Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD183245 Peter C. Deddeh, Judge.
NARES, J.
In June 2006 a jury convicted Scott Raymond Behnke of first degree murder (Pen. Code, § 187) for the killing of Lily Nisen and also found true the allegation that in committing the murder he personally used a knife (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise specified.
The court sentenced Behnke to a state prison term of 26 years to life.
On appeal, Behnke asserts (1) the court erred by prohibiting argument or evidence a third party was culpable for the murder, (2) the court erred in admitting evidence of his prior threat to cut the throat of a female he claimed was following him, (3) the cumulative effect of these errors requires a reversal of the judgment, and (4) there is no substantial evidence to support the jury's finding the murder was premeditated and deliberate. We affirm.
FACTUAL BACKGROUND
A. People's Case
On the night of May 30, 2004, Joseph Sbranti was in a group of 10 to 11 people visiting the apartment of Michael Forige, who lived in the same apartment building as Behnke at 942 Beech Street in San Diego. He arrived in his white sports utility vehicle (SUV) around 9:00 p.m., parked in front of the apartment building, and the group then walked to dinner, returning between 11:30 p.m. and midnight. When they returned, Forige discovered that he had locked his keys in the apartment. The group stayed in front of the building and was loud. Someone in the building yelled at them to be quiet and mentioned the police. Sbranti then left in his car with some members of the group.
San Diego Police Officer Jamie Rodriguez and his partner responded to a radio call of a loud party at the apartment building at about 1:00 a.m. Upon entering the building, Officer Rodriguez sensed he was being watched. He turned around and saw Behnke behind him. He asked what Behnke wanted, and Behnke responded by asking if he could help. When Officer Rodriguez told Behnke he might be checked for being under the influence and his room searched, Behnke left. Officer Rodriguez discovered that the party that had caused the call had ended, and he and his partner left.
At 5:27 a.m. the same morning, Behnke called 911 to report that he had found the body of a female lying next to a trash bin outside his apartment building. When San Diego Police Officer Allan Butchart arrived, he contacted Behnke, who confirmed that he was the reporting party. Behnke told police there had been a disturbance the previous night that woke him up. He heard people fighting outside and yelled at them to be quiet. Behnke told police that he went outside and saw several people leaving in a white SUV and two people walking down the street. Two police officers arrived, entered the apartment building, and then left. Behnke stated that he could not go back to sleep and eventually got up to take out the trash. He found the gate to the trash can area open, which was unusual, and he then saw the body.
San Diego Police Detective Patrick Lenhart interviewed Behnke at the scene. Behnke told Detective Lenhart that the night before he had been sleeping with his girlfriend, Kathy Jacobs, when he was awakened by people outside. He leaned out his window and asked them to be quiet. He went outside, saw a police car drive by, saw people get into a white SUV and leave, and saw people going in and out of the rear of the building. The next morning, when he took the trash out, he found the body. Behnke told Detective Lenhart that he had seen the victim in the downtown area, around Horton Plaza. When Detective Lenhart showed him a picture of a young woman who lived in the area, Behnke said the photo was possibly the victim. When Detective Lenhart asked about contacting his girlfriend Kathy Jacobs, Behnke told him she had already left for work, and he did not know where she worked.
Behnke's hands had injuries and there was blood on his shoe. He explained the blood on his shoe occurred when he stepped in the victim's blood when he discovered the body. Detective Lenhart saw Behnke later in the day and he had changed out of his T-shirt and jeans. He was wearing a suit, which he said he had just purchased.
Detective Lenhart contacted Behnke the next day to view his apartment. Behnke told Lenhart that a large stain on the carpet was caused by a spill that occurred when he was staining a bookcase. Detective Lenhart saw a rag and a can of stain by a bookcase. Behnke told him that his girlfriend's name was Samantha and that she was pregnant with his child. He also told Detective Lenhart that he had seen the victim at Horton Plaza with a man named Aaron, but he did not know her name.
Police identified the victim, Lily Nisen, through a fingerprint. Her body was next to a dumpster in a breezeway between Behnke's apartment building and the next building. The breezeway was fenced and the front gate had a lock that was unlocked. There was a blood swipe on the dumpster. The dumpster contained bloody bedding and a cap. The bedding consisted of a fitted sheet wrapped around pillows, shams, and pillowcases, as well as silk leaves and a trolley ticket. A trail of blood drops led from the dumpster, along the sidewalk, to the front entrance of Behnke's apartment building.
Nisen's body was covered by a blanket. A blood-soaked, long-sleeved, yellow plaid flannel shirt was wrapped around her neck. The blood on her clothing indicated the breezeway was not the scene of her murder. It indicated that her body had been dumped at that location. Nisen's legs were bent at a 90-degree angle, indicating she had been carried.
All of the blood collected from the scene, including the blood on the bedding and Behnke's shoe, came from Nisen. However, a small bloodstain on a pillowcase was a mixture of at least two sources, one of which was an unknown male. Behnke could not be excluded as one of the sources. Another stain on the pillowcase was not blood and Behnke was a possible donor. Subsequent testing revealed a semen stain on the fitted bed sheet that very likely came from Behnke.
DNA testing of the blood stain on the pillow identified David Proctor as the predominant donor. Proctor and Samantha Durbin lived at Behnke's apartment from late February to early May 2004. They slept on a pallet in his closet and used some of Behnke's pillows. Proctor shaved his head and occasionally cut himself doing so. Also, in April, Durbin's brothers, in retaliation for Proctor's domestic abuse against Durbin, broke into Behnke's apartment and beat up Proctor, who was injured and bled.
Examination of Nisen at the scene revealed bruising around her right eye, several cuts on her neck, and small stab wounds on her upper chest. There were no injuries to her back. Nisen was lying on her right side and most of the lividity was on that side. Rigormortis was also present.
Doctor Christopher Swalwell, Deputy Medical Examiner for San Diego County conducted an autopsy on Nisen. The bruising around Nisen's right eye was caused by a blunt force. She had two stab wounds to her neck. The stab wound to the left side of her neck had a corresponding exit wound, which indicated a blade length of at least two and one-half to three inches. The second stab wound was three-quarters of an inch wide, and one and one-quarter inches deep. Superficial cuts below the stab wounds indicated the knife was serrated. There were three small "pinprick" wounds to Nisen's upper chest ranging in depth from three-sixteenths of an inch to three-eighths of an inch.
Nisen had petechiae in her eyelids and eyes, which is common in asphyxiation by strangulation. The shirt wrapped around Nisen's neck had been tightened and was consistent with a ligature. The petechiae could also have been caused by pressure on the chest from someone sitting on her. Nisen had a large bruise on and around her right ear, consistent with a blow from a fist. She also had a laceration to the right side of her scalp under the hair caused by blunt force consistent with being kicked or hit with some type of object with an edge. That injury was sufficient to cause unconsciousness or at least could have rendered her dazed. Nisen had bruising on her hands and feet. In Dr. Swalwell's opinion, the cause of death was blood loss from the neck stab wounds, with the head trauma as a contributing factor.
On June 2, 2004, Behnke was questioned by San Diego Police Detective Raul Delgadillo, while his apartment was being searched by Detective Randy Alldredge. At the beginning of the interview, Behnke denied knowing Nisen. He stated that he had been in that apartment since September 2003, and no one else had keys to the apartment except family, who had emergency keys, and a friend named David. He denied that he carried weapons, but claimed he could handle himself with his fists and on occasion had had to "choke out" a female friend. He stated that he had been depressed since he broke up with his girlfriend and, although he was seeing several different women, he was not getting his emotional needs satisfied.
Behnke told the interviewing officer the same story he had initially told police about the circumstances surrounding his discovery of Nisen's body. However, this time he said the girlfriend who had stayed the night was named Jessica Carlson. He also told Detective Delgadillo that the night after he discovered the body he remembered that he had seen Nisen downtown with a guy named Aaron, who was a drug dealer. However, he could not remember her name. He stated that he had never spoke with Aaron or Nisen and that they had never been in his apartment.
Meanwhile, during the search of Behnke's apartment, police discovered a large red stain on the carpet in the living/bedroom area of the studio apartment. The carpet was recently vacuumed and there was an odor of bleach. A towel in the bathroom had blood on it, and there were cans of spot remover in the kitchen. There was a luminol reaction on one wall and on the carpet at the base of the wall, indicating the area had been cleaned.
Nine steak knives were in water in the kitchen sink. One knife had a bent tip. The knife with the bent tip was consistent with Nisen's wounds. There was a spot of blood on a piece of artwork hanging on a wall and blood on the leaves of an artificial tree. There were several blood stains on the carpet at the foot of Behnke's bed that had soaked through the carpet and padding to the underlying wood floor. A blue bin contained cut pieces of rug, boxer shorts, socks and pants Behnke had been wearing when contacted by police on May 31 after reporting the body. There was a spot of blood on the pants and on the boxers. It was later determined that the blood in Behnke's apartment matched that of Nisen.
There was a photograph of Nisen in Behnke's kitchen and her cell phone number was in two address books. According to Nisen's cell phone records, she made nine calls to Behnke between November 28, 2003, and February 7, 2004.
Behnke's computer and digital camera were examined by Tim Hamon, an FBI computer forensic examiner. The computer had last been accessed by Behnke on May 27. The computer memory contained photos of Nisen and a telephone list that included her first name. The computer also contained photos and video showing the blanket that had been wrapped around Nisen's body, a rug which was the source of the cut pieces in the blue bin, and Behnke wearing the shirt that was wrapped around Nisen's neck when her body was discovered.
When confronted with the fact police had found blood during the search of his apartment, Behnke changed his story. Behnke claimed that his friend Matt Mende was staying at his apartment and had an apartment key. Behnke asserted that Mende and Nisen had been together in his apartment on occasion, and that they fought, liked kinky sex with cutting, and Mende carried a knife.
Behnke claimed he was in and out of his apartment all weekend. He left the apartment at 4:00 p.m. on Saturday, and Mende was there. He returned Sunday morning after a party and there was no one there. He left again and returned Monday morning around 3:00 a.m., finding blood, his mattress messed up, and his tree overturned. He again stated he discovered Nisen's body when he took out the trash to the dumpster.
However, Behnke then changed his story again and stated that when he returned to the apartment on Monday morning he discovered Nisen's body there. He stated that he tried to use the blue bin to remove her body but was unable to get the body in the bin and dumped the body and brought the bin back upstairs. Behnke also described his efforts to clean the blood in his apartment and to discard bloody items. Police later found a backpack he discarded on top of a building at 1700 Pacific Highway, and a trash bag Behnke told police he discarded in a trash can at 11th and C Streets. Police took photographs of scratches and other injuries on Behnke's body.
Police located Mende, whom they considered a suspect until he was contacted and his alibi was verified. Mende was in Las Vegas that weekend. He had moved to Las Vegas in January or February of 2004. His last day in Las Vegas was May 30. On May 31, he and his girlfriend took a bus from Las Vegas to his hometown of Davis, California, with money provided by his mother.
Mende and Nisen had known each other since childhood and lived together in college. Mende was homeless after he and Nisen broke up, and he met Behnke, who offered to let him stay with him. Mende stayed with Behnke for a couple of weeks but Behnke refused to give him a key because Behnke was "paranoid." Mende last saw Nisen three to four months before the murder.
Prior to her murder, Nisen had been seeing Aaron Morgan, who was incarcerated at the time of her murder. In May 2004 Nisen moved in with Morgan's sister, Jessica Morgan, who resided with her boyfriend, Jarrett Ray Moss, and his family at 230 54th Street. Nisen came home every night except on May 30.
On May 30, 2004, at 11:30 a.m., Nisen entered the 24-Hour Fitness in downtown San Diego. She usually worked out for one to one and one-half hours. Nisen was supposed to meet Morgan's mother to get a ride to the South Bay Detention Facility to visit Morgan.
On May 30, 2004, Behnke made telephone calls on his apartment phone to Christine Accord at 11:47 a.m., to his parents' home at 12:36 p.m., to his father's cell phone at 12:37 p.m., and to his mother's cell phone at 3:32 p.m. At 1:13 a.m. on May 31, Behnke made an incomplete call to a locksmith.
Alexandra Lambombard testified that she had known Behnke for about a year and a half before the murder and had seen Behnke with Nisen a couple of times. Behnke told her that he liked Nisen and wanted a relationship with her, but said it would never happen because she had a boyfriend. Aja Harmon had known Behnke for a couple of months before the murder, and she also knew Nisen. On one occasion at his apartment he showed her photos of Nisen on his computer. Behnke said she was beautiful and said he had a crush on her.
Several days before the murder Behnke ran into Richard Adkins at the newsstand at Horton Plaza. Adkins had known Behnke for about a year and often ran into him at the mall. Behnke told Adkins he was being followed by a jealous girlfriend, who was taking pictures of him because she thought he was cheating on her, and pointed to a female on the second floor of the mall. Behnke told Adkins that "'if the bitch keeps doing it, I'm going to cut her fuckin' throat.'" At that time, Behnke pulled out a knife from his pocket and displayed the blade. When Adkins told Behnke that he thought the threat was drastic, Behnke said he did not care.
About a week later, after Nisen's murder, Adkins ran into Behnke again at the newsstand. Behnke pointed to an article in the paper about the discovery of Nisen's body and told him that he had found the body and talked to detectives about it. Although the article had no information about Nisen's injuries, Behnke said the victim had head trauma, stab wounds, and a slit throat.
B. Defense Case
The defense presented expert testimony that DNA testing of the fingernail scrapings from Nisen's right hand excluded Behnke as the source of the material collected.
Kenneth Orr testified that he lived across the hall from Behnke and was aware of a Black male and blond female living with Behnke at one time and observed them going in and out of the apartment together up to a couple of weeks before the murder. He said a photograph of Nisen looked like the woman he observed primarily because of her pink hair color. The woman he had observed had different color hair every time he saw her. However, when shown a photograph of Durbin, he said she could also be the woman he observed. Orr also testified that Behnke told him the man and woman were staying in his closet.
DISCUSSION
I. THIRD PARTY CULPABILITY EVIDENCE
Behnke asserts that the court's exclusion of evidence and limitation on arguments he could make concerning Proctor's alleged involvement in Nisen's murder denied him his constitutional right to put on a defense. We reject this contention.
A. Background
Prior to trial, the People brought a motion in limine seeking to exclude evidence pointing to various people, including Proctor, as responsible for Nisen's death. Defense counsel agreed that he would not be pursuing any of the individuals identified by the People, with the exception of Proctor. In support of introducing evidence and argument concerning Proctor's culpability, defense counsel pointed to the bloodstain match to Proctor on Behnke's pillowcase, as well as the fact Proctor had several documented incidents of domestic violence involving his girlfriend, Durbin and that Proctor and Durbin had lived in Behnke's apartment before the murder. Defense counsel also offered Aaron Morgan as a witness who would testify that Proctor and Durbin were lying about when they left Behnke's apartment; they actually moved out the day before the killing. Defense counsel also told the court that Behnke's neighbor Orr had described seeing a tall blonde female who looked like the victim going in and out of Behnke's apartment with a Black male, who was similar in size and looks to Proctor, in the month before the murder.
The prosecutor responded that Proctor's DNA was found in a small spot of blood on a pillow case, that Proctor and Durbin lived with Behnke for a few months and used his pillow for the bed they slept on in the closet, and that Proctor shaved his head and occasionally cut himself doing so. He also pointed out that Durbin was blonde and that Orr had not seen the Black male and blonde female for two to three weeks before the murder. The prosecutor stated that when questioned, Proctor said he was at a barbecue on the day of the murder and correctly recalled the weather on that day.
Defense counsel agreed to put together a packet of statements for the court to review.
At the next hearing on the issue, the court indicated that it had reviewed all the material submitted by the parties. The court described much of the information provided by Behnke's counsel as hearsay, rumor and speculation. The court also noted that the last time Orr observed the Black male and blonde female was two or three weeks before the murder, that Orr knew the Black male and blonde female were living in Behnke's closet, and that there was no evidence Nisen was ever living in the closet. He also noted that Proctor had agreed to take, and had passed, a lie detector test.
Defense counsel then indicated that he was not submitting the evidence about Proctor for the third party culpability, but for cross-examination, and to impeach Proctor's credibility.
When the court stated that it did not believe there was any credible evidence that Proctor committed the murder, defense counsel again confirmed that he was not going to argue Proctor committed the murder. The parties also agreed that the matter was not settled because they did not know if Proctor would invoke his privilege against self-incrimination.
Thereafter, defense counsel indicated to the court that witnesses were saying that Durbin told them that Proctor had come home one night close to the time of the murder with scuffed knuckles, "covered in blood," and acting paranoid. Counsel also informed the court that Durbin had made statements implying she knew Proctor had killed Nisen. The court then agreed to hold a hearing on the admissibility of third party culpability evidence.
Prior to that hearing, Proctor retained counsel and indicated that he wished to invoke his privilege against self-incrimination if called as a witness in the case. The court held a hearing to determine whether invocation of the privilege was appropriate. Proctor's counsel explained to the court that Proctor had been interviewed by police and the prosecution twice. During the second interview, Proctor was told that his phone number was the only number in another murder victim's bag. The police asked Proctor whether he used Behnke's pillow case and whether he ever washed it. Counsel for Proctor informed the court that his client may have worn the flannel shirt found around the victim's neck in the past. The police told Proctor his DNA was at the crime scene, that they had problems with him not knowing where he was the night of the killing, and that they were not convinced he was at a barbeque as he claimed. The police told Proctor they suspected him of participating in Nisen's murder, that other people said he was involved, that he was being dishonest about his alibi, and that they could arrest him for the murder. Counsel also informed the court that Morgan would say Proctor told him he moved out of Behnke's apartment the day before the killing.
Defense counsel argued that the court should not sustain Proctor's claim of privilege, stating that by insisting his statements to police were true, he could not invoke the privilege on the ground they may be lies. Alternatively, counsel argued he should be allowed to impeach Proctor with his statements to police.
Counsel for Proctor asked him the following questions, to which Proctor invoked his Fifth Amendment right against self-incrimination: "Did you inflict the injuries that resulted in the death of [Nisen] on May 31[], 2004?" [¶] . . . [¶] "Regarding [Behnke's] apartment, did you help clean it up after the murder of [Nisen]?" [¶] . . . [¶] "Did you help [Behnke] remove [Nisen's] body from his apartment?" The court sustained Proctor's assertion of the Fifth Amendment.
Durbin then testified at a foundational hearing concerning the admissibility of third party culpability evidence. She testified that Proctor and she lived together in Behnke's apartment in 2004 and often entered and left the apartment together. Durbin stated that on April 25, 2004, she and Proctor had a fight and then left Behnke's apartment and moved in with their friends, Angela and Tony, on 11th Avenue. They stayed there about three months.
Durbin could not remember where Proctor was on the night of May 30, 2004, and said he may have been with her part of the evening, but he normally left to go bike riding at night. Proctor stated that one night while they were living at the 11th Avenue location, Proctor came home and his lip and knuckles were bleeding, his pullover was torn, he was sweating, and he appeared "paranoid" and scared. He told her he had gotten into a fight with a couple of Mexican kids who tried to steal his bike.
Durbin denied telling her sister, Keli Durbin, that she (Samantha) had a baby with a murderer, that she had seen pictures of the victim, that what happened to Nisen could have happened to her, and that Proctor was not living with her at the time of the murder and might have been living with Behnke.
Durbin admitted telling her mother that Proctor had assaulted her in 2006, and that he told her, "'I could do something to you and no one would find out.'"
Keli Durbin testified that about a month earlier Durbin told her that it was a scary thought that she might have had a baby with a murderer.
Following this testimony the court found that Durbin's observations of Proctor when he came home bloodied were "too imprecise as to time" and were consistent with Proctor's explanation of what had happened to him. The court also found there was not enough specificity connecting Proctor to the murder. The court ruled the third party culpability evidence inadmissible.
Later during the trial defense counsel advised the court that he had received evidence that Proctor had been cited for riding the trolley without a ticket on two occasions in 2004, at a trolley station close to the station where the trolley ticket in the bloody bedding was issued. Defense counsel sought admission of that evidence as well as the evidence of Proctor coming home bloody on the issue of third party culpability. The court ruled the new evidence inadmissible because the trolley citations showed Proctor as one who would ride the trolley without a ticket, rather than a trolley ticket purchaser.
B. Analysis
1. Waiver
The People assert that Behnke waived the right to assert that Proctor was responsible for Nisen's death because defense counsel repeatedly stated that he did not intend to make that argument. However, a review of the record on this issue reveals that while defense counsel initially indicated that he only wanted to use the evidence for cross-examination and to impeach Proctor's credibility, as further evidence came to light defense counsel made clear that he wanted to argue that Proctor was responsible for Nisen's death. Accordingly, there was no waiver as to that issue.
The People also assert Proctor has waived the right to claim, as he does in passing in his opening brief, that the court erred in sustaining Proctor's invocation of his Fifth Amendment rights. The People are correct that, to the extent Behnke is asserting the court erred in allowing Proctor to take the Fifth, he has waived that issue as he has presented no argument or authority in support of such a claim. (People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11 [appellate issue perfunctorily made without argument or authorities is waived].)
2. Merits
"The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence. . . . Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) Stated another way, "discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.)
Under the federal and California Constitutions, a criminal defendant has the right to present witnesses and other evidence in his or her defense. (Chambers v. Mississippi (1973) 410 U.S. 284, 302; People v. Hansel (1992) 1 Cal.4th 1211, 1219-1220.) Pursuant to that constitutional right, a defendant may present evidence of third party culpability (i.e., that another person committed the charged offense). (People v. Basuta (2001) 94 Cal.App.4th 370, 386.)
"To be admissible, the third-party evidence need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability." (People v. Hall (1986) 41 Cal.3d 826, 833.) "'[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.'" (People v. Avila (2006) 38 Cal.4th 491, 578 (Avila), quoting People v. Hall, supra, 41 Cal.3d at 833.)
"[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code,] § 352)." (People v. Hall, supra, 41 Cal.3d at 834.) Furthermore, "[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice." (Ibid.)
Here, the court did not err in excluding evidence offered by Behnke trying to link Proctor to the murder, nor in preventing Behnke from arguing Proctor was the killer. Durbin's testimony concerning Proctor coming home with a bloody lip and knuckles was not tied to the date of the murder and occurred when Proctor and Durbin were no longer living with Behnke. This evidence was speculative and did not link Proctor to the actual commission of the crime. The same can be said with regard to her testimony concerning a later incident of domestic violence committed by Proctor. The fact that Proctor had been cited for riding the trolley without a ticket did not logically point to him as the source of the trolley ticket found in the bloody bedding. Rather, it tended to show the opposite.
Behnke asserts that this evidence, together with the evidence that was admitted was sufficient to allow him to argue that Proctor was the perpetrator. However, even considering together all of the evidence Behnke submits tied Proctor to the crime, including the evidence that was admitted at trial, there was no "'evidence linking [Proctor] to the actual perpetration of the crime.'" (Avila, supra, 38 Cal.4th at p. 578.)
The small spot of Proctor's blood on the pillow case did not link Proctor to the actual perpetration of the crime. Given the fact that he had lived with Behnke, had slept in the closet, had used Behnke's pillow, and had on occasion nicked his head while shaving, Behnke's argument that this evidence linked Proctor to the crime was speculative at best. The fact that Proctor lived with Behnke until shortly before the crime also provides no such link. Orr testified that he last saw Proctor and the unidentified blonde woman two to three weeks before the murder, and there was no evidence Nisen ever lived or stayed at Behnke's apartment. Therefore, Orr's equivocal testimony concerning the identity of the blonde woman Proctor was with also did not link Proctor to the actual perpetration of the crime. The fact that Behnke told police he had a spare key, presumably giving someone such as Proctor access to his apartment, also amounted to nothing more than speculation that did not tie Proctor to the actual commission of the crime.
In sum, the court did not err in excluding evidence Behnke sought to introduce to show Proctor was the perpetrator, nor did it err in preventing him from arguing that fact.
II. ADMISSION OF EVIDENCE OF BEHNKE'S PRIOR THREAT
Behnke asserts the court committed prejudicial error by admitting into evidence his prior threat to cut the throat of a female that was following him. This contention is unavailing.
A. Background
As described in the factual background, ante, Adkins testified to statements made by Behnke that he was going to slit the throat of a jealous girlfriend that was following him. The people brought an in limine motion to admit that testimony, which Behnke opposed. The People argued that the evidence was relevant to show motive and intent. Behnke argued the evidence was inadmissible and irrelevant as it involved a different woman, and in the prior incident the woman was following Behnke. Behnke also argued the evidence was unduly prejudicial.
The court ruled the evidence admissible, finding it relevant to show intent and motive. In support of the ruling the court stated, "[T]he statement says to me that if some woman is, in his opinion, doing something he doesn't like, then he's . . . saying I don't give—I don't care—if some female transgresses me, then I'll cut her. [¶] So I think . . . that goes to motive and to his . . . state of mind toward women close in time to this event[,] [¶] and I guess it goes to intent and then his modus operandi. If a woman messes with me, I'll cut her throat. And guess what? There's a woman with her throat cut in his apartment five days later."
The court instructed the jury under a modified version of Judicial Council of California Criminal Jury Instructions (January 2006) CALCRIM No. 375 as to the limited purpose for which they could consider Behnke's statement:
"The People presented evidence that the defendant made a threatening statement about another woman at Horton Plaza. [¶] . . . [¶] If you decide the defendant committed the act, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to kill in this case; or, [¶] The defendant had a motive to commit the offense alleged in this case. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged act, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder. The people must still prove each element of the charge beyond a reasonable doubt."
B. Analysis
"Evidence Code section 1101, subdivision (a), generally prohibits the admission of [an uncharged] [] criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.' Subdivision (b), however, provides that such evidence is admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity . . .).'" (People v. Harrison (2005) 35 Cal.4th 208, 229.)
The highest degree of similarity between the charged and uncharged offenses is required when the uncharged offense is offered to prove identity. (People v. Lenart (2004) 32 Cal.4th 1107, 1123.) "[A] lesser degree of similarity is required to establish relevance to prove common design or plan, and the least similarity is required to establish relevance to prove intent." (Ibid.) "To be admissible to show intent, 'the prior conduct and the charged offense need only be sufficiently similar to support the inference that the defendant harbored the same intent in each instance.' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1194.)
However, even if a defendant's commission of other crimes is relevant for some purpose under Evidence Code section 1101, subdivision (b), in order to be admissible, such evidence "'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]'" (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Evidence Code section 352 authorizes a trial court to "'exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" "'"The prejudice which [Evidence Code section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.]" (People v. Mullens (2004) 119 Cal.App.4th 648, 658.)
We review a court's ruling on the admissibility of evidence under Evidence Code section 1101, subdivision (b) under the deferential abuse of discretion standard. (People v. Cole, supra, 33 Cal.4th at p. 1195.)
Here, because the least degree of similarity is required for prior acts being used to show intent, the court did not err in admitting the threat Behnke made to a different female that he asserted was following him. The prior threat was close in time to the charged crime. Both the instant case and the prior threat involved an actual or desired relationship with a woman. In the prior threat, Behnke indicated that he would kill the woman with a knife if she did not do as he wished. The jury could infer from the evidence in the present case that he similarly stabbed Nisen to death because she spurned his advances.
Behnke asserts the evidence had slight if any probative value as it was undisputed from the evidence that there was an intent to kill in this case. However, the fact that Nisen was intentionally killed was not mandated by the facts. While intent to kill could be inferred from the facts, because there was blunt force trauma, the stab wounds did not sever any major artery or vein, and there was evidence of attempted strangulation, the jury could have inferred from the evidence that there was a struggle, with death as an unintended consequence.
Further, the testimony describing the prior threat was not more prejudicial than probative as it "was no stronger and no more inflammatory than the testimony concerning the charged [offense]." (Ewoldt, supra, 7 Cal.4th at p. 405.)
Finally, the fact that the uncharged offense evidence was relevant and inculpatory does not mean that it was likely to cause "undue prejudice" as the phrase is used in Evidence Code section 352. (See People v. Karis (1988) 46 Cal.3d 612, 638 ["'In applying section 352, "prejudicial" is not synonymous with "damaging"'"].)
Behnke asserts the cumulative effect of the failure to admit third party culpability evidence and the admission of evidence of the prior threat requires a reversal of the judgment. However, because we conclude that the court did not commit error with regard to that evidence, we need not address this contention.
C. Prejudice
Even if the court erred in admitting the prior threat evidence, the error was harmless as it is not reasonably probable that Behnke would have received a more favorable result had the evidence not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.) The jury was instructed that the evidence could only be used for assessing intent and motive and could not be used for any other purpose. This minimized the potential of prejudice to Behnke. (People v. Demetrulias (2006) 39 Cal.4th 1, 19.) Further, because the prior act was not a completed act, and was directed against a different person, it is unlikely the jury used that statement to improperly convict him.
Finally, contrary to Behnke's assertion, the case against him was strong. Nisen was murdered in his apartment. He repeatedly lied about knowing the victim and his actions that night. He attempted to dispose of both the body and evidence of the crime. He gave no plausible explanation to police for Nisen turning up dead in his apartment. He had a knife that matched her wounds and a motive to kill. He desired her, but she was with someone else.
III. SUFFICIENCY OF EVIDENCE TO SUPPORT FIRST DEGREE MURDER
Behnke asserts there is no substantial evidence to support the first degree murder conviction as there is insufficient evidence of premeditation and deliberation. This contention is unavailing.
"In considering this claim, we examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—that would support a rational trier of fact in finding the essential element of intent beyond a reasonable doubt." (People v. Lewis (2001) 25 Cal.4th 610, 642.) Accordingly, the question is whether substantial evidence establishes the elements of premeditated murder—that Behnke deliberately and with premeditation killed the victim with malice aforethought. (§ 187, subd. (a); People v. Memro (1995) 11 Cal.4th 786, 862-863; People v. Perez (1992) 2 Cal.4th 1117, 1123; People v. Bloyd (1987) 43 Cal.3d 333, 348.)
Under California law, in this context, first degree murder requires that the killing was "willful, deliberate, and premeditated." (§ 189). "'[D]eliberate' means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." (People v. Wright (1985) 39 Cal.3d 576, 588.) "The word 'premeditated' means considered beforehand." (Ibid.) "A cold, calculated judgment and decision may be arrived at in a short period of time," but "[t]o constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill." (Id. at p. 589, footnote omitted.)
"Three categories of evidence are helpful to sustain a finding of premeditation and deliberation in a murder case: (1) planning activity; (2) motive; and (3) manner of killing." (People v. San Nicolas (2004) 34 Cal.4th 614, 658 (San Nicolas).) In People v. Cole (2004) 33 Cal.4th 1158, the court held that pouring gasoline directly on a sleeping or dozing victim was evidence of a deliberate manner of killing, which, together with evidence of motive, was sufficient to support first degree murder. (Id. at p. 1225.) In San Nicolas, the California Supreme Court held that the brief period of time between seeing the victim's reflection in the mirror and stabbing her was "adequate for defendant to have reached the deliberate and premeditated decision to kill [her]." (San Nicolas, supra, 34 Cal.4th at p. 658.) The high court also held that multiple stab wounds was a manner of killing consistent with deliberation, and that even if the victim's "wounds were only suggestive of rage, an inference of premeditation is not precluded." (Id. at pp. 658-659.)
Likewise the manner of killing in this case provided sufficient evidence to deliberation and premeditation. Behnke struck Nisen so hard on the head that she was rendered at least dazed, if not unconscious, thereby rendering her unable to protect herself while he stabbed her multiple times and strangled her. The fact that she was rendered dazed and defenseless indicates that there was enough time for Behnke to have reached a deliberate and premeditated decision to kill Nisen. The fact that there were multiple pinprick stab wounds in addition to those that caused Nisen's death could raise an inference he took his time in killing her. The fact that there were multiple stab wounds indicates a killing consistent with deliberation. Because the manner of her murder could also show Behnke acted out of rage did not preclude the jury from also concluding the act was premeditated. (San Nicolas, supra, 34 Cal.4th at pp. 658-659.)
The fact the evidence in this case was largely circumstantial is also of no moment. As our Supreme Court has recognized, evidence of a defendant's state of mind is "almost inevitably" circumstantial—and circumstantial evidence "is as sufficient as direct evidence to support a conviction." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.