Opinion
A147593
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. SCN190226)
Appellant was convicted following a jury trial of murder with special circumstances. On appeal, appellant contends the trial the court prejudicially erred when it (1) permitted a witness to testify about a prior encounter with appellant involving a hatchet, pursuant to Evidence Code section 1101, subdivision (b); (2) refused to exclude inflammatory details of that incident; and (3) instructed the jury that if it found that appellant had committed the prior offense, it could use that evidence to find he committed the murder. Appellant further contends the court erred in failing to instruct the jury that, before finding either special circumstance allegation true under a felony-murder theory, it must find that appellant intended to kill the victim, as was required at the time he committed the offense. We shall affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise indicated.
PROCEDURAL BACKGROUND
In 2003, appellant was charged by indictment with murder, with two special circumstances: murder in the course of a rape and murder in the course of a burglary. (Pen. Code, § 187; former Pen. Code, § 190.2, subds. (a)(17)(iii) & (vii).)
Appellant was also charged with rape and burglary, but those counts apparently were dismissed based on the statute of limitations.
On January 28, 2016, a jury found appellant guilty of first degree murder and found true both special circumstance allegations. On February 16, 2016, the trial court sentenced appellant to life in prison without the possibility of parole.
Appellant was previously tried and convicted in this matter of first degree murder with the same two special circumstances. However, in 2010, a panel of this Division reversed that conviction based on juror misconduct and violation of appellant's constitutional right to confrontation. (People v. Davis (Sept. 14, 2010, A120428) [nonpub. opn.] review granted, Dec. 21, 2010; review dismissed, May 22, 2013].) Subsequently, after the Supreme Court granted review and then transferred the case back to this court, we again reversed appellant's conviction on the same grounds. (People v. Davis (Sept. 12, 2013, A120428) [nonpub. opn.].)
On February 18, 2016, appellant filed a notice of appeal.
FACTUAL BACKGROUND
This case arises from the 1985 stabbing death of 28-year-old Barbara Martz. In 2002, appellant's DNA profile was found to match the DNA profile of semen found in Martz's body after her death. The trial from which this appeal is taken took place in 2016. The prosecution theory at trial was that appellant, who lived nearby and was 18 years old at the time of Martz's death, had raped and murdered Martz in her home before fleeing with her purse and wallet. The defense theory was that appellant and Martz had engaged in consensual sexual intercourse in the day or two before the murder and that Martz's boyfriend Bobby Adams or another person had subsequently murdered her and taken her belongings.
Prosecution Case
Ira Schrank testified that he met the victim, Barbara Martz, in 1974 when they were both students at Goddard College in Vermont. He also met Bobby Adams at Goddard College, and he, Martz, and Adams remained very good friends over the years. They were all photographers and in 1981, they started a business together in San Francisco operating a commercial lab, while also pursuing their own art. Martz and Adams were in a romantic relationship from around 1980 through 1985. Although they broke up more than once in the year before she died, they remained close and were back in a romantic relationship at the time of her death. Schrank acknowledged that their relationship was volatile at times. He did not recall Martz dating anyone else while she and Adams were broken up.
Schrank testified that in the year before her death, Martz bought a house on Potrero Hill, where she was killed on December 4, 1985. In the months before her death, she was "moving away" from working at the business with him and Adams. One of the reasons she wanted to leave the business was because of the strain being in business together placed on her relationship with Adams. She also "wanted to go in a different direction in her career."
On the evening of Martz's death, Schrank received a phone call from Adams, who sounded very upset and said that he thought Martz was dead. Schrank immediately went to Martz's house, which was close to where he lived. When he arrived, he saw Adams pacing in the street. Schrank went through the front gate and into the house, where he saw Martz's naked body in a curled up position, with blood on her back. He then went back outside and waited with Adams for the police to arrive.
Bobby Adams testified that he had known Martz since college in Vermont. Their relationship became romantic in the late 1970s, after Adams moved to San Francisco, where Martz was now attending the Art Institute. They broke up for about a year, from 1984 to three to five months into 1985, before again resuming their relationship. They were in a romantic relationship for six years in total. After Martz stopped working regularly at their business, in the last month or two of her life, Adams saw her approximately two to five times a week. He was not aware of her dating anyone else either while they dated or during the period of their breakup.
On December 4, 1985, the day of Martz's death, Adams was working at his studio and Martz was working at another photographer's studio. They spoke on the phone early in the day about their plans for the evening. Martz had asked him to come to her house to help her start tiling her bathroom and she planned to cook dinner for him. She said she would call him when she got home, after she left work and bought groceries. They had spent an enjoyable weekend together a few days before she died at Orr Hot Springs in Mendocino County. They got along well and had sexual intercourse on the Friday and Saturday. That Saturday was the last time they had sex.
The court took judicial notice that December 4, 1985—the date of Martz's death—was a Wednesday.
On the evening of Martz's death, Adams left work and went home, where he watched the evening news. He then called Martz, but reached her answering machine; he left a message to call him when she got home. He called again between 7:30 and 8:00 p.m., but got a busy signal. He called back at least four more times, always hearing a busy signal. Sometime between 8:15 and 8:25 p.m., Adams rode his motorcycle to Martz's house on 25th Street. It would have taken him 10 minutes or less to get there.
There was always a bicycle lock on the gate in front of Martz's house; he did not recall a prior time he went to the house when the lock was not on the gate. That night, the gate was cracked open. He walked through the gate and saw that the door on the porch was wide open, which he thought was "a little weird." As he came into the house, "the TV was on but pure static." He then saw Martz on the floor. There was a great deal of blood and punctures in her abdomen and neck. Blood had also pooled underneath her body. She was naked; he saw her clothing on the floor. When he saw her eyes, which were open and "completely glazed," he was pretty sure she was dead, but he touched her arm and she still felt warm. He saw that her phone was off the hook. He re-cradled it to get a dial tone, then called 911. After he called 911 and Schrank, Adams kissed Martz and said, "I love you Barb." He was saying goodbye to her. He "was completely out of [his] head" after finding her body. He "was so confused by the whole thing, about the whole thing. It felt like going into a very black dream."
On cross-examination, Adams acknowledged that in his subsequent 911 call, he described Martz's body as being cold. At trial, he confirmed that when he felt her arm it was warm. He was not sure why he said she was cold. He guessed he may have said that on the 911 call because he was "in a panicky state" and was trying to get an ambulance to the house quickly, or he just was not thinking clearly.
When Adams called Schrank, he told Schrank that Martz was dead. He then went to the house next door and yelled up to the house, asking the elderly man who lived there if he heard anything. The man said he had not. Adams then stood in front of the gate at Martz's house to wait for the ambulance and police. He did not speak to anyone else during that time period. Soon, Schrank and his friend Carl arrived. The police then arrived, about 10 to 15 minutes after he called 911.
On cross-examination, Adams testified that one reason Martz decided to leave the business she operated with him and Schrank was because of the pressure of being in both a business and a romantic relationship with him. They argued a great deal in the period before they split up, which was why they stopped going out together. The arguments were normally verbal, but Martz struck him a couple of times and he slapped her once. That was the only time he ever touched her in anger. Once they got back together, the arguments did not resume. Martz pulled out of the business as a way to solve the pressure they both felt about being in both a business relationship and a romantic relationship.
Also on cross-examination, Adams testified that he did not recall police closely inspecting his clothing or shoes, or asking to take samples of his fingernails on the night of Martz's death. He went with officers to the police department that night, but did not know if police searched the bag he had with him or his motorcycle. Police did not ask for permission to search his home. On redirect examination, Adams identified a letter he had written to then Mayor Dianne Feinstein asking for a reward to be posted for solving this crime. He also sent a postcard to two homicide officers a week or two after Martz's death, giving them his family's address where he would be staying over Christmas, "[b]ecause I wanted to be in the loop if anything came up."
Melinda Lowe testified that she and Martz became roommates in 1983. In the summer of 1985, she moved with Martz to the house on 25th Street that Martz had purchased. In early December 1985, they had been leaving the gate in front of the house unlocked so construction workers who were working on the house could get in. On the night of December 4, Lowe left work around 5:45 p.m., and went home to change her clothes before leaving around 6:30 p.m. to go to a cocktail party. No one else was in the house while she was there. She did not remember if she locked the door to the house when she left for the party. She closed the front gate, but did not lock it because she was in a hurry. After Martz's death, the only thing Lowe noticed missing from the house was a kitchen knife.
Edward Erdelatz testified that in 1985, he was working for the San Francisco Police Department as a homicide inspector. Around 9:00 p.m. on December 4, 1985, he went to Martz's house. He met Adams at the scene, and recalled "his demeanor being typical of somebody who has experienced or witnessed a traumatic event or the aftermath of a tragic event." When he entered the house, Erdelatz saw Martz, who was nude and lying on the floor of the main room. He saw numerous knife wounds on her body. There was a great deal of blood and there were clothes strewn about. A broken strap from a purse was nearby. Erdelatz also saw blood on the walls in the living room. In the kitchen, there was a grocery bag and a receipt from Rainbow Grocery that was dated December 4, 1985. He also saw a knife rack in the kitchen that appeared to be missing a knife. A knife was found a short time later outside the house. There was no evidence of a forced entry into the house.
Initially, Erdelatz considered the possibility that Adams could have been responsible for Martz's death. However, Adams was never arrested because police "determined he had nothing to do with her death."
On cross-examination, Erdelatz testified that the fact of a bloody shower curtain subsequently being found in the basement of Martz's house was "vaguely familiar," but he could not recall any details.
James White, who was 16 or 17 years old in 1986, testified that on July 28 of that year, he was living in the Potrero Hills housing project on 25th Street in San Francisco. That day, his brother, nephew, and cousin had gone into a maintenance room underneath the building to play. He went into the room to get them to leave because it was not a safe area. While there, White saw three or four credit cards with the name Barbara Martz on them. White took the cards to the mayor's office, where he was an intern; gave them to one of the mayor's protection detail officers; and asked him to return them to their owner. White subsequently took police officers to the place he found the credit cards, where he saw more credit cards when an officer shined his flashlight into the area.
At trial, White identified appellant as someone he remembered from the neighborhood 30 years earlier.
Retired San Francisco Police Officer Jeffrey Brosch testified that White showed him the basement area where he found the credit cards. In the same area, police located other cards, a purse, and a wallet.
Dr. Amy Hart, a medical examiner for the City and County of San Francisco, testified as an expert in forensic pathology. Dr. Hart did not perform the autopsy on Martz, but reviewed the records of Dr. Duazo, who performed the autopsy at noon on December 5, 1985, approximately 18 hours after Martz's death. The body was received at 11:05 p.m. on December 4, and was likely refrigerated until the autopsy took place.
The autopsy report showed that Martz had suffered seven "sharp force injuries," including a stab wound to the front of her neck that perforated the larynx and a vertebra, entering the spinal column. The depth of that stab wound was four and a quarter inches. A stab wound to Martz's lower left chest traveled four and a half inches through her ribs, perforating her diaphragm, liver, and pancreas before perforating the aorta, which caused rapid blood loss, and terminated in a vertebra in her lower spine. Another stab wound was located just below the other stab wound to the chest, but went from right to left through the body. That stab wound traveled through part of the diaphragm, then went into and out of the stomach and again perforated the diaphragm. That wound, which terminated in soft tissue near a vertebra in her middle back, measured five and a half inches in depth. There were four incise or cut wounds located on the front of Martz's neck, which were made by slicing motions to the neck. Finally, the autopsy report noted a total of five blunt force injuries on Martz's arms, legs, and head. Martz died from multiple sharp force injuries, which caused her to bleed to death.
Dr. Hart testified that Dr. Duazo took vaginal swabs from Martz during the autopsy, which Duazo examined under a microscope as a smear on a glass slide. Dr. Duazo saw spermatozoa, most of which had no tails.
Dr. Hart further testified that the large concentration of sperm found in Martz's vaginal area was an indication that the sperm deposits were obtained relatively close in time to ejaculation. In a live female who has sexual intercourse, sperm would be expelled "by the normal secretions that are formed within the vaginal canal in general, and they can be expelled by gravity, and they can be expelled by another mechanical force such as washing of the vaginal canal." In addition, the processes inside the vagina that help degrade sperm do not stop working immediately after death, though death would slow the process of degradation and that process would eventually cease. Refrigeration of the body "may" slow the degradation process of any sperm in the vaginal cavity. After sperm are deposited in a female's vagina, they would normally initially be intact. Then, with the passage of time, the sperm would begin to degrade and the heads and tails of the sperm would separate.
Referring to a study called Forensic Laboratory Evaluation of Evidence in Alleged Rape by Michael R. Soules (Denver study), Dr. Hart testified that that study involved 10 couples in which sperm deposited into females' vaginas during intercourse was removed and examined at certain intervals to analyze the morphology—i.e., the size and shape—of the sperm over time to learn whether the rate at which sperm degrade could assist in determining the time when sperm were deposited. In the study, 100 percent of female subjects had whole sperm present up to 18 hours after intercourse. Dr. Hart noted, however, that the study was designed so that, as long as there was at least one intact sperm with a head and a tail, that would be considered a positive result. Up to 48 hours after intercourse, 50 percent of female subjects had present at least one intact sperm with a head and a tail. Finally, at 72 hours, 25 to 50 percent of subjects still had present at least one intact sperm with a head and a tail.
Dr. Hart agreed with the statement that "under different circumstances and in different females with different factors involved, sperm may degrade more or less in different situations." Dr. Hart also responded in the affirmative to the following hypothetical question: assuming that sperm taken from a deceased female's vagina were examined under a microscope at noon and most of them had no tails, "is it possible that the sperm found within the female could have been deposited at approximately 7 p.m. or roughly 17 hours before you're looking at them under a microscope?" Such a finding was consistent with the Denver study and other scientific literature Dr. Hart had read.
On cross-examination, Dr. Hart testified, with respect to the previous hypothetical, that sexual intercourse could also have occurred 24 to 48 hours before the autopsy.
Dr. Cydne Holt, a criminalist at the San Francisco Police Department crime lab from 2002 to 2009, testified as an expert in DNA analysis and comparison and in cell and molecular biology. In 2002, San Francisco received a state grant to investigate crimes that had been committed in the 1980's, using modern DNA technology. Also in 2002, Holt was assigned to analyze DNA obtained from several samples taken from Martz's body during her autopsy. Dr. Holt was able to detect sperm cells in various vaginal samples, which she used to develop a full DNA profile of the person who deposited the sperm. Dr. Holt noted that several of the vaginal samples contained a high concentration of sperm, which generally indicates that the sperm deposit was collected relatively close in time to ejaculation.
Dr. Holt also answered questions about the Denver study, and testified that 17 hours after sexual intercourse, it was possible that most of the sperm in a sample would be missing their tails. Sperm in a female's vagina will continue to degrade after death and during refrigeration of the body, even if it slowed down. In addition, different sperm will degrade at different speeds.
On cross-examination, defense counsel asked a hypothetical question involving the donor of sperm found in a deceased female, where most of the sperm were missing tails approximately 17 hours after death. If the sperm donor had subsequently ejaculated into a specimen cup and all the sperm were found to be intact and motile after five hours, Dr. Holt opined that such findings were not inconsistent with a sperm deposit close to the time of death. This was because "the rate of loss of motility and the loss of tails when ejaculate is in the body orifice is different than . . . when it is in a specimen cup." Dr. Holt described the comparison of the two semen samples as "apples to orange[s]."
Dr. Hart had similarly testified that the morphology of sperm deposited into a test tube or sterile container is not comparable to sperm deposited into a female vagina. She also testified that the sperm in the test tube would be expected to degrade more slowly.
Dr. Bonnie Cheng, a criminalist with the San Francisco Police Department crime lab from 1999 to 2008, testified as an expert in DNA analysis and comparison. In October 2002, she was assigned to work on Martz's case. In October 2005, she used an oral reference swab obtained from appellant in November 2002, to develop a DNA profile. That DNA profile matched the DNA profile of the semen recovered from Martz's body after her death. Appellant was the sole source of DNA in the semen sample.
That sample was obtained after appellant was convicted of an unrelated felony.
David Jackson, the crime lab DNA supervisor, testified as an expert in DNA analysis and DNA statistical analysis. Jackson testified that the probability of selecting another individual who had the same DNA profile as appellant was 1 in 9.94 quintillion for the Caucasian population, 1 in 18.7 quadrillion for the African-American population, 1 in 228 quintillion for the Hispanic population, and 1 in 110 quintillion for the Asian population.
San Francisco Police Officer James Spillane testified that he was assigned to Martz's case in January 2002. During his investigation, he interviewed Martz's boyfriend, Bobby Adams, who never showed any reluctance to talk to him. Spillane eventually eliminated Adams as a suspect. He also interviewed Melinda Lowe, Ira Schrank, Carl Duncan, James White and others.
On December 2, 2002, based on information he received in this case, Spillane interviewed appellant. The audio recording of that interview was played for the jurors, who were also given a transcript of the recording. At the start of the interview, appellant waived his Fifth Amendment rights and agreed to speak with Spillane.
In the interview, appellant confirmed that he grew up on 25th Street on Potrero Hill in San Francisco. Appellant recalled there was an area underneath the building in which he lived where he used to make forts. Spillane showed appellant photographs of Martz's purse and wallet, explaining that they had been found in that area under the building where appellant grew up. Appellant initially denied having seen either item, but then said, "this wallet is kind of familiar though." When asked if he could have handled the purse or wallet, appellant said, "Oh I don't think so," and then affirmed that he did not remember. He also said it was "possible" that he had seen the wallet and picked it up. When shown a photograph of Martz's house, appellant said he recognized it and knew its location on 25th Street. When asked if he had ever burglarized that house, appellant initially said no, but then said, "I'm pretty sure I haven't." He affirmed that he thought he would remember if he had burglarized the house.
Spillane next showed appellant several photographs of Martz. When asked if he had ever seen that woman before, appellant said no. When asked if he had had any contact with her in the neighborhood, appellant said, "No. I don't—not no white woman, no. Not on the Hill." When asked if he would remember her if he had ever seen her or had contact with her, appellant said, "Oh yeah." After discussing the photos, Spillane asked, "Are you all right John?" and appellant said, "Oh yeah."
Spillane testified at trial that after showing appellant the pictures of Martz, appellant "seemed to become rather withdrawn," which prompted Spillane to ask if he was all right.
Appellant told Spillane that in 1985 and 1986, he was sexually active with a girl named Monica, but that he was not sexually active with anyone else at that time, stating, "I would remember." At that point, appellant asked, "What is this all about?" Spillane responded that the woman who lived in the house on 25th Street in 1985 was raped and murdered, and that the semen from the rapist was DNA tested and found to be a match with appellant. Appellant responded, "Oh hell no." When told this was his chance to tell his side of the story, appellant said, "I don't have a side of the story." He then said he had never raped anybody; it was not in his character. When Spillane said his semen had been found, appellant said, "Then you better go to court then cause I don't remember raping nobody." He then said, "I have never raped anybody," and the interview ended.
Spillane testified at trial that in 1985, appellant's home was 400 to 500 feet away from Martz's home. During the course of his investigation, Spillane never received any evidence about a "potential consensual sexual encounter" between appellant and Martz.
Richard Fuchs testified about a crime appellant committed against him on April 3, 1988, when Fuchs was living on Potrero Hill in San Francisco. Around 8:00 or 8:30 that evening, Fuchs went downstairs to do some work, carrying a teapot in his right hand. As he entered his dimly lit office, Fuchs saw some movement in the shadows. Fuchs shouted loudly, waved the teapot as if it were a weapon, and told the person he thought he saw near his desk to get down on the floor. The person got down on the floor, but then apparently saw that Fuchs was waving a teapot, not a gun, and got up. The person then approached Fuchs and said he wanted money. Fuchs's wife, who had heard Fuchs shouting, came in waving a broom. At that point, the person took a hatchet out of his hoodie and used it to smash the teapot in Fuchs's hand, from about three feet away. The blade of the hatchet came within two or three inches of Fuchs's hand. The swinging of the hatchet took Fuchs by surprise, but he was not really scared: "The man was not that menacing. He seemed high . . . I suppose I should have been scared with the hatchet. I didn't believe he was capable of actually hitting me with that."
After swinging the hatchet, the person said, "give me all your money; I'm desperate." Since the money was upstairs, Fuchs, his wife, and the person went upstairs and Fuchs gave him $200 to $300 that was in a little wooden box in the living room. As the person headed for the front door, past the bedrooms in which their two sons were sleeping, Fuchs's wife said, " 'Please don't harm the children.' " After the person left, Fuchs called the police. There was no sign of forced entry into the home.
The parties stipulated that the person who entered Fuchs's house and swung the hatchet was appellant and that in 1988, he pleaded guilty to residential robbery at the Fuchs's home and was sentenced to serve a term in state prison.
Defense Case
The defense recalled Bobby Adams, who testified that he believed he and Martz had intercourse on both the Friday and Saturday before she died, while away on a weekend trip. Defense counsel read a stipulation that Adams had told police during an interview the day after the murder that they had last had sex on the Friday before her death and that he had not ejaculated inside her because she had taken no birth control precautions.
Brenda Beebe testified that she and Martz were neighbors on 25th Street; they lived two houses apart. They became casual friends a few months before she died and did yoga together occasionally. Beebe also knew Martz's boyfriend Bobby in passing. Within a couple of months before trial, Beebe was interviewed by Officer Spillane.
Beebe testified that at some point on the day or night Martz died, Bobby Adams came to her house, though she had "no idea" when he came over in relation to when the police vehicles and the coroner arrived. She may have told Spillane it was an hour before, but she stated that "it's very foggy for me. Pressed for an answer, I may have said that, but I absolutely don't know for sure. It was before." When asked if it was dark outside when Adams arrived, Beebe continued, "At first, I said it was the afternoon, that it was bright sun, and there was no weather. Then—that's without any details of fact. Then I was subsequently told that it was dark; it was raining. So that's all foggy. I can't be held to that."
Beebe further testified that when Adams arrived at her house, he asked to use the telephone. He made a phone call, but she did not hear any conversation. His demeanor was "agitated, anxious." He then left very quickly. When reminded that she had told Spillane that Adams told her, " 'I can't get into the house, and I don't have a key to the gate,' " she testified, "Yeah, that's probable." Beebe agreed that it was fair to say that she remembered that Adams came over on the day he did because of the coincidence that it was the same day Martz died. On cross-examination, Beebe repeated that her memory of the day of Martz's death was foggy.
The defense again recalled Adams, and in response to a question by defense counsel, he testified that he was not near Martz's house earlier in the day on December 4, 1985.
Defense counsel read several stipulations to the jury, including (1) there was an entry in the police case file regarding someone named Scott Brazil, who located a curtain at Martz's house in July 1986, and there was no entry showing that the police investigators followed up on the curtain information; (2) there was no notation in the police case file that Adams's bag or bags were searched or seized by police near the time of Martz's death; (3) police never searched Adams's home; and (4) police did not speak with anyone who claimed to have seen Adams between 6:20 p.m. and 8:36 p.m. on the night of Martz's death.
Dr. Jeffrey Tice, an associate professor of medicine at the University of California, San Francisco, testified as an expert in clinical medicine and research in medical literature. Dr. Tice examined a semen sample from appellant at 1:15 p.m. on July 2, 2015, approximately one hour after it was collected in a sterile cup. He examined the sample under a microscope and observed that all of the sperm he could see were intact and actively moving. He examined the sperm again at 4:20 p.m., and they remained intact and vigorously moving. He examined the sample again at 6:15 p.m. The sperm were all intact and they were still moving, but less vigorously. He observed no congenital defect in the sperm that would keep them from having tails.
Dr. Nenita Duazo, the pathologist who performed the autopsy on Martz's body in 1985, testified as an expert in the performance of autopsies. When she examined the sperm taken from Martz's vagina under a microscope, she saw no tails on them. On cross-examination, she testified that a notation in her report regarding the sperm she observed under the microscope described what she saw as "spermatozoa most of which have no tails." She testified that the notation meant "maybe 99 percent or more without tails. Maybe I saw, maybe one, that's what it means. It is very rare that I see anything with tail." Duazo said she saw maybe one or two sperm with tails. She later testified that she probably saw no sperm with tails, but wrote that most had no tails since she could not examine every sperm. Dr. Duazo also testified that "most of the time the tails are lost quickly" because they are more fragile and affected by drying or bacterial degradation. She also testified that she would like to examine the slide again on the question of whether any sperm had tails because "[w]hen I did the autopsy the only thing I was—is [sic] the presence of spermatozoa which is to say there was evidence of intercourse."
DISCUSSION
I. Contentions Related to the Admission of Evidence
Under Section 1101 , Subdivision (b)
Appellant contends the trial the court prejudicially erred when it permitted Richard Fuchs to testify about his prior encounter with appellant or, at the least, when it refused to exclude inflammatory details of that incident.
A. Trial Court Background
Before trial, the prosecution moved in limine to introduce evidence of several prior offenses, including the Fuchs incident, pursuant to section 1101, subdivision (b). At the hearing on the motion, the prosecutor argued that the Fuchs evidence was relevant in part to disprove the defense's third party culpability theory and any claim that the sexual intercourse was consensual.
After several hearings on the issue, the trial court ultimately found Richard Fuchs's testimony admissible, explaining, "I have considered very carefully the [section] 1101[, subdivision] (b) evidence that's been proffered by the People, and as I've indicated throughout, I believe that each of the instances that the People have proffered do meet the requirements of 1101(b), each of them individually. [¶] So as a result, my analysis in each case has been [a section] 352 analysis . . . . [¶] I have ruled previously, and I'm reiterating the ruling, that the Fuchs's incident not only meets all the 1101(b) [sic] but is admissible specifically to prove intent and motive, and I believe . . . it's even more clear now that the Defense makes appropriate the 1101(b) [sic] with regard to intent and motive."
The court then discussed the positions of the two sides. First the prosecution's theory was that appellant's "intent in entering the premises was to take property belonging to the owner. [¶] . . . [T]here was an encounter between [appellant and Martz] that led to a sexual assault during which [appellant] deposited sperm in Ms. Martz[,] then stabbed her and she died. The alternative argument is that at some time earlier, sufficiently earlier, than the night in question, [appellant] had a sexual encounter with Ms. Martz which was consensual during [which] he ejaculated, deposited sperm but was not there on the day that the intruder entered and murdered her.
"So the issues of intent become critical here whether he entered the premises at the earlier time with her consent for purposes of having a sexual or other romantic liaison or whether he entered the premises on the date alleged by the People for purposes of burglarizing it which then evolved into the robbery and the rape and the murder." After "very carefully weighing the probative versus prejudicial effect," the court limited the evidence to Fuchs only, and excluded any testimony by his wife or witnesses regarding other incidents. Finally, the court refused to sanitize Fuchs's testimony to eliminate any reference to the hatchet.
B. Legal Analysis
"Subdivision (a) of section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Hence, under subdivision (b) of section 1101, evidence that a person committed a prior uncharged offense is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." (§ 1101, subd. (b).)
If the trial court determines that the "evidence of prior conduct is sufficiently similar to the charged crimes to be relevant to prove the defendant's intent, common plan, or identity, the trial court then must consider whether the probative value of the evidence 'is "substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)' [Citation.]" (People v. Foster (2010) 50 Cal.4th 1301, 1328; see also People v. Sullivan (2007) 151 Cal.App.4th 524, 559 [prejudice referred to in section 352 " ' " 'applies to evidence which uniquely tends to evoke an emotional bias against . . . [one party] as an individual and which has very little effect on the issues' " ' "].) A court's ruling on the admissibility of evidence under sections 1101, subdivision (b) and 352 are reviewed for an abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1130.)
Here, we need not definitively decide whether the court acted within its discretion when it admitted the prior offense evidence and refused to at least sanitize it to remove reference to appellant's use of a hatchet. (See §§ 1101, subd. (b) & 352.) That is because we have concluded that any error in its admission did not prejudice appellant. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
First, Fuchs's testimony was brief, taking up only 11 pages of reporter's transcript in the context of a lengthy trial. Second, although Fuchs testified that appellant swung a hatchet at the teapot he was holding, Fuchs also testified that he was not scared of appellant, whom Fuchs did not find menacing and did not believe was capable of actually hitting him. Thus, evidence of the encounter between appellant and Fuchs was not inflammatory in comparison to the vicious rape and murder of Martz alleged in this case. (See People v. Sullivan, supra, 151 Cal.App.4th at p. 559; § 352.)
In addition, the evidence of appellant's guilt was extremely strong. DNA evidence established with near certainty that appellant's semen, and no one else's, was inside Martz's vagina after her death. Appellant lived within 400 to 500 feet of Martz's home, where she was murdered. In his 2002 interview with Spillane, appellant said he recognized a photograph of Martz's house and knew where it was located on 25th Street. Moreover, Martz's missing purse and wallet were subsequently found in a maintenance area of the building where appellant lived. He told Spillane that he had made forts in the maintenance area where her possessions were found and acknowledged that her wallet looked "kind of familiar." Although he "d[id]n't think" he had handled the wallet, it was "possible" that he had seen it and picked it up. Regarding whether he had ever burglarized Martz's house, appellant initially said no, but then said, "I'm pretty sure I haven't."
Spillane testified that when he showed appellant photographs of Martz, appellant "seemed to become rather withdrawn," although he denied having ever seen Martz, affirming that he would remember if he had come in contact with her. Appellant also said he was sexually active with only one person in 1985, a girl named Monica. Finally, after Spillane told appellant that Martz had been raped and murdered, and that appellant's semen matched that of the rapist, appellant said they would have to go to court because "I don't remember raping nobody."
The defense theory—that appellant had had consensual sexual intercourse with Martz a day or two before her murder—was incredible in several ways. First, as noted, appellant told Spillane he had never seen Martz before and was sexually active only with a girl named Monica in 1985. Nor was there evidence from any source remotely suggesting a possible consensual sexual encounter between appellant and Martz. That theory was also incredible in light of the medical evidence that a large amount of semen was found in Martz's vaginal area during the autopsy, which, according to both Dr. Hart and Dr. Holt, indicated that the sperm deposit was collected relatively close in time to ejaculation. As Dr. Hart testified, if sexual intercourse had taken place 12 to 48 hours before Martz's death, the semen would likely have been wiped away when Martz used the bathroom, washed off when she took a shower, or rubbed off onto her underwear.
Martz's underwear, which were found near her body along with other clothing, were tested and it was determined that no semen was present.
The defense's reliance on the Denver study to support the theory that appellant's sperm must have been deposited significantly prior to Martz's death in light of the large number of tailless sperm seen during the autopsy, was also unpersuasive, considering the relevant testimony presented at trial. First, both Dr. Hart and Dr. Holt testified that sperm continue to degrade for a period of time in a deceased person's body and during refrigeration, though perhaps at a slower rate. Both doctors also testified that the findings of the Denver study—that all 10 female subjects had intact sperm present 18 hours after intercourse— required the presence of only one intact sperm to be considered a positive result. Dr. Duazo's autopsy report had described what she observed under the microscope as "spermatozoa most of which have no tails." When testifying at trial Dr. Duazo acknowledged that this notation meant that she saw perhaps one or two sperm with tails, although she later testified that it probably meant that she saw none and was just being careful. Thus, while her trial testimony was more equivocal, Dr. Duazo's autopsy findings were not inconsistent with the Denver study, and the fact that most of the sperm taken from Martz's body were missing tails did not prove, as appellant argues, that intercourse had taken place many hours before her death.
Moreover, the evidence presented in support of the defense's attempt to implicate Adams in Martz's murder was extremely weak. The fact that Martz and Adams had broken up for a time after a difficult phase in their relationship did not supply evidence that Adams had murdered Martz. Indeed, the evidence showed that they had reconciled and their relationship had improved since Martz became less involved in their business. Contrary to the defense's claim that the police had never considered Adams a possible suspect, Erdelatz testified that police had determined that Adams had nothing to do with the murder and Spillane testified that he had interviewed Adams during the investigation, but had eventually eliminated him as a suspect.
Finally, appellant argues that Martz's neighbor, Brenda Beebe, contradicted Adams's testimony that Martz's gate was unlocked when he arrived on the night of her death and notes that he failed to testify to any encounter that night with Beebe. Beebe's testimony that Adams had come to her house at some point on the day or night of Martz's murder before the police arrived, that he said he did not have a key to the lock at Martz's home, and that he used the telephone was all based on her admittedly "foggy" recollection of that day. Although Beebe's testimony was inconsistent with that of Adams in certain particulars, given Beebe's acknowledged difficulty remembering the details from that day and Adams's "panicky state" after finding Martz's body, it is not surprising that one or both witnesses would misremember some details from a night more than 30 years earlier. In context, these discrepancies do not, as appellant argues, point to Adams as the murderer. Nor do they alter the fact that the vast majority of the evidence presented at trial pointed solely to appellant as the person who murdered Martz in the course of a rape and a burglary.
Accordingly, considering the minimal amount of time taken up by presentation of Fuchs's testimony, the vastly more inflammatory nature of the present offense, and the exceptionally strong evidence of appellant's guilt, we conclude it is not reasonably probable that the result would have been different had the court excluded evidence of the Fuchs incident. (See Watson, supra, 46 Cal.2d at p. 836.)
Appellant also asserts that admission of the prior offense evidence violated his constitutional rights to due process and a fair trial. We have already explained that the evidence regarding the Fuchs incident was, even if improperly admitted, neither inflammatory nor likely to affect the result in this case. Hence, because admission of this evidence did not "infect[] the entire trial" or render it fundamentally unfair, appellant has not demonstrated a violation of his constitutional rights. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Partida (2005) 37 Cal.4th 428, 436; see also People v. Lewis (2009) 46 Cal.4th 1255, 1289 [noting, with respect to defendant's claim of constitutional error in admission of propensity evidence under section 1101, subdivision (b), "that '[t]he "routine application of state evidentiary law does not implicate [a] defendant's constitutional rights" ' "].)
II. The Court's Instruction Regarding the Prior Offense Evidence
Appellant contends the court improperly instructed the jury that if it found appellant had committed the prior offense to which Fuchs testified, it could use that evidence to find, not only that appellant had committed a burglary, but also that he had committed the murder and rape.
A. Trial Court Background
During a discussion of jury instructions, defense counsel asked the court to use a modified version of CALCRIM No. 375 when instructing the jury on the prior offense evidence. The prosecutor asked the court to give the standard instruction. The court accepted defense counsel's proposed wording that limited the jury's consideration of the Fuchs evidence to appellant's intent or motive to commit burglary in the present case. It refused the defense's proposed modifications to the final paragraph of the instruction.
The court then instructed the jury with modified CALCRIM No. 375 as follows:
"The People presented evidence that the defendant committed the offense of residential robbery against Mr. and Mrs. Fuchs in 1988 that was not charged in this case.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if it is more likely than not that the fact is true.
"If the People have not met this burden, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offense, 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 burglarize in this case; or
"The defendant had a motive to commit a burglary in this case.
"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense.
"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 offense, 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 or that the rape and/or burglary allegations have been proved. The People must still prove each charge and allegation beyond a reasonable doubt." (Italics added.)
B. Legal Analysis
According to appellant, the italicized language in the instruction, set forth in part II.A., ante, "invited the jury to convict [appellant] of murder and rape based on wholly irrelevant evidence, namely his intent and motive to commit burglary."
" ' " 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " [Citation.]' " (People v. Covarrubias (2016) 1 Cal.5th 838, 905.)
As with admissibility of evidence regarding the Fuchs incident itself, we need not definitively decide whether the court erred when it instructed the jury with modified CALCRIM No. 375. That is because, even under the more stringent federal constitutional standard, we conclude any error on the part of the court in giving this instruction was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); see People v. Garceau (1993) 6 Cal.4th 140, 186 [assuming, without deciding, that Chapman standard of error was applicable to case involving erroneous instruction on use of prior offense evidence], disapproved on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
For the same reasons we found Fuchs's testimony itself harmless under the state standard of error (see Watson, supra, 46 Cal.2d at p. 836), we conclude appellant was not prejudiced by any error in the court's instruction. (See Chapman, supra, 386 U.S. at p. 24.) First, as already discussed (see pt. I.B., ante), compelling evidence of appellant's guilt was presented at trial. (See People v. Walker (2006) 139 Cal.App.4th 782, 810 [even under Chapman standard of error, instruction allowing jury to use prior offense evidence to prove defendant's predisposition to commit murder was harmless beyond a reasonable doubt, where physical evidence linked him to victim and none of witnesses who testified against him were self-interested].) We also observe that regardless of the alleged error, the instruction expressly told the jury it could consider the prior offense evidence only to decide if appellant acted with the intent or motive to commit a burglary in this case and that it should not conclude from such evidence that appellant "has a bad character or is disposed to commit crime." (Cf. People v. Covarrubias, supra, 1 Cal.5th at p. 905.) Finally, the prosecutor stated in closing argument that the Fuchs incident was relevant to whether appellant had entered Martz's home with the intent or motive to steal, and did not suggest the evidence was relevant to anything else. (See Middleton v. McNeil (2004) 541 U.S. 433, 438 [court may assume that "counsel's arguments clarified an ambiguous jury charge," an assumption that "is particularly apt when it is the prosecutor's argument that resolves an ambiguity in favor of the defendant"].)
For these reasons, appellant has not shown that he was prejudiced by the court's failure to specify that the jury could consider the prior offense evidence only with respect to the burglary special circumstance allegation. (See Chapman, supra, 386 U.S. at p. 24.)
III. The Court's Failure to Instruct that , in Committing a Special Circumstance ,
Appellant Must Have Intended to Kill Martz
Appellant contends the court erred in failing to instruct the jury that, before finding either special circumstance allegation true under a felony-murder theory, it must find that appellant intended to kill Martz, as was required at the time he committed the offense.
In 1983, the California Supreme Court held that intent to kill was a necessary element of the felony-murder special circumstance. (Carlos v. Superior Court (1983) 35 Cal.3d 131, 153-154.) In 1987, the Supreme Court overruled Carlos in People v. Anderson (1987) 43 Cal.3d 1104, 1147 (Anderson), holding that intent to kill was an element of the felony-murder special circumstance for accomplices only. For offenses committed in the window of time between Carlos and Anderson, however, "due process and ex post facto principles demand[ed] that the intent-to-kill requirement apply to any felony-murder special circumstance charged in connection with such offenses." (People v. Johnson (1993) 6 Cal.4th 1, 44 (Johnson), disapproved on another ground in People v. Rogers (2006) 39 Cal.4th 826, 879-880.)
Anderson, supra, 43 Cal.3d 1104 was subsequently superseded by statute. As explained in People v. Mil (2012) 53 Cal.4th 400, 408-409, Penal Code section 190.2, subdivisions (c) and (d) were added to provide that "a person other than the actual killer is now subject to the death penalty or life imprisonment without the possibility of parole if that person intended to kill or was a major participant in the underlying felony and acted with reckless indifference to human life. [Citation.]" --------
The jury in this case found appellant guilty of first degree murder and found true the special circumstance allegations of murder in the course of a rape and murder in the course of a burglary. The jury was instructed that it could find appellant guilty of first degree murder based on a theory of either premeditated murder or felony murder. Because the jury was not required to unanimously agree on which theory applied, one or more jurors could have relied on a felony-murder theory in convicting appellant of first degree murder.
Moreover, the murder took place in 1985, during the "window period" between Carlos and Anderson, when intent to kill was still an element of a felony-murder special circumstance. (Johnson, supra, 6 Cal.4th at p. 45.) Therefore, as appellant and respondent both agree, the court should have, but did not, instruct the jury on the requirement of an intent to kill as it related to both special circumstance allegations. Respondent argues, however, that the error was harmless beyond a reasonable doubt. (See ibid. [erroneous failure to instruct on intent as an element of felony-murder special circumstance is evaluated for prejudice under Chapman standard of error].)
In Johnson, the defendant had killed one victim by strangling her with a wire and setting her room on fire and beat the other victim to death by kicking her in the head 10 to 12 times. (Johnson, supra, 6 Cal.4th at p. 47.) The court found that "[t]he method of execution itself precludes any inference the murder was accidental or unintentional." (Ibid.) Hence, the instructional error was necessarily harmless. (Ibid.)
In the present case, as with the murders in Johnson, the manner of killing belies any possible argument that appellant did not intend to kill Martz when he attacked her with a knife. The evidence shows that appellant stabbed Martz three times in the front of the neck and chest with such ferocity that the knife traveled through vital organs in her body to the vertebrae in her neck and back. He also used the knife to slice the front of her neck four times. This evidence of the manner in which appellant killed Martz and the nature of her injuries "precludes any inference the murder was accidental or unintentional." (Johnson, supra, 6 Cal.4th at p. 47; see also People v. Pride (1992) 3 Cal.4th 195, 247 [multiple stab wounds were consistent with a finding of premeditated murder].) The instructional error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24; Johnson, at pp. 45-47.)
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.