Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SA065166, H. Chester Horn, Jr., Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Scott Allen Ansman appeals from the judgment entered after a jury trial. The jury found defendant guilty of the murders of Joann Harris (Harris) and her fetus (Pen. Code, § 187, subd. (a); counts 1 & 2, respectively). The jury further found true the termination-of-pregnancy enhancement allegation (§ 12022.9, subd. (a)) in count 1, as well as the personal use of a deadly weapon (§ 12022, subd. (b)(1)) and multiple-murder special circumstance allegations in both counts (§ 190.2, subd. (a)(3)).
All further statutory references are to the Penal Code unless otherwise noted.
On count 1, the trial court sentenced defendant to state prison for life without the possibility of parole, plus one year for the deadly weapon enhancement and five years for the termination-of-pregnancy enhancement. On count 2, the trial court imposed a concurrent term of life without the possibility of parole and stayed the deadly weapon enhancement pursuant to section 654. The court also imposed a number of fees, including a $30 court facilities assessment pursuant to Government Code section 70373 and a $20 court security fee pursuant to section 1465.8, subdivision (a)(1).
The trial court referred to this assessment as a criminal conviction assessment. Appellate courts have done the same. (See e.g., People v. Mendez (2010) 188 Cal.App.4th 47, 60.) For ease of reference, however, we refer to a Government Code section 70373 assessment as a court facilities assessment.
On appeal, defendant contends the trial court committed prejudicial instructional error, prejudicial evidentiary error, and improperly imposed a $30 court facilities assessment pursuant to Government Code section 70373. We reject defendant’s contentions, modify the judgment and affirm it as modified.
FACTS
A. Prosecution
1. Events Prior to and on the Day of the Murders
In February and March 2007, Sergeant Erik Hein was on active duty with the National Guard and worked full-time for his unit at the armory in Culver City. His duties were mainly administrative. Sergeant Hein worked with defendant, who also was a member of the National Guard. Defendant was the supply sergeant at the armory. His office was the supply office room. Only defendant and Sergeant Robert Allinder, to whom Sergeant Hein and defendant reported, had access to the vault, in which the unit’s weapons were stored. Both defendant and Sergeant Hein had work stations with military and personal computers, files, and filing cabinets in “the orderly room.” The armory also had a recreation room.
Located across the street from the armory is a park. In the winter, the armory hosted a homeless shelter. The same crew that maintained the park maintained the armory grounds.
Scott Jacobs (Jacobs) worked for the city and was in charge of maintaining the sprinklers. Jacobs knew defendant from his work at the armory.
Sergeant Kenneth Kinney also worked at the armory. He was a recruiter but not under the command of Sergeant Hein. Sergeant Hein and defendant sometimes had contact with the recruits, some of whom were homeless.
In January or February 2007, Harris, her boyfriend and another individual participated in the armory’s shelter program. Sergeant Kinney met Harris at that time.
Harris expressed an interest in joining the National Guard. She failed the initial drug screening, testing positive for methamphetamine and marijuana. Harris became friendly with Sergeant Kinney. When she continued to show up at his office unannounced and to ask him for rides, Sergeant Kinney passed her file on to another recruiter, Sergeant Welch. On June 12, 2007, Sergeant Welch informed Sergeant Kinney that Harris was pregnant, resulting in the termination of her enlistment process. As part of the enlistment process, Harris was required to undergo a physical examination and take a pregnancy test.
Sergeant Kinney called Harris to ask her why she would try to enlist if she was pregnant. Harris “was surprised to find out she was pregnant” and told Sergeant Kinney that she believed defendant was the father. Sergeant Kinney, in turn, notified defendant, who was married and had children. Although defendant was shocked, he did not deny having sex with Harris.
From that point in time until August 24, 2007, Sergeant Kinney and defendant often talked about Harris’s pregnancy. Defendant was stressed and told Sergeant Kinney that Harris agreed to have an abortion. At some point, Sergeant Kinney talked to Sergeant Hein about the pregnancy.
Sergeant Hein’s and defendant’s work hours overlapped. Sergeant Hein worked Monday through Friday from 6:00 a.m. to 2:30 p.m. Defendant worked Monday through Friday from 8:00 a.m. until 4:30 p.m. During the first week in July 2007, Sergeant Hein noticed that defendant was not himself and inquired if anything was wrong. Defendant shared that he got someone pregnant and was upset about it. Defendant “went into [a] weird trance and... said, ‘No one’s going to come between me and my family. I’ll kill the bitch, ’ or something along those lines.”
Sergeant Hein informed Sergeant Allinder that defendant said he would not let anyone “stand in the way of his family.” Sergeant Allinder acknowledged that defendant had been drinking and would counsel him.
Sergeant Hein subsequently observed that defendant lacked focus and was drinking at work. In the middle of July, defendant asked Sergeant Hein if he would, or if he knew anyone who could, hurt Harris such that she would abort the baby. Sergeant Hein asked defendant to think about what he was saying and to calm down. The sergeant also told defendant he needed help.
Defendant told Sergeant Hein that Sergeant Kinney knew people defendant “was going to pay to” hurt Harris. In shock, Sergeant Hein told defendant he needed to take time off and get help.
Late in July 2007, defendant showed Sergeant Hein a Ford Probe that was parked in the back of the armory. Defendant said he had purchased the car for Harris, hoping she would have an abortion. Sergeant Kinney also saw the car. Defendant told him he was going to give the car to Harris after she had an abortion.
Harris voiced concern to Sergeant Kinney that defendant would not give her the car. She thought it was to be a present. At some point, Harris told Sergeant Kinney that she decided against having an abortion. Sergeant Kinney passed the information on to defendant. Defendant’s stress escalated. He was scared that his wife would find out. Defendant told Sergeant Kinney on more than one occasion, “I’m not going to let anything get in between me and my family.”
There came a time when Harris would not take defendant’s calls. Defendant sought Sergeant Kinney’s help, in that he previously had acted as a mediator between defendant and Harris. Defendant, who at one time said he wanted to hurt Harris by punching her in the stomach, asked Sergeant Kinney to lure Harris to a specific location. Sergeant Kinney did not seriously believe defendant would hurt Harris but lost respect for him.
Also in July, defendant repeatedly asked Sergeant Kinney about contacts he could pay to hurt Harris. Although Sergeant Kinney initially declined, he eventually introduced defendant to Oscar Vargas (Vargas). Sergeant Kinney told Vargas, a longtime friend, about defendant’s plan to pay someone to hurt Harris and asked Vargas to help calm defendant down so Sergeant Kinney could focus on his job. Neither Sergeant Kinney nor Vargas considered harming Harris, but Vargas needed money and did not mind taking defendant’s money.
Vargas met with defendant. Defendant did not give Vargas any money, but the two men agreed on a price to harm Harris. Subsequently, defendant told Sergeant Kinney “never mind, ” in that Harris was going to have an abortion.
During the week of July 23, 2007, possibly Friday, July 27, Sergeant Hein saw a “huge” bottle of Visine in the trash. On that day, defendant was very restless. He said he had put the Visine in Harris’s tea the night before. Previously, defendant had told Sergeant Hein that he was going to put Visine in her tea because defendant had done some research and learned that Visine would constrict the blood vessels and cut off blood to the fetus. Sergeant Hein had seen defendant and another soldier “looking up concoctions, some other way to kill a fetus” on a computer in the recreation room. Defendant had also told Sergeant Kinney about the effects of Visine on pregnancy and that he wanted to use it on Harris.
On Monday, July 30, 2007, Sergeant Hein asked defendant what was happening. Defendant told him he had heard from Harris on Saturday. Sergeant Hein was very concerned and knew that defendant needed immediate help.
On August 4, 2007, Sergeant Hein reported defendant’s behavior to Command Sergeant Major Robert Whittle and Colonel Russell Garner. Sergeant Hein also contacted the Culver City Police Department. He recalled a conversation during which defendant asked him if he (defendant) could pay any of Sergeant Hein’s Jewish relatives “to kill her.” Sergeant Hein laughed and said, “No, but I have a few Italian friends back east that will do it for ya.” Defendant asked Sergeant Hein to call them. Sergeant Hein, who had been joking, was surprised. Defendant seemed “desperate.”
That same day, Sergeants Hein, Allinder and Santana and Colonels Garner and Driver met with Culver City Police Detective Jay Garacochea. A suggestion was made that Sergeant Hein wear a wire so that defendant could be caught on tape soliciting harm to Harris. Sergeant Hein refused. His intent had been to get help for defendant. In addition, Sergeant Hein was afraid for his safety and that of Harris and defendant.
During the week of August 13, 2007, defendant’s behavior got “worse.” He began arriving at work at the same time as or earlier than Sergeant Hein. Sergeant Hein was concerned for his safety and attempted to transfer or get defendant transferred.
Defendant’s behavior “intensified” the week of August 20, 2007. He was preoccupied and unable to focus. Sergeant Hein saw boxes in the back and asked defendant what he was doing with them. Defendant said “he was packing up his trunk.” When Sergeant Hein threw away some of the boxes, defendant became angry. On several occasions, Sergeant Hein directed defendant to get some vehicles out of the armory. Defendant was responsible for the vehicles, which were not allowed to be parked inside the armory.
On August 23, 2007, Jacobs went to the armory to talk to defendant. Defendant appeared “a little on edge, and a little bit antsy.” Defendant, who did not make eye contact with Jacobs, asked Jacobs if he knew anyone from whom he could borrow a boat. Jacobs told defendant he had a boat, but defendant said he needed a bigger boat “now” to go out to sea because his father-in-law had passed away and they wanted to bury his military effects at sea. As Jacobs walked away, defendant asked if he had any cardboard boxes. When Jacobs asked what size boxes defendant needed, defendant said it did not matter, in that he needed the cardboard “to line something.” Jacobs contacted city employee Gary Ford (Ford) and told him to give defendant what he needed.
Sergeant Hein heard the conversation defendant had with a city employee about a boat.
Defendant’s father-in-law was never in the military and was alive at the time of defendant’s trial.
On August 24, 2007, Ford contacted defendant and delivered the boxes. Ford had been directed to deliver the boxes by noon. Defendant did not seem like himself and would not look at Ford. Sergeant Kinney, who was at the armory that morning with his 10-year-old son, just said hello to defendant, who did not seem “stressed out.”
Sergeant Hein arrived at the armory at 6:00 a.m. on August 24. He described defendant as “whacked out” that day. The Humvee still was parked inside the armory. Defendant asked Sergeant Hein to show him how to swing a bat. Sergeant Hein complied, after which the bat was placed in a blue barrel just outside the recreation room.
Around 1:30 or 2:00 p.m., defendant and Harris arrived at the armory in his government car. They walked to the park across the street to talk to Harris’s friends, including Lester Thomas and Dee Johnson. After about 15 minutes, defendant and Harris returned to the armory.
Before leaving at 2:30 p.m., Sergeant Hein told defendant to relax and go home. Defendant told Sergeant Hein that he was going fishing the next day and he was going to look for a car for Harris. Sergeant Hein told defendant he would lock up the front and asked defendant to lock up the back.
At approximately 4:00 or 5:00 p.m., Gregory Kay (Kay), a member of the National Guard, arrived at the armory and parked in front. For about three weeks, when Kay and his wife were not at work, they and their son had been staying in the armory’s recreation room with Sergeant Allinder’s permission. As Kay approached the armory, defendant stuck his head through the front door and asked Kay to come back in an hour. Kay returned to his car and moved it to the back of the armory. Twenty to twenty-five minutes later Kay saw paramedics and police arrive at the armory.
2. Police Response and Investigation
The paramedics and police arrived in response to a 911 call defendant had made from the armory. During the call, defendant identified himself and reported that a woman had attacked him and he thought he had killed her. The 911 operator asked if defendant had shot the woman. Defendant said he had not. He stated that she stabbed him and pepper-sprayed him. He then grabbed a bat and beat her with it. Upon inquiry, defendant confirmed that the woman was inside the armory and was bleeding.
Culver City Police Officer Aubrey Kellum arrived at the armory around 4:30 p.m. Officer Peter Hernandez arrived at the same time. The officers could see defendant inside mopping and knocked on the doors. Defendant unlocked the door. Upon entering the armory, Officer Kellum saw a body covered with a blanket on the gymnasium floor.
Defendant was squinting badly, and a “bright orange liquid” appeared on his face. There was an orange stain or smear on defendant’s shirt but no spray marks. The knee and crotch areas of defendant’s pants appeared to be smeared with blood or pepper spray. Defendant also had blood on his hands and forearms. Officer Hernandez confirmed that Harris was dead.
Defendant said, “I needed to cover her up. I couldn’t stand looking at her anymore.” When defendant continued to mop, and Officer Kellum stopped him, after which defendant said, “They’re gonna be pissed. This place is such a mess. I made a mess. They’re gonna be pissed.” Officer Kellum then asked defendant what had happened.
Defendant stated that he and Harris had been talking in his office. Harris asked for money, and defendant refused to give her any. Harris became angry. She pepper sprayed and stabbed him. Defendant used a bat to defend himself and “whacked her a couple of times.” A “very small” cut could be seen on defendant’s right hand near his thumb.
Officer Hernandez was directed to sit with defendant. The officer asked no questions. Defendant, however, volunteered an explanation of what happened that day. Defendant said he had picked up Harris because they were going to look for a car. They went to the armory, and Harris told defendant he had gotten her pregnant. Defendant further said that Harris demanded money and sprayed him with pepper spray. He then grabbed a bat and swung it at Harris. At this point, Harris pulled out a knife and tried to stab him. Defendant added, “I just started cleaning up. I know I shouldn’t have, you know, but I started cleaning up. And that’s what those rags over there are for.” He then volunteered that he had given Harris the knife for protection and said, “I’m dead. I’m dead. I’m going to prison for 20 years. My career is over. I’m going to prison.” At no time did defendant express concern for Harris or the baby, who defendant later would learn was not his child.
Officer Hernandez saw a medium to large size plastic bag containing bloody rags.
After the paramedics arrived, an officer asked how long Harris had been there. Defendant said 15 to 20 minutes. He further stated that Harris had been lying there about 10 minutes before he called 911 and that he had moved the body from the area where he had been mopping.
Shortly after Officer Kellum arrived, defendant for the first time complained that his eyes were burning. The officer noticed that defendant’s legs were shaking and asked him to empty his pockets. Defendant removed syringe wrappers. In Officer Kellum’s view, defendant was possibly in shock but was neither distraught nor crying. To the contrary, Officer Hernandez observed defendant as being “very distraught, very overwhelmed” and “crying openly.”
According to Officer Kellum, pepper spray causes immediate pain and discomfort to the eyes. It causes the eyes to shut in order to avoid the intense pain felt by keeping the eyes open. In addition, the person’s “sinuses will start running.” Based on personal experience, Officer Kellum said the effects of pepper spray last for 15 to 20 minutes.
Officer Kellum observed a canister of pepper spray on the floor. A clear orange-colored liquid appeared to have been sprayed on several areas of the floor. The area where defendant had been moping contained blood and mop marks. A bloody palm print, later determined to be Harris’s, was located some distance from where police found her body. Officer Kellum also saw a knife and a bloody bat near defendant’s office.
Pepper spray was found on the floor between where the body was found and where the palm print was on the wall. There was no indication that the body had been dragged between these two points, however. The cover to the pepper spray canister was found in the supply room. Pepper spray and mop marks also were found on the floor in the supply room and on the floor in the recreation room. There was a wet spot below the basketball hoop near the back door and palm print, as well as in the recreation room.
Also found were two fingernails, an earring and a woman’s ring. Harris was missing two fingernails. A bottle of bleach and a bag of bloody paper towels were on the floor. A jacket on defendant’s desk had no pepper spray on it, but there was a significant amount of blood on the cuffs. Unwrapped syringes were found underneath the jacket. Three glass pipes and some plastic baggies were found inside Harris’s purse, which also was recovered.
Sergeant Hein returned to the armory late on August 24. The police were there. The Humvee was parked inside, the tailgate was open, and the back was covered with tarps, as if it were “being prepared to be loaded and taken somewhere.” A “body litter” was leaning up against the Humvee. It had been there for a few days but did not belong in the armory since they were not a medic unit. Sergeant Hein saw Harris’s body and observed blood all over the armory, as well as a baseball bat and other items. Colonel Garner saw “pioneer tools” near the Humvee. The tools should have been locked up.
Police recovered defendant’s computer, Harris’s cell phone and two cell phones belonging to defendant. The Internet history on defendant’s computer revealed that the following searches had been conducted: “how to knock someone out cold, ” “what.5 ml of visine does to an unborn fetus, ” “what visine does to a fetus, ” “what visine does to a person, ” “dangers of visine, ” “RBU44486, ” “RDU486, ” “homemade 22 cal, ” “how to make a stun gun, ” “how to make a disposable gun, ” “what happens if you get hit hard in the throat, ” “will punching the throat kill someone, ” “speech spells for harm and doing evil, ” “how to get cyanide, ” “how to make a zip gun, ” and “free voodoo spells.” Information contained on the cell phones was downloaded onto a disc.
3. Causes of Deaths
An autopsy of Harris revealed the cause of her death to be multiple traumatic injuries. Among these injuries, was a fracture of the cricoid cartilage, which would have been caused by blunt-force trauma, not manual strangulation. She suffered numerous lacerations, fractures and abrasions. Methamphetamine, marijuana and MDMA, commonly referred to as Ecstasy, were found in her system.
The term cricoid “pertain[s] to a ring-shaped cartilage at the lower part of the larynx.” (Random House Webster’s College Dictionary (2d ed. 1997) p. 312.)
Harris’s fetus was male and approximately 16 weeks in gestation. Once Harris stopped breathing, the fetus lost its source of oxygen and died within a few minutes. The fetus tested positive for methamphetamine and Ecstasy.
4. DNA
The blood on the tip of the knife was a mixture with defendant and Harris included as possible contributors. The blood on the handle of the knife also was a mixture of two contributors. Defendant was the major donor. The minor donor could not be identified due to a lack of sufficient information. The DNA on the can of pepper spray and the bottom of the can was a mixture consistent with two contributors. Defendant and Harris were included as possible contributors, with defendant identified as the major donor.
With regard to the mixture of DNA on the baseball bat, defendant and Harris were included as possible donors. Samples taken from the blood splatter on various walls and the armory floor revealed a single source matching Harris’s profile. Harris similarly was identified as the sole source of the blood found in a large plastic bag and on the supply room floor.
5. Post-August 24, 2007
Upon returning to work on August 29, 2007, Sergeants Hein and Allinder found a box of syringes, which should not have been in the vault of the armory. Towards the rear of the armory, Sergeant Hein found a plastic bag containing red liquid inside an equipment locker, which smelled like a dead animal when it was opened. There also was a footprint near the locker. The police were called.
On August 31, 2007, El Segundo Police Officer Kenneth McShane impounded a car and spoke with Omar Taylor (Taylor), who worked for the same towing company as defendant. Based upon this conversation, Officer McShane contacted the Culver City Police Department and reported that Taylor might have information relevant to the investigation.
According to Taylor, he worked on August 18, 2007 and met defendant, who also was working. Defendant, who appeared nervous, asked Taylor if he “knew a hit man.” Taylor was surprised and asked how much defendant was willing to pay. When defendant said “50 bucks, ” Taylor said no one would do it for that amount. Defendant also mentioned that he was married with children and had made a mistake by getting into a relationship with another woman, whom he wanted to bring to the tow yard. Defendant claimed he had Ecstasy pills “crunched up in powder.” He wanted to put the powder “in water or something to drink.” There was a baseball bat in defendant’s tow truck.
Defendant’s conversation with Officer McShane and his interview at the Culver City Police Department were recorded and played for the jury.
B. Defense
1. Defendant’s Testimony
Defendant served in the United States Army for 10½ years before receiving a medical discharge in 2001. He was not trained in hand-to-hand combat.
In 2001, following his discharge, defendant got a job as a tow truck driver at Manhattan Beach Tow. In 2004, he was recruited into the National Guard and became a supply sergeant at the armory in Culver City.
Defendant knew Sergeants Hein and Kinney from the armory. Sergeant Allinder had been one of his direct supervisors, and Colonel Garner had been his battalion commander. Defendant also knew Sergeant Major Whittle, who had been his battalion sergeant major and a business partner.
In late 2006, defendant gave Whittle $27,500 to invest in a barber shop which “fell through.” Defendant and his wife sued Whittle in March 2007. As a result, defendant’s relationships with several individuals in his unit deteriorated.
The armory was stocked with six to eight litters or stretchers and medical supplies. Defendant, along with Sergeant Hein, had access to the vault in which the medical supplies were stored.
After a field exercise, defendant saw a box of syringes in the center room of the armory, and he set them aside to be placed into the vault. On August 24, defendant saw the syringes on the floor next to Harris’s purse. The only time defendant had ever used a syringe was to inject his diabetic grandmother with insulin.
In March 2007, defendant met Harris through Sergeant Kinney. Harris, her boyfriend and another man were interested in joining the National Guard. Defendant spoke to them about his experiences. When defendant overheard Harris and her boyfriend talk about transportation problems, defendant offered to help them get a car from the tow yard. Late in May, Harris went to the tow yard where defendant showed her a Kia Spectra. Harris was not interested in buying the car. Defendant then gave Harris a ride to Orange County. When they arrived at Harris’s motel, she asked him up to a party. Defendant went to the party and began drinking beer and tequila. One thing led to another, and defendant had sex with Harris, using a condom.
In June 2007, Harris told defendant she was pregnant. She claimed defendant was the father and said she could not “keep it.” A week later, defendant saw Harris at the armory. Harris was contemplating an abortion but had not made up her mind. She continued to use drugs and consume alcohol. Defendant told her she needed to stop if she was going to have the baby. In July 2007, Harris decided to have an abortion but did not go through with it.
On July 17, 2007, a Ford Probe was delivered to the armory by Manhattan Beach Tow. Harris said she liked the car, after which defendant filled out the paperwork for the towing company. Defendant never said he was buying the car for Harris in exchange for her having an abortion. In early August, the car was returned to the tow yard because she did not have enough money to pay for the car. Defendant denied telling Sergeant Hein that he had purchased the car for Harris. Harris continued to rely on defendant to help her find a car.
Defendant told Sergeant Hein about his predicament but never talked about a hit man. When defendant asked what he would do if he wanted to get rid of a problem, Sergeant Hein said he would hire a hit man. Defendant admitted that he searched the Internet for information about Visine and its effect on a fetus. Sergeant Hein and another man were present. Defendant denied telling Sergeant Hein that he put Visine in Harris’s tea.
Defendant denied conducting Google searches in an effort to locate information about abortions, except for abortion searches Harris asked him to conduct. His searches regarding homemade guns were prompted by his military interests. He also searched the Internet on how to knock someone out cold. He was talking with other men about ultimate fighting. He also researched cyanide after watching an episode of Man Versus Wild.
Defendant denied ever possessing Ecstasy pills, crushing them into a powder, and having a discussion with anyone about doing so.
Defendant, who worked with Taylor for one day, denied talking to him on August 18 about “impregnating a woman” or a “hit man.” Defendant also denied talking to David Mondragon (Mondragon) about “someone being pregnant.”
Defendant talked to Sergeant Kinney about his situation several times. The sergeant was upset with defendant. Defendant did not ask Sergeant Kinney for help finding a hit man. Defendant met with Vargas because Sergeant Kinney said he needed a job and was interested in a position as a tow truck driver. Vargas did not have the necessary qualifications, but defendant told him he could work as a “yard guy.” Defendant did not talk to Vargas about harming Harris and did not give him any money.
Defendant recognized the baseball bat (People’s Exh. No. 7), which “had been around” the armory. He admitted to handling the bat but denied taking it from the armory or carrying it in his car or his tow truck. On August 24, defendant, along with Sergeant Hein and Sergeant Kinney’s son used the baseball bat to hit “tape balls” inside and outside the armory.
On Monday, August 20, 2007, defendant went to work. Harris called him and demanded money. She became angry when defendant refused. He believed she would use the money to acquire drugs. Defendant told Harris that after the baby’s birth, he intended to take the baby away from her if the baby were his.
Harris called defendant the next day, August 21, 2007, and asked him about military benefits for the baby. Defendant again told Harris he would seek custody of the child, after which Harris told defendant that he and Sergeant Kinney “better watch [their] backs.”
On Wednesday, August 22, 2007, Harris asked defendant to take her to look at cars. Defendant agreed and waited at the armory as long as he could. He refused to pick her up later when she finally called and said she was ready.
The next day, August 23, 2007, Harris again asked defendant if they could look for cars. Defendant said it had to be within a specific time because he was going to replace the brakes on his mother’s car. Defendant waited and waited but left the armory. By the time Harris called defendant, he was with his mother and told Harris he was busy. Harris texted him, “Well, you know what? Don’t worry about looking at no cars because I’ll get a nice, good one with the child support.”
On August 24, 2007 at 6:45 a.m., defendant sent Harris a text stating, “I waited all day. You know, couldn’t wait no more. Helped my mom, and all of a sudden now you want me to jump through hoops.” Harris sent defendant an apologetic text.
Defendant arrived at the armory around 7:30 a.m. He had learned a week earlier that a Change of Command inspection was schedule for September 5. He was stressed, in that he was going to have a vasectomy and was scheduled to be away from work beginning on August 30.
The Humvee and truck were parked inside the armory. They had been used for a training exercise earlier in the month, and the equipment was still being cleaned. Defendant last saw the litter inside the Humvee where it normally was stored. Defendant did not remove the pioneer tool kit from the vehicle.
Defendant spoke to Jacobs that morning but did not say anything about disposing of his (defendant’s) father-in-law’s ashes. Defendant asked Jacobs for storage boxes and mentioned that it would be easy to get a boat for a fishing trip. Defendant also told Jacobs, “I need to get rid of some equipment that had been around since my grandfather’s days” and asked if Jacobs knew of a place the equipment could be dumped. Later that morning, Ford brought defendant the boxes he had requested. Defendant denied being agitated and claimed he made eye contact with Ford. Defendant did not talk to Sergeant Hein about the boxes.
Sergeant Felix’s boat had been stored in the parking lot for six months.
At 3:05 p.m. on August 24, Harris called defendant as he was en route to pick her up to go car shopping. After picking Harris up, defendant realized he had forgotten his identification, so they drove back to the armory.
Upon their arrival, defendant and Harris walked across the street to the park to visit some people. After returning to the armory, defendant suggested that they look for cars on Craigslist.com. Defendant took off his jacket, placed it on a chair outside the recreation room and then went to the restroom. When he came out, he saw Sergeant Kay, whom he asked to return in about half an hour. Defendant did so because Harris wanted to protect the privacy of their situation, and Sergeant Kay knew defendant’s family.
Defendant found Harris weighing herself on the scale in the recreation room. Rather than going to the computer with defendant, Harris, who was acting “real unusual” and “real weird, ” began to demand money in a loud voice. When defendant refused and started to walk out of the room, Harris pepper-sprayed him in the forehead. Defendant put up his arm in an effort to block the spray, after which he felt a sharp pain in his palm and realized Harris was trying to stab him. Defendant’s hand was cut.
Early in August, defendant had given Harris this knife (People’s Exh. No. 7) for her protection.
Defendant pushed Harris and fell against a barrel holding sports equipment. He grabbed the first thing that he could, a baseball bat, and swung it, hitting Harris in the head. Harris stumbled but got up and came after defendant again. Defendant swung the bat at Harris about ten times but did not make contact each time. Harris never ran away from him.
Harris fell to the ground, and defendant walked away in a state of disbelief. He kicked the knife away and felt compelled to clean up, fearing the command would be angry about the mess. He dropped the bat outside his office. Defendant then put on his jacket and told Harris to get up. As he attempted to move her, he realized she was dead.
Defendant then started to clean up. He picked up Harris’s purse and some syringes near her purse from the floor and placed them on a chair. He went back to his office, took off his jacket again and left it on his desk with some syringes. He had no syringe wrappers in his pocket. He got a mop and bleach from the bathroom, as well as paper towels and trash bags from the janitorial closet.
First, defendant cleaned up blood in the recreation room where Harris initially fell to the ground. He then cleaned the area where she landed after she hit the wall. He covered Harris’s body with a blanket and continued to clean. He decided to call 911 but could not remember Harris’s name. He was honest with the 911 operator.
When Officers Kellum and Hernandez arrived at the armory, defendant let them in and then continued to mop until they told him to stop. He was then directed to sit down. Defendant did not remember touching the canister of pepper spray or handling the bloody plastic bags found in the locker or putting them into the locker.
Around 7:55 p.m., defendant’s blood was drawn. No alcohol or drugs were in his system.
Defendant was questioned by Detectives Garacochea, Irwin and Shank and told the truth during the interviews, which were recorded. Defendant told Detective Garacochea that he told Harris, “‘We’ll get you a car, and we’ll see about maternity tests, ’ or something regarding the paternity test and the car.” On cross-examination, defendant said he did not mean he was buying Harris a car. Rather, he was letting her borrow the money.
Defendant noted that the injury to Harris’s throat was a coincidence. He denied any relationship between that injury and the Internet search, “will punching in the throat kill someone?” In fact, defendant denied touching Harris in the throat.
Defendant could not explain why he cleaned up the blood but not the pepper spray from the areas where Harris fell. He surmised that his DNA might have gotten on the pepper spray canister while he was cleaning up. Defendant denied spraying the floor and himself with pepper spray after beating Harris to death. He could not explain why he did not have pepper spray on his clothing but suggested that perhaps Harris sprayed him from less than two feet away. He was not wearing the jacket when Harris sprayed him. Defendant denied that he was wearing the jacket when he walked into the armory, grabbed the bat, and beat Harris and that he took it off after dragging her around the armory.
According to defendant, Harris got up after he had hit her on the head with the bat five or six times. He denied that he asked Sergeant Kay to return, in that he was cleaning up the crime scene. Kay had arrived before anything happened, and he did not think to ask for his help afterwards.
Defendant denied that he planned to murder Harris. He claimed that the idea to use Visine was suggested by others, and he never acted on it. Although defendant admitted that he told Detective Garacochea that he decided not to kill Harris, he claimed he was scared and blurted out things, not realizing what he was saying. He said he did not want to kill anyone and that the talk at the armory was “just talk.”
Defendant also noted that Sergeant Hein was mistaken when he claimed defendant had stated nothing could come between him and his family. Defendant claimed that statement had been about Sergeant Whittle, not Harris. Defendant also disputed Officer Kellum’s testimony that defendant had syringe wrappers in his pockets.
Defendant explained that Harris’s blood was on the sleeves and cuffs of his jacket because he grabbed her by the hands when he tried to get her up. He admitted to moving her three or four feet but did not know why he did so. He admitted that he was not wearing his jacket when the police arrived.
He further admitted moving Harris away from the armory windows but denied that Harris fell within view of the armory’s front doors. Defendant did not know how Harris’s blood got into the plastic bags, however.
Defendant also denied searching the Internet at 2:45 p.m., before he left to pick up Harris, on how to hit a person in the throat and kill him or her. Although he claimed other people could have used his computer, he admitted that no one was at the armory when he left.
In addition, defendant denied that he had been looking for a boat to use to dispose of Harris’s body. Defendant denied meeting with Vargas to discuss harming Harris, asking Taylor about a hit man or telling him he had Ecstasy. Defendant also denied giving Harris Ecstasy on the day she died.
Defendant denied stuffing trash bags under the locker near the janitorial closet. The tarps inside the Humvee were left over from the training exercise earlier in the month.
2. Forensic Psychologist
Dr. Kris Mohandie, a licensed psychologist, testified as a defense expert in the areas of “sanity or insanity or violence and understanding violence to issues of fight or flight or the human adrenaline response.” He did not interview defendant, and he spent an hour or less reviewing police reports and watched only about a fifth of defendant’s recorded police interview.
Dr. Mohandie described fight or flight as “the normal human response to threatening situations.” The response has physical and psychological components. Studies conducted in this field indicate that memory loss, tunnel vision, and people being on automatic pilot were normal and expected reactions to threatening and critical situations. During stressful events, conscious thought typically was short circuited even in highly-trained individuals. A person’s ability to remember details following the trauma is compromised in 40 to 50 percent of cases. Studies focusing on trained police officers, who have faced life-threatening situations, reveal that officers did not remember firing their weapons.
Responding to a hypothetical question mirroring the facts of this case, Dr. Mohandie opined that the fight or flight response would be triggered. It would be consistent with this response for the individual not to be able to remember how many times he struck someone. The person’s “tunnel of concentration” could change and his or her perception of time could be impacted. Even after the cessation of the traumatic event, the person might behave erratically or irrationally because he or she is still operating under the effects of the traumatic incident. That the person cleaned up the crime scene would not indicate necessarily that he or she was not operating in accordance with the fight or flight response. Dr. Mohandie noted that his opinion might change if the person had conducted online research on how to kill the victim, had attempted to find a hit man to kill the victim and/or had tried to find a boat prior to the killing to dump the body.
3. DNA Evidence
Forensic scientist Richelle Neverson (Neverson) examined the DNA found on the baseball bat and knife. She opined that the mixture of DNA on the baseball bat was concentrated such that it was likely the result of blood coming directly into contact with the bat’s surface from a wound, rather than caused by fingers touching the bat. Neverson further concluded that defendant could not be excluded as the major donor and Harris could not be excluded as the minor donor of the DNA mixture on the handle of the bat. Following her analysis of the DNA mixture on another portion of the bat, Neverson concluded that defendant could not be excluded as the minor donor and Harris could not be excluded as the major donor.
With regard to the blood mixture found on the tip of the knife, contrary to the prosecution’s DNA expert, Neverson found that defendant could not be excluded as the major donor and Harris could not be excluded as the minor donor. Neverson concurred with the prosecution’s DNA expert’s report that defendant and Harris both contributed to the DNA mixture on the pepper spray can.
4. Computer and Cell Phone Evidence
Eric Robi (Robi), a forensic computer expert, examined a duplicate hard drive of defendant’s personal computer. According to Robi, the last written date of a file would not be affected by rebooting the computer, and its hard drive had not been reformatted in the recent past. He further determined that the laptop’s clock was off, specifically 15 hours ahead. As such, the website fightingarts.com, where the inquiry “will punching someone in the throat kill someone” was last accessed on August 24, 2007 at 2:45 p.m.
Robi also examined three cell phones, downloaded text messages from two of the phones and noted outgoing and incoming calls. Defendant sent Harris a text message at 2:38 p.m. on August 24, 2007, which said, “In traffic.”
5. Character Evidence
Sergeant Gerardo Felix recruited defendant into the National Guard. The two men had known each other since 2001 or 2002 and had become good friends.
Sergeant Felix owned a 24-foot boat and on one occasion took defendant out on the boat to go fishing. The two men had tentative plans to go fishing on August 25, 2007.
In July 2007, defendant asked to borrow Sergeant Felix’s boat. The sergeant refused, in that he did not permit anyone to borrow his boat.
About one month before Harris’s death, defendant called Sergeant Felix and said the rumors had to stop. The sergeant did not know what defendant was talking about. When he asked about the rumors, defendant said “that he got someone pregnant.” Sergeant Felix said he had not heard the rumors. Defendant denied that the rumor was true.
Sergeant Felix described defendant as a non-violent person, who was very helpful to others. Defendant was the “fix-it guy, ” and he loved his wife and children very much.
A week before Harris’s death, Sergeant Felix saw defendant and defendant’s three children at a medical clinic. Defendant was “a little bit more talkative than usual” and seemed to have lost some weight.
Defendant denied being stressed or upset when he saw Sergeant Felix at the medical clinic. Defendant had lost weight because he had to go to a noncommissioned officers’ school in November, and he was overweight according to standards.
Mondragon worked at Manhattan Beach Tow. Although he claimed that he did not know defendant, he knew “Romeo, ” which was defendant’s nickname at the tow yard. Mondragon described Romeo as hardworking and nonviolent. Although Romeo talked to Mondragon about Harris’s pregnancy, Romeo never talked about hurting Harris in any way. Around August 18, 2007, Romeo appeared nervous and preoccupied. Mondragon identified the baseball bat, People’s Exhibit No. 7, as the one he had seen in Romeo’s vehicle.
In mid-June 2007, Romeo told Mondragon that his wife was pregnant and that he had gotten another woman pregnant. Paternity was questioned and abortion mentioned. Mondragon suggested that Romeo wait until the baby was born and then have a DNA test performed. Romeo did not say anything about hurting the woman.
The last time Mondragon saw Romeo, the latter seemed preoccupied and said he was having problems with his wife. Mondragon saw Romeo with a baseball bat but not inside his tow truck. Mondragon never saw Romeo act aggressively or violently.
Mondragon saw Taylor at the tow yard on August 18, 2007.
Moshen Majd (Majd) was the owner of Manhattan Beach Tow. Defendant began working for Majd in 2001. After defendant obtained a full-time job with the National Guard, he continued to be a valued part-time employee at Manhattan Beach Tow. Majd never saw defendant with a baseball bat or narcotics or react in anger or act violently.
DISCUSSION
A. CALJIC No. 2.62
After both sides rested on Friday, May 22, 2009, counsel and the court conferred about jury instructions. Defense counsel objected to instructing the jury with CALJIC No. 2.62, claiming the “instruction should not be given except where the court is satisfied that the evidence has established that the defendant probably does have knowledge of facts which equip him to explain or deny the evidence against him.” The court replied, “Right. Let me give you one example. [¶] He was the only one in the gym on August 24th with Joann Harris the day of the killing. He testified here today and yesterday, on two or three different occasions, he could not explain why the pepper spray was all over the floor.”
At this juncture, defense counsel added that the prosecution failed to notify the defense that the instruction would be requested. Defense counsel referenced the use note to CALJIC No. 2.62 which states: “It is recommended that the court consider requiring the prosecution to notify the court and defense at close of cross-examination of defendant, or in any event before argument, of intention to request the giving of this instruction, CALJIC 2.62, and to state the claimed evidentiary basis for the instruction so that the court may give the defendant an opportunity to further testify as to any explanation of evidence against him, which explanation he may have overlooked or forgotten to give. [Citation.]” (Use Note to CALJIC No. 2.62 (Spring 2008 ed.) p. 93.)
After the prosecutor interjected that he had included CALJIC No. 2.62 in the packet of proposed jury instructions that he had given to defense counsel and the court, the court said it would “think about it” and “do the research on it.”
When the court resumed on Tuesday, May 26, 2009, following the Memorial Day weekend, the court ruled it would give CALJIC No. 2.62 because the evidence warranted it. Defense counsel reiterated her objection “that the defense was not provided notice that the People were requesting that instruction. The Use Notes are very clear that the defendant be given an opportunity through cross-examination or recross[-]examination, and we were not placed on notice, and I’m objecting. I believe it is a violation of my client’s constitutional right pursuant to due process under the 14th Amendment. [¶] Also, with regard to any — I want to preserve any of the federal issues with regard to that particular instruction as well.”
On appeal, defendant reasserts his lack of notice claim. We find it has no merit. Defendant cites no authority for his assertion that the prosecutor’s inclusion of CALJIC No. 2.62 in his packet of proposed injury instructions, which he gave to defense counsel, was not sufficient notice that the prosecutor wanted the jury instructed with CALJIC No. 2.62. Moreover, after both sides rested but prior to argument, the court and counsel conferred about jury instructions, including CALJIC No. 2.62. It appears to us that the recommendation set forth in the Use Note to CALJIC No. 2.62 was followed. When the court reconvened after the Memorial Day weekend and ruled that it would instruct the jury with CALJIC No. 2.62, defense counsel was free to ask for permission to reopen defendant’s case if she thought it necessary to do so. Defendant clearly received the notice he was due.
Next, defendant contends that the trial court undermined his state and federal due process rights to a fair trial by instructing the jury with CALJIC No. 2.62 and that the instruction was unwarranted, in that he either denied or explained the evidence against him. We review these claims of instructional error independently. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066; People v. Lamer (2003) 110 Cal.App.4th 1463, 1469)
Over the defense’s objection, the trial court instructed the jury with CALJIC No. 2.62, entitled “Defendant Testifying—When Adverse Inference May Be Drawn” as follows: “In this case defendant has testified to certain matters. [¶] If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the most probable. [¶] The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.”
We first address defendant’s constitutional challenge, and reject it. In People v. Saddler (1979) 24 Cal.3d 671, the California Supreme Court rejected a due process challenge to CALJIC No. 2.62. Specifically, the court determined that CALJIC No. 2.62 did not impermissibly single out the defendant’s testimony, as the instruction tracked the language of Evidence Code section 413, which allows inferences to be drawn from any party’s failure to explain. (Saddler, supra, at pp. 680-681.) The court further noted that “[s]ince the only testifying ‘party’ in a criminal case is the defendant, the code section can have reference only to him.” (Id. at p. 681, fn. omitted.) The court also found the instruction does not lighten the prosecution’s burden of proof beyond a reasonable doubt as it contains language specifically reiterating this burden. (Id. at p. 680.) CALJIC No. 2.62, therefore does not violate notions of due process. (Cf. People v. Rodriguez, supra, 170 Cal.App.4th at pp. 1066-1068.)
We next turn to the question of whether the evidence justified instructing the jury with CALJIC No. 2.62. Before a jury can be instructed that it may draw a particular inference, the record must contain evidence, which if believed by the jury, supports the inference. (People v. Lamer, supra, 110 Cal.App.4th at p. 1469.) “An appellate court’s duty in reviewing a claim that CALJIC No. 2.62 was improperly given is ‘to ascertain if [the] defendant... failed to explain or deny any fact of evidence that was within the scope of relevant cross-examination.’ [Citation.] In order for the instruction to be properly given ‘[t]here [must be] facts or evidence in the prosecution’s case within [the defendant’s] knowledge which he did not explain or deny.’ [Citation.] A contradiction between the defendant’s testimony and other witnesses’ testimony does not constitute a failure to deny which justifies giving the instruction. [Citation.] ‘[T]he test for giving the instruction is not whether the defendant’s testimony is believable. CALJIC No. 2.62 is unwarranted when a defendant explains or denies matters within his or her knowledge, no matter how improbable that explanation may appear.’ [Citation.]” (Lamer, supra, at p. 1469.)
During cross-examination, the prosecutor repeatedly asked defendant to explain the presence of pepper spray all over the armory’s floors but none on his clothes. He failed to do so. Defendant also could not explain why he only cleaned up the blood and not the pepper spray. When asked about the blow to the throat, defendant said he could not explain how that happened. Yet, he was the only person with Harris at the time she died, and he admitted hitting her with a baseball bat. Under these circumstances, the trial court properly instructed the jury with CALJIC No. 2.62.
In any event, assuming error, it was not prejudicial. First and foremost, the evidence of defendant’s guilt was overwhelming. The evidence portrays defendant as a desperate man consumed with guilt at the prospect of losing his family after cheating on his wife and believing, albeit incorrectly, that his sexual tryst with Harris resulted in her pregnancy. Defendant hoped that Harris would have an abortion, but she decided otherwise, causing him to be consumed with worry.
Defendant’s coworkers recounted conversations during which defendant inquired about hiring a hit man, vowed that no one would come between him and his family, and stated he wanted to hurt Harris by punching her in the stomach and something to the effect that he would “kill the bitch.” Defendant agreed to pay Vargas a certain amount to hurt Harris; the solicitation was never carried out, however. Coworkers described a change in defendant’s persona. He began drinking, seemed preoccupied and unable to focus on his responsibilities at work.
The Internet history on defendant’s computer revealed that searches had been conducted on, among other things, the effects of Visine on a fetus. Toward the end of July 2007, Sergeant Hein saw a bottle of Visine in the trash at work. Defendant told him that he had put the Visine in Harris’s tea the previous night. On a prior occasion, defendant told Sergeant Hein he had conducted research and learned that Visine constricts blood vessels and would cut off blood to the fetus. Defendant had also told Sergeant Kinney about the effects of Visine on pregnancy and that he wanted to use it on Harris.
Searches on whether punching a person in the throat would cause death and what happens if a person is hit hard in the throat were also conducted on defendant’s computer. Although defendant denied conducting these searches, Harris’s autopsy revealed that she died as a result of multiple traumatic injuries, including a fracture of the cricoid caused by blunt force trauma, supporting the finding that defendant struck Harris in the throat or neck with the baseball bat.
In addition, during the time that Officer Hernandez sat with defendant at the armory, defendant volunteered an account of what had transpired between him and Harris in the moments prior to her death and said, “I’m dead. I’m dead. I’m going to prison for 20 years. My career is over. I’m going to prison.” This spontaneous statement clearly reflects defendant’s knowledge that he had committed a crime in killing Harris and would be punished accordingly.
Moreover, as our colleagues in Division Five observed in People v. Ballard (1991) 1 Cal.App.4th 752 at page 756, “CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt).”
In the instant case, the trial court also instructed the jury that not all of the instruction necessarily were applicable and directed the jury to follow the instructions that applied to the facts as it determined them to be. And, significantly, neither side mentioned CALJIC No. 2.62 during closing argument. Under these circumstances, any error assumed in giving CALJIC No. 2.62 unquestionably was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Stated otherwise, “[i]t is not reasonably probable a more favorable verdict would have resulted if the instruction had not been given.” (People v. Ballard, supra, 1 Cal.App.4th at pp. 756-757.)
B. CALJIC No. 2.71.5
Defendant also claims that his state and federal constitutional rights to a fair trial were violated when without evidentiary justification the trial court instructed the jury with CALJIC No. 2.71.5, entitled “Adoptive Admission—False or Evasive Reply to Accusation.” The trial court instructed the jury: “If you should find from the evidence that there was an occasion when the defendant (1) under conditions which reasonably afforded him an opportunity to reply; (2) failed to make a denial or made false, evasive or contradictory statements, in the face of an accusation, expressed directly to him or in his presence, charging him with the crime for which this defendant now is on trial or tending to connect him with its commission; and (3) that he heard the accusation and understood its nature, then the circumstance of his silence and conduct on that occasion may be considered against him as indicating an admission that the accusation was true. Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence and conduct at the time indicated an admission that the accusatory statement was true, you must entirely disregard the statement.” Although defense counsel did not object to this instruction when the jury instructions were discussed, after trial, she moved for a new trial arguing there was no evidence to support the giving of the instruction and that it prejudicially affected the jury’s view of defendant’s testimony. Specifically, defense counsel argued that defendant met every accusation with a response and did not remain silent in the face of them.
Assuming for the sake of argument that defendant is correct and that the instruction should not have been given, we conclude that the instructional error was harmless under both the Watson and Chapman standards given the overwhelming evidence of defendant’s guilt. (Cf. People v. Hardy (1992) 2 Cal.4th 86, 154.)
People v. Watson, supra, 46 Cal.2d at p. 836.
Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].
C. Exclusion of Defense Evidence
Next, defendant challenges the trial court’s exclusion of expert testimony regarding the effects of voluntary ingestion of methamphetamine. There is no merit to this challenge.
At the prosecutor’s request, the trial court held an Evidence Code section 402 hearing to assess whether the testimony of defendant’s expert witness, Dr. Mohandie, was admissible. At that hearing, Dr. Mohandie gave a preview of his proffered testimony. Besides testifying about the psychological “fight or flight” response, Dr. Mohandie testified that he had some knowledge in the area of methamphetamine and its effects on users. Specifically, he testified: “Well, I’ve assessed and treated many individuals that have the addiction. I’ve seen people in treatment that have arrived in my office intoxicated on methamphetamine, and I have responded when I was with the Los Angeles Police Department with their consulting to their crisis and SWAT negotiation team to individuals in the field who were intoxicated on methamphetamine and engaging in violent behavior, and I’ve assessed a number of subjects for stalking in threat cases that have had those kinds of issues.”
Dr. Mohandie further explained that methamphetamine is an aggression inducing drug, testifying that “[i]t’s one of the drugs that ramps up our concern, both for greater loss of impulse control, impulse control problems, disinhibiting a person. It is one of the drugs of abuse that has a known association, increased paranoia, and other problematic reactions.”
After listening to Dr. Mohandie’s testimony, the trial court ruled as follows: “I’m going to permit the limited testimony of Dr. Mohandie, which was given in the [Evidence Code section] 402 hearing this morning, with the exception that I’m not going to permit Dr. Mohandie to testify about any expertise he may have regarding methamphetamine and any connection with that to this case. [¶] There is no evidence in this case which would permit any expert — and certainly Dr. Mohandie has not testified about his review of any such evidence, to indicate that anyone in this case was under the influence of methamphetamine on August 24th 2007.” The court further explained: “There was a little bit of testimony from the coroner indicating that there was a positive methamphetamine result on the toxicology results for Miss Harris and the fetus, but there is no testimony from her or from any other witness which would permit anyone to conclude that the levels detected are sufficient to draw any conclusions about whether or not Miss Harris had ingested or was under the influence of methamphetamine on August 24th or at any other time. There is no evidence about the levels of methamphetamine taken by Miss Harris at any time. So any opinion based on that would be speculation. [¶] So that’s the court’s ruling.”
Defense counsel interjected that the evidence showed that Harris had tested positive for methamphetamine during the recruiting process and that the coroner had measured the methamphetamine in her system. The court responded, “Right. The amount measured, but there was no testimony that that amount is connected to an ingestion at any particular point. There’s no testimony about how long methamphetamine stays in the system. That methamphetamine could have been from months earlier, as far as the record shows. And there’s no basis in the record for any conclusion otherwise. [¶] And since Dr. Mohandie has indicated that he only made a brief review of the record, there would be no basis for his opinion. That would be anything other than shear [sic] speculation, so that that testimony would be irrelevant for all purposes.”
A trial court’s decision to admit or exclude evidence will not be disturbed absent an abuse of discretion that results in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Moreover, the rules of evidence generally do not infringe impermissibly on a defendant’s constitutional right to present a defense. (People v. Frye (1998) 18 Cal.4th 894, 945, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Unless a rule of evidence is itself unconstitutional, a trial court’s evidentiary rulings do not violate a defendant’s right to present a defense. (People v. Boyette (2002) 29 Cal.4th 381, 414.)
In this case, Dr. Mohandie’s excluded testimony had no relevance (Evid. Code, § 210) in the absence of evidence that Harris was under the influence of methamphetamine at the time she was killed. While there was evidence that Harris used drugs, including methamphetamine, Ecstasy and marijuana, there was no evidence as to when she last ingested such substances. That these drugs were in her system when she died does not establish that she was under the influence of them at the time of her death. The trial court therefore acted well within its discretion in precluding Dr. Mohandie from testifying about the aggressive tendencies exhibited by individuals under the influence of methamphetamine. (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
D. Applicability of Section 654 to Section 12022.9 Enhancement
Defendant contends that the five-year enhancement imposed pursuant to section 12022.9 should have been stayed pursuant to section 654 because “the act for which [defendant] is being punished in count two for second [sic] degree murder is identical to the act for which [defendant] is being punished for the section 12022.9 enhancement in count one.” We are not convinced.
Section 12022.9 provides that “[a]ny person who, during the commission of a felony or attempted felony, knows or reasonably should know that the victim is pregnant, and who, with intent to inflict injury, and without the consent of the woman, personally inflicts injury upon a pregnant woman that results in the termination of the pregnancy shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. The additional term provided in this subdivision shall not be imposed unless the fact of that injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact. [¶] Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187.”
Section 12022.9 was added to the Penal Code by Statutes 1985, chapter 1375, section 1. With respect to Chapter 1375, the 1985 Summary Digest provides: “Existing law imposes additional prison terms upon convicted felons who inflict great bodily injury on the victim. [¶] This bill would impose an additional prison term, as specified, where an injury is intentionally inflicted upon a pregnant woman, by a person who knows or should know that the victim is pregnant, in the commission or attempted commission of a felony, which causes the termination of the pregnancy. This bill would also make conforming changes to existing sentencing provisions with respect to this enhancement. [¶] This bill also provides that it would not limit the criminal sanctions which could be brought for murder....”
Subdivision (a) of section 654 provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision....” The purpose of section 654 is “‘to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.’ [Citations.]” (People v. Davey (2005) 133 Cal.App.4th 384, 389.)
Section 654’s ban on multiple punishment is limited in two particulars, however. “First, when multiple victims are targeted by a single episode of violent criminal conduct, the perpetrator may be punished separately for the crimes committed against each victim. [Citations.] Second, multiple crimes that arise from a single course of criminal conduct may be punished separately, notwithstanding section 654, if the acts constituting the various crimes serve separate criminal objectives. [Citations.]” (People v. Davey, supra, 133 Cal.App.4th at p. 390.)
In this case, the first of these limitations—i.e., the multiple victim exception—is applicable. The California Supreme Court has “long held that ‘the limitations of section 654 do not apply to crimes of violence against multiple victims.’ [Citation.]... ‘The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.... This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not “... applicable where... one act has two results, each of which is an act of violence against the person of a separate individual.” [Citations.]’ [Citation.]” (People v. Oates (2004) 32 Cal.4th 1048, 1063.)
In this case, defendant engaged in a single episode of violent criminal conduct resulting in injury to multiple victims. Using a baseball bat, defendant mercilessly struck Harris, killing her, terminating her pregnancy and killing her fetus. Defendant does not challenge the propriety of multiple punishment for the murder of Harris and the murder of the fetus. He challenges only the propriety of enhancing his sentence for the murder of Harris by an additional five years pursuant to section 12022.9. In his view, the termination of Harris’s pregnancy resulted in the death of the fetus and consequently he cannot be sentenced for the fetal murder and the enhancement. In reaching our conclusion to the contrary, we find People v. Dennis (1998) 17 Cal.4th 468 and People v. Taylor (2004) 119 Cal.App.4th 628 to be instructive even though the issues resolved therein are different from the one we are currently considering.
Defendant Dennis brutally attacked his ex-wife Doreen with a machete in 1984. Doreen was eight months pregnant at the time. Among the injuries suffered by Doreen were severe cuts to her abdomen, uterus, placenta and umbilical cord. The fetus received severe chopping wounds and was expelled from Doreen’s womb. The fetus was found dead at the scene. Doreen died en route to the hospital from exsanguination. (People v. Dennis, supra, 17 Cal.4th at pp. 489, 495.)
Doreen’s fetus was only one month short of being full term and could have survived if it had been born prematurely. As a result of the injuries to Doreen and the fetus, however, the fetus never lived independently of Doreen or took a breath. (People v. Dennis, supra, 17 Cal.4th at p. 496.) The jury convicted Dennis of the first degree murder of Doreen and the second degree murder of her fetus. It further found true the special circumstance allegation that defendant committed multiple murders and, at the penalty phase of the trial, it returned a verdict of death. (Id. at p. 489.)
In 1985, the year after Dennis murdered Doreen and her fetus, the Legislature enacted section 12022.9. This statutory provision became effective on January 1, 1986. (People v. Dennis, supra, 17 Cal.4th at p. 499.) On appeal, Dennis argued that the trial court should have instructed the jury on section 12022.9 as an alternative to the fetal murder. The premise of Dennis’s argument was that section 12022.9 operated as either a lesser included offense or a lesser related offense to fetal murder. (Dennis, supra, at pp. 499-500.) The high court rejected Dennis’s argument, explaining:
At the time of Dennis’s trial, section 12022.9 read as follows: “Any person who, during the commission or attempted commission of a felony, who knows or reasonably should know that the victim is pregnant, with intent to inflict injury, and without the consent of the woman, personally inflicts injury upon a pregnant woman which results in the termination of the pregnancy shall, in addition and consecutive to the punishment prescribed by the felony or attempted felony of which the person has been convicted, be punished by an additional term of five years in the state prison. The additional term provided in this section shall not be imposed unless the fact of such injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact. [¶] Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 of the Penal Code.” (Stats. 1985, ch. 1375, § 1, p. 4881.)
“The fundamental flaw underlying defendant’s contentions is that section 12022.9 defines a sentence enhancement, not a substantive offense. Enhancements, like special circumstances, are not substantive crimes. [Citation.] California courts have long recognized that an enhancement is not a separate crime or offense. [Citation.] As we... stated in [People v.] Wims [(1995) 10 Cal.4th 293]: ‘[I]n our statutory scheme sentence enhancements are not “equivalent” to, nor do they “function” as, substantive offenses. Most fundamentally, a sentence enhancement is not equivalent to a substantive offense, because a defendant is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense. [Citation.]... The Legislature, moreover, has in various ways expressed its intention that enhancements not be treated as substantive offenses.’ [Citation.]
“An enhancement is ‘“an additional term of imprisonment added to the base term.”’ [Citation.] Section 12022.9 provides for ‘an additional term of five years’ of imprisonment ‘in addition and consecutive to the punishment prescribed by the felony or attempted felony of which the person has been convicted....’ The explicit description of the term section 12022.9 imposes as being ‘additional’ is consistent with a legislative intent to designate an enhancement. [Citations.]
“We also note that section 12022.9 specifies only a single term of imprisonment rather than a range of possible terms. A statute’s specification of confinement for one of three possible terms does not necessarily mean it concerns a separate crime instead of an enhancement. [Citations.] Nevertheless, a statute’s provision for only one term of additional imprisonment is characteristic of an enhancement. [Citations.] Here... the words of the statute and the specification of a single term leave no doubt the Legislature intended section 12022.9 to be an enhancement rather than a substantive crime. [Citation.]....
“As an enhancement, section 12022.9 does not represent an alternative to a charge of fetal murder in violation of section 187. Instead, it imposes an additional punishment for committing, or attempting to commit, a felony in a manner that intentionally injures a pregnant woman and results in termination of her pregnancy. The enhancement relates to the particular injury a defendant inflicts on a woman in committing the substantive crime. Imposition of the enhancement neither precludes punishment for, nor constitutes an alternative to conviction of, a separate crime—murder—against a second victim—the fetus. [Citation.]
“The Legislature’s directive in the final paragraph of... section 12022.9... reinforces our conclusion. That paragraph provides: ‘Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 of the Penal Code.’ The plain import is that the section 12022.9 enhancement shall not be interpreted as substituting for, or precluding, a charge and conviction of fetal homicide under section 187.
“We therefore find no merit in defendant’s claim that section 12022.9 was intended to address lesser degrees of culpability for fetal death than murder under section 187. The enhancement imposed under section 12022.9 instead concerns the greater degree of culpability attributable to a defendant whose felonious conduct injures a pregnant woman and causes the loss of her pregnancy. Thus, defendant’s argument that the trial court was obliged to instruct the jury on section 12022.9 as a less included offense of fetal murder lacks merit.” (People v. Dennis, supra, 17 Cal.4th at pp. 500-502.)
In People v. Taylor, supra, 119 Cal.App.4th 628, Taylor punched his girlfriend, Garvon White, numerous times in the stomach when she was seven months pregnant with his child. The child, Marcel, was born alive later that day, after being delivered by Caesarean section. (Id. at p. 633.) He weighed less than three pounds and suffered from Down’s syndrome, including a heart defect. His premature birth made these conditions more difficult to treat. (Id. at p. 635.) Marcel died one month later from necrotizing intercolitis which was caused by his prematurity. (Id. at pp. 633, 635.) Taylor was convicted of second degree murder of Marcel and the infliction of corporal injury resulting in a traumatic condition on White. The jury also found that Taylor personally inflicted great bodily injury on White under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e), and that with intent to injure, he personally injured White without her consent, knowing she was pregnant and causing the termination of her pregnancy within the meaning of a former version of section 12022.9. (Taylor, supra, at p. 633.)
In rejecting the Taylor’s contention that the evidence did not support the jury’s determination that he terminated White’s pregnancy because only a miscarriage or an abortion constituted the termination of pregnancy within the meaning of then section 12022.9, the reviewing court explained that “[t]he plain meaning of former section 12022.9 does not limit its application to cases of miscarriage or abortion” and defendant failed to cite any authority so limiting the statutory provision. (People v. Taylor, supra, 119 Cal.App.4th at p. 644.) The court in Taylor noted that People v. Dennis, supra, 17 Cal.4th 468, “teaches that the point of the enhancement is to punish the defendant for injuring a woman in a particular manner with a particular result, not for the particular harm that comes to the fetus she is carrying. Given this logic, the enhancement is properly imposed when the pregnancy ‘terminates’—i.e., ends—in any manner as a result of the defendant’s intentional felonious act.” (Taylor, supra, at p. 644.) Thus, the focus of the enhancement is the termination of the pregnancy without regard to whether the fetus dies or survives.
Both People v. Dennis, supra, 17 Cal.4th 468 and People v. Taylor, supra, 119 Cal.App.4th 628 establish that the purpose underlying the sentencing enhancement embodied in section 12022.9 is to punish a person who intentionally injures a pregnant woman and causes the termination of her pregnancy without regard to the harm, if any, that comes to the fetus the woman is carrying. Because the pregnant woman, not the fetus, is the victim envisioned by section 12022.9, imposition of the enhancement is not barred by section 654. (Dennis, supra, at pp. 501-502 [“The [section 12022.9] enhancement relates to the particular injury a defendant inflicts on a woman in committing the substantive crime. Imposition of the enhancement neither precludes punishment for, nor constitutes an alternative to conviction of, a separate crime—murder—against a second victim—the fetus.”]; Taylor, supra, at p. 644 [“the point of the [section 12022.9 enhancement] is to punish the defendant for injuring a woman in a particular manner with a particular result, not for the particular harm that comes to the fetus she is carrying”].) The victim in count one, including the section 12022.9 enhancement, was Harris. The victim in count two was the fetus. Assuming without deciding that section 654 applies to enhancements, we conclude that the multiple victim exception to section 654’s bar against multiple punishment is applicable here. The trial court, therefore, properly enhanced defendant’s sentence on count one by five years pursuant to section 12022.9.
Termination of a pregnancy may or may not result in the death of the fetus.
The question of whether section 654 applies to sentencing enhancements is currently pending before the California Supreme Court in People v. Ahmed (2011) 191 Cal.App.4th 1407, review granted April 20, 2011, S191020.
E. Court Facilities Assessment
The trial court ordered defendant to pay a $30 court facilities assessment pursuant to Government Code section 70373, which in pertinent part provides, “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense.” (Id., subd. (a)(1).) Defendant contends that this assessment must be stricken, in that it is penal in nature and violates the state and federal proscriptions against ex post facto laws. We disagree.
Both the federal and state constitutions proscribe the passage of ex post facto laws. (U.S. Const., art. I, § 10; Cal. Const. art. I, § 9.) California’s constitutional provision is interpreted in the same manner as its federal counterpart. (People v. Grant (1999) 20 Cal.4th 150, 158; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1171.) “The ex post facto clause prohibits only those laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’” (People v. McKee (2010) 47 Cal.4th 1172, 1193, quoting Collins v. Youngblood (1990) 497 U.S. 37, 43 [110 S.Ct. 2715, 111 L.Ed.2d 30].)
Government Code section 70373 is not a penal statute, in that it does not alter the definition of murder or increase the punishment for murder. “It was enacted in 2008 as ‘part of a broader legislative scheme in which filing fees in civil, family, and probate cases were also raised.’” (People v. Davis (2010) 185 Cal.App.4th 998, 1000, quoting People v. Fleury (2010) 182 Cal.App.4th 1486, 1489-1490.) Thus, its purpose was to generate income for the judicial branch and support the “planning, design, construction, rehabilitation, renovation, replacement, or acquisition of court facilities” and to establish the “Immediate and Critical Needs Account of the State Court Facilities Construction Fund.” (Gov. Code, § 70371.5, subd. (a)(1).) The assessment “is not punitive because it was adopted as one component of the effort to address a budget shortfall; it is not denominated a ‘fine’; the amount per conviction is small; and the amount is not dependent on the seriousness of the offense.” (People v. Castillo (2010) 182 Cal.App.4th 1410, 1413.) “Since its history and substance demonstrate that it is not a penal statute, in terms or effect, its application to crimes committed before the effective date does not offend the prohibition against ex post facto laws.” (Davis, supra, at p. 1000; accord, Castillo, supra, at pp. 1413-1414; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5.)
Defendant committed his crimes on August 24, 2007. Government Code section 70373 became effective on January 1, 2009. Defendant was convicted on May 27, 2009 after the statute’s effective date. Thus, the court facilities assessment was properly imposed. (People v. Lopez (2010) 188 Cal.App.4th 474, 478-480; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1111-1112; People v. Davis, supra, 185 Cal.App.4th at pp. 1000-1001; People v. Fleury, supra, 182 Cal.App.4th at pp. 1492-1494; People v. Castillo, supra, 182 Cal.App.4th at pp. 1413-1415; People v. Brooks, supra, 175 Cal.App.4th at p. Supp. 5.)
F. Modification of Judgment
At the time of sentencing, section 1465.8, subdivision (a)(1), mandated that the trial court impose a $20 court security fee for every criminal conviction. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865; People v. Wallace (2004) 120 Cal.App.4th 867, 871.) Government Code section 70373, subdivision (a)(1), similarly mandated the trial court to impose a $30 court facilities assessment for every criminal conviction, with exceptions inapplicable here. (People v. Castillo, supra, 182 Cal.App.4th at p. 1414.)
Although defendant was convicted of two counts of murder, the court only imposed one court security fee and one court facilities assessment. The court should have imposed two of each. We correct this unauthorized sentence despite the People’s failure to raise the issue below. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Bui (2011) 192 Cal.App.4th 1002, 1013, fn. 15.)
DISPOSITION
The judgment is modified by imposing a $20 court security fee pursuant to section 1465.8, subdivision (a)(1), and a $30 criminal conviction assessment pursuant to Government Code section 70373, subdivision (a)(1), for each offense. The clerk of the superior court is directed to prepare a corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.