal.App.4th 1039, 1046.) "As a result, 'the word "loss" must be construed broadly and liberally . . . .' " (Ibid.; see also People v. Phelps (1996) 41 Cal.App.4th 946, 950.)
We review a court's determination of restitution for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) "When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." (People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)
C. The Trial Court Acted Within its Broad Discretion in Ordering $45,326.62 in Victim Restitution
The restitution statute, Penal Code section 1202.4, allows for recovery of a broad variety of economic losses incurred as a result of the defendant's conduct, "including, but not limited to" medical expenses, mental health counseling expenses, wages or profits lost by the victim, and psychological harm. (Id., subd. (f)(3).) The statute expressly mentions funeral services in stating that any assistance provided by the restitution fund shall be established by copies of submitted bills and whether the services were for "medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation." (Id., subd. (f)(3) & (4).)
In his opening brief, Medina states he "does not suggest that the family of the victim may not conduct the funeral/memorial of its choice" but argues that "providing food for hundreds and having a party planner take charge of the event" are too ancillary to be considered reasonable expenses. We disagree.
The only authority cited by Medina in support of his claim of unreasonableness is People v. Taylor (2011) 197 Cal.App.4th 757. Taylor, however, is of little help to Medina and if anything, supports the trial court's order.
In Taylor, the trial court ordered the defendant (who pled no contest to a charge of hit and run causing injury) to pay victim $44,554.83 in victim restitution, including $8,333.33 in attorney fees. (People v. Taylor, supra, 197 Cal.App.4th at p. 760.) On appeal, the defendant challenged the attorney fee award as unreasonable, contending the court should have determined the fee under the lodestar method for calculating attorney fees, as opposed to the 33 1/3 percent contingency fee actually incurred by the victim. (Id. at p. 760.)
The appellate court disagreed, concluding that requiring the court to apply the lodestar method would contravene the fundamental purpose of the restitution statute which commands that the victim receive "full restitution." (People v. Taylor, supra, 197 Cal.App.4th at p. 764, quoting Pen. Code, § 1202.4, subd. (f).) While the court did go on to state that a defendant who feels his victim is seeking restitution "for unreasonable attorney fees" may "present argument and evidence supporting his position," it concluded by stating the following: "[W]here there is uncontradicted evidence the victim incurred attorney fees as a result of the defendant's actions, it is not an abuse of discretion to award restitution for the fee without resorting to the lodestar method." (People v. Taylor, supra, at p. 764.) In so concluding, the court pointed out that " '[a] wrongdoer in criminal cases as in civil torts takes his victim as he finds him.' " (Ibid., italics added.)
Here, the trial court, consistent with the latter quoted principle, pointed out that Andrea was a cherished member of a large community, and observed that "[c]ircumstances like this, I think, would dictate a very substantial event." Moreover, the amounts included in the trial court's restitution order were expenses actually "incurred in conjunction with" or "arising out of" the funeral services for Andrea. (People v. Keichler, supra, 129 Cal.App.4th at pp. 1046-1047, 1048 [expenses incurred in conjunction with traditional Hmong healing ceremony, including herbal remedies and animals, were not beyond bounds of reason].)
Medina not only conceded the restitution amount ordered by the court were expenses actually incurred by the victim's family but failed to present any evidence that $45,000 for a funeral or memorial service for a young victim was wholly out of the bounds of reason. (People v. Taylor, supra, 197 Cal.App.4th at p. 761 [explaining that once victim makes prima facie showing of economic losses incurred as result of the defendant's acts, burden shifts to the defendant to disprove the amount of loss claimed by the victim]; People v. Keichler, supra, 129 Cal.App.4th at p. 1048 [stating that because the defendant failed to offer any evidence to challenge any of the expenses presented, trial court did not abuse discretion in awarding those amounts]; cf. People v. Rubics (2006) 136 Cal.App.4th 452, 456 [trial court awarded $44,414 in victim restitution to pay to the victim's mother for funeral services], disapproved in part on other grounds as stated in People v. Martinez (2017) 2 Cal.5th 1093, 1107, fn. 3.)
We discern no abuse of discretion.
D. The Eighth Amendment Does Not Apply to Victim Restitution
On appeal, Medina also contends the trial court's order violates the Excessive Fines Clause of the Eighth Amendment of the United States Constitution. Medina asserts that "[t]he defense objected to the order of restitution of funeral expenses on the same grounds as are advanced herein" and proclaims that "[a]s such, the issue is preserved for appeal." Not so.
Regardless, we conclude that the Eighth Amendment does not apply to victim restitution. Unlike a fine, victim restitution is not a form of punishment. (People v. Harvest (2000) 84 Cal.App.4th 641, 646-650.) "Although restitution has an element of deterrence [citation], the primary purpose of victim restitution is to provide monetary compensation to an individual injured by the crime." (Id. at p. 648.)
E. The Abstract of Judgment Must Be Corrected to Reflect the Restitution Amount Ordered By the Trial Court
As discussed above, the trial court ordered victim restitution in the amount of $45,326.62 at the restitution hearing. The abstract of judgment, however, reflects the restitution amount as $42,326.62. Since the court's oral pronouncement controls (People v. Zackery (2007) 147 Cal.App.4th 380, 385), we direct the trial court to modify the abstract of judgment to reflect a victim restitution amount of $45,326.62. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [noting courts, including appellate courts that have properly assumed jurisdiction of cases, may correct errors in abstract of judgment at any time].)
Medina was also ordered to pay $4,248.90 to the victim restitution board, paid out to the family for the cost of moving Andrea's body to Texas. Medina conceded in trial he was not challenging that amount, which is accurately reflected in the abstract of judgment.
F. The Trial Court Properly Imposed and Stayed the $300 Revocation Fine
The trial court imposed a $300 parole revocation fine pursuant to Penal Code section 1202.45, which was stayed. Medina contends that because he was sentenced to a term of LWOP, the trial court's imposition of this fine amounts to an unauthorized sentence that must be corrected on appeal. Respondent disagrees, arguing the fine was statutorily required because the trial court imposed a determinate prison term on the remaining counts of conviction. Respondent is correct.
Medina filed no reply brief in this case.
Pursuant to Penal Code section 1202.45, "[i]n every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall . . . assess an additional parole revocation restitution fine . . . ." (Id., subd. (a).) The fine is suspended unless and until parole is revoked. (Id., subd. (c).)
While Medina is generally correct that a trial court cannot impose the parole revocation fine on an LWOP term (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183), the court must do so if a defendant's sentence, as here, also includes a determinate prison term under Penal Code section 1170. (People v. Brasure (2008) 42 Cal.4th 1037, 1075 [distinguishing Oganesyan and upholding parole revocation fine where court imposed determinate sentence in addition to defendant's death sentence].) This is so, even if the defendant "is unlikely ever to serve any part of the parole period on his determinate sentence." (Ibid.)
Here, in addition to Medina's LWOP sentence, the trial court imposed a consecutive aggregate determinate sentence of 10 years on the remaining four counts. Accordingly, the trial court properly imposed, and stayed, the $300 parole revocation fine. (People v. Brasure, supra, 42 Cal.4th at p. 1075.) As noted in Brasure, a "[d]efendant is in no way prejudiced by assessment of the fine, which will become payable only if he actually does begin serving a period of parole and his parole is revoked." (Ibid.)
DISPOSITION
We order the abstract of judgment be amended to reflect that the restitution amount payable to Andrea's mother, victim Leslie Del Vesco, is $45,326.62, plus 10 percent interest, as orally pronounced by the trial court. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
CHANEY, J.
BENDIX, Acting P. J.