Opinion
A126581
2013-09-19
THE PEOPLE, Plaintiff and Respondent, v. JARED THOMAS ALGER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County
Super. Ct. No. 050714543)
This case returns to us upon transfer from the California Supreme Court, with instructions to vacate our previously issued opinion and reconsider the matter in light of intervening authority from that court and the United States Supreme Court. Jared Thomas Alger was convicted of voluntary manslaughter, felony false imprisonment and misdemeanor assault. Based on our analysis of then-existing authority, we reversed the convictions, finding that appellant's constitutional right of confrontation was violated because the evidence presented at trial concerning the results of the victim's autopsy was not delivered by the pathologist who performed the autopsy. We now conclude no reversible error occurred with respect to the autopsy testimony. As we did before, we reject appellant's additional contentions that the court erred in admitting some of the statements he made to the police and that the evidence was insufficient to support the manslaughter conviction. We additionally reject appellant's claim that the trial court abused its discretion in denying his request for a continuance to allow retained counsel to replace the public defender, an issue we found unnecessary to reach in our previous opinion. Accordingly, we now affirm the convictions.
STATEMENT OF THE CASE
Appellant was charged by information filed on September 19, 2007, with the murder of Steven Goodmason (Pen. Code, § 187) (count 1); kidnapping of Angela Cattoor (§ 207, subd. (a)) (count 2); and assault of Angela Cattoor with a deadly weapon and force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 3). It was alleged in connection with all three counts that appellant personally used a rifle. (§ 12022.5, subd. (a).) It was additionally alleged that in the commission of count 1 appellant intentionally and personally discharged a rifle, causing great bodily injury and death (§ 12022.53, subd. (b), (c), (d)); that in the commission of count 2 he personally used a rifle (§ 12022.53, subd. (b)); and that in the commission of counts 2 and 3 he personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
In late March 2009, with trial set for April 13, 2009, the court denied appellant's requests to substitute retained counsel for the public defender who had been representing him since his arrest. Appellant moved to suppress his statements to the police. After a hearing, the motion was granted in part and denied in part.
Presentation of the case to the jury began on April 27. On May 27, the jury returned verdicts finding appellant guilty of voluntary manslaughter, with personal use of a firearm, of false imprisonment and of misdemeanor assault. The jury found appellant not guilty of murder, kidnapping or attempted kidnapping, and found not true the allegations that appellant personally used a firearm and inflicted great bodily injury in committing the false imprisonment.
On September 4, appellant was sentenced to a total prison term of 16 years eight months, consisting of the middle term of six years for the manslaughter, a consecutive 10 years for the firearm use enhancement, and a consecutive one-third middle term of eight months for the false imprisonment. Sentence on the assault conviction was stayed.
Appellant filed a timely notice of appeal on September 4, 2009. On January 12, 2012, we filed our opinion reversing the convictions on the ground that appellant's confrontation rights had been violated. The California Supreme Court granted review and ultimately transferred the case back to us with directions to vacate our opinion and reconsider the matter in light of several cases decided since we filed our opinion: People v. Lopez (2012) 55 Cal.4th 569 (Lopez), People v. Dungo (2012) 55 Cal.4th 608 (Dungo), People v. Rutterschmidt (2012) 55 Cal.4th 650, and Williams v. Illinois (2012) _ U.S. _ (Williams)
STATEMENT OF FACTS
In August 2006, Louis Aguilar was living at 55 Bixler Road with his girlfriend, Heather Scott, and a friend, Doug Coyle; his nine-year-old son, Blake, was with him every other weekend. On the night of August 26, Aguilar invited some friends to the house, including appellant and Steve Goodmanson. Goodmanson brought his sister, Andrea, and his girlfriend, Anna Cattoor. Cattoor and Goodmanson had been friends for many years and romantically involved for about three years, exclusively for about three months. Cattoor testified that she had been romantically involved with appellant before she became involved with Goodmanson, but she did not think Goodmanson knew this, then acknowledged having told sheriff's officers that Goodmanson initially "had a problem" with her having been involved with appellant. She testified that appellant still had feelings for her after she started seeing Goodmanson, but she told him she did not return them. According to Cattoor, there was "a little bit" of friction between the two men over her, but "it wasn't much friction." Aguilar testified that appellant continued to have feelings for Cattoor but he never got the feeling appellant was jealous of Goodmanson, nor did he observe friction between appellant and Goodmanson that went beyond what he would expect in a friendship between guys. On August 26, Cattoor, Goodmanson and appellant appeared to Aguilar to be under the influence of drugs; Aguilar did not see them consume drugs at his house but on the telephone Goodmanson had mentioned using drugs earlier in the afternoon. Cattoor testified that she and Goodmanson had consumed beers and some cocaine at a friend's house before going to Aguilar's.
Aguilar testified that shortly after Goodmanson arrived at the house, he went across the street with Blake to see the frogs in the pond. Blake had a .22 rifle and Goodmanson had a pellet gun. They went to the pond a second time with Cattoor and appellant. Then, with Aguilar joining them, the group went out in Goodmanson's truck to "shoot at frogs and whatnot." They took the two guns Blake and Goodmanson had previously taken, as well as a .22 rifle belonging to appellant that had been left at Aguilar's house. They stopped along the levee road and appellant, Goodmanson and Blake walked off looking for a rabbit the group had seen, while Aguilar and Cattoor stayed at the truck. Appellant had his .22 rifle; the other remained in the truck. After five or ten minutes, Blake came back to the truck. Cattoor had walked off toward appellant and Goodmanson meanwhile, then returned 10 or 20 minutes later. Blake told Aguilar that appellant and Goodmanson had been arguing a little bit. Aguilar had initially heard shots fired "in the rabbit area," then heard some more gunshots.
About 15 minutes after the last set of shots, Aguilar heard a single gun shot and a minute later saw appellant running toward the truck carrying a gun. Appellant said, "it went down" or "it's going down." Aguilar took this to mean appellant and Goodmanson had gotten into a fight. He had not heard anything that sounded like a fight, only loud, boisterous voices that were not unusual with appellant and Goodmanson. Aguilar asked where Goodmanson was and appellant said "he went fishing." Aguilar understood this to mean there had been a fight "and there was only one winner." Appellant was pacing around and seemed agitated, surprised, and scared. Appellant started to grab the rifle he had put down on the bed of the truck and Aguilar told him to leave the rifle if he and Goodmanson were fighting. Appellant left the gun and ran back down the road. When appellant reached a distance of about 150 yards, Aguilar could no longer see him in the darkness but heard what sounded like something rolling off the levee into the water. Aguilar felt, based on his hunting experience, that his ability to estimate distance was fairly accurate.
Appellant returned to the truck with a pair of boots. This led Aguilar to think Goodmanson was "no longer awake." In the area where Aguilar and appellant grew up, if one person took another's boots, it meant the first person had beaten the other in a fight. Aguilar did not think Goodmanson would lose a fight to appellant, who was smaller, and therefore thought whatever had happened was "farther than just a fistfight." Concerned for his and his son's safety, Aguilar walked away with Blake, taking his rifle. Cattoor remained with the truck.
Aguilar heard Cattoor scream and saw the truck move in reverse down the levee road. Then, as he and Blake walked home through a field, Aguilar saw the truck drive forward and make a right turn on Bixler. The truck slowed down briefly as it passed Aguilar's house and continued north on Bixler. At the house, Aguilar found Scott and Goodmanson's sister tending to Cattoor, who was lying on the floor bleeding. Scott had the sheriff's department on the phone and handed the phone to Aguilar, who said there had been a fight and he thought someone had been shot.
Aguilar then saw the truck pull into his driveway. Telling the others to stay in the house, he loaded his deer rifle, barricaded the doors with chairs and stepped to the back of the house. Appellant got out of the truck and Aguilar yelled to him; appellant did not have anything in his hands and Aguilar did not feel alarmed, so he put down his rifle. Appellant was doing pull ups from a tree branch. Aguilar tried to find out what had happened. Appellant asked what he should do, said he was going to go to Steve's, and told Aguilar to tell the truth, then got in the truck and drove back toward the levee road. Appellant did not, at the house or earlier at the levee, say he had accidentally shot Goodmanson.
Cattoor testified that at the levee, while the others were out looking for frogs, she got back into the cab of the truck, turned on the radio and dozed on and off. Aguilar and Blake joined her, then she went to tell appellant and Goodmanson she wanted to go home, but they were talking and did not listen to her; it seemed like a normal conversation about "guy stuff," but Goodmanson gave her a look she knew meant not to bother him, so she returned to the truck. Goodmanson had his .22 rifle. Back in the truck, Cattoor dozed again and was not aware anything unusual had happened when Aguilar and Blake left to walk home.
At this point, appellant got into the driver's seat and said "let's get out of here." Cattoor asked where Goodmanson was and appellant told her to "go see." Cattoor, thinking Goodmanson would not have allowed appellant to drive the truck because it was brand new, walked about 10 or 15 feet behind the truck and saw Goodmanson lying on the ground. She "freaked out," screaming and trying to shake Goodmanson, and appellant tried to restrain her. Appellant was holding the rifle; he pointed it at her and told her to shut up and get into the truck. He forced her into the truck, hitting her with the rifle, and started to drive away; she opened the door, jumped out and tried to run. Appellant followed her and forced her back into the truck by her hair. Cattoor was "terrified," feeling "almost like being with a serial killer." As appellant drove along the dirt road, she jumped from the truck again and ran. She saw appellant coming behind her with something in his hand, then remembered nothing else until she woke up in the hospital. She had a head injury that required about seven stitches, as well as bad scrapes and a back injury. Appellant never said anything to her about Goodmanson being shot by accident or in self defense.
Cattoor acknowledged on cross-examination that she had been promised she would not be prosecuted for anything that came up in her testimony, and that nothing she said would be used against her in proceedings on a petty theft she had admitted committing in 2009, and two other pending misdemeanor cases.
Blake testified that, at the levee, he walked away with appellant and Goodmanson while his father and Cattoor stayed at the truck. Appellant had the .22 rifle. Appellant and Goodmanson were talking about Cattoor; Goodmanson told appellant to stay away from her and they shook hands. Appellant was "jumpy" and Goodmanson seemed calm. Blake returned to the truck, where his father and Cattoor were talking in the bed of the truck, and sat on the front passenger seat of the cab. Appellant came back to the truck and said Goodmanson "went fishing," then left again. Blake then saw appellant walking toward the truck holding boots, at which point his father told him they needed to leave. As he and his father walked away, Blake looked back and saw appellant grab Cattoor and slam her against the truck; she tried to run away, appellant followed her and said something, and Cattoor burst out crying. Blake then saw appellant drive the truck forward with Cattoor inside. As he and his father walked home through the field, Blake saw the truck turn onto the main road and drive to the house. When the truck was about 25 yards from the house, he saw Cattoor jump or get pushed out and fall on the ground.
At about 1:45 a.m. on August 27, 2006, Contra Costa County Sheriff's Deputy Timothy Houlihan was dispatched to 55 Bixler Road, after a caller reported there had been a shooting and the subject, Jared Alger, had a gun. As he was driving north on Bixler, Houlihan started to pull around a fire truck and saw a pickup truck coming at him at a "fairly high rate of speed." Houlihan stopped; the truck continued to within 20 yards of the officer, then made a sharp left turn onto a dirt road. Houlihan turned onto the dirt road and activated his emergency lights and siren, the truck increased its speed to about 50 miles per hour and Houlihan chased it for about a half mile until it stopped on the levee road. A large dust cloud from speeding down the road obscured Houlihan's vision of the truck and he stopped and waited about a minute for backup to arrive. The officers then approached the vehicle, guns drawn and flashlights on, but found no one in it. There was blood in the bed and cab of the truck, and a puddle of blood on the road in front of the pickup, along with a "camo" flashlight. There was also a dead rabbit forward of the truck and down the levee.
Houlihan heard yelling from the passenger's side of the truck and looked down the eight-foot embankment to see a man he identified as appellant next to the water, cradling Goodmanson's head. Other deputies were yelling at appellant to come up; they eventually pulled him up because of the steep slope. Appellant had a pocketknife in one pocket and two .22 rounds in another pocket. Asked who he was, he directed the officers to the ID in his wallet. He did not respond when asked if he knew where any weapons were, whether he was injured, or who the other person down the embankment was. When asked whether anyone was with him, appellant said, "maybe you should be looking." Officers immediately began searching the area and continued for several hours, using a dog and a heat-imaging device borrowed from the fire department. The mood was tense because the area was brushy, with many places to hide, and the officers did not know how many people might be involved. No one else was found and no weapons were located.
Once he was put into the patrol vehicle, appellant banged his head twice into the partition "pretty forcefully," and Houlihan told him to stop. He sat in the car with his eyes closed most of the time, and seemed emotional to Houlihan. He made several statements: "Steve was like my father, and I would call that man my father, and I learned a lot from him, and I didn't learn enough because I wasn't able to stop this." After about three and a half hours, Houlihan took appellant to the police station.
Officers who examined the scene on the levee road at about 5:00 a.m. found a fired .22 caliber cartridge case a few feet in front of the pickup truck, with a pool of what appeared to be blood nearby. A .22 rifle was recovered from the water next to the levee, about 15 feet from where Goodmanson's body had been found.
A police officer who interviewed Anna Cattoor after she was released from the hospital in the morning testified that she told him appellant had said, after she saw Goodmanson's body, "this is what you wanted."
Terence Wong, a criminalist who attended the autopsy of Goodmanson, testified that at the beginning of the autopsy, Goodmanson was clothed and had binoculars on his chest and a gun holster around his shoulders, but had only one sock and was not wearing shoes. One of the photographs Wong took showed a laceration on the back of the victim's head with a scale showing that the laceration measured four and a half centimeters (approximately one and a half inches). Other photographs showed a black circular perforation on Goodmanson's right cheek. Wong observed the pathologist, Dr. Peterson, locate and remove a bullet from Goodmanson's brain. He also observed Peterson determine the trajectory of the bullet by placing a metal rod through the perforation on the victim's cheek and the area from which he had removed the bullet. Wong documented this procedure with photographs that were not used at trial. The court told the jury it had seen the photographs but the jury would be spared seeing them and instead would be shown a re-enactment on a mannequin of the procedure used to determine the bullet's trajectory.
Pathologist Gregory Reiber testified as an expert on the manner and cause of death and injury, based on his review of the autopsy report and documentation, including the approximately 150 photographs taken by Wong. As will be discussed in greater detail, Peterson had concluded the cause of Goodmanson's death was a gunshot wound to the head, describing an entrance wound on the cheek, a path through the base of the skull and a resulting injury to the brainstem that Reiber testified would be almost immediately fatal. Reiber testified that the photographs indicated a very close range injury; demonstrated on a Styrofoam mannequin head Peterson's probe showing the path of the bullet; and, with the prosecutor, role played scenarios for a struggle over the gun based on appellant's description of the incident. Reiber testified that it would have been possible for Goodmanson to shoot himself at the angle found in the autopsy but would have required his hand to be in a very awkward position.
Reiber also testified that an injury on the back of Goodmanson's head was inflicted when the victim was alive and could have resulted from a sharp blow with the butt end of a rifle or a fall on a hard surface, possibly falling backward and hitting his head on the packed earth surface of the levee after being shot while he was standing. The gunshot injury would have caused death within five minutes at the most. The autopsy report did not indicate that Goodmanson had defecated or voided his bladder at the time he was killed.
Reiber testified, based on photographs he was shown at trial, that appellant had abrasions and scrapes on his forehead, left wrist, right shin, top of the left shoulder and back of the right shoulder. The injury on his forehead could possibly have resulted from pounding his head against the barrier in a police vehicle but was more consistent with a scratch, as from fingernails or twigs.
On the evening of August 26, appellant left a voicemail message for his father. Appellant's father testified that appellant had agreed to help him pour a concrete pad and the message said that if appellant did not get to his father's place the next day, his father should look for him at 55 Bixler. Detective Cary Goldberg, who discussed this message with appellant's father, testified based on his report that the message was left at about 11:13 p.m. on August 26. The detective testified that appellant's father contacted him about the message, describing as "odd" a part of the message that said something like "if you don't hear from me tomorrow . . . the answers or the trail will lead you to 55 Bixler Road." He testified that appellant's father told him he thought the message suggested appellant knew there was going to be some kind of trouble that evening, although appellant's father was not aware of any personal problems between appellant and Goodmanson.
Appellant's father denied having told the detective the message seemed odd or indicated appellant expected trouble that night. He testified that at the time of his phone call with the detective, he was very upset about the way the police had conducted a search of his ex-wife's house, and that he had a severe hearing problem that made telephone conversations very difficult for him. The detective testified that he did not recall appellant's father expressing anger in that conversation and did not ask if appellant's father had a hearing problem.
Appellant was interviewed by the police on August 27, several hours after the shooting, and a videotape of the interview was played for the jury. Appellant told the officers, "it's been a long standing issue that me and him hadn't finished each other off in a fight for many people. Many people wanted to see it." He said that Goodmanson "would talk crazy to [him] about wanting to leave this place, he was done," and appellant would argue with him. Appellant said that up to this point, he had not defended himself against Goodmanson, "we hadn't gone that far meaning both had come close multiple times, I guess. And I had always defused the situation." That night, Goodmanson was talking "crazy" about not wanting to be there, on the levee; then he shifted the conversation and talked about "moments of enlightenment." Appellant said Goodmanson would talk in such a way that at first you would not know what he was talking about and "you're trying to understand advice from like a father figure," and as Goodmanson talked about these moments of enlightenment, appellant realized he was "speaking of what . . . death must be like . . . ."
Appellant said the conversation got "volatile," with Goodmanson giving him the option of "pack and run" or "me and him"; appellant was "scared with the crazy ways he's talking" but "looked to him [for] advice and things" and knew Goodmanson would not respect him if he ran. Goodmanson "egged [him] on," saying "you even have the rifle. . . . You got a gun." Appellant ditched the gun and figured he would "face" Goodmanson, and the two "tussled." Appellant said he did not want it to be "deadly" but Goodmanson was "pushing it" and yelled, "Come on! What do you want me to do? Well, do it." Appellant took this to mean "What do I have to do to get you to kill me?" As they were rolling on the ground, Goodmanson grabbed the gun. He lifted the gun at appellant, screaming at him, then appellant was on his back with Goodmanson on top of him, pulling the gun up with one hand. As Goodmanson pulled the gun up, holding the butt and the handle, appellant pushed the barrel or stock. "[I]t veers up, whacks him in the head and ba[n]g . . . he rolls off of me, . . . I'm looking at him and he's, fuckin, sitting there, you know, farting and fucking. You know his shits fuckin coming out of and he's pissing and everything else. And, I mean, at this, at this point I found (unintelligible) I pretty much know he fuckin, pretty fuckin dead, right?" Appellant said he had a lot of respect for Goodmanson and could not watch him suffering, so he shot him again "like a wounded animal." Because of their relative positions, appellant said the first shot "should had been right in here by the right [e]ar."
Appellant said he ran back to the truck where Aguilar and Cattoor were, not knowing "how they're gonna to react because it seemed to me like other people have said, this is planned. This was planned. It seemed like it was planned by a lot of people. By everyone but me. . . . I've been the one that had avoided it several times before." When one of the officers commented, "Almost like that's why you [got] called out there tonight," appellant said, "Oh, he told me that's why. . . . He told me, you know, at first when he was bringing it up like I would accept it or jump on the idea. One of his attempts to talk me into it during that period I was talking about talking. . . . like he had other people he considered for the role of his possible death, you know. . . . But me. . . . He wanted as his. . . . He explained that as me being I got something. I don't know what it is. It's a good thing kinda thing, but then that's also why he explained why he had gotten me out there." Asked about why he took Goodmanson's boots, appellant said he had hoped to "get them to the water for him." He told the officers he had last used methamphetamine in the morning and had a beer just before the shooting. He insisted he never hit Cattoor.
A criminologist tested stains on appellant's clothing and determined that there was blood on his tee shirt and on his shoes.
Defense
Appellant described Goodmanson as a "very close" friend: He did construction work for Goodmanson, spent time with him fishing, camping, shooting, hunting and other activities, and lived with him for periods of time. Goodmanson was older than appellant and something of a father figure to him, but also used appellant as a model for himself. Appellant had a sexual relationship with Cattoor before she was involved with Goodmanson. Later, appellant slept with her and Goodmanson "kind of laughed about it" but warned appellant, "that's my girl now." Prior to August 26, Goodmanson had made it "official" that he and Cattoor were together. He and appellant had made an agreement that appellant would not respond to Cattoor, who appellant testified was "flirty" and would "throw herself on you," and that Goodmanson would handle whatever Cattoor did. Appellant denied being jealous of Goodmanson.
When appellant arrived at Aguilar's house that night, Cattoor ran to him and jumped on him; he held his arms out, making a point of not hugging her back. Appellant felt uncomfortable because of the situation with Goodmanson and Cattoor. Everyone knew the history and it seemed strange to appellant that they were acting like nothing was going on and did not answer when he asked where Goodmanson was. Appellant felt that Cattoor was flirting with him and that the others thought there was going to be a fight between him and Goodmanson. Appellant was concerned about his relationship with Goodmanson.
Appellant heard gunshots that came from across the street, where Goodmanson and Blake were by the water, and went to join them. He tried to talk to Goodmanson about Cattoor, to say he was keeping to the agreement although Cattoor was being sexually provocative, but Goodmanson avoided the conversation and they returned to the house. Later, appellant, Goodmanson, Cattoor, Aguilar and Blake left in Goodmanson's truck and went to the levee. Appellant got out and went after a rabbit they had seen, taking a .22 rifle that was kept at Aguilar's house and used by "everybody." Goodmanson caught up with him, and appellant tried again to talk to Goodmanson about Cattoor. Goodmanson said, "this isn't going to work like I thought it was then," and picked up his pace, walking ahead of appellant. Eventually, they stopped and agreed on a target to shoot at. Blake caught up with them. Appellant tried to shoot at something and the rifle jammed; Goodmanson tried to take the rifle and appellant "yanked back just out of safety." Appellant was "nervous" because "you don't handle guns that way." The rifle jammed again as appellant tried to clear it, Goodmanson grabbed the rifle aggressively and appellant let go of it. Appellant asked what Goodmanson meant by "it's not going to work." Goodmanson told Blake to go back to his father, Blake left, and appellant pursued the conversation, but Goodmanson remained evasive, his tone "aggressive and sharp." Appellant backed off the conversation and they started to talk about going after frogs, having heard a gunshot they took to mean Aguilar had shot the rabbit they were looking for. Goodmanson was shooting at frogs appellant could not see. Appellant testified that the "whole situation" that evening did not feel "natural" to him, as though everyone else knew something he did not.
After walking a bit more, Goodmanson began to talk about many problems he had with appellant; as appellant tried to voice his side of things, the conversation escalated and became "volatile." Goodmanson told appellant, "you don't get it, better figure it out, or you're never leaving this place." Appellant did not know whether Goodmanson said this more than once but it was "kind of the theme." At some point, Cattoor came and tried to "butt in." Appellant wanted to hear what she had to say because he felt she was the real problem that Goodmanson was not talking about, but Goodmanson got her to leave.
Goodmanson became aggressive with appellant and the two began to fight, rolling on the ground. At this point, neither was holding the gun. It was not uncommon for them to fight, but it generally did not get serious; while both men carried knives, they had never used them against each other. This time, the fight "wasn't even kind of friendly" and appellant was scared of Goodmanson in a way he had not been before. As they struggled, while Goodmanson was on top of appellant, he grabbed the gun and tried to bring the barrel down on appellant's head. Appellant could not believe the fight had gone "this far" and thought Goodmanson was trying to kill him. As he felt the barrel slide across his head, appellant pushed the gun up, heard a bang and felt Goodmanson "jerking" on top of him. Goodmanson's bowels "loosen[ed]," which appellant took to mean he was dead. He rolled Goodmanson off him. Appellant had seen the video of the interview in which he told the police he shot Goodmanson after rolling his body off, but testified that he did not do this and did not know why he would have said he did.
Appellant's memory of what happened after this was vague. He went back to the truck, finding Aguilar and Cattoor in the back, and thought he heard Aguilar say "I didn't think he had the balls to do it." Appellant was scared and worrying about how he had felt like "the one left out of something" the whole night; something was "odd" from the time he arrived at Aguilar's house. Aguilar asked what happened, but appellant thought he already knew, and Cattoor said "some crazy shit, like, well, both of you just relax, we'll have a beer and we'll talk this out." Appellant went back to Goodmanson. He testified that before watching the video of his police interview, he would not have remembered picking up Goodmanson's boots. He testified that his motivation in taking the boots was to show respect for Goodmanson by taking his boots "where he wanted to be" because Goodmanson had said he did not want to be on the levee and wanted to be shark fishing. When he returned to the truck, Aguilar "had a gun on" him, then left with Blake.
Appellant tried to talk to Cattoor, who was asking him what happened and screaming at him. She went to Goodmanson's body and jumped on him, which seemed "fake" to appellant. He was angry at her and "might have said is this what you wanted? Because the bitch kept throwing herself at me." Appellant pulled her away from Goodmanson and she went back to the truck "pretty much willingly" and got in. Appellant drove back to Aguilar's house, to get to a phone. Cattoor jumped out of the truck and appellant got out, picked her up and put her back in. Cattoor was screaming that she could not go with him because she had a child, but appellant was not trying to take her anywhere. He helped Cattoor to the couch in Aguilar's house and asked Heather to take care of her, then walked through the house and checked the field, looking for Aguilar. He returned to the door he had initially entered but found it locked, walked toward the back and was met by Aguilar pointing his "30.06" at him. Aguilar said something about running, then told appellant he should "get counsel" and then, as the police arrived, that it was too late. Appellant drove back toward Goodmanson with a police car following him; he testified that he was not trying to run from him but to "take everybody." He testified that he went to the levee and this "must have been" when he threw the gun into the water. He remembered having Goodmanson in his lap and trying to tell the police that if he let him go, Goodmanson would fall into the water.
Appellant testified that he had used a line of methamphetamine at about 10:00 or 11:00 o'clock in the morning on August 26, and had a beer or two at Aguilar's house that night.
Appellant testified that he loved Goodmanson, never wanted what happened to happen and never wanted Goodmanson dead. He loved Cattoor as a friend but would have had a hard time being in a relationship with her because he "knew not to trust her."
Appellant testified that the blood draw during his police interview may have affected his ability to comprehend what was going on, to be honest, and to be influenced by the situation, stating he was hypoglycemic and could faint from having blood drawn.
Goodmanson's blood tested positive for methamphetamine, cocaine, a metabolite of cocaine and ethanol. A defense expert witness testified that methamphetamine, cocaine and alcohol, in adequate doses, are all correlated with violent behavior, so that the combination of these substances could be "explosive." Appellant's blood tested positive for methamphetamine at a lower level than Goodmanson's, and no other substances were detected.
An emergency medical technician (EMT) who spoke with appellant at the Martinez Field Operations building on August 27 testified that appellant complained that he was nervous, stressed and had a headache; he did not recall appellant saying he was dizzy and confused. His partner, after reviewing a tape of the encounter, recalled that appellant said he was dizzy and said something about his speech, but stated that appellant did not actually appear to be dizzy and his speech was clear. Appellant initially said he wanted to go to the hospital, but while the medical personnel went to get a gurney, a sheriff's officer talked to appellant and then told them appellant no longer wanted to go.
DISCUSSION
I.
Appellant contends his constitutional right to confront witnesses against him was violated because Dr. Peterson, the pathologist who performed Goodmanson's autopsy, did not testify at trial. As indicated above, Dr. Reiber testified about the autopsy and cause of death based on review of the autopsy report and other documentation of the autopsy.
Reiber and Peterson had been part of the same forensic medical group prior to Peterson relocating out of state in 2007, and they had reviewed each other's work from time to time. Reiber testified that, based on the report and photographs, it appeared Peterson had conducted a traditional autopsy that was "consistent with the information he had in front of him at the time." Reiber testified that forensic pathologists tend to follow a "standard routine" in conducting autopsies and that having worked alongside Peterson, he knew that Peterson followed the same sort of procedures Reiber used. Reiber described the general process, including that pathologists usually dictate a description of their actions and observations as they proceed through the autopsy. The recorded dictation would then be transcribed, the transcription reviewed and corrected by the pathologist who performed the autopsy, and the final transcribed report signed by the pathologist. Peterson had signed off on the autopsy report in the present case. Reiber testified this report was the type typically prepared in the ordinary course of business in his medical group and that such reports were prepared concurrently with or just after the actual autopsy. The group worked on a contract basis for Contra Costa County and the reports were kept at the coroner's office. The report of Goodmanson's autopsy was admitted into evidence without objection from the defense.
Reiber explained that the autopsy report and photographs showed a gunshot entrance wound on the victim's right cheek and a wound path through the base of the skull to the brainstem at the bottom of the skull. Peterson described the brain stem as lacerated, or torn, a type of injury that would be almost immediately fatal. The injuries were "pretty clearly" documented by photographs corresponding to Peterson's description. For the actual laceration, Reiber was relying on Peterson's description; the photographs of the injury were not as clear because of the amount of surrounding tissue that had been removed to get to the location of the injury. Reiber was able to see a hole near the bottom of the brain where the bullet passed through and testified that "[t]he location of the bullet path would pretty clearly involve the brainstem in a way that I would expect to result in a fatal injury also." The report described finding a small caliber projectile near the place where the brainstem connects to the spinal cord.
Reiber reviewed photographs of the probe Peterson used to show the path of the bullet and, based on the information described in the report and the photographs, believed the probe accurately represented the bullet's path. He had tried to recreate this investigation using a Styrofoam mannequin head and demonstrated this recreation at trial. Three of the autopsy photographs in particular showed the angle of the probe from three different angles well enough that Reiber believed his reproduction of what Peterson had done was "very close" to accurate, but the styrofoam material made it hard for him "to get the right-to-left angle quite as steep."
The photographs also provided information about the angle of the bullet's entry in that a dark area of searing and soot indicated that one end of the barrel was tipped slightly closer to the skin than the other. The deposit on the skin indicated a very close range injury, with the barrel probably one to two inches from the skin, depending on the type of weapon used. Reiber testified that if the victim was standing erect, the lower end of the barrel would have been slightly closer to the skin than the upper end, indicating a slight upward angle of entry.
Using the rifle in evidence, the prosecutor and Reiber attempted to demonstrate scenarios based on appellant's description of the incident, in which two combatants struggling for the rifle face-to-face on the ground could have caused the rifle to shoot with the trajectory reflected in the autopsy report. Reiber testified that for Goodmanson to have been shot at that angle, he would have had to have his hands near the trigger and be looking down at his hands, rather than at his opponent, with his head tilted toward the barrel. If Goodmanson initially had control of the gun, as appellant described, it would have been possible for Goodmanson to accidentally shoot himself in the face at the angle found in the autopsy, but it would have required his hand to be in an "extremely awkward position" with his index finger on the trigger, or for him to have had a "reverse grip" on the gun, with his index finger at the breach end of the gun and his thumb inside the trigger guard.
Reiber also described a series of small bruises and scrapes across Goodmanson's lower forehead, scraped areas on the top of the head that appeared to Reiber to have occurred after death, a laceration from a blunt blow to the lower back of the head, scrapes on the left cheek and right side of the neck, scratches on the chest, bruises on the left upper arm and forearm, and bruises and scrapes on the lower left armpit. A photograph of the injury on the back of the head showed a type of wound that could have resulted from a sharp blow with the butt end of a rifle or a fall on a hard surface, as well as that the wound was inflicted when the victim was alive. Reiber opined that the injury could have resulted from Goodmanson being shot while he was standing, then falling backward and hitting his head on the packed earth surface of the levee. The autopsy report did not indicate that Goodmanson had defecated or voided his bladder at the time he was killed, facts Reiber would expect to find in the report if observed during the autopsy.
Under the Confrontation Clause, testimonial statements of a witness who does not testify at trial are admissible only if the witness is unavailable to testify and the defendant had a prior opportunity for cross examination. (Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford).) The " 'core class of testimonial statements' " covered by the Confrontation Clause include " 'ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " (Melendez-Diaz v. Massachusetts (2009) 537 U.S. _, [129 S.Ct. 2527, 2531] (Melendez-Diaz), quoting Crawford, supra, 541 U.S. at pp. 51-52.)
In People v. Geier (2007) 41 Cal.4th 555, applying Crawford, our Supreme Court held that the testimony of a laboratory director concerning DNA results, based on a report prepared by a nontestifying analyst, was not testimonial. (Id. at p. 605.) The Geier court held that to be testimonial, a statement must be "made . . . by or to a law enforcement agent" and "describe[] a past fact related to criminal activity" for "possible use at a later trial." (Ibid.) The laboratory report in Geier did not meet this test because it was "a contemporaneous recordation of observable events rather than the documentation of past events." (Ibid.)
Two years later, however, Melendez-Diaz held that a laboratory report "may be testimonial, and thus inadmissible, even if it ' "contains near-contemporaneous observations of [a scientific] test[.]" ' " (Lopez, supra, 55 Cal.4th at p. 581, quoting Melendez-Diaz, supra, 557 U.S. at p. 315.) Melendez-Diaz held that notarized certificates reporting the results of forensic analysis of material seized by the police were "affidavits" within the "core class of testimonial statements" covered by the Confrontation Clause, because they were made for the sole purpose of establishing that the material was cocaine, the precise testimony the analysts would be expected to provide in live testimony, " ' "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."'" (Melendez-Diaz, at p. 2532, quoting Crawford, supra, 541 U.S. at p. 52.) The Court rejected the argument that the Confrontation Clause did not apply to testimony concerning the results of " 'neutral scientific testing,' " noting that the methodology used to analyze the substance "requires the exercise of judgment and presents a risk of error that might be explored on cross-examination." (Melendez-Diaz, at p. 2537.) The Court also concluded the certificates were not admissible as business records: "Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial." (Melendez-Diaz, at p. 2538.) In sum, Melendez-Diaz held that a forensic laboratory report "created specifically to serve as evidence in a criminal proceeding" is "testimonial" evidence that cannot be introduced without "a live witness competent to testify to the truth of the statements made in the report." (Bullcoming v. New Mexico (2011) 564 U.S. _, 131 S.Ct. 2705, 2709 (Bullcoming).)
Bullcoming involved a forensic laboratory report certifying that the defendant's blood alcohol concentration exceeded the threshold for driving while intoxicated. (Bullcoming, supra, 131 S.Ct. at p. 2709.) The analyst who signed the certification was not called as a witness; rather, the prosecution called another analyst who was familiar with the laboratory's procedures but had not participated in or observed the test on the defendant's blood sample. (Ibid.) Bullcoming found this "surrogate testimony" insufficient to meet the constitutional requirement: "The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." (Id. at p. 2710.) Bullcoming rejected the view that the analyst who signed the certification merely reported a machine-generated number, explaining that the analysts' statements concerning chain of custody and test protocol followed were "meet for cross-examination." (Bullcoming, supra, 131 S.Ct. at p. 2714.) Cross-examination of the certifying analyst could also expose "any lapses or lies" by that analyst, while cross-examination of a surrogate could not. (Id. at p. 2715.) Additionally, while the report was not notarized like the certificates in Melendez-Diaz, the "formalities attending the 'report of blood alcohol analysis' " were sufficient to qualify the statements as testimonial: The evidence was provided by law enforcement to a laboratory required by law to assist in police investigations, the analyst who tested the evidence certified the results in a signed document headed a "report," and the report form referred to municipal and magistrate courts' rules providing for admission of certified blood-alcohol analyses. (Bullcoming, supra, 131 S.Ct. at p. 2717.)
Respondent's argument that appellant forfeited his challenge to Reiber's testimony is not well taken. Melendez-Diaz was decided on June 25, 2009, a month after the verdicts were reached in appellant's trial; Bullcoming was not decided until June 23, 2011. Prior to Melendez-Diaz, California courts had directly or indirectly rejected confrontation clause challenges to autopsy evidence. (People v. Clark (1992) 3 Cal.4th 41 of state authority finding autopsy evidence nontestimonial].) Under Geier, as stated above, a laboratory report documenting an analyst's contemporaneous scientific findings was not "testimonial" even though the author of the report would reasonably have expected it to be used in a criminal prosecution. (41 Cal.3d at pp. 605-607.) Given the prevailing law at the time of trial, defense counsel could have had no reason to believe a confrontation clause challenge to the autopsy evidence would be anything but futile. Failure to raise a challenge in the trial court does not result in forfeiture where the law changes " 'so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change'" or where the challenge would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4, quoting People v. Turner (1990) 50 Cal.3d 668, 703.)
Since we filed our initial opinion in this case, the United States Supreme Court decided in Williams, supra, 132 S.Ct. 2221, that expert testimony on the results of DNA testing by a witness who did not perform the underlying tests did not violate the defendant's confrontation rights. In Williams, DNA in semen found on vaginal swabs taken from an Illinois rape victim was analyzed by a laboratory in Maryland and subsequently matched to the DNA profile developed by the Illinois crime laboratory from a blood sample taken from the defendant upon his arrest for an unrelated offense. At the time of the Maryland laboratory's analysis, no suspect had been identified in the rape case. At trial, a forensic specialist from the Illinois crime laboratory testified that the DNA profile the Maryland laboratory derived from the victim's vaginal swabs matched the defendant's DNA profile. The witness had not been involved in the Maryland laboratory's testing and neither the Maryland laboratory report nor testimony from an analyst at that laboratory was introduced at trial. The defendant challenged the witness's testimony that the DNA profile provided by the Maryland lab was produced from semen found on the victim's vaginal swabs on the basis that the witness lacked personal knowledge to support this conclusion.
Williams was a fractured opinion: Four justices found no constitutional violation, a fifth agreed with their conclusion but for completely different reasons, and four justices found the defendant's confrontation right was violated by the expert's testimony. The plurality opinion framed the question as whether Crawford bars an expert witness "from expressing an opinion based on facts about a case that have been made known to the expert but about which the expert is not competent to testify." (Williams, supra, 132 S.Ct. at p. 2227.) The witness testified, based on her own expertise, that the two DNA profiles matched. The challenged testimony that the Maryland profile was derived from the semen on the rape swabs was not offered for its truth: "Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause." (Id. at p. 2228.) Also, the lab report—and thus the expert's testimony about it—was not testimonial because it "was not prepared for the primary purpose of accusing a targeted individual" (id. at p. 2243): The report was not sought to obtain evidence against the defendant, who had not yet been identified as a suspect, but to help find a rapist who was on the loose, and the profile was not inherently inculpatory. (Id., at p. 2228.)
Justice Thomas's concurrence was based on completely different reasoning, finding no constitutional violation solely because the statements from the Maryland lab "lacked the requisite 'formality and solemnity' to be considered ' "testimonial" ' for purposes of the Confrontation Clause." (Williams, supra, 132 S.Ct. at p. 2255.) In reaching this conclusion, Justice Thomas noted that the report was not sworn or certified, contained no attestation that its statements accurately reflected the testing procedures used or results obtained, and, although produced at the request of law enforcement, was not "the product of any sort of formalized dialogue resembling custodial interrogation." (Id., at p. 2260.) Justice Thomas disagreed with both of the plurality's reasons for finding no constitutional violation. He rejected the not-for-the-truth rationale, stating that there is "no meaningful distinction between disclosing an out-of-court statement so that the factfinder may evaluate the expert's opinion and disclosing that statement for its truth," because the expert's opinion depended on the truth of the lab's statements. (Id. at pp. 2257-2258.) The primary purpose test, he said does not give courts a principled way to determine which of potentially multiple purposes of a statement is primary, and "lacks grounding in constitutional text, in history, or in logic." (Id. at pp. 2261-2262.)
The Williams dissenters, like Justice Thomas, rejected the plurality's view that the expert's testimony about the report's contents was not admitted for the truth of the matters stated (Williams, supra, 32 S.Ct. at pp. 2264, 2268-2270) and also rejected the plurality's primary purpose test (id. at pp. 2273-2275.) The dissent further disagreed with Justice Thomas's analysis of the formality of the report, finding that just as the report in Bullcoming was sufficiently formal to constitute testimonial evidence despite it lacking the formality of the certificates in Melendez-Diaz, comparing the report in Williams with that in Bullcoming, "[t]he similarities in form, function, and purpose dwarf the distinctions. [Citation.] Each report is an official and signed record of laboratory test results, meant to establish a certain set of facts in legal proceedings. Neither looks any more 'formal' than the other; neither is any more formal than the other. [Citation.]" (Williams, at p. 2276.) To the Williams dissenters, the testimony of the expert in that case was "just like the surrogate witness in Bullcoming—a person knowing nothing about 'the particular test and testing process,' but vouching for them regardless." (Williams, at p. 2270.)
In a trio of cases applying Crawford, Melendez-Diaz, Bullcoming and Williams, the California Supreme Court concluded that while the high court has not agreed on a definition of "testimonial," its decisions indicate that two critical components make a statement testimonial. (Lopez, supra, 55 Cal.4th at p. 581.) First, "to be testimonial the out-of-court statement must have been made with some degree of formality or solemnity." (Ibid.) Second, "an out-of-court statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution." (Id. at p. 582.) The United States Supreme Court justices disagree, however, on what that primary purpose must be: The Williams plurality looked for a " 'primary purpose of accusing a targeted individual' " (Lopez, supra, 55 Cal.4th at p. 582, quoting Williams, supra, 132 S.Ct. at p. 2243); Justice Thomas asked whether the statement was " 'primarily intend[ed] to establish some fact with the understanding that [the[statement may be used in a criminal prosecution' " (Lopez, at p. 582, quoting Williams, at p. 2261); while the dissenters asked whether the report was prepared " 'for the primary purpose of establishing "past events potentially relevant to later criminal prosecution" - in other words, for the purpose of providing evidence.'" (Lopez, at p. 582, quoting Williams, at p. 2273.)
In Lopez, the trial court admitted a six-page laboratory report. The first page, described by the analyst who testified at trial as a " 'chain of custody log sheet,' " contained a chart showing the results of nine blood tests performed by a different analyst, one of which was the defendant's, identified by a number. The remaining pages of the report consisted entirely of data generated by a gas chromatography machine to measure calibrations, quality control and the concentration of alcohol in a blood sample. The nontestifying analyst had signed the second page of the report and initialed the other pages, but the report contained no statement by the analyst. Lopez held that the five pages containing only machine-generated data did not implicate the constitutional right to confrontation because "unlike a person, a machine cannot be cross-examined." (Lopez, supra, at pp. 582-583.) The first page of the report reflected handwritten information concerning each blood sample, entered by a lab assistant who initialed under the heading "logged by." The critical information was the number associated with the defendant's blood sample—this, together with the machine-generated results, allowed the analyst who testified at trial to offer his independent opinion as to the alcohol level in the defendant's blood, and it was undisputed that the notation was admitted for its truth. (Id. at pp 583-584.) Lopez held this notation lacked sufficient formality or solemnity to be considered testimonial because neither the analyst nor the laboratory assistant signed, certified or swore to the truth of the contents and the notation linking the blood sample to the defendant was "nothing more than an informal record of data for internal purposes, as is indicated by the small printed statement near the top of the chart: 'FOR LAB USE ONLY.'" (Id. at p. 584.)
While Lopez did not consider the primary purpose of the report, the court addressed that issue in Dungo, supra, 55 Cal.4th 608—which, like the case before us, involved testimony based upon an autopsy report. The report itself was not introduced into evidence and the testifying expert did not discuss the report's conclusions about the cause of death. Rather, the testifying expert described the condition of the body—the pathologist's anatomical and physiological observations—as reflected in the report and autopsy photographs. (Id. at pp. 618-619.) Based on these observations, the expert gave his independent opinion that the cause of death was strangulation. (Id. at p. 618.) In particular, the autopsy report stated that the victim's hyoid bone was not fractured and the expert witness testified that this indicated the victim had been strangled for more than two minutes. (Id. at p. 614.) This point was significant because it undermined the defendant's contention that he killed the victim in the heat of passion. (Id. at p. 615.)
The Dungo court held that the statements in an autopsy report describing the condition of the body "merely record objective facts" and "are less formal than statements setting forth a pathologist's expert conclusions. They are comparable to observations of objective fact in a report by a physician who, after examining a patient, diagnoses a particular injury or ailment and determines the appropriate treatment. Such observations are not testimonial in nature. (Melendez-Diaz, supra, 557 U.S. at p. 312, fn. 2 ['medical reports created for treatment purposes . . . would not be testimonial under our decision today'].)" (Dungo, supra, 55 Cal.4th at pp. 619-620, fn. omitted.)
The Court then discussed various factors bearing on the determination of the primary cause of the statements in the autopsy report. The facts that a detective was present at the autopsy and told the pathologist about the defendant's confession supported a view that the primary purpose was investigating a crime; that the autopsy was mandated by a statute requiring public findings and notification of law enforcement implied the primary purpose was forensic. (Dungo, supra, 55 Cal.4th at p. 620.) The Court held, however, that criminal investigation was not the primary purpose for the autopsy's description of the condition of the victim's body but only one of several purposes. (Id. at p. 621.) Government Code section 27491 requires the coroner to determine the circumstances of a number of types of death, some resulting from commission of a crime and others resulting from causes unrelated to criminal activity, such as alcoholism and contagious disease. (Id. at p. 620.) The coroner's duty to investigate is the same in all of these cases. (Id. at pp. 620-621.) Dungo explained that autopsy reports are useful for a number of equally important purposes besides criminal investigation and prosecution, including allowing the decedent's family to determine whether to file an action for wrongful death or an insurance company to determine whether the death is covered under its policy; satisfying the public interest when a death has been reported in local media; and providing answers to grieving family members. (Id. at p. 621.) "The autopsy report itself was simply an official explanation of an unusual death, and such official records are ordinarily not testimonial." (Ibid.)
In a separate concurring opinion, Justice Werdeger noted that the observations in the autopsy report were introduced for their truth and therefore would have been inadmissible if they had been testimonial. (Dungo, supra, 55 Cal.4th at pp. 621, 627, conc. opn. of Werdeger, J.) They were not testimonial, however, because although signed, the autopsy report was not sworn or certified and therefore lacked sufficient solemnity and formality; and because the reported observations were not made primarily for use as evidence at trial. (Id. at pp. 623-626.)
The present case differs from Dungo in several ways. The autopsy report itself was admitted into evidence. The testifying expert related not only descriptions of the physical condition of the body as documented in the report, but also the non-testifying analyst's conclusion as to cause of death. Most significantly, the testifying expert described and attempted to reenact a procedure employed during the autopsy to determine the trajectory of the bullet.
It is the last of these differences that compels us, under the analyses of the above-described cases, to conclude that appellant's confrontation rights were not violated by Reiber's testimony. The critical question in the present case was how Goodmanson came to be shot and whether the shooting could have occurred in the manner appellant described. The autopsy report contained no statements addressing this issue. It was Reiber's independent testimony and re-enactment of the struggle that informed the jury it would have been very unlikely the scenario appellant described could have resulted in the bullet following the trajectory described in the autopsy report. The path of the bullet, determined by the probe used during the autopsy, was part of the pathologist's examination of the decedent's external and internal injuries necessary to " 'support diagnoses opinions, and conclusions' " and "governed primarily by medical standards rather than by legal requirements of formality or solemnity." (Dungo, supra, 55 Cal.4th at p. 624, conc. opn. of Werdeger, J.) As with the other descriptive portions of the report, "there was no prospect of fabrication or incentive to produce anything other than a scientifically reliable report. The purpose of this part of the autopsy report is 'simply to perform [the pathologist's] task in accordance with accepted procedures.' [Citation.]" (Dungo, supra, 55 Cal.4th at pp. 627., 630, conc. opn. of Chin, J.) The autopsy report and Reiber's testimony about its contents simply provided the basis for Reiber's independent conclusions and demonstration to the jury, and appellant was free to cross-examine Reiber on these points. Accordingly, his confrontation rights were not violated.
The facts that the autopsy report was introduced into evidence and Reiber described the nontestifying pathologist's conclusion as to cause of death do not alter our conclusion. The conclusion stated in the autopsy report, and related by Reiber at trial, was that Goodmanson's death was caused by a gunshot wound to the head. ~(RT 910-911, Exh. 31a)~ This fact, however, was in and of itself of little consequence: There was no question that Goodmanson had been killed by a gunshot shot to the head. As we have said, the critical testimony was that describing the manner of death, and that testimony was the independent opinion of the witness at trial. Therefore, any error in admitting the autopsy report or Reiber's description of its conclusion would have been harmless beyond a reasonable doubt. (People v. Pearson (2013) 56 Cal.4th 393, 463.) For this reason, we need not determine whether the report itself, or Reiber's testimony about the conclusion it reached, were testimonial in nature.
Dungo may be read as providing some support for the conclusion that autopsy reports are never testimonial in the majority's discussion of the many purposes of autopsy reports. This "blanket approach," in the view of the dissent, ignored that some autopsies are conducted for purposes unrelated to a criminal prosecution while others "conducted under different circumstances may well result in the production of testimonial statements," with the primary purpose of the statements being "highly fact dependent." (Dungo, supra. 55 Cal.4th at pp. 633, 644, conc. opn. of Corrigan, J.) The dissent found the autopsy report in Dungo was made for the primary purpose of "establishing past facts for possible use in a criminal trial," noting that the autopsy was conducted during a homicide investigation, the subject was unquestionably a homicide victim, the detective was present during the autopsy, described to the pathologist the circumstances in which the victim was found and told the pathologist that someone had confessed to manually strangling the victim. (Id. at p. 645.)
Despite stating, in the context of its discussion of the objective, descriptive portions of an autopsy report, that the report was a nontestimonial "official explanation of an unusual death," Dungo did not hold that autopsy reports, in general, are not testimonial. Instead, the Court expressly found it unnecessary to decide whether the "entire report" was testimonial in nature because the report was not placed into evidence. (Dungo, supra, 55 Cal.4th at p. 619.) The Court declined another opportunity to decide the testimonial status of a complete autopsy report in People v. Pearson (2013) 56 Cal.4th 393, 463), and the United States Supreme Court has expressly rejected the suggestion that coroner's reports are exempt from the requirements of the Confrontation Clause. (MelendezDiaz, supra, 557 U.S. at p. 322.)
II.
Appellant next contends his conviction must be reversed because the trial court erred in denying his motion to suppress statements he made during his interview by the police, in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and Edwards v. Arizona (1981) 451 U.S. 477 (Edwards).
"In Miranda, supra, 384 U.S. 436, recognizing that any statement obtained from a criminal suspect by a law enforcement officer during custodial interrogation is potentially involuntary because such questioning may be coercive, the United States Supreme Court laid down its now familiar rule: '[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination . . . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.' " (People v. Neal (2003) 31 Cal.4th 63, 79-80.)
"In Edwards, supra, 451 U.S. 477, the court announced a related rule designed to prevent the 'badgering' of a criminal suspect by a law enforcement officer in order to get the suspect to waive his or her rights under Miranda (Michigan v. Harvey (1990) 494 U.S. 344, 350 . . .; accord, e.g., Davis v. United States (1994) 512 U.S. 452, 458 . . .: '[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him' (Edwards, supra, 451 U.S. at pp. 484-485; accord, Arizona v. Roberson (1988) 486 U.S. 675, 677 . . .) and indeed not until counsel is actually present (Minnick v. Mississippi (1990) 498 U.S. 146, 153 . . .), 'unless the accused himself initiates further communication, exchanges, or conversations with the police' (Edwards, supra, 451 U.S. at p. 485; accord, e.g., Minnick v. Mississippi, supra, 498 U.S. at p. 150; Arizona v. Roberson, supra, 486 U.S. at p. 677)." (People v. Neal, supra, 31 Cal.4th at p. 80.)
At the hearing on appellant's motion to suppress, Officer Houlihan testified that when the police found appellant and pulled him up to the levee road, he was laid face down on the ground, handcuffed behind his back, with Houlihan kneeling on top of him; there was concern for officer safety because of the location and appellant's indication that there might be other people around. Appellant did not reply when Houlihan asked if he had any injuries. When Houlihan asked about the person appellant was with at the bottom of the levee, appellant said, "I'll have to plead the Fifth" and then "I'll wait for my lawyer to answer any more questions." Houlihan asked no more questions. He remained in physical contact with appellant, who remained on the ground for about 20 minutes while other officers searched for additional suspects. Paramedics spoke with appellant and Houlihan heard him complain to them of shoulder pain.
Houlihan put appellant into the patrol car and remained next to it for the next several hours. During this time, he observed appellant bang his head twice against the screen in the patrol car. When he opened the door to tell appellant to stop hurting himself, appellant made several spontaneous statements: "Steve was like my father," "I would call that man my father," "I learned a lot from him" and "I didn't learn enough because I wasn't able to stop this." Appellant seemed upset, sitting with his eyes closed most of the time and pausing, trying to control his emotions, while making the statements about Goodmanson. After a number of hours at the scene, Houlihan drove appellant to the field operations bureau in Martinez, arriving at 5:38 a.m., and turned him over to the detectives there. He told the detectives that appellant had invoked his right to counsel.
Detectives Shawn Pate and Chris Simmons interviewed appellant at the Field Operations Bureau on August 27, 2006. The transcript of the interview reflects that at the outset, the officers told appellant they wanted to "clarify" what appellant had said to Houlihan about wanting to speak with a lawyer. Appellant was told he was not free to leave and informed of his rights. The officers said they needed to figure out appellant's side of the story and asked if he was injured or needed medical treatment. Appellant said his head was "foggy" and "groggy" but did not clearly respond when asked whether he needed an ambulance.
As the officers started to ask questions about what had happened leading to the fight with Goodmanson, appellant said, "I'm really scared to talk without a lawyer, you know." The officers told him this was his choice but stressed that this was his opportunity to say what happened himself rather than leaving it to the others to tell them. Appellant said, "oh, okay," and answered some more questions about what was going on between himself and Goodmanson, emphatically stating that he did not plan or intend what happened. When the officers suggested it seemed like appellant and Goodmanson were trying to work things out and what happened was an accident, pressing appellant to tell his story, appellant said, "too often you hear of it being wise for the guy in my position to seek out a lawyer." One of the officers responded that often times a person does not tell "the truth of what happens" and the situation is made to seem worse than it is. The officers repeated that appellant could talk to a lawyer before talking to them, then noted that Aguilar and Blake had already told their stories and Cattoor would be doing so, that often people "start looking out for their own best interest" and that listening to the others' stories, "one could assume that this whole thing was planned." The officers said they did not want to assume anything, and were giving appellant the benefit of the doubt because he seemed to be going back to the scene to help Goodmanson rather than running and leaving it to the police to catch him. Appellant said, "Wow, this is a hard decision." After more of the same from the officers, appellant said, "I can get advice from a lawyer," and the officers told him he would be "stopping your side of the story from being presented." Shortly thereafter, the officers asked appellant if he meant to murder Goodmanson and appellant said, "I like to ask for a lawyer."
At this point, 48 minutes into the interview, the officers told appellant he was going to be booked for murder; said they would need to take appellant's clothes and asked if the blood on them was his or Goodmanson's; and said they would consider the shooting premeditated "until we hear otherwise" because the evidence against appellant was "overwhelming." Appellant expressed dismay and the officers left the room. Approximately two minutes later, they returned, saying they were not going to ask any more questions about the case because appellant did not want to talk about it, but needed to ask where the rifle was for public safety reasons. Pate testified at the hearing that as far as he knew at the time, the gun had not yet been located. The officers told appellant that what he said could not be used against him in court because he had asked for a lawyer, only to find the weapon and get it off the street. Appellant asked the officers to sit back down and they asked if he was reinitiating contact and wanting to talk to them. Appellant said he did not and said he had a pounding headache. The officers pressed him to say where the gun was so no one would find it and get killed.
Appellant then said that his friend had advised him to get counsel, but the same people were "testifying" to the police, and said, "I feel like I'd love to talk." The officers reiterated that appellant had a right to reinitiate contact but that they had come back in only to get information about the location of the gun. They told appellant to relax while they got him a Coke and that someone was coming in to take a blood sample. As the blood draw began, appellant said, "Oh, this ain't gonna help my headache. I'll already feeling, whoa. . . . How much you gotta take? You got take all three of those?" The technician said, "four," and appellant said, "Two more! Ah, man . . . 'Cause you're not gonna be putting me in a good state." Asked again whether he had any injuries, appellant said he did not. The officers explained appellant's rights again, asking to clarify his wishes because, aside from public safety questions, they could only talk to him if he reinitiated contact. The officers asked if appellant wanted to talk to them and he replied, "Yeah."
As the officers started to read appellant his rights again, appellant said, "I think that blood draw is hitting me now. Fuck! That didn't help nothing at all!" The officers told him to drink some Coke and take some breaths, saying it probably had less to do with the blood draw than stress. They went through appellant's rights again and appellant said he understood them. When the officers asked to clarify that appellant had just reinitiated contact with them, appellant responded "Uh-huh." Asked if that meant yes, appellant gave an inaudible response, then said, "Um, well, fuck." The officers suggested going back to the safety issues first and asked again where the gun might be, and appellant said, "It's safe. I think you guys got it within your tape. . . . [a]round where [Goodmanson] was found." Appellant talked about his respect for Goodmanson and expressed feeling he was "inadequately prepared" but felt in his heart he was not at fault. The officers assured appellant they wanted to hear the history and understand what had happened. The interview proceeded, addressing the night's events.
The trial court found that all of appellant's statements were voluntary. It found, however, that appellant's statements during the first 48 minutes of his interview were inadmissible because appellant had invoked his right to an attorney. Further, while the trial court found the officers' public safety questioning permissible, it ruled appellant's statements in response to these questions inadmissible because the officers had assured appellant his responses would be off the record. The court found that at this point in the interview, appellant reinitiated contact with the police with full understanding of his rights in this regard, noting that appellant was advised of his rights three times. Accordingly, the court held appellant's statements from this point forward were admissible, finding the questioning was professional and not coercive and appellant's statements were voluntary. In response to the defense argument that appellant complained of head injuries, the court found that the officers asked twice whether appellant had any injuries and appellant said no, and that appellant declined medical treatment. The court understood that appellant had a headache and was uncomfortable when his blood was taken, but found no authority for this rendering his statements involuntary. Rather, the court found appellant seemed "well-aware of what [was] going on" and did not appear to have had his will overborne or to be under the influence or in pain to a degree that was "truly problematic in him answering these questions."
Appellant contends the trial court erred in failing to exclude all his statements to the police. He urges that after his second invocation of rights during the interview, the officers intentionally failed to refrain from questioning him until a lawyer was present and, instead, asked questions that were the functional equivalent of interrogation, attempted to scare him into making incriminating statements and used public safety questions as a pretext to continue the interrogation. Appellant further argues that he did not willingly reinitiate contact with the officers but only bent to their continued pressure. " 'In reviewing constitutional claims of this nature, it is well established that we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained. [Citations.]' " (People v. Storm (2002) 28 Cal.4th 1007, 1022-1023, quoting People v. Cunningham (2001) 25 Cal.4th 926, 992.)
Appellant first points to the officers' statements immediately after he requested an attorney, in which they asked if the blood on appellant's clothes was his or Goodmanson's and told appellant he was going to be booked for murder. He argues that telling him they would consider the murder premeditated "until we hear otherwise" was the functional equivalent of interrogation that was impermissible in the face of appellant's request for counsel. (People v. Davis (2005) 36 Cal.4th 510, 555.) This part of the interview was not admitted at trial, however, and appellant did not make any incriminating statements in response to the officers. Rather, appellant expressed dismay that he would be charged before being allowed to speak with an attorney.
The next portion of the interview, also ruled inadmissible, involved questioning that the officers told appellant was directed toward finding the gun used to kill Goodmanson. In New York v. Quarles (1984) 467 U.S. 649, 655, 657 (Quarles), the United States Supreme Court held there is a " 'public safety' exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence" because "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." In Quarles, a woman approached police officers saying she had just been raped and the perpetrator had entered a nearby supermarket carrying a gun. (467 U.S. at pp. 651-652.) At the supermarket, the police saw a man matching the description given by the woman, who ran toward the back of the store. (Id. at p. 652.) The suspect was apprehended and found to be wearing an empty gun holster. (Ibid.) Asked where the gun was, the suspect indicated some empty cartons, where the police found the gun. (Ibid.) The suspect was arrested and read his Miranda rights; he agreed to talk and admitted owning the gun. (Ibid.)
In these circumstances, Quarles held that the police were not required to adhere to Miranda requirements before questioning the suspect about the whereabouts of the gun, as there was reason to believe the suspect had discarded it in the supermarket and there was an immediate need to find it in order to prevent further harm. (Id. at p. 657.) Whereas the fact that suspects given Miranda warnings might be less likely to respond to police questioning was deemed acceptable in Miranda, with the cost to society only in fewer convictions of guilty offenders, the cost of a suspect not responding to police questions in a situation such as in Quarles could be much greater, creating a direct danger to the public. (Id. at pp. 656-657.) Consequently, police officers faced with such a situation should not have to consider, "often in a mater of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them." (Id. at pp. 657-658.)
The same reasoning has been held to apply when the police ask public safety questions after an accused has requested counsel, where questioning would otherwise be prohibited by Edwards. "Society's need to procure the information about the location of a dangerous weapon is as great after, as it was before, the request for counsel. Moreover, the concern for protecting the accused from police 'badgering' is lessened in the context of a public safety threat. The police officers' questions generally will be motivated by the necessity 'to secure their own safety or the safety of the public' rather than 'to elicit testimonial evidence from a suspect.' [(Quarles, supra, [467 U.S.] at p. 659.)] Therefore, the focus should be on whether, under the circumstances, the statements were obtained coercively, disregarding the Edwards's prophylactic rule." (United States v. DeSantis (9th Cir. 1989) 870 F.2d 536, 541.)
Appellant urges that this public safety exception does not apply here because the police began asking about the location of the gun only after having unsuccessfully attempted to convince him to waive his rights, 48 minutes into the interview at the field office and hours after he was apprehended at the levee. That there had been no effort to focus on the location of the gun before this, appellant urges, demonstrates the officers' questions were asked not out of a sincere desire to protect the public from the discarded weapon but to elicit testimonial evidence.
While the Quarles opinion emphasized the exigencies of the immediate situation (Quarles, supra, 467 U.S. at pp. 656-658; see, People v. Neal, supra, 31 Cal.4th 63, 91, fn. 1; People v. Swoboda (N.Y. City Crim. Ct. 2002) 737 N.Y.S.2d 821, 825), some courts have held that the public safety exception "is not limited to the moments immediately following the commission of a crime or the suspect's arrest . . . [T]here is at least a period of time following the suspect's arrest that an ongoing danger to the public will justify applying the public safety exception." (Trice v. United States (D.C. App. 1995) 662 A.2d 891, 896 (Trice).) However, "if the police, after becoming aware of a threat to public safety, delay questioning the suspect about that threat for an unreasonable period of time, a court no longer may be able to conclude that the question was prompted by a concern for public safety rather than for factual investigation." (Id. at pp. 896-897.)
Trice found the public safety exception applicable where the suspect was questioned about the location four days after commission of the crime and more than an hour after his arrest. This did not exceed the bounds of the exception because the police only learned of the danger that prompted the questioning at the time of arrest, when they found children at the suspect's house, where there was reason to believe the gun was located. (Trice, supra, 662 A.2d at pp. 896-897.) Trice distinguished another case, United States v. Mobley (4th Cir. 1994) 40 F.3d 688, in which the public safety exception did not permit questioning about a weapon as the arrested suspect was being led out of his apartment, in which he lived alone and agents had already determined no one else was present. (Trice, supra, 662 A.2d at p. 897.)
In the present case, at the time the officers questioned appellant about the location of the gun, they knew it had not yet been found despite ongoing efforts to search the area of the shooting. That area was a public location; Aguilar's nine-year-old son lived nearby, and there were other houses and a resort in the vicinity. There was reason to believe the unsecured weapon posed a danger to the public. The test for applicability of the public safety exception is objective; it "does not depend upon the motivation of the individual officers involved." (Quarles, supra, 467 U.S. at p. 656.) But the officers' conduct during this portion of the interview supports the trial court's conclusion that their reliance upon the public safety exception was not pretextual, as the only subject of discussion was the location of the gun and need to protect innocent people from harm and the officers repeatedly reminded appellant that they could not talk to him about any other subject and that his responses to these questions could not be used against him.
In any case, appellant did not respond to this questioning with any incriminating statements, and the trial court ruled this portion of appellant's interview inadmissible. The portion it admitted was that following appellant's reinitiation of discussion with the detectives. As described above, after the officers' efforts to convince appellant to disclose the location of the gun, appellant commented that except for the fact his friend had advised him not to talk to the police without a lawyer, he felt like he would "love to talk." The officers reiterated appellant's right to reinitiate contact, and repeated that they were presently only trying to find the gun. After appellant's blood was drawn, he was given a Coke and a snack, and the officers asked to clarify his wishes, repeating that they could not ask him about anything other than the location of the gun unless he reinitiated contact. Asked if he wanted to talk, appellant said, "Yeah." The officers went through the Miranda rights again, appellant said he understood them, the officers asked to clarify that appellant had just reinitiated contact and appellant said, "uh-huh." When appellant complained that the blood draw was affecting him negatively, the officers suggested he was more likely suffering from stress, had him drink some Coke and returned to questions about the location of the gun; appellant told them it was "safe" within the police tape at the scene, and went on to discuss the background and the shooting.
The recording of appellant's interview does not support his claim that he did not voluntarily reinitiate contact but his will to resist was worn down by the officers' continued interrogation. The recording demonstrates that appellant was struggling throughout the first portion of the interview with competing considerations about whether to talk to the police, stating a desire to talk and recognition that not talking could "look bad" but also a concern that it would be smarter to wait until he could speak with a lawyer. After he clearly stated that he wanted counsel, the questioning ceased; when it resumed with the public safety questions, the officers repeatedly stressed the limitation to information about the location of the gun, the fact that nothing appellant said could be used against him, and their inability to discuss anything other than this issue unless appellant chose to reinitiate broader discussion. Although appellant's demeanor clearly reflected his stress and emotion, especially in periods when he was left alone in the interview room, when speaking with the officers appellant was engaged and displayed no difficulty understanding the discussion. He carefully refrained from making any incriminating statements and emphatically stated that he had not wanted what happened. Such resistance, " 'far from reflecting a will overborne by official coercion, suggests instead a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information.' " (People v. Jablonski (2006) 37 Cal.4th 774, 815, quoting People v. Coffman & Marlow (2004) 34 Cal.4th 1, 58.) Appellant subsequently stated he wanted to discuss the situation, after multiple reiterations and explanations by the officers that it was his choice whether to do so. We have no question that appellant's reinitiation of contact was voluntary and not coerced.
Violations of Miranda or Edwards do not render inadmissible statements made later after proper admonishments. " '[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.' " (People v. Storm, supra, 28 Cal.4th at pp. 1030-1031, quoting Oregon v. Elstad (1985) 470 U.S. 298, 314.) The same is true when prior statements are obtained in violation of Edwards. (People v. Storm, supra, 28 Cal.4th at pp. 1031-1032; People v. Bradford (1997) 14 Cal.4th 1005, 1039-1040.) If the initial statement was voluntary, even a violation "resulting in the defendant's letting 'the cat out of the bag'—does not 'so taint[] the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period.' " (People v. Williams (2010) 49 Cal.4th 405, 448, quoting Oregon v. Elstad, supra, 470 U.S. at p. 318.) Here, in the portions of the interview obtained in violation of Edwards and pursuant to the officers' promise that appellant's statements would not be used against him, appellant in fact made no incriminating statements. It was only after he reinitiated contact with the officers that he disclosed the location of the gun and discussed the shooting.
III.
Appellant additionally contends that his conviction must be reversed because the trial court erroneously denied his request for a continuance to allow retained counsel to replace appointed counsel. In late March 2009, with trial scheduled for April, retained counsel Eric Babcock sought to come into the case with a continuance until September to allow him to prepare for trial. The prosecution objected, pointing out that the murder occurred in August 2006, appellant was arraigned in the fall of 2007, and the case had been continued several times despite letters from the victim's family urging the court to move the case forward. The same public defender had represented appellant throughout and the prosecutor expressed frustration that the prosecution had made an offer within the last week, "the first substantive conversations we've had with the defense," and within three or four working days, appellant wanted a new lawyer. Babcock stated that his firm had been contacted a few days before and the financial arrangements had been made two days before. The court denied the substitution motion and appellant immediately said he had a Marsden motion based on a serious conflict with his public defender. After hearing appellant's complaints about the public defender's representation and her response, the court denied the Marsden motion, a ruling appellant has not challenged on this appeal.
People v. Marsden (1970) 2 Cal.3d 118.
The next day, a different attorney from the retained law firm, Shannon Dorvall, represented that appellant's case had been reassigned within the firm to herself and another attorney, and that they could be ready for trial the first week of May. Dorvall had not reviewed any of the material related to the case, and the prosecutor stated that while he would have no problem with a trial date in early May, he was concerned that once the new attorneys reviewed the discovery, they would find a need for further investigation or preparation and seek additional continuances. After expressing concern about Dorvall saying she would be prepared without knowing anything about the case, the court arranged for her to review the case materials with the public defender and stated that if Dorvall then represented she would be ready for trial in early May, the court would probably grant the motion.
The following day, before a different judge, Dorvall and Vince Imhoff, also from the retained law firm, represented that they could be ready for trial in early May. The prosecutor reiterated his concern that unexpected issues would require additional delay, reminding the judge that she had previously stated there would be no further continuances, that the victim's family were "beside themselves" and that the public defender was ready to go to trial. Dorvall and Imhoff conceded they could not rule out the possibility of needing a continuance but promised not to employ delay as a tactic.
The trial court commented on the "balancing act" at issue, weighing "[p]rejudice to the People, prejudice to the victim's family waiting this long and having further a delay, against the Sixth Amendment right to counsel of choice," and expressed reluctance "to allow a substitution at this late date when we have very competent counsel ready to say ready." When retained attorney Imhoff urged that appellant and his family had lost faith in the public defender, and the court was informed that appellant's Marsden motion had been denied, the court responded: "If I were quite confident that would effect a continuance of only three or four weeks, I would be inclined to grant the motion. . . . But in this case he was held to answer in September of '07. This case has been set for trial multiple times. We have had victims who have spoken to the Court and are obviously having tremendous difficulty with the multiple continuances in this case. We have counsel who has been found to have been competently representing the defendant, so there's not an issue of competency here. And we have already—I'm hearing all kinds of second-guessing going on that gives me very little confidence this is going to be a brief continuance." The court denied the motion, explaining, "I too take seriously the defendant's right to counsel of his choice. [¶] However, that right is not absolute, and . . . I think it's not appropriate in this case where we are just two weeks from trial in a case that's been pending for a couple of years, a crime that occurred on August 27, 2006, to, at this late date, suddenly be substituting counsel when I have absolutely no confidence that there will not be repeated delays at this time." Accordingly, the court denied the request to substitute counsel.
As Imhoff pressed the court to reconsider, the court briefly suggested the possibility of the retained attorneys being ready to proceed on the scheduled trial date of April 13, then agreed with the prosecutor's objection that the problem of potential continuances remained. The trial court believed in retained counsels' commitment but felt they could not know enough about the case to be sure they could proceed, whereas the public defender had been on the case for two and a half years and knew it "inside and out."
The right to the effective assistance of counsel includes a right to retain counsel of one's own choice. (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).) Trial courts "have the responsibility to protect a financially able individual's right to appear and defend with counsel of his own choosing" and must " 'make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.' " (Id. at p. 790, quoting People v. Crovedi (1966) 65 Cal.2d 199, 207.) "In addition, counsel, 'once retained, [must be] given a reasonable time in which to prepare the defense.' (People v. Haskett (1982) 30 Cal.3d 841, 852.) Failure to respect these rights constitutes a denial of due process." (Courts, at p. 790.)
But a defendant's right to be represented by a particular attorney is not absolute, as "other values of substantial importance, for instance that seeking to insure speedy determination of criminal charges, demand recognition." (People v. Crovedi, supra, 65 Cal.2d at pp. 206-207.) "[T]he right 'can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' (People v. Crovedi, supra, 65 Cal.2d at p. 208, italics added; Maxwell v. Superior Court [(1982)] 30 Cal.3d [606,] 613-614.) The right to such counsel 'must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.' (People v. Byoune [(1966)] 65 Cal.2d [345,] 346.)" (Courts, supra, 37 Cal.3d at p. 790.)
"Limitations on the right to continuances in this context are similarly circumscribed[,]" and requests should be accommodated " 'to the fullest extent consistent with effective judicial administration.' " (Courts, supra, 37 Cal.3d at pp. 790-791.) The granting of a continuance is within the discretion of the trial court and may be denied, for example, "if the accused is 'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.' (People v. Byoune, supra, 65 Cal.2d at pp. 346-347.)" (Courts, supra, 37 Cal.3d at pp. 790-791.) "In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, ' "particularly in the reasons presented to the trial judge at the time the request [was] denied." ' ([Crovedi, supra, 65 Cal.2d] at p. 207, quoting Ungar v. Sarafite [(1964)] 376 U.S. [575,] 589.)" (Courts, supra, 37 Cal.3d at p. 791.)
Appellant urges that his request to substitute retained counsel was made 20 days before trial, not on the day or eve of trial, and suggests there was no evidence substitution of counsel would have inconvenienced the court or the prosecution. But this is not a case like Courts, in which the defendant began to secure retained counsel within two months of arraignment and a month before the date set for trial. When appellant sought to retain counsel, his case had been pending for well over two years, during all of which time he had been represented by the same public defender. Trial had already been continued multiple times, and the victim's family had made clear to the court its frustration with the slow pace of the proceedings. The court was well within the bounds of reason to weight heavily the need to avoid further delay in bringing the case to trial. In light of the nature of the case and potential issues involved in appellant's defense, the court was also well within the bounds of reason to question the ability of retained counsel to bring the case to trial without significant delay. Retained counsel knew nothing about the case when appellant's request was initially raised and had only briefly reviewed the file when they represented they could be ready for trial in short order. The court made clear that it did not doubt the good faith of retained counsel, but rather was concerned with the practical reality of taking over a case of this nature at such a late stage. Even counsel acknowledged they could not be absolutely certain there would be no need for further delays. Confronted with an entirely uncertain scenario if the substitution motion was granted and, on the other hand, appointed counsel who had worked the case for more than two years and was ready for trial, we cannot find an abuse of discretion in the court's denial of the substitution motion.
Appellant points out that, in fact, the trial did not begin on April 13, but on that day was set to trail until April 20 (with a potential additional 10 days), meaning the trial in fact started only two weeks before the May 4 date requested by retained counsel and could have trailed until even closer to the May 4 date. These facts do not alter our analysis. The court could not have known at the time it rendered its decision that the case would trail beyond April 13. More importantly, the motion to substitute was not denied because the court rejected a continuance until May 4 but because of the concern that substitution would result in a need for continuances beyond the date retained counsel requested.
IV.
Appellant's final contention is that the evidence was insufficient to prove he intended to kill Goodmanson, as required for the voluntary manslaughter conviction. In examining this claim, we consider " 'all of the evidence admitted by the trial court,' regardless whether that evidence was admitted erroneously." (McDaniel v. Brown (2010) 558 U.S. 120, 131, quoting Lockhart v. Nelson (1988) 488 U.S. at pp. 33, 41.)
"When a defendant challenges the sufficiency of the evidence, ' "[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 509 . . ., quoting People v. Johnson (1980) 26 Cal.3d 557, 578 . . . .) 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) We ' " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " [Citation.]' (People v. Davis, supra, at p. 509.)" (People v. Clark (2011) 52 Cal.4th 856, 942-943.)
Here, Goodmanson was shot in the head while alone with appellant at the levee. The autopsy evidence indicated that it was highly unlikely the shot was fired in the course of the struggle appellant described. There was evidence of a controversy between appellant and Goodmanson over Cattoor, and evidence that Cattoor told the police appellant said to her at the scene, "This is what you wanted." Aguilar testified that he understood appellant's comment, "he went fishing," to mean there had been a fight with "only one winner" and that appellant's taking Goodmanson's boots, in the neighborhood where he and appellant grew up, signified that appellant was the winner of a fight. Aguilar did not hear sounds of a fight before he heard the single gunshot and appellant returned to the truck. Appellant did not tell Cattoor or Aguilar that there had been an accident or that he had acted in self defense, and he attempted to hide the gun by throwing it into the water. In sum, the evidence, viewed in the light most favorable to the judgment, supported the jury's conclusion that appellant intended to kill Goodmanson.
The judgment is affirmed.
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Kline, P.J.
We concur: _______________
Haerle, J.
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Brick, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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