Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Larry Paul Fidler, Judge, Ct. No. BA274998
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.
CROSKEY, Acting P. J.
Defendant and appellant Kimberly Strand appeals from a judgment after a jury trial in which she was convicted of first-degree murder (Pen. Code, § 187, subd. (a)), robbery (Pen. Code, § 211), and burglary (Pen. Code, § 459). On appeal, defendant contends the trial court erred in failing to exclude evidence of a robbery she had committed a few hours prior to the murder. We conclude the evidence of the prior robbery was admissible under Evidence Code section 1101, subdivision (b), as the prior robbery provided the motive for the charged offenses. We further conclude the trial court did not err in determining that the evidence of the prior robbery was not more prejudicial than probative. We therefore affirm.
An allegation she personally used a deadly and dangerous weapon, a cast-iron skillet, was also found true. (Pen. Code, § 12022, subd. (b)(1).)
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning of September 25, 2001, defendant and David Cannova killed victim Stanley Feldman in the course of robbing him at his home. The events leading to the robbery, however, began with an attack on Ruben Garcia the previous night.
The jury was informed that Cannova would be tried separately. Although no evidence of this fact was placed before the jury, it appears that Cannova is mentally challenged; a clinical neuropsychologist concluded Cannova’s IQ was 64, ranking him lower than the first percentile. The doctor believed Cannova functioned at approximately the level of an 8-year-old child.
At the time of the attack, defendant lived with Garcia in his one-room apartment. She had been living with him for a few months. Defendant had introduced Garcia to Cannova; defendant and Cannova told Garcia they were related, “like step-siblings.” On September 24, 2001, Garcia returned home from a bar, and was upset to find Cannova there with defendant. Defendant persuaded him to allow Cannova to remain, telling him that Cannova had taken a lot of drugs and needed to rest. Garcia agreed, and began to watch television. Cannova became angry with Garcia because Cannova could not sleep with the television on. Garcia told Cannova that if he did not like it, he could leave. Cannova then attacked Garcia, choking him with a belt. Garcia lost consciousness and fell to the floor. Cannova suggested to defendant that they should put Garcia on the bed and tie him up. Cannova wanted to rob Garcia; defendant told him that Garcia did not have any money. However, she went along with the plan to tie up Garcia. While defendant and Cannova attempted to bind Garcia with a curling iron cord, Garcia struggled and kicked out a window. Defendant and Cannova succeeded in overcoming Garcia, but the police had already been called because of the broken window.
Garcia testified that defendant was “sort of” his girlfriend. Garcia’s first language is Spanish; defendant speaks only a few words in Spanish. Defendant would talk to Garcia in English; Garcia “would understand some of the things that she said” to him.
At 3:40 a.m., police officers knocked on the door of Garcia’s apartment in response to a call about a domestic disturbance. Defendant answered the door; Cannova hid in the bathroom. Defendant told the officers that she had been drinking and broke the window when she stumbled. The police left without entering, and therefore never discovered Garcia bound and unconscious on the bed.
Defendant did not know whether Garcia was alive or dead. Defendant and Cannova found approximately $10 on Garcia, and took the money. They then left the apartment, with no destination in mind. As defendant and Cannova walked, they realized that they needed to leave town. Defendant and Cannova had previously lived with Feldman in his apartment; they knew he had money. Defendant came up with the idea of robbing Feldman, so that she and Cannova could obtain the necessary funds to get away.
Defendant had moved out; Cannova might have still lived with Feldman.
On appeal, defendant argues that the evidence does not support the conclusion that defendant decided to rob Feldman to obtain money to flee after the Garcia robbery. Defendant’s recorded statement to police, which was introduced into evidence at trial, clearly supports this interpretation of defendant’s motivation. The detectives questioning defendant inquired how the events began, asking whether defendant and Cannova had simply “decided [they] wanted to get some money.” The detectives asked, “What, did you want to go somewhere, and just leave?” Defendant agreed that they did want to get money and leave. The detectives asked “where were you at when you decided all this?” Defendant responded that they were on their way to Feldman’s apartment. The detectives pressed defendant on this point, asking if it she had not, in fact, wanted to obtain money from Garcia prior to that time. Defendant was adamant that the attack on Garcia had been Cannova’s idea, and that she had not thought of getting money from him (as she thought he had none). When the detectives asked, “when did you decide that you wanted to go, go away, go to Vegas[?]” defendant replied, “After that happened with [Garcia].” She later confirmed that, when Cannova first attacked Garcia, she had not “even thought about robbing him or going anywhere.” Defendant explained that the whole thing started when Cannova attacked Garcia and “[i]t just escalated from there.” It was only “after [Garcia]” that defendant talked with Cannova about getting money and leaving town. At that point, not knowing whether Garcia would live or die, defendant told Cannova “we got to leave,” and came up with the idea of robbing Feldman.
Defendant and Cannova walked approximately 20 blocks to Feldman’s apartment. They arrived around 6:00 a.m. Defendant rang the bell, and Feldman let them in. Defendant’s plan had been to hit Feldman over the head to knock him out, enabling them to take his money and leave. Defendant did not instantly attack Feldman when he let them in the apartment. Instead, she sat on Feldman’s sofa for nearly a half hour, “smoking [her] dope” and debating whether to go through with the plan. During this time, Feldman sat at a table, smoking a cigarette and watching television.
Defendant then went into the kitchen, found a cast-iron skillet, approximately 12 inches in diameter, and hit Feldman in the head with it. Feldman did not lose consciousness. Instead, he stood up and yelled at defendant. Feldman hit defendant, and Cannova joined in the fray. Cannova choked and beat Feldman. He also gouged Feldman’s eyes. Defendant wrestled with Feldman, preventing him from leaving. Cannova stabbed Feldman repeatedly, breaking off a knife blade in Feldman’s neck. Cannova asked defendant for another knife; defendant obtained one from the kitchen and gave it to him. Cannova repeatedly stabbed Feldman in the torso. When defendant and Cannova stopped their attack, Feldman was unmoving on the floor, making gurgling noises. Cannova covered him with a blanket. Feldman ultimately died.
Apparently, the force of the blow broke the handle off the skillet.
Defendant and Cannova showered, to get the blood off their bodies. They left some of their bloody clothes in the apartment; Cannova changed into some of Feldman’s clean clothes. While defendant showered, Cannova looked through Feldman’s desk for money. Cannova found and took $700, as well as $120 in food stamps.
Feldman was a bookie. There was over $9000 in his apartment, stored in envelopes and folders. Police also found an additional $96 in cash on the kitchen counter, which Cannova had also apparently failed to discover.
Defendant and Cannova took a taxi downtown, where they traded the food stamps for cash. They bought bus tickets to Las Vegas, where they stayed for a few days. Subsequently, defendant was arrested in New Orleans. On April 13, 2002, she was interviewed by police, and fully confessed her part in the crimes.
An autopsy of Feldman revealed that he did not, in fact, die from the stab wounds. Instead, Feldman, who had severe heart disease, died as a result of “acute dysfunction of his heart produced by the stress of the assault.” All of the stab wounds were inflicted “at about the time he was either already dead or in the process of dying.” Dr. Dale Isaeff, a Professor of Medicine in cardiology, explained that Feldman died of “a scared to death phenomenon.” Dr. Isaeff was convinced that the assault caused Feldman’s death, but that it was the stress of the assault that led to the fatal arrhythmia.
On May 12, 2005, defendant and Cannova were charged by information with the murder and robbery of Feldman; defendant was also charged with his burglary. Defendant entered a plea of not guilty and proceeded to a jury trial. The only defense she offered at trial was one based on the cause of Feldman’s death. Defendant argued that Feldman had simply died of heart disease. She took the position that he was “at death’s door” at the time of the attack, and that it had not been established beyond a reasonable doubt that Feldman did not independently have a fatal arrhythmia at that point.
Cannova was not charged with burglary, apparently on the theory that he lived with Feldman.
After just over one hour of deliberation, the jury found defendant guilty as charged. Defendant was sentenced to 26 years to life in prison. She filed a timely notice of appeal.
ISSUE ON APPEAL
The sole issue raised by defendant’s appeal is whether the trial court erred in failing to exclude the evidence relating to the attack on Garcia, as a prior bad act. We conclude the evidence was admissible under Evidence Code section 1101, subdivision (b) as evidence of defendant’s motive, and that the trial court did not abuse its discretion in determining the evidence was not more prejudicial than probative.
DISCUSSION
Evidence Code section 1101, subdivision (a) prohibits admission of evidence of a person’s character or a trait of character in order to prove conduct on a specified occasion. However, subdivision (b) clarifies, “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act.”
“As Evidence Code section 1101, subdivision (b) recognizes, that a defendant previously committed a similar crime can be circumstantial evidence tending to prove his [or her] identity, intent, and motive in the present crime. Like other circumstantial evidence, admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence vel non of some other rule requiring exclusion. [Citation.] Defendant placed all issues in dispute by pleading not guilty. [Citation.] Accordingly, the identity of the person who [committed the charged offenses], and that person’s intent and motive, were all material facts.” (People v. Roldan (2005) 35 Cal.4th 646, 705-706, fn. omitted.)
In this case, the evidence of the Garcia robbery was admitted as relevant to the issues of intent and motive. We need consider only motive. Although motive is not one of the elements that the prosecution was obligated to establish, “evidence of motive makes the crime understandable and renders the inferences regarding defendant’s intent more reasonable. ‘Motive is not a matter whose existence the People must prove or whose nonexistence the defense must establish. [Citation.] Nonetheless, “[p]roof of the presence of motive is material as evidence tending to refute or support the presumption of innocence.” ’ ” (People v. Roldan, supra, 35 Cal.4th at p. 707.) The trial court did not err in admitting the evidence of the Garcia robbery in this case. The Garcia robbery created the motive for the Feldman robbery. Defendant told police that she had not intended to rob Garcia and that Cannova had attacked him spontaneously. Events escalated, and, shortly thereafter, defendant found herself lying to the police, while Garcia lay unconscious, perhaps dead, tied up on the bed. All of a sudden, defendant and Cannova needed money to leave town. The evidence was therefore clearly relevant to defendant’s motive for the robbery of Feldman, and therefore admissible under Evidence Code section 1101, subdivision (b).
Admission of evidence of prior acts on an incorrect theory is irrelevant if the acts were admissible on an alternative theory. (People v. Singh (1995) 37 Cal.App.4th 1343, 1380; People v. Taylor (1986) 180 Cal.App.3d 622, 638.)
Defendant next contends the trial court erred in not excluding the evidence as more prejudicial than probative. (Evid. Code, § 352.) “The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses.” (People v. Zepeda (2001)87 Cal.App.4th 1183, 1211.) A trial court’s determination under Evidence Code section 352 will not be disturbed on appeal absent a clear showing of abuse of discretion. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1610.) Here, the evidence was clearly probative. Defendant suggests that, since her recorded statement to police admitted that it was her idea to rob Feldman, the additional probative value of the Garcia robbery was minimal. We disagree. Without evidence of the Garcia attack, defendant’s decision to rob Feldman lacks the urgency and desperation that prompted it. Additionally, the amount of time between the Garcia robbery and the Feldman attack was minimal, adding to its relevance. In contrast, there is minimal prejudicial value to the evidence of the attack on Garcia. While it is true that the defendant was not charged or convicted in relation to that offense, the facts of the robbery were nowhere near as inflammatory as the facts of the attack on Feldman. Garcia had been strangled into unconsciousness, without knives, bloodshed, or a prolonged struggle. Moreover, all of the evidence pertaining to the attack on Garcia indicates Cannova was the aggressor, which is to be contrasted with the Feldman robbery, in which defendant began the attack. In short, when compared to the attack on Feldman, the attack on Garcia was minimally prejudicial to defendant. Given its relevance to motive, the trial court did not abuse its discretion in determining that the probative value of the Garcia robbery outweighed the danger of undue prejudice.
Additionally, the similarity between the two attacks further illuminates the choices defendant made in her attack on Feldman. Clearly, taking money from Garcia had been simple once he had been rendered unconscious, so defendant chose to rob Feldman in the same manner.
The evidence regarding the Garcia robbery was provided both from defendant’s recorded statement to police and Garcia himself. Thus, to the extent Garcia was able to corroborate defendant’s out-of-court admissions, he provided independent evidence.
Defendant suggests evidence of the attack on Garcia was likely to inflame the passions of the jury because defendant had been involved in an intimate relationship with Garcia and he had trusted her enough to give her a key to his apartment. We note that defendant had apparently been similarly trusted by Feldman in the past. We also question whether the jury would have inferred a deep relationship between Garcia and defendant; Garcia testified that defendant was “sort of” his girlfriend and that there was a language barrier between them.
In any event, any error in admitting the evidence was harmless. “[T]he erroneous admission of prior misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded.” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.) Defendant admitted her part in the attack on Feldman. The medical evidence established that the stress of the attack caused Feldman’s death. Defendant’s theory to the contrary – that Feldman happened to have a fatal heart attack at the same moment she and Cannova brutally attacked him – was highly improbable. It is simply not reasonably probable that the jury would have determined Feldman coincidentally had a fatal arrhythmia when he was beaten and stabbed by defendant and Cannova, but decided to convict defendant of murder anyway because they were so enraged by the fact she had tied up Garcia and taken $10 from him.
Indeed, defendant’s statement to police was that Feldman had been sitting at his table watching television when she attacked him. She did not say that he demonstrated any signs of a heart attack.
DISPOSITION
The judgment is affirmed.
We Concur: KITCHING, J., ALDRICH, J.