Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 181813-01
Lambden, J.
Defendant Marjorie F. Knoller and her husband, Robert Noel, owned two Presa Canario dogs, Bane and Hera (collectively, the Presas or the dogs). The Presas mauled to death Diane Whipple, a neighbor living in an apartment down the hallway from the home of defendant and her husband. Charges were filed against defendant and her husband, and, after a change of venue to Los Angeles County, a jury convicted defendant of second degree murder (Pen. Code, § 187), involuntary manslaughter (§ 192, subd. (b)), and ownership of a mischievous animal causing death (§ 399). Defendant filed a motion for a new trial, and Judge James L. Warren granted her motion on the second degree murder charge, but denied it as to the other two convictions. On appeal, we reversed the trial court’s order granting defendant a new trial on the second degree murder charge. (Noel, supra, 128 Cal.App.4th 1391 .) We concluded that the lower court had used the wrong definition of implied malice and also had improperly considered the relative culpability of codefendant Noel and his not being charged with second degree murder.
All unspecified code sections refer to the Penal Code.
Noel was not present during the attack and was charged only with involuntary manslaughter and with ownership of a mischievous animal causing death. The jury convicted him on both of these counts, and we affirmed this conviction on appeal. (People v. Noel (2005) 128 Cal.App.4th 1391 (Noel)), review granted on specified issues on July 27, 2005, and reversed in part by People v. Knoller (2007) 41 Cal.4th 139.) The Supreme Court denied Noel’s petition for review.
We considered appeals by defendant, Noel, and the People. (Noel, supra, 128 Cal.App.4th 1391.)
Defendant petitioned the Supreme Court for review of numerous issues, and the Supreme Court limited its review to the mental state required for implied malice and whether the trial court abused its discretion in granting defendant’s motion for new trial under section 1181, subdivision (6). (Knoller, supra, 41 Cal.4th at p. 143.) The Supreme Court concluded that implied malice for second degree murder “requires a defendant’s awareness of engaging in conduct that endangers the life of another” and that both the trial court and this court had used an incorrect definition of implied malice.
The matter was remanded to the superior court for reconsideration of defendant’s motion for a new trial in light of Knoller, supra, 41 Cal.4th 139. Judge Warren had presided over the trial but had retired; he was employed at the Judicial Arbitration Mediation Services (JAMS). Presiding Judge David Ballati reassigned the matter to Judge Charlotte Walter Woolard and, after reviewing the record, considering the parties’ briefs, and holding a hearing, she denied defendant’s motion for a new trial.
Defendant appeals the denial of her motion for a new trial and argues that the lower court abused its discretion in denying her motion for a new trial. Additionally, she raises various issues regarding rulings during the trial, which were decided adversely to her in our prior opinion. We requested supplemental briefing regarding the assignment of the case to Judge Woolard rather than to Judge Warren. We conclude that, even if the lower court abused its discretion in assigning the matter to a substitute judge without making a determination that Judge Warren was unavailable, defendant cannot prevail because she cannot demonstrate prejudice. We are also not persuaded by any of defendant’s other claims and affirm the judgment.
BACKGROUND
I. Summary Introduction
The facts underlying this appeal were detailed in our earlier decision (Noel, supra, 128 Cal.App.4th 1391) and by the Supreme Court in Knoller, supra, 41 Cal.4th 139. However, since many of the issues presented by this appeal concern prejudice and evidence in the record in support of the second degree murder verdict, we again present the facts underlying this case as they were set forth in our earlier opinion.
Diane Whipple lived with her domestic partner, Sharon Smith, on the sixth floor in the same San Francisco apartment building as defendant and Noel. Defendant and Noel, who were both attorneys, lived and operated their law practice out of their sixth floor, one and one-half bedroom, apartment, which was down the hallway from Whipple and Smith. Defendant and Noel brought to their apartment a female Presa Canario named Hera in the spring of 2000. In the fall of that year, defendant and Noel brought a male Presa Canario named Bane to their home. The following winter, on January 26, 2001, at about 4:00 p.m., defendant had taken Bane out of defendant’s apartment and was returning to her apartment while Whipple was returning home with groceries. Whipple had unlocked her door, but never made it into her apartment before the Presas attacked her, killing her. The Presas had ripped off all of Whipple’s clothing. The hallway carpet was soaked in blood, and streaks of blood covered the walls. Groceries and pieces of Whipple’s clothing littered the hallway. Whipple had 77 discrete areas of injury, which covered her body “from head to toe.” She died of multiple traumatic injuries and extensive blunt force trauma resulting in a loss of one-third of her blood.
II. Indictment and Venue Change
On March 23 and 27, 2001, defendant testified before the grand jury. She denied that either Bane or Hera ever gave her reason to believe that they posed a danger to any person. She denied ever seeing Bane or Hera bite, lunge, or act aggressively towards any person. She asserted that she had never lost control of Bane prior to Whipple’s death, and had never seen her husband lose control of Bane.
On March 27, 2001, the San Francisco grand jury returned an indictment charging defendant in count 1 with second degree murder (§ 187), in count 2 with involuntary manslaughter (§ 192, subd. (b)), and in count 3 with ownership of a mischievous animal causing death (§ 399). The indictment charged Noel with involuntary manslaughter and ownership of a mischievous animal causing death. Defendant and Noel pled not guilty to all of the charges.
On September 14 and October 12, 2001, the trial court granted the motion for change of venue and ordered the trial to be held in Los Angeles County. On January 15, 2002, the court denied the severance motion. On February 15, 2002, the court swore a Los Angeles jury to try the case.
III. Prosecution’s Witnesses and Evidence at Trial
A. Bane and Hera’s Early Life: June 1998 – April 2000
Janet Coumbs, a woman who lived in Northern California, began visiting Paul “Cornfed” Schneider (Paul or Schneider) in January 1998. Schneider, an inmate serving a life sentence at Pelican Bay State Prison and a member of the Aryan Brotherhood prison gang, asked Coumbs to purchase, raise, and breed Presa Canario dogs. Coumbs testified that she was unaware of Schneider’s prison gang affiliations; he told her that she should raise the dogs and he would draw them. Schneider sent her pictures and Coumbs testified that she considered him to be a good artist.
In June 1998, Coumbs, with the assistance of another of Schneider’s contacts, Brenda Storey, purchased two Presa Canario dogs. Schneider named the male Bane and the female Isis. At the time of purchase, Bane was three months old. In January, Coumbs purchased two additional female dogs, Hera and Fury. Hera was about five months old at the time of purchase. The dogs were kept behind a chain-link fence. Isis had a litter and four puppies survived.
Coumbs testified that she did not have any problems with Bane and loved him as a family member. She loved Bane and never feared him, but Hera and Fury were aggressive. Hera killed her sheep and her daughter’s cat. Also, Hera would run to the fence, try to get out, and bite the fencing. Coumbs admitted finding a dead sheep in Bane’s area, but since Fury and Bane were tangled up with their chains next to the sheep, she did not know which dog had actually killed the sheep. She also acknowledged that she had a doghouse for Bane, but he ate it.
Coumbs sent letters to Schneider regarding the dogs and pictures of them. Schneider became mad when he saw pictures of Bane with her cats. He told her, “Don’t make wusses out of the dogs.” He told her that these were guard dogs and that she should not allow them around people because he did not want them socialized.
Defendant and Noel met Schneider in January 1999, in connection with a lawsuit they had filed on behalf of a correctional officer at Pelican Bay State Prison. In October 1999, defendant and Noel filed a lawsuit against Coumbs on behalf of Storey to obtain custody of the Presa Canario dogs. During the course of the lawsuit, defendant and Noel called Coumbs several times. Coumbs told defendant on several occasions that she was having trouble with the dogs and that they were killing her sheep. Defendant responded, “Well, then you want to get rid of these dogs anyway.” Coumbs recalled specifically telling defendant that Hera had killed her sheep and her cat.
In October 1999, Coumbs called Devan Hawkes, who works in the special service unit for the California Department of Corrections, and told him that she thought Schneider was involved in a dog breeding business. Hawkes investigated Schneider and Schneider’s cell mate, Dale Bretches (Dale or Bretches). Hawkes concluded, based on their tattoos, correspondence, and interviews, that Schneider and Bretches were members of the Aryan Brotherhood and involved in establishing a business to purchase, raise, and breed dogs. He believed that they used others to carry out the plan, including defendant and Noel.
Coumbs finally decided not to fight the lawsuit and agreed to give defendant and Noel the dogs. Defendant contacted a veterinarian to examine the dogs. On March 26, 2000, Dr. Donald D. Martin, a veterinarian for 49 years, examined and gave vaccines to the Presa Canario dogs at defendant’s request. When Martin arrived at Coumbs’s place, he saw “eight dogs, massive, massive dogs. I mean huge dogs, and I thought to myself oh, this could be a serious kind of a situation. The first thing I thought about was, you know, they are big, I mean very large....” He observed that they “were really reacting quite violently.” He also concluded that they had received no training. He testified that Bane was “an alpha type of dog. And what I mean by that is in a pack, he would be the king. No question he was––he was––he would be the top dog in the whole works. He just had that attitude....” He said that Hera was different. She was “more of a fear biter type of dog.” He said that, under the right circumstance, she could be really good, but she could become aggressive.
Martin testified that when he returned home after examining the Presa Canario dogs, he was worried that defendant “was not aware” of or was a “little naïve” about the dogs. He therefore decided to write her a letter. He testified that he believed these dogs “had a potential of being very serious.” He said that in his 49 years of veterinary practice he had never written a letter quite like the one he wrote to defendant, but he “just felt so convinced that the potential was so great that I wanted to––to let Marjorie Knoller know in case she wasn’t aware of the seriousness of it.”
Martin’s letter to defendant set forth his bill of $180 and included the following admonishment: “... I would be professionally amiss if I did not mention the following, so that you can be prepared. These dogs are huge, probably weighing in the neighborhood of 100 pounds each. They have had no training or discipline of any sort. They were a problem to even get to, let alone to vaccinate. You mentioned having a professional hauler gather them up and taking them.... Usually this would be done in crates, but I doubt one could get them into anything short of a live stock trailer, and if let loose they would have a battle.
“To add to this, these animals would be a liability in any household, reminding me of the recent attack in Tehama County to a boy by large dogs. He lost his arm and disfigured his face. The historic romance of the warrior dog, the personal guard dog, the gaming dog, etc. may sound good but hardly fits into life today. [¶] In any event you’ll do as you wish but at least I have given you my opinions.”
Defendant responded by letter dated March 29, 2000. She sent him a check for the amount of $180. She thanked him for the information and said that she would “pass the information to my client.”
On April 1, 2000, defendant, Noel, and a professional dog handler, James O’Brien, took custody of the Presa Canario dogs from Coumbs. At the time, Bane was one year and eleven months old; Hera was one year and nine months old. Coumbs estimated Bane’s weight at 150 pounds and Hera’s weight at 130 pounds. On his hind legs, Bane stood over five feet tall.
At this time, on April 1, Coumbs told both defendant and Noel that she was worried about the dogs. She said that she believed that Hera and Fury should be shot before they left her property because they were not going to bond with someone else and “because of the way that they act towards other people and towards animals and things.” She was also worried about Bane and Isis because they had bonded with Coumbs and her family.
B. Hera and Bane Come to Defendant’s Apartment
Bane, Hera, and the other Presa Canarios were transported to California. On April 30, 2000, defendant and Noel brought Hera to their apartment to live with them because Hera had a heart murmur. In September 2000, defendant and Noel received a report that Bane was sickly and in “bad shape.” They brought him to live with Hera and them in the apartment. They purchased muzzles for both dogs.
C. Defendant’s Relationships with Inmates Schneider and Bretches and Materials
Found in Defendant’s Apartment and the Inmates’ Cell
Once defendant and Noel brought the Presas to their apartment, they sent frequent letters to Schneider and his cellmate Bretches. A 1999 and 2000 calendar discovered in the prison cell of Schneider and Bretches chronicled over 100 letters sent to and received from defendant and/or Noel between March and December 2000.
In a letter to Schneider dated September 26, 2000, defendant discussed names for the breeding operation. The letter stated in pertinent part: “I liked the discussion in your letter of the 19th wherein you mentioned the combining of the kennels. I am partial, as is Robert, to Dog-O-War, or as you had mentioned in naming the pups––‘Wardog’. The potential problem with ‘Warhouse’ is that many people, including Robert and myself, initially read it as ‘Warhorse’, a montegreen waiting to happen––as in the line from the Old Creedence song––‘There’s a bathroom on the right’, instead of ‘There’s a bad moon on the rise’, people will constantly be making the same mistake Robert and I did and refer to [it] as ‘Warhorse’. What about something not in English––as in GuerraHund Kennels or GuerraHunde Kennels, the Spanish word for war-Guerra, and the German word for dog-Hund (masculine), hunde (feminine). The feminine foe dog in German goes along with the feminine for war in Spanish, but I think it looks better with the male version of the word dog in German. Just a thought.”
Noel wrote Bretches a letter dated August 5, 2000. He indicated that he called a number for a kennel. He detailed the prices and ages of the puppies available for sale at this kennel.
Inmates Schneider and Bretches drafted a 36-page handwritten set of notes detailing a website for a Presa Canario breeding business under the name of “Dog-O-War.” The document contained a hand-drawn picture of Bane with the title, “Wardog, Bane, ” “Bringer of Death: Ruin: Destruction.” Copies of portions of this document were located in defendant’s residence.
Found in defendant’s apartment was a spiked dog collar. Also found in defendant’s apartment were 39 copies of a three-paged, typed document entitled, “Dog-O-War, Presas.” The document had a logo at the top, a description of the breeding operation, and contact information. The picture between the line “Dog-O-War” and the line “Presas” was a dog with its mouth open and teeth bared. The document explains: “... We breed top quality Presa Canarios from the top lines in the United States and Spain. [¶] The Presa Canario is properly called Perro de Presa Canario––[Dog of prey of the Canary Islands, ] it is a gripping dog indigenous to the Canary Islands.... [¶] Presas were always used and bred for combat and guard. They were used extensively for fighting in the Islands until the 1940 Spanish decreed outlawing this practice. Presas continued to be fought; tho [sic] not with the blessing of the authorities and without the large crowds that had traditionally attended their matches.”
The document continued: “Today the Presa Canario is thriving and enjoying success as one of, if not the top protection dog in the world.... [¶] That Presa, Red-Star Turco, beat out 35 of the best protection dogs on the nation from all over and from all breeds [Shepard, Rots, Dobie, Malinois, Schnauzer, Pitbull [sic], etc...] Scoring an unheard of 399 out of 400 points! Turco is the grandsire of our dog, Bane.”
The document makes the following admonishment: “Most Presas are naturally very dog aggressive, and proper socialization at an early age is a must.” It notes that “Dog-O-War Presas are lovingly raised by families, and they LOVE CHILDREN. They are extremely naturally protective of their home, family, and each other, and are generally very dog aggressive....”
Bretches ordered several books on guard dogs, including Gladiator Dogs, Dogs, The Eyewitness Handbook, and Manstopper! Training a K-9 Guardian. Bretches mailed the Manstopper book and other dog literature to defendant and Noel.
Based upon these and other documents, Hawkes, a special agent for the Department of Corrections assigned to gang intelligence operations, concluded that defendant and Noel were actively involved in the dog breeding business formed by Schneider and Bretches. Hawkes said that he therefore believed defendant and Noel were “associates” of the Aryan Brotherhood.
Hawkes also relied on letters from Noel to Schneider discussing such things as Noel’s approval of Schneider’s stabbing his attorney, Noel’s promise that he would not intervene if Schneider attempted to escape from prison, and Noel’s disclosure of the locations of Schneider’s enemies in the prison system.
Defendant and Noel also wrote the inmates about their daily interactions with the Presas. On January 11, 2001, just a few weeks before Whipple was killed, Noel wrote to Schneider about an encounter between the dogs and Whipple. He wrote in pertinent part: “This morning’s was an interesting walk––getting used to the ‘jail break’ approach the kids have, break from the door like horses out of the starting gate, stand next to the elevator shifting from one leg to the other to the other etc., the ferocity of the panting directly proportional to how badly the mutt feels he or she needs to go at that point, elevator comes––hopefully with no one in, otherwise they will knock ‘em down rushing in.... [¶] This morning was one of those days––we get the elevator after one of our neighbors had been dicking around with it––about a 5-minute wait for the kids. We get on, the panting is now anxious. As we reach the 1st floor I see someone standing by the door through the small view hole and tell them to step back. Just at that point the kids hit the door with their snouts, the door blows open and they are nose to nose with the little sheltie collie and obnoxious little white piece of shit that one of our neighbors on 4 has. B’ster and H are into defend mode and I get them back in and we ride back up to 6, send the elevator back down so the dog walker can get the other mutts out of the lobby and home. As soon as the door opens at 6, one of our newer female neighbors, a timorous little mousy blond[e], who weighs less than Hera is met by the dynamic duo exiting and all most [sic] has a coronary––the mutts show only passing interest as she gets in and goes down.”
Noel testified at the grand jury that the “timorous little mousy blond[e]” was Whipple.
Later in the letter, Noel discusses legal action that can join Noel, defendant, and Schneider together as a “family.” He writes: “On the adoption––I believe that Marjorie and I do have an appreciation for what it means to you. My letters since the one of the 31st go into more of my feelings on the matter. We will have talked about this I think in considerable detail when we are together. It is the one form of legal action which can join the 3 of us in a binding family unit––if it were permitted to be accomplished through a second marriage that would have been the medium––but we have become a family and Marjorie and I are prepared to go as far as possible to formalize that arrangement.”
D. Bane and Hera: April 30, 2000 – January 25, 2001
As already noted, defendant and Noel brought Hera to live with them in their apartment in San Francisco at the end of April 2000. Defendant and Noel brought Bane to their home in September 2000. During the period of May 2000 until the dogs killed Whipple in January 2001, there were numerous incidents where the dogs ran uncontrolled in the hallway of the apartment building, where people observed both or one of the them losing control of their dogs, and where the Presas exhibited aggression towards other dogs and people.
The trial court admitted evidence of these incidents against both defendant and Noel, even if only one was present, under the theory the jury could infer, due to their close relationship, that they communicated these incidents to each other. The court, however, limited the admissibility of verbal statements made by one or the other during the incidents to only the one making the statement.
1. Running Free
Esther Birkmaier lived in the same apartment building and the same floor as defendant. Her apartment on the sixth floor was directly across from Whipple and Smith’s apartment. In October, Birkmaier encountered Hera, unattended and off leash, in the sixth floor hallway. Defendant was down the hallway locking the door to the apartment. Birkmaier was waiting for the elevator when Hera approached at a fast trot and sniffed her pant leg. “[F]rozen with fear, ” Birkmaier stood perfectly still.
Noel wrote to the inmates about the dogs running freely in the hallway. On October 3, Noel wrote a letter addressed to “Dale and Paul.” He states in pertinent part: “When I got back from S.F. General, I was greeted at the door by Marjorie, Hera and Bane.... As I started to come in the door, H and B began competing for my attention, getting more excited with each move by the other. Marjorie, who was holding each by the harness suddenly shot passed me and disappeared down the hall, being propelled forward in the wake of a two Presa team. She let go to keep her footing and the two ran to the end of the hall, turned in unison, each with a look of ‘We’re so fucking cute!!’ ”
In a letter similarly addressed and mailed on October 10, Noel again proudly described his dogs running freely down the hallway. He writes in pertinent part: “When I got back from the hospital this a.m. I was met at the apt. door by B and H. Each acted as if they had not seen me for years instead of the 4 hours it took to go to and return. When I opened the door 2 Presa faces were immediately pressed into the gap side by side. Before I could get my body in the doorway to block them, they pushed forward into the hall and took off side by side down the hall toward the elevator in a celebratory stampede!! 240 lbs. of Presa wall to wall moving at top speed!!! Up against the wall at the end of the hall, bouncing off, turning and running back the other way bouncing off me and heading to the wall at the other end. Turning again, running back, M snagging H, B taking off up the stairs to the roof door and down and back into the apt.”
In January 2001, seven to ten days prior to Whipple’s death, Henry Putek, Jr., encountered one of the Presas unattended on the sixth floor. Putek had just emerged from the elevator and was standing at the door to his apartment when the door to defendant’s apartment opened and a Presa charged down the hallway, running fast. Putek froze and made no eye contact; the dog, which Putek believed to be Bane, stopped right at his feet. It was unleashed and unattended. Putek did not move for about 15 seconds; at that time, Noel exited his apartment with the second Presa. Both dogs went with Noel into the elevator. Putek recalled that on at least two or three prior occasions, he had heard one or more dogs running up and down the sixth floor hallway.
2. Difficulty Controlling the Dogs
During the period that defendant and Noel had the Presas in their apartment until Whipple’s death in January 2001, there were many incidents evincing defendant’s struggle or inability to control the Presas.
Defendant acknowledged her concerns about controlling the dogs in her letter to “Paul” dated October 8. Defendant writes: “ ‘Hera Happenings’––Other [than] the bonehead move on Thursday about the food, she is having a good time with Banester. We do take them out separately for walks most of the time as we trained the Pupness to walk off lead most of the time and she is a pain in the butt when you keep her on lead for her whole walk. I take Pupness and Robert takes Banester. Although I have a decent amount of upper body strength, if he really wanted to go after another dog I don’t have the body weight or leverage straddling him as Robert does. Even one handed, he is eleven inches (11”) taller than I am and at least a good 135 lbs. heavier than I am. Makes a big difference! But as I said before, I had walked him when Robert was not here and I walk him when we go out together, he is excellent on lead.”
Paul is handwritten above the typed, Mr. Schneider, which has a line through the typed name.
A neighbor testified that he had seen defendant and Noel with one or both of the Presas on about six occasions. He testified that the Presas “were pulling at the leash” and defendant and Noel were “at the beck and call, at the will of the dogs.” The witness further elaborated: “The dogs were always pulling on the leash and they were leading the walk rather than the people in control of the situation and possibly tugging at the leash and directing where they would go to.” Defendant and Noel did not seem to be trying to correct or rein in the dogs.
In October or November, Mary Willard saw Noel walking one of the Presas. Noel had a bandaged arm. The Presa became excited and started running. The dog pulled Noel to his knees and then to the ground, dragging him across the street. Noel managed to regain his footing. He appeared angry and upset with the dog.
In November 2000 through January 2001, Diana Curtiss, a resident of the apartment building where defendant resided, noticed that defendant was walking Bane and Hera more frequently by herself. On three or four occasions, Curtiss saw defendant on the street, alone, with both the Presas. The Presas pulled her in different directions, as she struggled to maintain control.
Curtiss observed instances of aggressive behavior by the Presas. (See discussion, post.)
In January 2001, a couple living in the apartment next door to defendant, were backing out of their garage when they heard a commotion. Defendant and Noel were loudly yelling the names, Bane and Hera, and defendant and Noel appeared very agitated while running past the neighbors’ vehicle, attempting to gain control of the Presas.
On January 24, two days before Whipple’s death, Rhea Wertman-Tallent (Wertman-Tallent) was walking to her office when she saw defendant and Noel with Bane and Hera. The Presas were barking at another dog and straining at their leashes. Bane reared up on his hind legs and lunged as Noel struggled to hold the leash.
3. Comments Regarding the Presas’ Aggression
In July, less than two months after Hera had come to live with defendant and Noel in their apartment, Kelie Ann Harris and her husband were walking two Labrador puppies when they encountered defendant and Noel with Hera. The puppies were off leash and approached Hera with playful interest. Defendant admonished Harris, “Please leash your dogs. You don’t know how serious this is. This dog has been abused. He will kill your dogs.” Harris called her dogs and continued down the trail without incident.
A month or two later, in August or September, Cathy Brooks was walking her terrier when she encountered defendant and Hera. Brooks talked to defendant about Presa Canario dogs, and defendant told her that Presa Canario dogs were bred especially to be a guard or attack dog. When Brooks asked whether Hera was friendly, defendant responded that she was “questionable, ” sometimes good with people and dogs and sometimes not. Brooks asked permission to pet Hera, offering her hand. Hera sniffed and then squared her chest in an aggressive stance with hackles raised. Brooks slowly backed away, commenting that the dog did not seem to like her very much. Defendant rolled her eyes and shrugged her shoulders.
Gaines, who had problems with Bane and Hera twice before, spotted Noel with Bane nearby. She kept the dogs she was walking away from the Presas by making sure there were cars between Bane and the dogs she was walking. Gaines yelled to Noel that he should put a muzzle on the dog because she “anticipated that the dog would get loose at some point.” Noel called her a “bitch” and told her the dog she was walking was the problem. After a short interchange from a distance, she left with the dog.
Gaines observed instances of aggressive behavior by the Presas. (See discussion, post.)
Two to three weeks before Whipple’s death, Mario Montepeque, who trains dogs as a hobby, encountered defendant and Noel in the park with Hera. Hera approached and put her chin on Montepeque’s dog, which signified domination. Montepeque pulled Hera off and told Noel that he needed to train the dog. Noel responded that he was not planning to train the dog or to neuter him because he was going to breed him. Montepeque also offered to help train the Presas and gave Noel a business card. Defendant and Noel did not seek his help. Noel told him that his dog had been in a fight and had “bit off” his finger. Montepeque told him that he needed to place a choke collar on the dogs.
In January, Abraham Taylor met Noel, who was with Bane, in the elevator of Noel’s apartment building. Taylor had prevented Hera from attacking a dog he was walking. Noel told him that when Bane and Hera go out together with defendant and him, Hera “had become more and more aggressive or more and more protective while they were out.”
The incident involving Hera and the dog Taylor was walking is detailed below.
4. Aggressive Incidents Involving Bane and Hera
Shortly after Hera’s arrival in April 2000, David Moser, a resident in the same apartment building, encountered defendant and Noel with Hera in the doorway to the elevator. Moser moved to slip by them into the elevator; Hera bit him on his rear end. Moser jumped and exclaimed in a shocked tone of voice, “Your dog just bit me.” Noel looked and replied, “Um, interesting, ” and then defendant and Noel left the elevator. Moser felt that “[it] was a disturbing reaction....” Neither defendant nor Noel apologized or reprimanded the dog. Defendant, Noel, and Hera entered the elevator and left Moser in the lobby. The bite left a red welt on Moser’s rear end. Moser told his wife about the incident but did not report it because his “gut instinct said you don’t want to have anything whatever to do with these people.” Further, his wife and he were moving from the building and Moser “figured” he would never see their dog again.
When asked about the incident with Moser at the grand jury, Noel referred to Moser as “Moran.” Noel testified that he saw Hera bark at Moser in the lobby. He said that Moser was running out of the elevator and bumped into Marjorie; after bumping into her, Hera barked at Moser. Noel testified that Moser “hit his right buttocks on the door handle that protrudes from the elevator and yelled[, ] ‘She bit me, ’ which is an impossibility. [Defendant] was between him and Hera, his butt cheek was facing away from her and on top of that, I had Hera restrained by the harness.” Noel testified that he responded, “[b]ullshit, ” to the remark by Moser that he had been bitten. He elaborated that if Moser had “stood still, ” he “would have probably pounded him for running into” defendant. He said that he would have hit him more than once. When asked why, he replied: “Why not? He was an asshole.”
In August or September of 2000, Stephen and Aimee West, who lived in the same apartment building as defendant, had two negative encounters with the Presas. As noted earlier, defendant and Noel brought Bane to their home in September 2000. On one occasion, the Wests were at the park with their dog, a Bernese Mountain dog. Noel was also at the park with Hera. They saw another dog jump on Hera, and Hera turned and latched onto that dog’s snout. Aimee threw her key at Hera, startling the dog and causing her to release her grip. On another occasion, Stephen was walking his dog when he encountered Noel and Bane. The Presa became aggressive with the other dog. Stephen grabbed his dog, fell backwards, and Bane lunged forward, barking and snarling. Noel was able to pull Bane back, preventing any contact between Bane and Stephen or his dog.
During that same month, September, Jill Cowan Davis, another resident of the apartment building, encountered Noel and defendant with one of the Presas in the lobby of the building. Davis was eight months pregnant at the time. As she passed within two feet of the dog, the Presa suddenly growled and lunged towards her stomach with its mouth open and teeth bared. The dog snapped at her. Davis stepped back and Noel jerked the dog by the leash and commanded it to “[c]ome on.” He did not apologize.
On cross-examination by Noel’s attorney, Davis admitted that defendant and Noel attempted to keep the Presas away from her and her baby on one occasion. She testified that there was an occasion in the garage of the building when defendant and Noel saw her coming with her baby carrier and they cleared a space to let her go ahead.
On September 10, 2000, Noel suffered a severe injury to his finger while breaking up a dogfight between Bane and another dog. Defendant was present and witnessed the incident. Noel was hospitalized for four days and had two steel pins placed in his hand. Noel told a number of people that Bane had bitten him when he broke up a dogfight. Further, Noel wrote Bretches that he laughed when reading the following section from Manstopper: “Started reading Manstopper last night––got as far as p. 20. Found the notation about ‘Robert’ by the passage on losing a finger and having it swallowed. M asked why I was laughing so hard and all I could do was show her the page. She thought it a stitch as well!! Can’t wait to see what other comments are in the book!! Guys, thanks, with all sincerity––I really appreciate the thoughts and good wishes––and good humor––it is a big help. Still working on the breaking sticks though. [¶] Well, going to run and rest the paw. Please watch your backs.” Defendant admitted that Noel had read this portion of Manstopper to her and she thought it was funny.
On September 11, Neil R. Bardack and his dog had an encounter with defendant and one of the Presas. Bardack was walking his Sheltie, who was 12 years old, weighed 35 pounds, and had one leg amputated. Bardack encountered defendant walking one of the Presas on leash. The Presa lunged forward, pulling defendant to the ground, and latched onto the Sheltie’s back. The Presa had a “death grip on [the Sheltie’s] back.” Bardack yelled at defendant, who was on the ground, to gain control of her dog. Bardack saw that she could not control her dog so he grabbed the Presa by the head, causing it to release his dog, which scampered away. Defendant appeared “shaken” and “contrite.” The following day, Bardack took his dog to the veterinarian for treatment of a puncture wound.
In October 2000, Curtiss was walking her 16-year-old German Shepherd mix and her 10-year-old toy poodle. When she opened the door to the elevator, she discovered Noel and Hera inside. Hera lunged forward “growling ferociously” and tried to attack Curtiss’s dogs. Noel pulled Hera back into the elevator. A few weeks later, Hera saw Curtiss and her dogs and Hera went “kind of wild” when she growled, snarled, and lunged at them. Again, Noel restrained the animal, but Curtiss noted that, on both occasions, Noel physically struggled to get Hera under control. Noel neither reprimanded Hera nor did he apologize to Curtiss.
Some time in the late fall, Ron Bosia, a dog walker, was in the park with a standard poodle when he encountered defendant, Noel, and Hera. They decided to let the dogs play together off leash. The poodle approached Hera from behind and sniffed and pawed her. Hera turned and latched onto the poodle behind the ear and shook her head violently. Noel grabbed Hera but was unsuccessful in getting her to release the poodle. Defendant stood idly by and did not attempt to intervene. Bosia grabbed Hera in a headlock and applied pressure to her jaw muscles, causing her to release. Bosia took the poodle to a pet hospital because the poodle was bleeding and Hera had “pulled a layer of skin back” from the poodle.
Lynn Gaines, a dog walker, was walking two small dogs some time in November when she encountered Noel and defendant with Bane and Hera. The Presas began barking and lunging towards the dogs Gaines was walking. On another occasion, Gaines was walking a dog when she came upon Noel and Bane. Bane barked and lunged at the dog she was walking.
Derek Brown and his wife, Violetta Pristel, resided in the same apartment building as defendant and they had several encounters with the Presas between October or November 2000 and January 2001. On one occasion, Brown and Pristel ran into Noel and both of the Presas in the lobby. The Presas began barking and lunging at the couple, baring their teeth and “basically going berserk.” When asked to explain what he meant by “lunge, ” Brown elaborated: “Basically, you know, leaping and then being jerked back by the leash. I just remember, you know, very large head with teeth bared and a very aggressive, you know, barking and, you know, legs working trying to get at us.” Brown tried to put himself between the Presas and his wife and the couple retreated to the far end of the lobby. Noel did not verbally or physically correct the dogs or apologize. Brown was not with his wife when he encountered the Presas three or four more times and he asserted that “every time, they went berserk and tried to get at me.”
Pristel recalled at least five encounters with Noel and the Presas when she was alone. On some, although not all, of those occasions, the Presas reared up, barked, and lunged at her. When asked to explain what she meant by “lunge, ” she clarified: “The dogs would go on leashes and they would be on their hind legs and they would raise up their front legs.” Pristel also recalled that about one week before Whipple’s death, which was about a week before she left for Australia, she was waiting for the elevator in the lobby of the apartment building when she encountered defendant with both of the Presas. The Presas reared up on their hind legs, barked, and lunged at her. Defendant “seemed to be struggling to hold [the Presas].” Pristel stepped back quickly and the elevator door closed. Defendant did not apologize to Pristel about the incident. Pristel, after consulting her husband, decided to complain to the building manager. However, she left for a vacation in Australia before lodging a complaint and never had the opportunity to make a complaint prior to Whipple’s death.
Skip Cooley (Skip) and Andrea Cooley (collectively, the Cooleys), lived next door to defendant. The Cooleys complained about noise emanating from defendant’s apartment coming from the Presas. After an exchange of letters, Skip and Noel orally agreed that they were neighbors and would try to act “in a mature way.” In December, the Cooleys were waiting for the elevator on the sixth floor. Skip opened the elevator door when one of the Presas that had been in the elevator with Noel and the other Presa “sprung” at him with bared teeth and “in attack mode.” The Presa came within approximately one foot or one and one-half feet from his face. Skip threw himself back and slammed the door shut. Noel apologized from inside of the elevator and directed the Cooleys to move to the end of the hallway. The Cooleys immediately retreated as instructed. Noel left the elevator with the Presas. One of the Presas was clamoring to get at the Cooleys and “it took all of [Noel’s] might” to pull them away from the Cooleys and down the hall.
In December, John O’Connell was walking his six-year-old son to school when he encountered Noel with two Presas. As O’Connell and his son approached, one of the Presas suddenly lunged at the boy and came less than one foot, “maybe less than six inches, ” from the boy. The dog’s teeth were bared; he was barking and growling. The dog was “definitely... in an attack mode” and came within six inches of his son’s face. Noel yelled at the Presa and yanked it away. The boy “just freaked” and jumped back. The boy was “totally shocked and terrified.” O’Connell wanted to get his son away as soon as possible, so they hurried off without speaking to Noel.
In December 2000 or January 2001, Jane Lu was delivering mail when she noticed defendant opening her car door and a Presa, without its leash, jumped out of the vehicle. As Lu continued delivering mail, she heard a low, guttural snarling sound from behind her. When she turned, she saw the Presa approaching. She screamed and reached for her mace. The Presa continued to snarl. Defendant called to the Presa, and it returned to her. Defendant told Lu that her “dog is fine.”
Another postal carrier had problems with both of the Presas in January 2001. John Watanabe was delivering mail when he heard a “very loud snarling sound, ” and he “looked up immediately” and spotted “these two huge dogs” coming towards him. He placed his cart between the dogs and himself and he moved the cart from right to left, depending upon the dogs’ movement. The Presas were unleashed and “in a “snarling frenzy” and Watanabe was “terrified for [his] life.” Suddenly, “as if somebody had pulled a plug[, ]” the Presas stopped and returned to defendant and Noel, who were standing down the block.
Also in January, Taylor, a dog walker, encountered defendant and Noel on the street with Bane and Hera. Taylor was walking a Belgian Shepherd. The Presas began pulling on their leashes. Hera pulled the leash from defendant’s hands and “charged” Taylor and the shepherd. Hera tried to bite the dog Taylor was walking, but Taylor was able to grab Hera’s harness and the back of her neck and force her to the ground. Defendant came and took the leash and pulled Hera away. He did not observe defendant physically or verbally correct Hera.
This incident was the one that prompted Noel to explain to Taylor when he ran into him in the elevator that Hera was becoming more protective.
One to two weeks later, Jason Edelman, another resident of the apartment building in which defendant lived, had an encounter with one of the Presas and observed one of the Presas jump on the chest of an elderly woman who was in the lobby of the apartment building. In the first incident, defendant was in the lobby of the apartment building with one of the Presas and the dog jumped on Edelman’s chest. Although the dog did not snap or bite at him or growl or bark, Edelman did not believe that the Presa’s behavior was “friendly.” Edelman pushed the Presa off. Defendant did not pull the dog back or apologize to Edelman. During the second incident, when one of the Presas was with defendant in the lobby, the Presa jumped on an elderly woman, who was in her late 70's or early 80's. The woman screamed, and nearly lost her balance. After a few seconds, defendant pulled the dog away. Defendant did not command the Presa or apologize to the woman for the dog’s conduct.
5. Whipple’s Prior Encounters with the Presas
Whipple and Smith encountered the Presas in the apartment building as often as once a week. Whipple, according to Smith, referred to Bane and Hera as “those dogs” and she referred to defendant and Noel as “those people.” In early December, Whipple called Smith at work and in a “very panicked voice” said, “That dog just bit me.” Whipple said she was “okay” and did not need stitches. When Smith arrived home that evening, Whipple told her that she came upon Noel in the lobby with one of the Presas; the dog lunged at her and bit her in the hand. Smith looked at Whipple’s hand and saw two or three deep, red indentations in the webbing area of her hand. Whipple did not seek medical treatment for the bite injury.
In the following weeks, Whipple and Smith discussed the dogs several times. Smith observed that Whipple “was very scared of those dogs, terrified, ” and made every attempt to avoid them. When leaving her apartment, Whipple would first check the hallway to determine if the dogs were there. She became anxious waiting for the elevator, fearful that the dogs might be inside. She frequently scolded Smith for opening the elevator door without first attempting to discern whether the elevator was occupied. When Whipple encountered the dogs in the lobby of the building, she would back up to the wall and stand behind Smith. According to Smith, Whipple did “everything she could to get as far away as possible from the dogs.”
Whipple and Smith did not complain to the building management about the dogs, but did try to avoid them. Smith did not discuss their concerns with defendant and Noel because she “wanted nothing to do with them.”
E. Bane and Hera Kill Whipple on January 26, 2001
On January 26, 2001, Whipple called Smith at work around noon and told her that she planned to arrive home early, grocery shop, cook dinner, and see a movie. She asked Smith to leave work early if possible.
At approximately 4:00 p.m., neighbor Birkmaier was at home in the apartment directly across the hall from the apartment of Whipple and Smith. Birkmaier heard dogs barking in the hallway. She heard a woman’s “panic-stricken” voice saying, “help me, help me.” Birkmaier looked through the peephole in her front door. She saw a body, later identified as Whipple, lying face down on the floor just over the threshold to Whipple’s apartment. Whipple’s apartment door was open and her body was lying partially inside and partially outside the apartment. A dark object, looking like a dog to Birkmaier, was on top of the body. The object on the floor was still and did not move. Birkmaier did not see anyone else in the hallway, nor did she hear any other human voices. She continued to hear the barking, which sounded like it was coming from two dogs.
Not daring to open her door, Birkmaier decided to call 911. While on the phone, Birkmaier heard a voice yelling, “no, no, no, ” and “get off.” Birkmaier estimated that two minutes lapsed between the time she first heard the dogs until she heard this latter voice.
Birkmaier again approached her door when a banging against her door started. She could hear barking and growling just directly outside her door and a voice from further away yelling, “get off, get off, no, no, stop, stop.” She chained her door and again looked through the peephole. Whipple’s body was gone and groceries were strewn about the hallway. Birkmaier called 911 a second time and stood by her window, watching for the police to arrive.
At approximately 4:12 p.m., six minutes after the 911 dispatch, Officers Leslie Forrestal and Sidney Laws arrived at the apartment building to execute a “well-being check.” The officers spoke briefly to a man in the lobby, and Forrestal took the elevator while Laws took the stairs to the sixth floor. When Laws reached the landing just below the sixth floor, she saw a dog on the sixth floor running by, unattended, in the direction of defendant’s apartment. She yelled to Forrestal, who had just arrived in the elevator, to look out.
As Forrestal stepped out of the elevator, she spotted Whipple’s body lying face down in the hallway. Whipple’s clothing had been completely removed and her entire body was “riddled with wounds.” Forrestal saw that Whipple was bleeding profusely, and attempting to crawl towards her apartment. Forrestal knelt down next to her and told her to lie still; an ambulance was on the way. Whipple’s body relaxed.
Forrestal and Laws stood guard over Whipple with their weapons drawn for approximately two to four minutes until the SWAT team arrived and secured the scene. Defendant emerged from her apartment, and Forrestal asked her where the dogs were. Defendant responded that they were inside her apartment.
Officer Alec Cardenas, a trained emergency medical technician (EMT) and assigned to the SWAT team, administered first aid to Whipple. Whipple had a large wound to her neck, which was bleeding profusely. She was alive but had lost a lot of blood. Cardenas put his fingers directly on the wound, but it was too massive, and he was unable to halt the bleeding. He was monitoring Whipple’s pulse and breathing, which stopped as paramedics arrived. The paramedics administered CPR, reviving her, and transported Whipple to the hospital. Shortly thereafter, Whipple died.
Personnel responding to the scene described it as “horrific” and “devastating.” The hallway carpet was soaked in blood, and streaks of blood covered the walls. Groceries and pieces of Whipple’s clothing, which were completely “shredded” and “ripped to pieces, ” littered the hallway. Whipple’s door remained open with the keys in the lock.
F. Whipple’s Injuries and the Cause of Death
On January 27, the coroner’s office performed an autopsy on Whipple’s body. The autopsy concluded that Whipple died of multiple traumatic injuries and extensive blunt force trauma resulting in a loss of one-third of her blood. Chief Medical Examiner for the City and County of San Francisco, Boyd Stephens, identified a total of 77 discrete areas of injury that covered Whipple’s body “from head to toe.”
The most significant injuries were to Whipple’s neck. She suffered three deep lacerations, which penetrated into the tissue and muscle, damaging her external jugular vein and her carotid artery and crushing her larynx. Such injuries were typical of a predatory animal that mauls the neck of its prey to cut off the air supply. Whipple also suffered several other deep, penetrating wounds to her head and face, including a large laceration to the back of her head, penetrating injuries around her mouth, lacerations to her forehead and left temple and two large, through-and-through lacerations to her ears.
Whipple also sustained a large laceration to her right shoulder, a large pattern injury on her inside left thigh, a large contusion on her interior right buttock and upper thigh area, a large contusion to her right breast, a large, penetrating laceration to her elbow, and a large laceration to her biceps. She had numerous other pattern injuries, abrasions and lacerations, on every part of her body, including both legs, her upper torso, front and back, and both arms.
Stephens opined that dog bites caused the vast majority of Whipple’s injuries. Whipple was in excellent health and tested negative for drugs. She was not menstruating at the time of the attack. Although earlier medical attention would have increased Whipple’s chances of survival, Stephens did not believe that it would have ultimately resulted in saving her life because he believed she had lost one-third or more of her volume of blood at the scene. Crime scene investigator Gregory Mar compared plaster molds of Bane’s and Hera’s teeth to the injuries suffered by Whipple. The injuries to Whipple’s neck were consistent with Bane’s teeth. As to the remainder of the injuries, he could not tell whether Bane or Hera had caused them.
G. Defendant’s Condition After the Attack
Forrestal, Cardenas, and Paula Gamick, an EMT, examined defendant at the scene. Defendant had blood on her face and in her hair. Her sweatshirt and sweatpants were stained with blood, and the sleeve of her sweatshirt had a two to three-inch tear. Defendant had a one-inch gash to her right thumb and a small cut to her right index finger. Gamick also noted a bruise developing around her right eye. Cardenas did not note any injuries to defendant’s torso or legs. Defendant did not complain of any other injuries, nor did she appear to be in shock. Defendant’s blood pressure and pulse were normal. She told Gamick that she was an EMT and had “seen this sort of thing before.” She never asked anyone about Whipple or Whipple’s welfare.
Defendant testified that she never was a licensed EMT.
Stephens examined photographs of defendant following the attack. He opined that defendant’s injury to her thumb could have been caused by a dog bite, although it lacked the typical features of a bite. The injury could also have been caused by Bane’s leash, which was made of a rigid nylon capable of cutting the skin. He believed that the blood transfer on defendant’s clothing could have resulted from lying on top of Whipple or from handling Bane. He stressed that defendant’s injuries were minor especially as compared to Whipple: defendant had three injuries while Whipple had 77.
H. Removing Hera and Bane
Deputy Animal Control Officer Andrea Runge spoke to defendant about Hera and Bane. Defendant identified the Presas as hers. Defendant was “oddly calm, almost cold.” Runge asked defendant to sign over custody of the dogs for euthanasia. She agreed to sign over Bane, but refused to sign over Hera. Runge asked defendant to assist her with the animals, but she refused, stating that she was “unable to handle the dogs.”
Animal Control Officer Michael Scott located Bane in the bathroom of defendant’s apartment. Bane was “massive, ” and paced back and forth in the small room. Bane was wearing a harness and a leash; he was covered in blood. Scott opened the door slightly and shot Bane with three tranquilizer darts, but the darts malfunctioned and had no effect. Scott and Runge carefully slipped two “come-along” poles over Bane’s head and led him from the apartment without incident. During this whole procedure two police officers were behind Scott and Runge; one had a machine gun and the other had a pistol drawn. Bane weighed approximately 140 pounds. They were able to get Bane out of the apartment building without incident. Bane did not display any aggression towards Scott. Subsequently, Bane was euthanized.
Scott located Hera in the master bedroom of defendant’s apartment. She was barking and growling and crashing against the door. Hera had some blood on her chest near her right shoulder. She was not wearing a harness. When Scott entered, Hera backed away, growling. Scott and a second officer secured Hera with the “come-along” poles and removed her from the building. Hera weighed approximately 100 pounds.
I. The Aftermath
Following Whipple’s death, Noel wrote a letter to Schneider. The redacted letter admitted into evidence read: “There is no way to ease in to [sic] this––Bane is dead, as is one of our neighbors. Marjorie, while bruised, cut and battered is alive and more or less o.k. I am certain that you have seen the news of the killing on either Channel 2 or 4 T.V. news or picked it up on one of the radio stations. One report indicated that a decision would probably be made to put down Hera––that will not happen and we will not permit it.”
In this same letter to Schneider, Noel also reports about Hera: “We have a meeting with the assistant director of Animal Control on Sunday at 1:00 p.m. to discuss Hera. The A.D., opined that Hera should be put down as she ‘is very dangerous’. What B.S. They move on Hera and they will have the fight of their lives on their hands. Neighbors be damned––Hera did nothing and has not acted in a dangerous manner toward anyone. If they don’t like living in the same building with her, they can move. If [a neighbor and his wife] have a problem, they can find some place to park other than our driveway.” He also observed: “Because of the injuries inflicted, there was no way to avoid going alone [sic] with the decision to put [Bane] down.” He comments that “[a]s far as [redacted] my feelings about [P]resas––they are unchanged. Monday is coming and we are both looking forward to the hearing. Think of us and we of you at 8:45 a.m.”
Following the incident, there was much press coverage. On February 8, 2001, both defendant and Noel appeared on television on Good Morning America. On the show, Noel stated that Whipple was in her apartment and “[a]ll she had to do was close her door.” Noel stated that neither dog had ever exhibited any signs of aggression toward people. When told that people in the neighborhood had nicknamed the dogs “Killer Dog, Beast, [and] Dog of Death[, ]” defendant responded: “Total fabrication. I, I know that a lot of people like their 15 minutes of fame, and come forward with outrageous stories. [¶]... [Hera] never had any problem with people at all.” When asked what happened prior to the attack, defendant responded that she had taken Bane to the roof of the building and was returning with Bane to her apartment when she noticed Whipple down the hallway with two packages on the floor behind her. Whipple had opened her apartment door and was watching defendant walking with Bane. Defendant related that Bane was watching Whipple, but not making “any aggressive moves.” She declared that Bane was becoming “really really interested. So I wasn’t sure whether he had smelled something in the bags that he had wanted to check out, you know, I didn’t know, I didn’t know what were in the grocery bags, or if there was something about Ms. Whipple herself that was attracting him.”
Defendant further explained her version of what happened: “I––when, when he became more and more interested, he pulled me basically off my feet, but he didn’t attack her. What he did was unusual behavior, he’d never done it before. He jumped up and put both paws on each side of her as she was standing by the wall near her apartment door, and then he jumped down. [¶] And I’m on my knees, I grab him, I get up and I push Ms. Whipple into her open apartment hallway, and we both––you know, I tripped––we both fall down. I’m now on top of her. Bane is––I’m––he’s still on my left-hand lead. I restrained Bane with my right hand and I started pulling him out of the apartment and she hadn’t been injured at this point obviously, you know, she probably was somewhat frightened by what was happening.
“And I’m, I’m pulling––on my knees, I’m pulling Bane out into the hallway and I had told Ms. Whipple just to stay down, don’t move. And as I’m pulling him out and moving myself out of her apartment, she starts to move towards me. At this point she’s still uninjured. He had, you know, he, he seemed to be just really interested in her. [¶] If you have a dog, there’s a difference between an aggressive nature and just definite interest. He was trying to get at, get at her, but it didn’t seem to me as if it was an aggressive move.”
The interviewer pointed out that at some point Bane obviously became aggressive, and she wanted to know what had happened. Defendant responded: “Okay, what happened was, is that [Whipple] came out into the hallway, which I didn’t understand, I thought she was just going to slam her door shut. And when she does that, Bane starts to get interested in her again and go for her, and I get on top of her again and tell her, ‘Don’t move, I think he’s trying to protect me.’ [¶] And I then start to pull him off her again, and as that’s happening, she starts to move and he goes for her. [¶] Again, I get on top of her and I say, ‘Don’t move. He’s trying to protect me, ’ and she, as I’m pulling him off her again, she does move again, and I’m not sure if it was the second or third time that it––that I––that was happening with her, but she did strike me with her, her fist, and in my right eye, and that’s when it changed from overly, overly interested in her to he started wanting to bite her.”
The interviewer asked defendant whether she thought that she bore any responsibility for the attack. Defendant responded: “Responsibility? No.” She further elaborated: “Not at all.” The interviewer asked whether she had any responsibility for bringing the dogs into the building, being unable to control them, and being unable to stop them from attacking Whipple. Defendant responded that she would not say she could not control them and she would not “say that it was an attack, and I did everything that was humanly possible to avoid the incident. [¶] Ms. Whipple had ample opportunity to, to move into her apartment. It took me over a minute to––it took me over a minute restraining him from my apartment down to the time that he jumped up and put paws on either side of her. [¶] She was in her apartment. She could have just slammed the door shut. I would’ve....” She repeated that she had been protecting Whipple and that if she had just stayed under her Bane would not have bitten her. Defendant commented: “... I don’t have any puncture wounds, but I was protecting Ms. Whipple. As long as she was underneath me, the dog would not bite down....” She reiterated: “As long as she was underneath me and had my scent around her, [Bane] would not bite down. He was trying to get to her every time that she would move out from underneath me.”
IV. The Defense
A. Defendant’s Testimony
1. The Origins of the Relationships Between Defendant, Noel, and Schneider
Defendant testified on her own behalf. She stated that Noel and she started practicing law together in May 1988, and they married on April 4, 1989. She took the State Bar in January 1992 and discovered that she had passed in March of that year. As soon as she was admitted to practice law, around June 1992, their law practice became Noel and defendant. She admitted developing a personal relationship with Schneider beyond an attorney/client relationship and referring to the relationship between her husband, herself, and Schneider as “the triad.”
Defendant admitted that Hera had become a focal point of her relationship with Schneider, and that Noel and she wrote several letters to Schneider about Bane and Hera and the transportation of the Presas from Coumbs’s property. Defendant knew that Schneider was a member of the Aryan Brotherhood but stated that she was not an associate of the group. She admitted that the dogs became central to Noel’s and her relationship to Schneider when Hera came to their home. She denied any involvement in the “Dog-O-War” breeding operation.
Defendant also initially denied that she took any part in naming the breeding business “Dog-O-War.” When confronted with her letter that she had written to Schneider dated September 26, 2000, where she stated that she, similarly to Noel, was “partial to Dog-O-War, ” she admitted giving advice about the name.
2. Defendant’s First Exposure and Research on Presa Canario Dogs
Defendant testified that she first saw Hera at Coumbs’s place on March 31, 2000. She had researched Presa Canario dogs before Hera and Bane came to their home. Noel had downloaded information from a website on Presa Canario dogs and defendant discovered that this breed is the national dog for the Canary Islands. She said they are members of the Mastiff family and that the Presa Canario dog was both a herder and a guard dog “so you have got a nice combination in terms of temperament as far as I am concerned.” Specifically, she testified about downloaded information from a website of a kennel named “Show Stoppers.” She stated that the information from that website indicated that Presa Canario dogs are good pets “in terms of being, you know, loyal, being protective, being good with kids, being a good family pet, that they are––they have a Mastiff temperament, that they are just basically a good dog to have around for a family.”
Defendant proceeded to explain the reasons why she believed a Mastiff is more “sensitive” and “gentle” than a Collie: “In other words, like if I were yelling at a Collie or if I raise my voice to a Collie, it wouldn’t be the same thing. If I raised my voice to a Mastiff, the Mastiff would kind of look at me like what did I do wrong, where a Collie would be I don’t care if you are yelling at me––or at least that’s my impression with whoever is dealing with––with a Collie as opposed to dealing with another kind of dog.”
Defendant further testified about the data she gleaned from the downloaded information and her impressions from that data. She explained that Presa Canario dogs were “protective, they were loyal to their owners, somewhat wary of strangers, that they had a history just like an English Mastiff does of being, you know, a war dog, of being a fighting dog in terms of their past history so that, you know, that any dog that has something of a fighting history to it, that it may be dog aggressive.... [Y]ou have to be aware of the fact that they may be dog aggressive. [¶] But that doesn’t––that generally doesn’t translate over to people. If your dog is a people aggressive dog, you will learn about that, but in terms of a fighting dog, you know that you have to be aware that because of that background, they would necessarily probably be more dog aggressive if that was their nature. Not all dogs that have ‘fighting history’ are aggressive with other dogs. It just depends on your socialization and the personality of the dog.”
Defendant could not remember reading anything else about Presa Canario dogs prior to retrieving the dogs from Coumbs’s property. The official website was sponsored by a major breeder in the Canary Islands. She did not do any further research because she had never intended to own a Presa Canario dog. In her role as the attorney in the lawsuit against Coumbs, her responsibility was simply “to organize the transport of the dogs” from Coumbs’s property.
3. Other Literature on Presa Canario Dogs Read by Defendant
Once Hera and Bane came to live with defendant and Noel, the inmates sent them literature on Presa Canario dogs. She was aware that inmates Schneider and Bretches had sent Noel a copy of a book called Manstopper and a newsletter from Show Stopper Kennels named Gripper. On cross-examination, she denied reading that Presa Canario dogs were used “to go after” pit bulls. However, she testified before the grand jury that the Gripper newsletter stated that Presa Canario dogs were being used by police in Mississippi to aid the K-9 corps to “go after pit bulls.” She admitted on cross-examination that Bane’s picture was on the cover of the Manstopper book. In addition to the name Bane on the cover, the book proclaims the following: “El Supremo Bane, ” “The Tiger, ” and “The Warrior.” She stated that the pictures and the notation “The Warrior” did not have any significance to her.
On cross-examination, she also admitted that she had been “informed” that there were 39 copies of the document, “Dog-O-War Presas” found in her apartment, but she claimed not to recall receiving the copies. She admitted that the picture of the dog was “aggressive-looking” and the dog had its mouth open and it looked like it was barking.
4. The Socialization or Training of Hera and Bane by Defendant and Noel
Defendant did not consult a professional trainer with respect to either Bane or Hera. She elaborated that she did not “think they had any personality problems that would necessitate a personal trainer or a behaviorist to deal with them.” She denied any intent to train either dog as a guard dog or that Schneider requested that.
Noel started the training of Hera and had the primary responsibilities for her the first two weeks Hera was with them. However, defendant took over because Hera had “bonded really strongly” with her. Defendant walked Hera one to three times daily and taught her several basic commands, such as, “come, ” “sit, ” “wait, ” “no, ” and “paw.” She trained her to “respond immediately” to her voice commands. She testified that Hera “never” pulled her “off her feet” and dragged her when she walked her.
Defendant testified that Bane was primarily Noel’s responsibility and they wanted Bane to bond with him. Bane responded to the same commands as Hera. When Noel was unable to walk Bane––such as after he was hospitalized after being bitten by Bane––she walked Bane. She stated that she “never” walked both of the Presas together and acknowledged that she could not control both of them at the same time. She testified that other people’s accounts that they saw her outside the apartment with both of the Presas were not correct. When she walked Bane by herself, Bane was “really calm” and a “cooperative dog on lead.” She testified that she never walked Bane without his leash and harness. She adamantly testified: “Bane was always on a leash in my presence, always.”
Defendant admitted that she wrote Schneider a letter in October 2000 stating that she had insufficient body strength to restrain Bane. She said that she was trying to convey the following message in her letter to Schneider: “I intended to convey that Bane had some dog aggression issues and that, in that context, I don’t believe or I wouldn’t know whether or not I would be able to control him.” By January 26, 2001, defendant declared she was more confident because Bane had been with her longer and was physically recovering from surgery. However, she ultimately admitted under cross-examination that Bane was more “powerful” than she was.
5. Warnings and Incidents of Aggression by the Presas
Prior to taking the Presas home, defendant testified that she had not received any warnings about their propensity for violence. Defendant testified that Coumbs had mentioned experiencing problems with one of the other Presas, but she never mentioned any problems with Bane and Hera. Defendant asserted that all of Coumbs’s statements that she had told defendant that Hera had killed animals and was a danger were “lies.” As for the letter from veterinarian Martin, she admitted receiving and reading it. She discounted this information, however, because she had “no context” for the comments.
Defendant also denied ever seeing Bane or Hera bite, lunge, or act aggressively towards any person. She did acknowledge that Hera would bark at a person who crowded defendant. She also admitted that Hera had become loose and “charged” Taylor’s dog, but she asserted it was because she, herself, was “careless and inattentive.” She denied that Hera “attacked” the other dog. Defendant maintained that witnesses Bardack, Pristel, Edelman, Lu, Harris, Moser, Davis, Wertman-Tallent, and Cooley had given “false” accounts about the incidents involving Bane, Hera, or both of the Presas. She said that she never told anyone that Hera was not good with people or that Hera had been abused in the past and would kill the other person’s dogs. She asserted that the testimony by Moser that their Presa had bitten him was false and she admitted calling him an “idiot” when she testified in front of the grand jury.
Other than the one incident with Hera and Taylor’s dog, defendant testified that there was no other incident before Whipple’s death where she had lost control of the dogs. When confronted with Noel’s letter that stated the dogs pulled her to the ground and broke loose running freely down the hallway when he returned from the hospital, she said that she did not believe that incident ever occurred. When asked why Noel would lie about the incident, she maintained that “[h]e might have been expressing––or exaggerating an incident.” She said that she did not believe that it was “a possibility” that Hera could pull her off her feet.
Defendant testified about the incident on September 10, shortly after Bane’s arrival, when Bane bit Noel’s finger. She explained that she was walking Hera and Noel was walking with Bane. Bane had been playing with a Belgian Malinois. They were departing when the Belgian Malinois came rushing towards Noel and Bane. Bane then latched onto the other dog and Noel tried to get Bane to release. Defendant began to pull on Bane’s hind leg, and Bane released. She then noticed that Noel had a severe injury to his right index finger. She asserted that she discovered Bane was the one that had injured Noel’s hand only when they were in the hospital emergency area prior to Noel’s having surgery. She admitted that Noel had to wear a splint on his arm and had two steel pins placed in his hand for eight to ten weeks.
6. Defendant’s Knowledge Regarding Bane’s Capability to Kill a Person
Defendant denied having any knowledge that Bane could ever kill a person. The final question asked her in direct examination by her attorney was whether she ever claimed not to be responsible for the attack suffered by Whipple. Defendant responded: “I said in an interview that I wasn’t responsible but it wasn’t for the––it wasn’t in regard to what Bane had done, it was in regard to knowing whether he would do that or not. And I had no idea that he would ever do anything like that to anybody. How can you anticipate something like that? It’s a totally bizarre event. I mean how could you anticipate that a dog that you know that is gentle and loving and affectionate would do something so horrible and brutal and disgusting and gruesome to anybody? How could you imagine that happening?”
During cross-examination, when asked whether defendant knew that Bane and Hera were physically capable of mauling or killing a person, she responded that “any dog at any given time can do something like that.” She maintained that “in a certain context a Chihuahua could be just as dangerous to a child or a small infant as the larger dog could be, and a larger dog would be more detrimental to an adult.” In her grand jury testimony she said she could not say how serious a bite from Hera could be, and she explained that a bite from a Chihuahua could be serious. She did admit that the “damage” inflicted by a larger dog is “always more dangerous” but she did not consider the Presas to be very large dogs.
7. The Presas’ Attack of Whipple on January 26
Defendant testified that she had taken Bane out earlier, about 11:00 a.m., on January 26, 2001. The “habit” was that Noel would take Bane for a walk somewhere between 3:00 and 5:00 p.m., and generally closer to 4:00 p.m. She said that Bane could usually wait until past 4:00 p.m. to go to the bathroom. However on the 26th, Bane was “having severe problems with his elimination needs[, ]” and she took him to the roof again at approximately a little after 3:45 p.m. She put a leash on him. They were on the roof about 10 to 15 minutes. She did not muzzle him, but admitted Noel and she had muzzles for both of the Presas in the apartment.
Defendant returned by coming down the stairwell with Bane and disposing of the waste in the trash chute in the hallway of the sixth floor. She noticed Whipple standing by her open doorway at the other end of the hall. Whipple’s grocery bags were next to her on the floor. Defendant opened her apartment door and Bane and she entered. She opened the door with her right hand and held Bane’s leash with her left hand. Hera, who was inside the apartment, stuck her head into the hallway and “woofed.” Bane then backed out of the apartment and moved towards Whipple.
Defendant testified that Bane and she engaged in a prolonged tug of war in the hallway, which lasted over one minute. Bane pulled her down the hallway a few feet at a time, stopping when defendant ordered him to “come” and then resuming again. Defendant testified that she was exerting “[a]s much force as I could possibly muster. I was using all my strength in my body to get him to respond to my command and come back with me to the apartment.”
According to defendant, Whipple remained in the open doorway to her apartment watching defendant struggle with Bane, who was moving slowly in Whipple’s direction. Bane pulled defendant off her feet, dragging her down the hallway to Whipple. The leash was still in her hand. Hera followed, barking. Bane jumped up, putting his paws on both sides of Whipple. Defendant tugged him back down. While defendant was trying to restrain Bane, Whipple exclaimed, “Your dog jumped me.”
Defendant pulled Bane back with her left hand while using her right hand to push Whipple into her apartment. Whipple fell face first into her apartment and defendant fell on top of her. Defendant warned Whipple: “Stay down. Don’t move.” Defendant crawled out of the apartment on her knees, pulling Bane with her. Hera continued to bark.
Whipple did not shut her apartment door but came back into the hallway; Bane lunged at her. Defendant again threw her body on top of Whipple and told her, “Stay down. Don’t move.” Bane seemed to calm down when defendant placed her body between Whipple and him, but resumed the attack when defendant moved away. At some point, Whipple flailed her arms while defendant was on top of her, striking defendant in the eye. Bane then bit Whipple in the neck. Defendant immediately threw herself back on top of Whipple and said, “Please stay down. Don’t move. He’s trying to protect me.” Bane ignored defendant’s commands to stop and to get off and increased his attack on Whipple.
On cross-examination, defendant was asked about Whipple’s hitting her strong enough to give defendant a black eye when Whipple was being bitten by Bane and, according to defendant’s own testimony, when Whipple was lying face down, which would have required Whipple to have hit defendant backwards. Defendant responded that they were moving and Whipple was flailing. While flailing, Whipple struck defendant in the eye.
Defendant attempted to maneuver Whipple towards the elevator, and the two women were “shimmying down the hallway.” Defendant was yelling and banging with her foot against a neighbor’s door. Bane continued to circle and bite Whipple’s body. Defendant testified: “I hit him in the face to get him away from her. I put my hands in his mouth to get him away from her. I was pushing him and beating him and he wasn’t feeling it. None of that anger was being redirected at me, it was all being directed at her, and it was getting worse and worse.” Defendant asserted that Bane had bitten her several times––on her arm, shoulder, back, and chest––without breaking her skin. She testified that “for some reason, ” he did not “complete the bite” on her.
While testifying before the grand jury, she did not state that she banged or kicked any neighbors’ doors.
Defendant finally was able to pull Bane off Whipple, but Whipple was in “grave” condition and bleeding profusely. Defendant pulled Bane down the hallway and into her apartment and Hera followed. Defendant estimated that the attack lasted from 10 to 20 minutes. She did not believe that Hera participated in the attack. After securing the Presas in her apartment, she returned to the hallway “as fast” as she could. She intended to render first aid to Whipple, but she left Whipple alone in the hallway, bleeding. She did not ever call 911. Defendant could not recall whether she had told the officers that she had gone back to look for her keys.
With regard to the injuries she suffered in her struggle to protect Whipple from Bane, defendant testified that she had a gash to her thumb from placing her hand inside Bane’s mouth. She had “mottling” on her legs from being dragged down the hallway, various bruises, and a black eye. She had bruises on her arm and shoulders from the bites from Bane. When asked whether she received treatment, she said that she went to the hospital two days later on the 28th of January. The only treatment she received for her injuries was a tetanus shot.
Defendant admitted that many of the details she provided in her trial testimony were not told to the officers responding to the scene. She did not tell Officer Forrestal that Bane and she engaged in a one-minute struggle while Whipple watched or that Whipple had inadvertently hit defendant in her eye, causing Bane to attack. She admitted speaking with Noel about the incident, but denied that the two of them fabricated a story.
Defendant’s trial testimony also differed somewhat from her testimony in front of the grand jury. Before the grand jury, defendant stated that, after Bane placed his paws on Whipple, he put his head in Whipple’s “crotch” and began sniffing. Whipple remained standing there and said, “Your dog just jumped me.” At that point, defendant said she did not like what her dog was doing, so she pushed Whipple into her apartment and they both tripped and fell. When asked what it appeared that Bane wanted to do, defendant said that he was agitated and was acting “as if there was something he was smelling that was getting him excited.” When asked to be more specific, defendant answered: “My terminology, unfortunately, if I––like a bitch in heat, like he was smelling something that was stimulating to him.” When asked to explain further, she stated: “There’s something about when a male––any male dog is around the scent of a female dog who’s coming into estrus where he starts to act differently. He––becomes somewhat agitated. [¶] In other words, if you’re walking a male dog on the street and they are sniffing, their demeanor changes if they scent, or if they smell, the female that’s coming into heat or that is in heat. Their body language changes. They start to really sniff and become interested in the scent. It’s a change in their demeanor.”
At trial, defendant stated that she did not forget her testimony before the grand jury, but she had “come to know that [it] is not an accurate statement on my part.” When asked what she meant, she responded that her “interpretation of [Bane’s] behavior is inaccurate.”
Defendant maintained that she cared about her neighbors’ welfare and that she never blamed Whipple for her own death. She did admit that after the attack she fought to keep Hera alive. She claimed that after the attack she was “a basket case.” She was having difficulty doing anything. She spoke to the media because she was angry with “some of the things that had been said” and she “felt that people should hear or try to hear what my perception was of what had happened.”
B. Experts’ Testimony Regarding Defendant’s Injuries
Dr. David Barcay, a doctor in internal and emergency medicine, examined photographs of defendant’s injuries. He opined that the bruises, abrasions, and lacerations on her body were consistent with dog bites. He identified bruises on Whipple’s body that resembled those on defendant’s body. He did acknowledge that Whipple had dog bites over her entire body while defendant only sustained one significant injury to her thumb. He also admitted that Bane’s leash could have caused the cut to defendant’s thumb. Barcay was asked about the written comments of the physician who treated defendant when she went to the hospital on January 28, two days after Whipple was killed. The treating doctor wrote that defendant had complained about dog bites. The physician wrote that defendant had an “altercation with dog” and then concluded: “No bites, just lacerations.” Barcay stated that his opinion was still that defendant’s injuries were consistent with dog bites.
Peter Barnett, a criminalist, examined the clothing defendant was wearing when the Presas attacked Whipple. He located three tears to the clothing, including a large rip on the right sleeve, a small tear on the right leg, and a tear on the back of the left leg. He also identified several dark bloodstains, which he described as “primary transfer” stains, meaning that defendant’s sweatshirt came in direct contact with a bleeding injury or a large accumulation of blood. Barnett acknowledged that the scene was “incredibly bloody” and that any significant source of blood could account for the stains, including blood on the carpet or on the dog.
V. Rebuttal
A. Defendant’s Account Told Shortly After the Presas’ Attack on Whipple
Officer Forrestal testified that defendant spoke to her shortly after the Presas had attacked Whipple. Defendant had said that she had just returned from taking the “dogs” out for a walk. Defendant was at her open apartment door when she saw Whipple return home with a bag of groceries. Bane ran down the hall towards Whipple and attacked her. Defendant followed and attempted to intercede, but was unsuccessful. Defendant told her that every time Whipple attempted to get to her apartment, Bane renewed his attack. Hera did not initiate the attack but was pulling at Whipple’s clothing. Defendant made no inquiry about Whipple’s condition during the interview with the officer. Initially, defendant appeared dazed and confused but by the end of the interview, which lasted about 15 minutes, defendant was no longer disoriented.
B. Testimony Regarding Defendant’s Account in Light of Her Injuries
Randall Lockwood worked for the Humane Society and had studied canine dog behavior, particularly dog attacks, since 1972. He reviewed the grand jury testimony, portions of the trial testimony, the medical examiner’s report, and the police report. Lockwood explained that dogs have different types of bites, depending upon whether their intent is to play, to warn, to hurt, or to kill. He noted that Whipple suffered very severe, deep puncture wounds while defendant suffered less severe, “inhibited” bites. Based on these differences, he believed that defendant “was not in very close proximity” to the attack. He explained that a person intervening in a vicious attack is likely to suffer serious injury because the dog, in the heat of the moment, is not able to differentiate or exercise bite inhibition. Thus, the injury to Noel’s finger when interfering in a dogfight involving Bane was an example of such aggression being redirected at an owner during an attack. However, the bites defendant suffered did not break the skin, suggesting that she was at least a few feet away and that Bane gave her inhibited bites to keep her from intervening.
Lockwood was asked about testimony given by defendant to the grand jury. When describing Bane’s behavior towards her during the attack, defendant testified: “They were hard bites but they didn’t break the skin because of the simple fact that Bane knew it was me. In other words, Bane––as long as Ms. Whipple was underneath me and not moving and I was on top of her, even though Bane bit, he wouldn’t––once he tasted me, he wouldn’t bite down.” Lockwood considered defendant’s description to be inconsistent with reasonable dog behavior during a full-blown attack. He explained that the decision to bite is made quickly but taste is a slow process. The decision about what type of bite to give is made by the time the dog first initiates the bite.
Lockwood commented that the unique aspect of this situation was that a person was killed while the owner of the dog attacking was present. He explained: “What is unique in this situation is in the more than 300 fatal dog attacks that I’ve seen, we have not had a case of a healthy adult young woman who has been killed by a dog when the owner is present. Usually the presence of the owner has been sufficient to prevent the attack.” He concluded that defendant did not restrain Bane. He concluded: “I don’t see the restraint. The fatality took place. There was an attempt at restraint but if the dog [were] restrained, there wouldn’t have been a fatality.”
Lockwood also considered the evidence presented by defendant of the Presas’ good behavior. He stated that good behavior did not negate or undermine evidence of dogs’ bad behavior in terms of evaluating the dogs’ potential for aggression. “[I]f a dog licks ten children in the face and then bites the finger of the 11th, those prior acts are irrelevant in terms of telling me what standard of care I need to exercise in supervising that dog.” Dogs have different behavior in different circumstances. Guard dogs will attempt to assess the wishes of their owners and then act accordingly.
With regard to the Presas, Lockwood concluded: “The pattern of the incidents, that seemed to me, just looking at the time line, to be of increasing frequency, indicated the dogs were clearly bonded to the owners, clearly protective of them, but also clearly increasing their instances of challenging those who they interpreted to be a risk or needing to be threatened.” He explained, “That’s what these dogs were bred to be, very protective and territorial.” He cautioned: “You don’t have to train a dog to fight. You have to train them not to, very often. Particularly a dog coming from this kind of bloodline.” The Presas’ earlier acts of aggression sent “a message that greater work... needs to be done in disciplining the dogs, controlling the dogs, getting the dogs to sit quietly on command, all the other things that one might do to inhibit that behavior if it was seen as undesirable.”
VI. Verdict and Motion for New Trial
On March 21, 2002, after just over two days of deliberation, the jury found defendant and Noel guilty on all counts.
Defendant and Noel filed motions for a new trial. They argued, among other things, insufficient evidence to support the convictions and the prejudicial admission of evidence concerning the Aryan Brotherhood. On June 17, 2002, the trial court granted defendant’s motion for a new trial pursuant to section 1181 on the second degree murder conviction and denied the new trial motion as to the remaining counts for both defendant and Noel.
When explaining its reasons for granting defendant’s motion on the second degree murder conviction, the court stated that the “key here” is implied malice. The court explained: “We are also going to start with the fact that as a judge, it’s my responsibility to review all of the evidence, to weigh the credibility of the various witnesses, to determine whether as a matter of law there is sufficient evidence to support the conviction of second degree murder. In that regard, the court makes a couple of preliminary observations as it relates to second degree murder. And I am looking at the implied malice feature, which I determine to be knowledge, reasonable knowledge with one exception and the exception is the witness Wertman-Tallent. The court found every witness that testified on behalf of the People on this issue was credible, believable and in large part corroborated....” The court noted that “for all practical purposes [it was] discounting the good dog witnesses in this case.... What we are talking about is who the bad dog witnesses were and what they said.”
The court elaborated: “The law requires that there be a subjective understanding on the part of the person that on the day in question––and I do not read that as being January 26th, 2001, because by this time, with all of the information that had come out dealing with the dogs, the defendants were fully on notice that they had a couple of wild, uncontrollable and dangerous dogs that were likely going to do something bad. [¶] Is the ‘something bad’ death? That is the ultimate question in the case. There is no question but that the something bad was going to be that somebody was going to be badly hurt. I defy either defendant to stand up and tell me they had no idea that those dogs were going to hurt somebody one day. But can they stand up and say that they knew subjectively––not objectively and that’s an important distinction––that these dogs were going to stand up and kill somebody?
“Look at what happened in the hallway on January 26th. In fact, we will never know what happened in the hallway. The only witness that testified to what happened there is the witness defendant. With very few exceptions, the court––Ms. Knoller, I did not believe you. I did not believe a lot of what you said as to what happened. I believe a lot of things that happened in the hallway did happen somewhat along the lines that you said but there is more there and frankly, we are never going to know. Nobody is ever going to know what happened, why after all of these circumstances that we had in a confined place where there had been lots of confined places before, the lobby of the building but not the hallway, the dog all of a sudden went and attacked a defenseless woman trying to get her groceries into her apartment.”
The court proceeded to explain that it believed that the behavior of defendant and Noel after Whipple’s death was a principal reason why people disliked them so much and was partially responsible for the murder charges being brought against them. The court noted the various theories propounded by defendant and Noel where they had blamed Whipple for her own death, such as the following: it was Whipple’s perfume; the suggestion that Whipple used steroids; Whipple came back out of her apartment; and “Whipple was acting macho.” The court also noted that defendant’s statement that Whipple hit her in the eye while the dog was killing Whipple was “incredible” and one of the “most unbelievable aspects of the story given by Ms. Knoller....” The court also commented on defendant’s remarks on the television show Good Morning America where she dismissed the evidence of 34 people who had come forward to announce they had a bad experience with the Presas as people just interested in their “15 minutes of fame.”
The court stated that the entire history was the absolute refusal of defendant and Noel to accept “what was going on in their house with those two dogs. They brushed off everything, they thumbed their nose at everything.” It then pointed out that the sole case the court could find involving a second degree murder case involving a dog was a Kansas case (State v. Davidson (Kan. 1999) 987 P.2d 335). The court noted that the facts in the Kansas case were “very close to what’s going on here except in that case, the dogs were actually trained to attack. In the case that we have in front of us, there really is no evidence that these dogs were trained to attack by the defendants or by anybody who had them before. They were not taken care of properly and did not demonstrate any meaningful socialization although they became very close to the defendants in this case.” Moreover, Davidson was a Kansas case and all of the California cases involved involuntary manslaughter.
The court therefore concluded: “I am guided by a variety of principles. One of them is that public emotion, public outcry, feeling, passion, sympathy do not play a role in the application of the law. The other is that I am required to review all of the evidence and determine independently rather than as a jury what the evidence showed. I have laid out most of the evidence as it harms the defendants in this case. Their conduct from the time that they got the dogs to the time––to the weeks after Diane Whipple’s death was despicable.
“There was one time on the stand, Ms. Knoller, when I truly believed what you said. You broke down in the middle of a totally scripted answer and you actually, instead of crying, you actually got mad and you said you had no idea that this dog could do what he did and pounded the table. I believed you. That was the only time, but I did believe you.” The court then set forth the definition of second degree murder under the Penal Code as being one who “subjectively knows, based on everything, that the conduct that he or she is about to engage in has a high probability of death to another human being.”
The court continued: “What we have in this case as it relates to Ms. Knoller is the decision to take the dog outside, into the hallway, up to the roof, go to the bathroom, bring it back down and put it in the apartment. There was no question but that taking the dog out into the hallway by that very act exposed other people in the apartment, whether they are residents there or guests, invitees to what might happen with the dog. When you take everything as a totality, the question is whether or not as a subjective matter and as a matter of law Ms. Knoller knew that there was a high probability that day, or on the day before on the day after, ––I reject totally the argument of the defendants that she had to know when she walked out the door––she was going to kill somebody that morning. The court finds that the evidence does not support it.” The court concluded it had “no choice, ... taking the Legislature’s scheme, the evidence that was received, as despicable as it is, but to determine not that she is acquitted of second degree murder but to find that on the state of the evidence, I cannot say as a matter of law that she subjectively knew on January 26th that her conduct was such that a human being was likely to die.”
The court noted that it had another consideration. “The court also notes a great troubling feature of this case that Mr. Noel was never charged as Ms. Knoller was. In the court’s view, given the evidence, Mr. Noel is more culpable than she. Mr. Noel personally knew that she could not control those dogs. He could not control those dogs. Mr. Noel was substantially haughtier than she was. In brushing off all of the incidents that happened out in the street, Mr. Noel knew as a theological certainty that that dog, which had recently been operated on, was taking medication that had given it diarrhea, was going to go out into the hallway or out into the street possibly, at the hands of Ms. Knoller. He... left her there to do that.
“To argue that he is not responsible because he wasn’t there is to argue that by setting a bomb off in a locker and then getting on an airplane and going to New York City, you are not responsible for the damages caused by the bomb. And yet Mr. Noel was not charged. Equality of sentencing and the equal administration of justice is an important feature in any criminal court. That played a role as well.”
VII. The Appeals
Following Judge Warren’s ruling, defendant and Noel appealed from their convictions, and the People appealed from the order granting defendant a new trial on the murder count. We consolidated the appeals. We reversed the trial court’s order granting defendant a new trial on the second degree murder charge, but otherwise affirmed the judgment. Citing the language in various cases (e.g., People v. Poddar (1974) 10 Cal.3d 750, 758 [to prove implied malice, “it must be shown that the accused was both aware of his duty to act within the law and acted in a manner likely to cause death or serious injury despite such awareness”]), we concluded that the lower court had used the wrong definition of implied malice because it could be based on a defendant’s conscious disregard of the risk of great bodily injury to another or conscious disregard of the risk of death.
VIII. Defendant’s Petition for Review
Defendant and Noel petitioned the Supreme Court for review. The court denied Noel’s petition and granted defendant’s petition, limiting review to the following two questions: “ ‘(1) Whether the mental state required for implied malice includes only conscious disregard for human life or can it be satisfied by an awareness that the act is likely to result in great bodily injury, ’ and ‘(2) Whether the trial court abused its discretion in granting [defendant’s] motion for new trial under... section 1181[, subdivision (6)].’ ” (Knoller, supra, 41 Cal.4th at p. 143, fn. omitted.) The Supreme Court held that implied malice for second degree murder “requires a defendant’s awareness of engaging in conduct that endangers the life of another....” (Ibid.)
The Supreme Court reversed our decision and remanded to our court with directions to return the case to the trial court for reconsideration of defendant’s new trial motion (Knoller, supra, 41 Cal.4th at p. 159) in light of the Supreme Court’s conclusion that the lower court had erroneously concluded both that defendant “could not be guilty of murder, based on a theory of implied malice, unless she appreciated that her conduct created a high probability of someone’s death, and that a new trial was justified because the prosecution did not charge codefendant Noel with murder” (id. at p. 158). The Supreme Court concluded that it was “uncertain whether the trial court would have reached the same result using correct legal standards.” (Ibid.)
IX. Request to Appoint Judge Warren to Reconsider Motion for New Trial
Judge Warren retired from the bench in 2006 and accepted employment with JAMS as a private arbitrator. In November 2007, this court transferred the matter to the superior court for reconsideration of defendant’s motion for a new trial.
Counsel for the People and defendant appeared on December 6, 2007, for the reading of the remittitur and defense counsel requested the court look into appointing Judge Warren. At proceedings before Judge Kay Tsenin, counsel for defendant and the People discussed the question of whether Chief Justice Ronald M. George would approve the appointment given the general policy disfavoring the appointment of JAMS judges and whether Judge Warren would agree to the appointment. Chief Justice George’s standing policy at the time was that retired judges sitting by assignment may not also engage in private dispute resolution activities for which they are compensated. The handbook provides that the Chief Justice may grant exceptions “[i]n very unusual circumstances” and to accommodate “[i]ndividual transitional issues[.]”
The court agreed to investigate whether Judge Warren could be assigned as a retired superior court judge. The People did not object to the appointment of Judge Warren.
At subsequent appearances, Judge Tsenin told counsel that neither Chief Justice George nor the Administrative Office of the Courts objected to the appointment and that Judge Warren would be willing to accept reassignment in the matter, but administrative matters remained to be resolved. Still needing to be resolved were Chief Justice George’s approval of the assignment, an agreement about Judge Warren’s compensation and scheduling, and the designation of a courtroom for Judge Warren’s use.
Several of the hearings on remand in the criminal master calendar department were either unreported bench conferences or reported but not transcribed for the record on appeal.
On February 28, 2008, Judge Tsenin informed the parties that the matter had been assigned to Judge Woolard, and defense counsel objected to this assignment.
This procedural history is set forth in the points and authorities in support of defendant’s motion for appointment of Judge Warren to decide defendant’s motion for a new trial and/or determination of Judge Warren’s availability. None of the bench discussions with Judge Tsenin related to Judge Warren’s availability and Chief Justice George’s approval of that appointment was on the record.
Defendant filed a motion to have Judge Warren appointed to hear her motion for a new trial and/or to have a determination of Judge Warren’s availability. The People opposed defendant’s motion. Presiding Judge Ballati heard defendant’s motion on April 11, 2008. He denied defendant’s motion, explaining as follows: “I don’t believe I have the authority to appoint Judge Warren. The Presiding Judge of this court doesn’t have the authority to appoint a retired judge to hear a matter that’s pending in this court. That decision to give a retired judge the authority, the jurisdiction to decide a case rests with the Chief Justice. The proper procedure would be for this court to make an application to the Chief Justice, so that the Chief would consider whether to assign a retired judge to a case or not. So that is my understanding. The permission would need to be obtained from the Chief Justice to allow retired Judge Warren to sit by assignment on this case.
“You know, whether or not Judge Warren is available, it appears that that road started to be pursued with Judge Tsenin back in December of 2007. I can inform you that I first became aware of this issue about appointing Judge Warren, or requesting the appointment [of] Judge Warren to hear this matter in mid-February. I don’t have the exact date. But I received a phone call from Brad Campbell, who’s with the Assigned Judges Program at the Administrative Office of the Courts, that he had heard that the San Francisco Superior Court was requesting that Judge Warren be appointed to preside over the Knoller New Trial Motion. And he indicated that in order for that request to be considered, it would have to be put in writing by me, and I would have to send it to the Administrative Office of the Courts, directed to the Chief, asking the Chief for an exception from the rule or practice prohibiting retired judges who worked in private judging from being part of the Assigned Judges Program. This would require an explanation why it would be best to grant an exception for this specific case here before the court. So that was the charge to me if I felt the court should pursue seeking the appointment of Judge Warren to preside over the Knoller matter. And as I indicated, the first I was made aware of this discussion that, apparently, counsel had with Judge Tsenin, was in February when I received the call from Brad Campbell.
“I then started to consider the various factors that would want me to pursue seeking permission for Judge Warren to preside over this case. And some of the factors that I considered which would support the request for Judge Warren to preside over this case, or, obviously, as the trial judge, he would be in the best position to know what occurred at the trial, in all aspects of the trial. He was the trial judge.
“Next. That he might arguably be able to make a decision on the New Trial Motion more expeditiously than a new judge who’s assigned to review the trial proceedings.
“And thirdly. I thought, you know, having Judge Warren preside over this case would allow me, as the Presiding Judge, to keep my full complement of trial judges available to try cases....
“So those are factors that I considered for wanting to continue the process of seeking permission from the Chief Justice for the appointment of Judge Warren.
“I also considered and weighed several factors which were pertinent to my decision not to seek an exemption for Judge Warren from the Chief Justice, and those factors are when maintaining and emphasizing, and hopefully enhancing public confidence in our judiciary by having this case decided by a sitting judge instead of by a judge who has retired and has gone into private business.
“We here in San Francisco have excellent judges who are very talented in all aspects of law, civil and criminal.... Keeping this case in our court presided over by one of our sitting judges sends the message, in my opinion, to the public, that it can and should have confidence in our judiciary being able to handle any and all matters. So that was an important factor for me.
“Also, a factor was Judge Warren’s commitment and attention to the Knoller case, and that it would necessarily be divided between the Knoller case and his private practice and his private work. Assigning the case to a sitting judge would not create this divided attention. The focus could be exclusive to this case. And I, as the Presiding Judge, would be able to control that. I would not be able to control the work that Judge Warren took in this private business and how that may impact his ability to focus, primarily, if not exclusively, on the Knoller case.
“I would have no ability to control Judge Warren’s work outside of his focus on the Knoller case. And that was a consideration of what impact his workload outside of the Knoller case would have on his ability to perform the work on the Knoller case.
“Also, I did hear from Judge Warren. He indicated to me that under no circumstances could he accept the appointment to decide the New Trial Motion if it meant that he would have to stop working for JAMS for any period of time whatsoever. He reported to me that he has various arbitration and mediation dates booked at various times into November. And he reported that he wasn’t sure how long it would take him to decide the motion.
“I further considered the courtroom facilities and what we have available if the case were to be given to Judge Warren who’s not sitting on this bench. The court has very limited facilities....
“The reality is we have no courtrooms available for Judge Warren. So it would require us to move Judge Warren, every time he came here, to an available courtroom if a judge were on vacation or sick....
“There are also concerns about setting up the infrastructure necessary to support Judge Warren if he were to be assigned to this matter. Matters like who would we have on a regular basis as a clerk or court reporter?...
“And I realize that it was going to take more time to work through all of these issues. And I felt it was important for the focus and attention on this case to start with the work that needed to be done on the New Trial Motion soon. I did not know how long it would take for an application to the Administrative Office of the Courts, to the Chief Justice to be acted upon. I did not know how long it would take for them to work out whatever issues they needed to work out with Judge Warren––issues like expenses, compensation. I did not know what Judge Warren’s schedule was going to be in terms of his ability to focus on this case and to dedicate time to the case, so that we could all hope that, and expect that it could be decided, the motion could be decided in a reasonable period of time. I do have some control over that with respect to Judge Woolard because I could avoid sending her other work and have her focus exclusively on this case.
“So it was important to me to have the work start sooner. And that ties in, to some extent, to the fact that some of the logistical issues, and the issue, itself, of whether or not Judge Warren can be brought back to preside over the New Trial Motion which started in December of 2007 and have not gotten to the point of a written request by the time it was brought to my attention in mid-February.”
X. Denial of the Motion for a New Trial
On April 11, 2008, Presiding Judge Ballati reassigned the matter to Judge Woolard. At the hearing on August 22, 2008, Judge Woolard stated that “in most cases the court can effectively rule on a motion for new trial by reviewing transcripts of the proceedings and thereby determining whether the jury’s verdict and the weight and credibility determinations upon which that verdict rests are supported by the evidence.... I am not troubled by a lack of ability to view the witnesses.” The court explained that it was not “bound by the trial court’s so-called factual findings, although it agree[d] with most of them.” The court elaborated: “This court has performed independent assessment of the trial evidence, arguments and proceedings, and has undertaken a de novo review....” The court found that substantial evidence established that defendant and Noel “knew that the purposes of acquiring these dogs was to have large, dangerous fighting dogs that could be sold for the benefit of Aryan Brotherhood.” She summarized other facts, including recovery from defendant’s apartment a book entitled, “Manstopper! Training a K-9 Guardian” and 39 copies of a document entitled “Dog-O-War Presas.” Judge Woolard also set forth the numerous incidents of aggression by the dogs and the inability of defendant to control them. She also stressed the inconsistencies in defendant’s testimony and the testimony of other witnesses that directly contradicted her testimony.
Finally, Judge Woolard described the injury to Whipple and defendant’s knowledge that the dogs could kill: “This was a vicious protracted, devastating mauling lasting approximately ten minutes resulting in 77 groups of injuries, the victim’s clothing shredded completely off of her body with blood soaking the carpet and smeared all over the walls. Perhaps defendant Knoller couldn’t [imagine] Bane performing that particular event and in that manner, but from the nature of the dogs’ upbringing, their lack of training, the numerous incidents of aggression towards dogs, other animals and people, including those personally witnessed by Ms. Knoller, the knowledge of the size and power of these dogs, their mammoth jaws and teeth and defendant Knoller’s lack of ability to control the dogs, sufficient credible evidence is set forth in the record that defendant Knoller was aware that the dogs singularly or together were capable of killing a person and if not properly restrained would kill a person.”
The court concluded: “Based on that totality of the evidence, defendant Knoller knew her conduct endangered the life of another. Defendant Knoller consciously took Bane unmuzzled through the apartment building where they were likely to encounter other people, knowing that Bane was aggressive and highly dangerous and that she could not control him. By leaving the apartment with Bane, defendant Knoller acted with conscious disregard for human life.”
“The court disregards defendant’s argument because no other previous, similar deaths by dog attacks have been documented, it cannot be said that her leaving the apartment with the dogs carried a high possibility of death––or high probability of death. This evidence is outside the trial evidence presented to the jury. More importantly any such statistics are irrelevant to predicting the likelihood of a particular event occurring in a certain context.
“The jury properly examined and weighed the totality of the evidence in reaching its conclusion that the implied malice existed supporting its verdict that defendant Knoller was guilty of second degree murder. The jury was properly instructed on the charge. The evidence supporting implied malice was clear, substantial and credible.”
Judge Woolard denied defendant’s motion for a new trial and ordered the second degree murder conviction reinstated.
XI. The Current Appeal
Defendant filed a timely notice of appeal from the order denying her motion for a new trial. Briefs were filed in this court.
On January 29, 2010, we ordered the parties to file supplemental briefs to address the following: “After this court transferred this case to the superior court for reconsideration of defendant’s motion for a new trial, was the assignment of the matter to a new or substitute judge proper? [¶] In addressing the abovementioned issue, the supplemental brief should discuss the following: [¶] What is the standard of review to be applied? [¶] Were the reasons for substituting a judge proper in the present circumstances? What policy considerations apply? Discuss the relevance of Penal Code section 1053, People v. Strunk (1995) 31 Cal.App.4th 265, People v. Moreda (2004) 118 Cal.App.4th 507, and People v. Jacobs (2007) 156 Cal.App.4th 728. [¶] The Supreme Court in... Knoller[, supra, ] 41 Cal.4th [at page] 158, stated, ‘It is uncertain whether the trial court would have reached the same result using correct legal standards.’ Did the Supreme Court’s decision to return the matter to the superior court rather than decide the matter on the record before it have any significant implication? [¶] Does it matter that the trial court’s ruling on the original motion for a new trial was based on both an incorrect test for implied malice as well as the improper consideration that codefendant Robert Noel was not charged with second degree murder? [¶] If the assignment to a new or substitute judge was improper, was the error harmless?”
The parties submitted supplemental briefs, which responded to the questions and cases set forth in the abovementioned order.
DISCUSSION
I. Assignment of the New Trial Motion to a New or Substitute Judge
After the case was remanded to the superior court, the presiding judge assigned Judge Woolard to reconsider defendant’s new trial motion since the original trial judge, Judge Warren, retired during the pendency of the appeal. We requested supplemental briefing on whether the lower court properly assigned this matter to Judge Woolard to hear defendant’s motion for a new trial.
A. Standard of Review
Defendant argues that we review the decision whether to assign the matter to a new or substitute judge for an abuse of discretion. She maintains that the present situation is analogous to reviewing an order granting or denying a peremptory challenge pursuant to Code of Civil Procedure section 170.6 (People v. Superior Court (Maloy) (2001) 91 Cal.App.4th 391) or reviewing a trial court’s refusal to continue sentencing to permit sentencing by the judge presiding at trial (People v. Jacobs, supra, 156 Cal.App.4th 728 (Jacobs)), and in both of these instances the court reviews the matter for an abuse of discretion (Maloy, at p. 395; Jacobs, at p. 735). She points out that a decision resting on an error of law constitutes an abuse of discretion (In re Charlisse C. (2008) 45 Cal.4th 145, 159), as does a ruling that “ ‘ “ ‘fall[s] “outside the bounds of reason” ’ ” ’ ” or is “whimsical, arbitrary, or capricious” (Jacobs, supra, at pp. 736-737).
The People disagree and assert that the presiding judge has the ultimate authority to make judicial assignment decisions. Government Code section 69508, subdivision (a) provides: “The judges of each superior court having three or more judges, shall choose from their own number a presiding judge who serves as such at their pleasure. Subject to the rules of the Judicial Council, the presiding judge shall distribute the business of the court among the judges, and prescribe the order of business.” The court in Anderson v. Phillips (1975) 13 Cal.3d 733 stated that “Government Code section 69508 does not require that a presiding judge assign specific matters or any ‘business’ of the court to a particular judge. Assignments of the ‘business’ of the court among judges of the court is wholly discretionary.” (Anderson, supra, at p. 737.)
The People cite to Alvarez v. Superior Court (2010) 183 Cal.App.4th 969 (Alvarez), which recently considered the plenary authority over judicial assignments of the presiding judge of the San Francisco City and County Superior Court. In Alvarez, the defendant challenged the court’s procedure that gave only two judges authority to accept plea agreements. (Ibid.) The court cited California Rules of Court, rule 10.603, which provides presiding judges with the ultimate authority to make judicial decisions and authorizes them to “ ‘[a]ssign judges to departments, ’ ”and “ ‘[a]pportion the business of the court, including assigning and reassigning cases to departments.’ ” (Alvarez, supra, at p. 978.) The court explained that “[t]he presiding judge’s full authority over judicial assignments is spelled out in rule 10.603.” (Alvarez, at p. 978.)
After extensively reviewing the applicable statutes, rules, and local rules of the San Francisco City and County Superior Court, the court in Alvarez concluded that judicial assignment procedure “is a matter of internal court management, ” and is not subject to the review procedures for vetting local rules of court. (Alvarez, supra, 183 Cal.App.4th at p. 980.) A challenge to the judicial assignment procedure is therefore reviewed to ensure that it does not conflict with existing law. (Id. at p. 982.) The court noted that in the case before it the judicial assignment did not conflict with the general rule that a judge may not overrule a judge of equal authority, because no overruling occurred in the case before it. (Id. at p. 983.)
The People argue that defendant has not demonstrated that the assignment of a substitute judge to hear the new trial motion violated a constitutional provision, statute, or other rule of procedure. Elsewhere in her brief, however, defendant does argue that Judge Woolard’s ruling overruled Judge Warren’s findings on defendant’s state of mind. Additionally, she claims that the judge assignment violated the preferred procedure of a trial judge’s hearing a new trial motion.
As we explain later in this opinion, Judge Woolard was not limited in the manner argued by defendant and was not constrained to make the same inferences from the record as Judge Warren did. We do, however, agree with defendant’s argument that there is a strong preference for the trial judge to hear a new trial motion. (See, e.g., People v. Norton (1956) 141 Cal.App.2d 790, 792.) A similar preference has been stated in the context of sentencing. (See, e.g., People v. Strunk, supra, 31 Cal.App.4th 265; Jacobs, supra, 156 Cal.App.4th 728 [no right to be sentenced by trial judge, but sentencing judge abused discretion in refusing to grant continuance to permit defendant to be sentenced by trial judge].)
Although there is a preference for the trial judge to consider the new trial motion, there is no due process right to have the same judge. (People v. Moreda, supra, 118 Cal.App.4th at pp. 513-515 (Moreda).) Section 1053 limits the substitution of a different trial judge during a criminal trial to situations where the trial judge dies, becomes ill, or for another reason cannot proceed with the trial, but this statute does not apply to the assignment of a new judge posttrial. (Id. at pp. 517-518; Jacobs, supra, 156 Cal.App.4th at p. 734.)
In Moreda, supra, 118 Cal.App.4th 507, we concluded: “Certainly, a judge’s first-hand observations of the demeanor of a witness could be useful when ruling on a motion for new trial. However, since the court functions in a supervisory capacity and its review must be limited to what the evidence shows, we believe that, at least in most cases, a court can effectively rule on a motion for new trial by reviewing the transcripts of the proceedings and thereby determining whether the jury’s verdict, and the weight of evidence and credibility determinations upon which that verdict rests, are supported by the evidence.” (Id. at pp. 514-515.) We further explained that “[a] credibility dispute or conflict in the evidence significant enough to effect the outcome of a trial would have to be manifest in the record of the trial proceedings.” (Id. at p. 516.) Defendant maintains that the present situation presents such a credibility dispute.
The present case is somewhat unique in that the trial judge had granted a motion for a new trial but, when granting the motion, used the incorrect legal standard and incorrectly considered the codefendant’s relative culpability. When the matter was remanded, the trial judge was no longer an active member of the bench and the Handbook for the Assigned Judges Program adopted by Chief Justice George states that the Chief Justice’s policy is not to assign a retired judge who participates in privately compensated dispute resolution activities absent “very unusual circumstances.” This particular case may very well qualify as one of those “very unusual circumstances, ” which would require greater scrutiny of the court’s decision not to make every effort to have Judge Warren come back on special assignment to hear the new trial motion. When the retired judge expresses a willingness to come back, as he apparently did in the present case, the question remains under the unique facts of this case whether the presiding judge has more of an obligation to determine whether it would be possible to have the retired judge hear the new trial motion prior to assigning the motion to a new judge.
We note, however, that Judge Warren was not willing to hear the new trial motion if it would result in his inability to work for JAMS for any period of time and he had a number of arbitrations and mediations set with JAMS for the upcoming month.
Here, we need not address whether the presiding judge’s reasons for assigning the matter to a new judge were sufficient because we conclude that any alleged error based on judicial assignment was harmless. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1211-1212 [held that the erroneous midtrial substitution of a judge subject to harmless error review], superseded by statute on another issue; see also People v. Truman (1992) 6 Cal.App.4th 1816, 1828.)
B. Harmless Error
1. The Requirements for Demonstrating Prejudice
The erroneous assignment of a substitute judge to hear a motion for new trial is an error of procedure reviewable for prejudice under the state miscarriage of justice standard in People v. Watson (1956) 46 Cal.2d 818. (See, e.g., People v. Braxton (2004) 34 Cal.4th 798, 820 [erroneous refusal to hear new trial motion is subject to harmless error review under the state miscarriage of justice standard]; People v. Gonzalez, supra, 51 Cal.3d at pp. 1211-1212 [held that the erroneous midtrial substitution of a judge is subject to harmless error review].) Under Watson, a reversal is required when it is “reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.” (Id. at p. 836.)
The question of prejudice has been addressed by our Supreme Court in the context of the erroneous refusal to consider any motion for a new trial. Such situations are more egregious than the present case where defendant did have an opportunity to be heard. In the more extreme case of being denied any hearing, reversal is warranted only if the record demonstrates “that the defendant’s new trial motion was meritorious as a matter of law, or... that the trial court would have granted the new trial motion and the reviewing court properly determines that the ruling would not have been an abuse of discretion.” (People v. Braxton, supra, 34 Cal.4th at p. 817.) In such situations, the trial court’s error is a miscarriage of justice within the meaning of article VI, section 13, of the California Constitution. (Braxton, at p. 817.) Stated differently, “a judgment of conviction may not be reversed and a new trial may not be ordered for a trial court’s failure to hear a new trial motion when a reviewing court has properly determined that the defendant suffered no prejudice as a result. This will occur when, for example, the record shows that the trial court would have denied the new trial motion and the reviewing court properly determines that the ruling would not have been an abuse of discretion, or the reviewing court properly determines as a matter of law that the motion lacked merit.” (Id. at p. 818.) If “the appellate record is insufficient to permit a reviewing court to determine as a matter of law whether the proposed motion was meritorious, the reviewing court may remand the matter to the trial court for a belated hearing of the new trial motion, absent a showing that a fair hearing of the motion is no longer possible.” (Id. at p. 819, italics added.)
Here, defendant did receive a hearing on the new trial motion, and she must show that having Judge Woolard, rather than Judge Warren, decide her new trial motion resulted in prejudice. That is, she must establish that there is a reasonable probability that Judge Warren would have granted her motion and that his granting the motion would not have been an abuse of discretion.
Defendant argues that prejudice is shown if this court cannot conclusively state what Judge Warren’s ruling would have been. To bolster this assertion, she cites Jacobs, supra, 156 Cal.App.4th 728. In Jacobs, the trial judge would have been available in two court days for defendant’s sentencing hearing, but the court denied the defendant’s request for a short continuance to have the hearing in front of the trial judge because of a concern with jail overcrowding. (Ibid.) A different judge imposed the sentence on defendant and defendant contended the trial judge could have given him a more lenient sentence and “sentenced [him] to the lower term instead of the middle term on one or both of the auto burglary convictions or to concurrent sentences instead of consecutive ones, ” or the court could have stricken his prior strike. (Id. at p. 740.) When reversing, this court acknowledged that defendant’s argument that it was reasonably probable that the trial judge would have been more lenient involved “an element of speculation[, ]” since this court was “ ‘unable to say what the position’ ” of the trial judge would have been. (Ibid.) Defendant seizes onto this latter language and asserts that we must reverse simply because we cannot be certain how Judge Warren would have ruled on her new trial motion.
Jacobs is clearly distinguishable from this case. Jacobs involved sentencing rather than a new trial motion and the trial judge was active, not retired, in Jacobs. Thus, unlike the present case, the trial judge would have been available to impose sentence simply if the court granted the defendant’s request for a short continuance. Here, the record does not establish that Judge Warren could have been brought back to hear the motion and, even if he were brought back, when he would be available to hear the motion. Furthermore, in Jacobs, the defendant supported his position with evidence making it reasonably probable that the trial judge would have given the defendant a more lenient sentence. The defendant argued that the trial judge would have sentenced him to the lower term because of defendant’s “ ‘relative youth, [defendant’s committing] the two auto burglaries within what was essentially a single criminal episode, ’ ” and defendant’s crime being “ ‘essentially a property crime that did not result in injury to any person.’ ” (Jacobs, supra, 156 Cal.App.4th at p. 740.) Here, it is uncertain what ruling Judge Warren would have made had he used the correct legal standard and, under People v. Braxton, supra, 34 Cal.4th at pages 817-819, defendant must show that evidence in the record makes it a reasonable probability that Judge Warren would have granted his motion.
The People maintain that defendant’s burden also requires defendant to demonstrate a reasonable probability that further inquiry by Judge Ballati would have resulted in a new trial motion being heard by Judge Warren given the Chief Justice’s stated policies that the superior courts’ assignment needs “be met internally” wherever possible and that retired judges sitting by assignment not actively participate in privately compensated dispute resolution activities during their tenure as an assigned judge. Additionally, the People argue that there is evidence in the record that Judge Warren would not consent to hearing the motion and the People cite to a statement by Judge Woolard that Judge Warren advised her that he would not be deciding the motion for a new trial.
We disagree with the People that defendant must demonstrate that Judge Warren would have been given and would have accepted the special assignment. It is sufficient to show Judge Warren said he would be available and nothing in the record indicates this assignment would not have been approved. Judge Warren did tell Judge Woolard that he was not going to hear the motion for a new trial, but this statement was reported in the record after the decision had been made to assign the matter to Judge Woolard. Thus, this statement may simply reflect Judge Warren’s awareness that Judge Woolard was going to hear the motion. Since Judge Ballati decided to assign the matter to another judge without ascertaining whether Judge Warren could be brought back to hear the case, it would be impossible for defendant to develop this record any more completely. As already noted, the record indicates that Judge Warren was willing to hear the matter and JAMS had provided its consent for him to hear the matter. Although the record contains evidence suggesting that Judge Warren may not have been available to hear the motion in a timely fashion, under the facts of this unique case, we conclude that this record was sufficient to establish Judge Warren’s availability.
2. Defendant Has Failed to Demonstrate a Miscarriage of Justice
Even if we presume the trial court erred in assigning the matter to Judge Woolard, this error was harmless because Judge Woolard provided defendant with a fair hearing and defendant cannot demonstrate a reasonable probability that the result of the new trial hearing would have been different had the case been remanded to Judge Warren.
In the present case, the motion for a new trial was to be reconsidered in light of the views set forth in Knoller, supra, 41 Cal.4th 139. Under section 1181, subdivision (6), the trial court may grant a new trial “[w]hen the verdict or finding is contrary to law or evidence.” Thus, the court was to consider whether defendant’s motion for a new trial for second degree murder should be granted using the correct definition of implied malice, which is “a defendant’s awareness of engaging in conduct that endangers the life of another[.]” (Knoller, supra, at p. 143.) The court was not to consider the charges against or culpability of codefendant Noel.
Judge Warren left no doubt about his view of all of the evidence. Judge Warren stated unequivocally that he believed none of defendant’s testimony, other than her one statement that she did not know that Bane (or both Presas) would do what he did. Further, the trial court expressly stated that it believed the testimony of all of the prosecution’s witnesses, except Wertman-Tallent, when they recounted their interactions with the Presas and defendant. Finally, Judge Warren pointed out that the witnesses’ testimony about the Presas’ good acts was irrelevant. We agree with this latter finding. Many of these witnesses had not observed the Presas in the apartment building, where they were more aggressive and territorial. Further, as Lockwood and defendant’s own witnesses who were veterinarians stated, lunging and snarling at people when unprovoked represented warning signs. Lockwood testified that good behavior did not negate or undermine evidence of dogs’ bad behavior in terms of evaluating the dogs’ potential for aggression.
Defendant argues that her statement that she had no idea that the Presas “would ever do anything like that to anybody, ” as well as the fact that the Presas had not killed anyone before, established that she did not have the requisite mental state. She maintains that her statement regarding her subjective mental state is the best evidence and that there was no other evidence of comparable weight. If, however, the defendant’s testimony were always the best evidence, the element would be subsumed by the defendant’s mere denial. Accordingly, “ ‘[i]mplied malice is malice inferred in law from the defendant’s conduct rather than by proof of an actual intention to kill.’ ” (People v. Whitfield (1994) 7 Cal.4th 437, 464 (conc. & dis. opn. of Mosk, J.), italics added, superseded on another issue by section 22 [precludes evidence of voluntary intoxication to negate implied malice aforethought].)
It is actually unclear from the record before us whether Judge Warren was referring to defendant’s very last answer during direct or to her answer during redirect when he commented that he believed her when she said she did not know that her dogs would do that. During direct, defense counsel asked defendant whether she ever claimed not to be responsible for the attack suffered by Whipple. Defendant responded: “I said in an interview that I wasn’t responsible but it wasn’t for the––it wasn’t in regard to what Bane had done, it was in regard to knowing whether he would do that or not. And I had no idea that he would ever do anything like that to anybody. How can you anticipate something like that? It’s a totally bizarre event. I mean how could you anticipate that a dog that you know that is gentle and loving and affectionate would do something so horrible and brutal and disgusting and gruesome to anybody? How could you imagine that happening?”
At the end of defendant’s redirect testimony, her attorney asked how had her feelings changed towards Bane after the attack and defendant responded: “I saw a pet, a dog that had been loving, docile, friendly with people turn into a crazed wild animal that I––I never––I never––I never anticipated or could imagine anything happening as what happened in that hallway. I couldn’t imagine this dog turning into what he turned into. I–I–couldn’t imagine him doing anything like what he did. I––I––it’s still––it’s in––and still incomprehensible that he––that he did what he did in that hallway. I can’t––I still-I can’t believe that he did what he did. How could––how could this––how could he turn into what he turned into in that hallway? How could he do that to somebody, how could––how could he do that? I––I––I––how could he do that to somebody?”
This testimony, even if deemed credible, simply indicated that defendant had no idea that Bane would act in a particular way. It very well may be true that defendant had no idea that the Presas would maul a person for 10 minutes and in such a manner that the victim would have 77 wounds on her body, have all of her clothing shredded completely off of her body, and would be injured so severely that the carpet and walls in the hallway would be smeared in blood. However, defendant’s testimony did not necessarily mean that she did not know that the dogs could kill someone.
Defendant consistently asserts that Judge Warren found that defendant “had not contemplated the likelihood of another’s death when she left her apartment on January 26, 2001[.]” This is not what Judge Warren found. He did not find that the evidence was legally insufficient to support the verdict. If that had been his finding, he would have made his ruling as a matter of law and acquitted her of second degree murder or reduced the crime to the lesser offense. (§§ 1385, subd. (a), 1118.1, & 1181, subd. (6).) Judge Warren denied defendant’s motion to dismiss pursuant to section 1118.1; when denying the motion he expressly stated that the prosecution had presented ample evidence to support the second degree murder charge.
To support defendant’s claim that Judge Warren found she did not know that the Presas would kill, defendant cites the following in Judge Warren’s ruling: “The law requires that there be a subjective understanding on the part of the person that on the day in question––and I do not read that as being January 26th, 2001, because by this time, with all of the information that had come out dealing with the dogs, the defendants were fully on notice that they had a couple of wild, uncontrollable and dangerous dogs that were likely going to do something bad. [¶] Is the ‘something bad’ death? That is the ultimate question in the case. There is no question but that the something bad was going to be that somebody was going to be badly hurt. I defy either defendant to stand up and tell me they had no idea that those dogs were going to hurt somebody one day. But can they stand up and say that they knew subjectively––not objectively and that’s an important distinction––that these dogs were going to stand up and kill somebody?
“Look at what happened in the hallway on January 26th. In fact, we will never know what happened in the hallway. The only witness that testified to what happened there is the witness defendant. With very few exceptions, the court––Ms. Knoller, I did not believe you. I did not believe a lot of what you said as to what happened. I believe a lot of things that happened in the hallway did happen somewhat along the lines that you said but there is more there and frankly, we are never going to know. Nobody is ever going to know what happened, why after all of these circumstances that we had in a confined place where there had been lots of confined places before, the lobby of the building but not the hallway, the dog all of a sudden went and attacked a defenseless woman trying to get her groceries into her apartment.”
Judge Warren stated that the question was whether defendant “knew that there was a high probability” that as a result of her conduct “she was going to kill somebody that morning.” He then concluded that he could not say “as a matter of law that [defendant] subjectively knew on January 26th that her conduct was such that a human being was likely to die.” As already stressed, the standard was not whether defendant knew that taking Bane into the hallway without a muzzle was likely or probably going to result in death, but whether she knew that her conduct endangered the life of another. (Knoller, supra, 41 Cal.4th at p. 143.) If Judge Warren had used the proper standard for implied malice and not considered the relative culpability of codefendant Noel, we conclude that––given the evidence in the record––it is not reasonably probable that he would have granted defendant’s motion for a new trial and found that the jury’s verdict was contrary to law.
Implied malice is determined by examining the defendant’s subjective mental state to see if he or she actually appreciated the risk of his actions. (People v. Watson (1981) 30 Cal.3d 290, 296-297, superseded by statute on another issue.) Malice may be found even if the act results in a death that is accidental. (People v. Contreras (1994) 26 Cal.App.4th 944, 954.) It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant’s mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence. (People v. James (1998) 62 Cal.App.4th 244, 277.) “[A] conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life.” (Knoller, supra, 41 Cal.4th at p. 156.) “In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another––no more, and no less.” (Id. at p. 143.)
Here, the record contains evidence that defendant deliberately engaged in behavior that was a danger to human life, knew that her conduct was dangerous to human life, and acted with a conscious disregard for human life. There was evidence that defendant knew the Presas endangered the lives of others. Martin, a veterinarian, testified that the dogs were massive. He wrote defendant to warn her about the seriousness of taking these dogs and admonished that “[t]hese dogs are huge” and “have had no training or discipline of any sort.” He also advised that these animals would be a “liability” in any household and specifically warned her of a recent attack by large dogs where a boy lost his arm and had his face disfigured.
Defendant wrote a letter to Schneider stating that she was partial to naming the breeding operation “Dog-O-War.” She had in her apartment 39 copies of a three-paged, typed document entitled, “Dog-O-War, Presas.” The literature found in defendant’s home warned that Presa Canarios are “naturally very dog aggressive, and proper socialization at an early age is a must.” The same literature made it clear that such dogs could kill and that the breed is “properly called Perro de Presa Canario[, ]” which means “dog of prey” of the Canary Islands. The literature announced that the dogs “were always used and bred for combat and guard.” Further, the literature warned that this breed is fiercely protective to its owners. Lockwood testified that when a person has dogs that are bred to be protective and territorial, such dogs have to be trained not to fight. One article in defendant’s home equated guard dogs to a “loaded gun.” Defendant admitted being aware that inmates Schneider and Bretches had sent Noel a copy of a book about Presa Canarios called Manstopper and a newsletter from Show Stopper Kennels named Gripper.
Inmates Schneider and Bretches had a 36-page handwritten set of notes detailing a website for a Presa Canario breeding business under the name of “Dog-O-War.” The document had a hand-drawn picture of Bane with the title, “Wardog, Bane, ” “Bringer of Death: Ruin: Destruction.” Copies of portions of this document were located in defendant’s residence.
Defendant admitted reading this literature and being aware that it stated Presa Canarios were bred to be guard dogs, had a fighting history, and had been used by police units to disable pit bulls. Although defendant knew that socialization of these dogs at an early age was critical, defendant and Noel took Bane and Hera after being informed that they had no training and were so out of control that Hera had killed sheep. Although defendant knew that the literature warned about the paramount importance of socialization and that the dogs had not been socialized while in the care of Coumbs, defendant stated that she and Noel sought no outside help in training the Presas. The record establishes that neither defendant nor Noel did much training of the dogs as the witnesses uniformly declared that, after the Presas lunged at or attacked them or their dogs, defendant and Noel never reprimanded their dogs.
The record is equally convincing that defendant had clear notice that she could not and often did not control the Presas. Bardack testified that one of the Presas lunged forward, pulling defendant to the ground, and attacked his dog. He stated that defendant “couldn’t do anything with the animal.” Taylor recalled Hera’s breaking away from defendant and charging his dog and him. Birkmaier recounted a time when Hera was running down the sixth floor hallway, unleashed and unattended, while defendant locked her apartment door. Other witnesses testified that they observed defendant struggling to keep control of the Presas. Moreover, Noel wrote to Bretches and Schneider describing incidents where the Presas bolted out of the apartment with defendant being “propelled forward” and having to let go of the leashes to keep her footing. Defendant admitted that she lost control of Hera when the Presa attacked Taylor’s dog, and she wrote to Schneider that she lacked the upper body strength to stop Bane from “going after another dog.”
As in drunk driving cases, prior near misses or prior minor accidents are sufficient to place a defendant on notice. (See, e.g., People v. Olivas (1985) 172 Cal.App.3d 984, 988 [prior “fender bender” collision preceding fatal collision sufficient to put defendant on notice of danger to life]; see also People v. David (1991) 230 Cal.App.3d 1109, 1115-1116.) This was not a situation where 30 incidents occurred over a period of years. In this record the witnesses described over 30 incidents where Bane and/or Hera lunged, snapped, and growled at people or physically attacked other dogs in a period of months. Defendant also observed the damage done by Bane’s jaws when she saw that a single bite from Bane required Noel to remain in the hospital for four days and have two steel pins placed in his hand.
Bane came to defendant’s apartment in September and then had surgery in early December. The first seven to ten days after his surgery Bane had difficulty getting up and walking around the apartment. Thus, during about two weeks during this period, Bane was not physically able to attack people or dogs.
Defendant’s disregard for the risk to life that her dogs presented was inferable from the fact that she routinely failed to apologize when the Presas repeatedly lunged and attacked others in her presence. Her disregard for Whipple’s life was inferable from the fact that she never called 911 for help, never asked after the attack about Whipple’s condition, and returned to the scene of the attack, not to assist the dying Whipple, but to find her keys.
Thus, the evidence in the record established that defendant knew about the following: the Presas’ lack of training, the importance of training and socializing the Presas, the numerous incidents of aggression by these Presas towards other animals and people, the physical characteristic of these dogs that included mammoth jaws and a weight of about 100 pounds, and her inability to control the Presas. Defendant’s deliberate act of leaving her apartment with an unmuzzled Bane knowing that she could not control him, as well as the evidence that she knew he was dangerous to human life provided substantial support for the jury’s finding that she acted with conscious disregard for human life. The question was not whether Bane would probably kill someone but whether defendant was aware that her act of taking him into the hallway without a muzzle created a substantial risk that someone would be killed. Had Judge Warren used this proper standard of implied malice as well as not considered Noel’s relative culpability, it is not reasonably probable that he would have granted defendant’s motion for a new trial based on the verdict’s being contrary to the evidence.
Accordingly, we conclude that, even if the lower court erred in assigning the matter to Judge Woolard, any such error was harmless.
II. No Abuse of Discretion in Denying Defendant’s New Trial Motion
Defendant contends that Judge Woolard abused her discretion in denying her motion for a new trial. Specifically, she maintains that Judge Woolard did not accept Judge Warren’s finding concerning defendant’s state of mind at the time the Presas killed Whipple.
A. Trial Court’s Findings
At the hearing on August 22, 2008, Judge Woolard stated that she was not “bound by the trial court’s so-called factual findings, although it agrees with most of them. This court has performed independent assessment of the trial evidence, arguments and proceedings, and has undertaken a de novo review....” The court recounted various facts, including that the book entitled, “Manstopper! Training a K-9 Guardian” and 39 copies of a document entitled “Dog-O-War Presas” were found in the apartment defendant shared with Noel. Judge Woolard also set forth the numerous incidents of aggression by the dogs, the inability of defendant to control them, defendant’s inconsistent testimony, and defendant’s testimony that directly contradicted other witnesses’ testimony.
Finally, Judge Woolard described the injury to Whipple and defendant’s knowledge that the dogs could kill: “This was a vicious protracted, devastating mauling lasting approximately ten minutes resulting in 77 groups of injuries, the victim’s clothing shredded completely off of her body with blood soaking the carpet and smeared all over the walls. Perhaps defendant Knoller couldn’t [imagine] Bane performing that particular event and in that manner, but from the nature of the dogs’ upbringing, their lack of training, the numerous incidents of aggression towards dogs, other animals and people, including those personally witnessed by Ms. Knoller, the knowledge of the size and power of these dogs, their mammoth jaws and teeth and defendant Knoller’s lack of ability to control the dogs, sufficient credible evidence is set forth in the record that defendant Knoller was aware that the dogs singularly or together were capable of killing a person and if not properly restrained would kill a person.”
The court concluded: “Based on that totality of the evidence, defendant Knoller knew her conduct endangered the life of another. Defendant Knoller consciously took Bane unmuzzled through the apartment building where they were likely to encounter other people, knowing that Bane was aggressive and highly dangerous and that she could not control him. By leaving the apartment with Bane, defendant Knoller acted with conscious disregard for human life.
Judge Woolard denied defendant’s motion for a new trial and ordered the second degree murder conviction reinstated.
B. Standard of Review
Under section 1181, subdivision (6), the trial court may grant a new trial “[w]hen the verdict or finding is contrary law or evidence.” “While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict.” (People v. Robarge (1953) 41 Cal.2d 628, 633.) A trial court’s order granting or denying a motion for new trial under section 1181, subdivision (6), is reviewed for an abuse of discretion. (Robarge, at p. 633.)
In the present case, the matter was remanded to the trial court to reconsider its new trial order in light of the views set forth in Knoller, supra, 41 Cal.4th 1391. When a motion is remanded for reconsideration and a new judge hears the motion, the new judge is not bound by the factual findings of the first judge. (See People v. Crew (2003) 31 Cal.4th 822, 859.) Judge Woolard was to use her independent judgment to determine whether defendant’s new trial motion should be granted (ibid.; see also People v. Robarge, supra, 41 Cal.2d at p. 633) in conformance with the rules and definition of implied malice set forth by the Supreme Court in Knoller, supra, 41 Cal.4th 1391.
C. Defendant’s Claims of Error
Defendant claims that Judge Woolard committed legal error and therefore abused her discretion in denying her motion for a new trial. Defendant asserts that Judge Woolard “committed fundamental legal error” in refusing to resolve credibility issues in the identical manner that Judge Warren did. She cites Evidence Code section 780, subdivision (a), which provides that demeanor and the manner of testifying must be weighed in determining the credibility of a testifying witness. (See Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 267, fn. 11 [“Cold words on a printed page are not the same as a live presentation”].) She elaborates that appellate courts review findings of the lower court for substantial evidence precisely because the lower court has the opportunity to observe the demeanor of the witness. She claims that Judge Woolard had no basis for second-guessing Judge Warren’s credibility determinations since she could not observe the witnesses.
The People argue that Judge Warren’s factual and credibility findings could not play any part in Judge Woolard’s ruling because his findings were not part of the trial evidence and resulted from an incorrect application of the law. Section 1181, subdivision (6) makes it clear that the trial court may grant a motion for a new trial when the verdict is contrary to the evidence and the evidence shows the defendant not to be guilty. The People maintain that this statute requires Judge Woolard to base her ruling on the evidence, not Judge Warren’s factual and credibility findings.
In Moreda, we set forth the trial court’s role in reviewing the sufficiency of the evidence pursuant to a new trial motion under section 1181. (Moreda, supra, 118 Cal.App.4th at pp. 513-515.) We explained: “ ‘It has been stated that a defendant is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial. [Citations.] This does not mean, however, that the court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [Citations.]’ ” (Id. at p. 514, quoting People v. Robarge, supra, 41 Cal.2d at p. 633.) The trial court exercises its supervisory power over the verdict (Moredo, at p. 514.), and is guided by “ ‘presumption in favor of the correctness of the verdict and proceedings supporting it, ’ [citation], and its reviewing function is ‘strictly circumscribed by the authority granted by statute.’ ” (Ibid.) “That statute, section 1181, ‘clearly contemplates review will be confined to what the “evidence shows” [citation].’ [Citation.] Thus, although the trial court has broad discretion in this area, that discretion is abused when the court exceeds the bounds of its supervisory capacity over the jury’s function by, for example, considering facts or evidence outside the record. [Citation.]” (Ibid.)
In Moreda, we further explained the limitations on the trial judge’s discretion: “Certainly, a judge’s first-hand observations of the demeanor of a witness could be useful when ruling on a motion for new trial. However, since the court functions in a supervisory capacity and its review must be limited to what the evidence shows, we believe that, at least in most cases, a court can effectively rule on a motion for new trial by reviewing the transcripts of the proceedings and thereby determining whether the jury’s verdict, and the weight of evidence and credibility determinations upon which that verdict rests, are supported by the evidence.” (Moreda, supra, 118 Cal.App.4th at pp. 514-515.) We explained that a new or substitute judge could decide a new trial motion and that judge performs the court’s supervisory function under section 1181 “by independently reviewing the trial record in order to determine whether the evidence supports the verdict.” (Moreda, supra, at p. 515, italics added.)
In Moreda, supra, 118 Cal.App.4th 507, the defendant asserted that the same trial judge had to hear the motion for a new trial because the motion was based on issues of credibility and weight of the evidence. (Id. at p. 516.) We disagreed and noted that “a judge does not have to have been present at trial in order to determine whether the jury resolved a material credibility dispute or weighed conflicting material evidence.” We explained: “By reviewing a transcript of the proceedings, the judge can reconsider the jury’s resolution of such matters; he or she can make credibility determinations and weigh the evidence and then determine whether the evidence supports the verdict.” (Ibid.) We did not believe that a situation would arise where “a judge’s percipient observations of the demeanor of a witness would, by itself, support a decision to grant a new trial” because the court “must be able to articulate facts to support its determination that a verdict is not supported by credible evidence.” (Ibid.) Further, we stressed that, if the new or substitute judge determined that he or she could not decide whether the evidence supported the verdict without personally observing a witness, the court could grant the defendant a new trial. (Id. at pp. 516-517.)
Defendant contends that Judge Woolard erred by relying on Moreda. She maintains that Moreda is inapplicable because the trial judge in that case made no factual findings and did not assess the credibility of a crucial witness. Additionally, she suggests that the holding was partially based on the fact that there was gamesmanship involved because the defendant had successfully challenged the trial judge for cause between the jury verdict and sentencing, and then later protested that he had been denied his right to a decision on his new trial motion by the trial judge. (Moreda, supra, 118 Cal.App.4th at p. 511.) The holding in Moreda, however, was not limited to cases that involved principles of forfeiture or estoppel. Indeed, we reviewed the case law and noted that courts had uniformly held that the defendant is not entitled to have the trial judge decide posttrial motions.
Defendant also maintains that this case falls into the exception suggested as a possibility in Moreda. She argues that this is one of those situations where the substitute judge should have granted defendant’s motion for a new trial because the record established an evidentiary conflict. Thus, she is essentially arguing that, once a trial judge makes a credibility finding, a substitute judge for the posttrial motion must accept that credibility finding of the first court or must grant defendant’s motion for a new trial. We disagree. There is no evidentiary conflict in this record. As already stressed, Judge Warren’s statement that he believed one small portion of defendant’s testimony does not create an evidentiary conflict.
We agree with the People that the present case is similar to the situation in People v. Crew, supra, 31 Cal.4th 822. In Crew, following the trial, the jury returned a verdict of death and the trial judge granted the automatic motion to modify that verdict and reduced the penalty to life without possibility of parole. (Id. at p. 858.) The prosecution appealed; the appellate court reversed and remanded the case to the trial court for the limited purpose of redetermining the motion to modify the verdict. (Ibid.) The trial judge was unavailable and a different judge heard the automatic motion. (Ibid.) “After twice reviewing the transcripts of the trial, reading the Court of Appeal decision, and hearing argument of counsel for both parties, [the new judge] denied the automatic motion to modify the penalty verdict. His findings as to each of the aggravating and mitigating factors led him to conclude that the weight of the evidence supported the jury’s finding that the aggravating circumstances outweighed the mitigating circumstances, and that the verdict was not contrary to the law or the evidence.” (Id. at pp. 858-859.)
In People v. Crew, the defendant challenged the new trial judge’s ruling partially on the basis of the new judge’s failing to take into consideration the trial judge’s findings in the prior ruling. (People v. Crew, supra, 31 Cal.4th 822.) The Supreme Court held that there was no error for refusing to accept the trial judge’s findings. (Id. at p. 859.) The Supreme Court explained that the matter was remanded “for the limited purpose of redetermining the motion.” (Ibid.) The court stated that section 190.4, subdivision (e) “requires the judge ruling on the motion to review the evidence and to take into account and be guided by the statutory aggravating and mitigating evidence” and that is what the new judge did. (Crew, supra, at p. 859.) The court concluded that there was “no indication that the trial court did not understand or properly apply the controlling legal principles in ruling on the motion.” (Ibid.)
Defendant maintains that despite Judge Warren’s statement that he did not believe defendant at any time except when she testified that she had no idea what the Presas would do, Judge Woolard was compelled to find that defendant did not have the state of mind to support the jury’s verdict of second degree murder. She maintains that Judge Warren’s finding regarding her state-of-mind “was purely a finding of historical fact[.]”
We disagree. Judge Warren’s interpretation of defendant’s testimony is not a finding of historical fact. Defendant implies that only Judge Warren could interpret her testimony. That is clearly not the law. Judge Woolard properly looked at defendant’s testimony to determine what she said and could make all reasonable inferences from this testimony. Judge Woolard, similarly to the jury, could interpret defendant’s testimony as stating that she did not believe the Presas would kill in that manner. Interpreting this testimony does not require any personal observation. A judge sitting through the trial has no advantage over another judge in interpreting the testimony. The judge may be better able to make credibility findings but, unless the testimony contradicts or is consistent with some type of behavior that can only be viewed in the courtroom, the trial judge is in no better position to interpret the meaning of ambiguous testimony.
Further, Judge Warren did not explain his reasons for believing defendant’s one statement in the midst of her otherwise incredible testimony. Judge Warren did note that defendant seemed to be departing briefly from her scripted answer when she pounded the table and declared she “had no idea that this dog could do what he did.” However, he offered no other explanation for believing this particular testimony and did not provide any other explanation for deciding that this one statement outweighed all the other evidence that he and the jury had deemed credible.
As already discussed, even if we had concluded that Judge Woolard was compelled to believe that this particular testimony of defendant was truthful, this testimony does not show that defendant did not have the requisite mens rea. Defendant argues that Judge Woolard should have given particular weight to defendant’s testimony that she never imagined that her conduct posed a risk of death. However, defendant does not accurately recount defendant’s testimony. Rather, defendant testified that she “had no idea that [Bane] would ever do anything like that to anybody. How can you anticipate something like that? It’s a totally bizarre event.” None of these statements establishes that she did not have the requisite mens rea.
Defendant does not cite any authority that would require Judge Warren to come to the same conclusions when reconsidering the motion. If Judge Warren is entitled to change his mind, certainly another judge reviewing the record does not have to come to the same conclusion.
Defendant is critical of Judge Woolard for finding that her testimony was incredible. However, the record overwhelmingly supported this conclusion. Defendant’s account of the attack told to the officers responding to the 911 call differed from her version given to the media and both of these versions deviated from her testimony to the grand jury. All three versions diverged from her testimony at trial. Speaking to the media and the grand jury, she maintained that there was something about Whipple’s smell that attracted Bane; she then abandoned that notion at trial. She did not, however, abandon her attempts to blame Whipple for the attack. As Judge Warren pointed out, defendant’s claims that Whipple, lying face down and being mauled to death by the Presas, hit defendant in the eye and thereby caused Bane to attack, defied all credibility. In addition, defendant testified that she tried to protect Whipple during the attack even though she had suffered no serious injuries and had abandoned Whipple without providing any assistance.
Further straining credulity, defendant testified that all of the other witnesses had not told the truth. She categorically denied ever walking both of the Presas by herself, ever having them off-leash, and, with one exception, ever having lost control of them. She denied that the Presas ever attacked another dog. She claimed when she walked Bane by herself he was “really calm” and a “cooperative dog on lead.” This contradicted the testimony of numerous witnesses who said they observed defendant’s losing control of one or both of the dogs and they had seen the Presas without a leash. Defendant also initially denied participating in the naming of the dog-breeding business as “Dog-O-War.” She later admitted her role when confronted with her own letter discussing her views regarding the name. Her credibility further eroded when she attempted to evade questions about the dangerousness of her dogs by claiming that Chihuahuas could be dangerous and that Presa Canarios were more gentle and sensitive than Collies.
Defendant also argues that the lower court improperly relied on the evidence and statements in the Supreme Court’s opinion. In particular, she criticizes Judge Woolard’s ruling to the extent that it included the following statement in Knoller: “The immediate cause of Whipple’s death was [defendant’s] own conscious decision to take the dog Bane unmuzzled through the apartment building, where they were likely to encounter other people, knowing that Bane was aggressive and highly dangerous and that she could not control him.” (Knoller, supra, 41 Cal.4th at p. 158.) Judge Woolard stated: “Based on the totality of the evidence, defendant Knoller knew her conduct endangered the life of another. Defendant Knoller consciously took Bane unmuzzled through the apartment building where they were likely to encounter other people, knowing that Bane was aggressive and highly dangerous and that she could not control him. By leaving the apartment with Bane, defendant Knoller acted with conscious disregard for human life.”
Defendant argues that “Judge Woolard erred to the extent that she deemed the Supreme Court’s expressed view compelled her rejection of Judge Warren’s finding.” The trial court did not err because it used language in its ruling that was similar to that used in the Supreme Court’s decision. The court made it clear that it independently assessed the trial evidence, arguments, and proceedings. The court found that defendant knew her conduct endangered the life of another “[b]ased on the totality of the evidence” in the record. The court concluded, “The jury properly examined and weighed the totality of the evidence in reaching its conclusion that the implied malice existed supporting its verdict that defendant Knoller was guilty of second degree murder. The jury was properly instructed on the charge. The evidence supporting implied malice was clear, substantial and credible.” Nothing in this record supports defendant’s accusation that the lower court failed to carry out its independent review of the record.
Finally, defendant argues there was no evidence in the record to support implied malice. As discussed above, the record contained substantial and credible evidence to support this element.
Accordingly, we conclude that the lower court did not abuse its discretion in denying defendant’s motion for a new trial on her second degree murder conviction.
III. Issues Raised in the Prior Appeal
A. The Law-of-the-Case Doctrine
In this appeal, defendant mounts various challenges to rulings made by Judge Warren during the trial. Specifically, she maintains that the admission of a letter written by Noel on December 27, 2000, to Schneider violated her Sixth Amendment right to confront the witnesses against her, that the court’s limitation on defendant’s testimony regarding Noel’s comments to her about the bite to his finger by Bane denied her the constitutional right to present a defense, that the court’s admonishment to defendant’s trial counsel during the prosecutor’s rebuttal closing argument to remain seated and not make any further objections deprived her of her constitutional right to counsel during closing argument, and that cumulative error requires reversal. All of these issues were raised in defendant’s prior appeal and were thoroughly analyzed and resolved adversely to defendant.
Defendant filed a petition for review with the Supreme Court, which included the abovementioned issues. The Supreme Court granted review, but limited it to the following issues: “(1) Whether the mental state required for implied malice includes only conscious disregard for human life or is satisfied by an awareness that the act is likely to result in great bodily injury? (2) Whether the trial judge abused his discretion in granting the motion for new trial under Penal Code section 1181 (6).” Thus, our initial opinion remains determinative as to all of the issues it decided that were not addressed by the Supreme Court. (See Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 709, fn. 12.)
The Supreme Court made it clear that its review was limited and stated the following: “The trial court ruled that letters written by or addressed to codefendant Noel were admissible against defendant Knoller, and vice versa, on a theory that raising the Presa Canario dogs was a joint enterprise. The Court of Appeal rejected defendants’ challenge to this ruling. Both defendants raised the issue in their respective petitions for review. We denied Noel’s petition, and in granting Knoller’s petition we limited review to other issues.” (Knoller, supra, 41 Cal.4th at p. 145, fn. 3.)
The law-of-the-case doctrine is designed to prevent repetitive litigation of the same issue in a single criminal or civil case. (People v. Boyer (2006) 38 Cal.4th 412, 441, citing People v. Whitt (1990) 51 Cal.3d 620, 638, and People v. Shuey (1975) 13 Cal.3d 835, 841, overruled on another point as recognized by People v. Bennett (1998) 17 Cal.4th 373, 389.) “ ‘The doctrine of “law of the case” deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.)
“ ‘Application of the rule is now subject to the qualifications that “the point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision.” [Citations.]’ [Citation.] An ‘unjust decision’ may result when ‘the controlling rules of law have been altered or clarified by a decision intervening between the first and second determinations of the appellate courts. [Citations.]’ [Citations.]” (People v. Ramos (1997) 15 Cal.4th 1133, 1161.)
Defendant contends that the law-of-the-case doctrine does not apply to the present case because she previously appealed her conviction for involuntary manslaughter, which required no proof of implied malice. She is now appealing her conviction for second degree murder, which requires a mens rea element, and therefore, according to defendant, the prior decision was not dispositive. Secondly, she asserts that this court used an incorrect standard for implied malice and therefore our prior determinations are not entitled to any precedential effect. Finally, she maintains that the United States Supreme Court has clarified the standard of prejudice for structural error and therefore we must, again, consider her claim of structural error. We consider each of these claims.
B. Admission of Letters Written by Noel Against Defendant
1. The Letters
As she argued in her first appeal, defendant contends that six letters written by Noel violated her constitutional right to cross-examine Noel because he did not testify, preventing any cross-examination of him on the veracity of these letters. The Sixth Amendment to the United States Constitution, which applies to the states under the Fourteenth Amendment, protects a defendant’s right to cross-examine all witnesses against him or her. (Davis v. Alaska (1974) 415 U.S. 308; Bruton v. United States (1968) 391 U.S. 123 (Bruton); Richardson v. Marsh (1987) 481 U.S. 200; People v. Aranda (1965) 63 Cal.2d 518 (Aranda), partially abrogated by constitutional amendment as stated in People v. Fletcher (1996) 13 Cal.4th 451, 465.) Defendant contends the letters were facially incriminating of her, and therefore their admission constituted Aranda-Bruton error(Aranda, supra, at pp. 530-531; Bruton, supra, at pp. 136-137).
Two of the letters written by Noel were admitted into evidence during Hawkes’s testimony that connected defendant to the Aryan Brotherhood. Hawkes testified about a letter written by Noel to Schneider on December 27, 2000. The letter was on the joint legal letterhead of Noel and defendant and marked “Confidential Legal Mail.” Before the prosecution read the letter into evidence, counsel for defendant objected, arguing the jury should be instructed that the letter should be considered only against Noel. The court overruled the objection. Subsequently, it noted that counsel for defendant had brought this issue up in her opening statement. Hawkes testified that Schneider had stabbed a lawyer in court and the knife used had an Aryan Brotherhood symbol on it. One portion of the letter read to the jury stated: “I don’t think Marjorie’s ever told you what my response, with which she agreed immediately, was upon hearing that, every time we were told that [Schneider had stabbed his attorney], ‘If he did, he must have had a damned good reason and the smuck [sic] probably deserved it.’ ”
The prosecution read further from the letter regarding the Boyd case. Boyd was an inmate who was killed at Pelican Bay and who was a witness in another case. The letter from Noel stated: “When someone early on in the Boyd case from the defense side made mention of possibly wanting to depose you, Marjorie and I both agreed that we would have no problem being in such a setting with you but that I would just want to make it clear that I was not sitting between you and the door and if you went for the door, all she or I would do was to wave good-bye and wish you good luck and God’s speed.”
In this letter, Noel indicated no surprise that Schneider had been carrying a weapon when he testified at the trial of a former Pelican Bay prison guard. The prosecution read: “I had no doubt that you were carrying. Neither I nor Marjorie had any fear of you for a couple of reasons. If you went for the door and your route of travel was through the spot where I was standing, I would get my ass out of the way so you had a clear shot at the door, window, et cetera.”
Hawkes testified regarding a second letter written by Noel to Bretches on January 12, 2001. Again defendant’s joint legal letterhead was used and was marked “Confidential Legal Mail.” The letter was “[r]egarding mutts and other matters.” The letter concerned two inmates who were enemies of the Aryan Brotherhood and were prosecution witnesses in a federal case against the Aryan Brotherhood. One had dropped out of the Aryan Brotherhood, and Hawkes testified that the consequence of dropping out was death. In the letter, Noel identified the location of a protected witness, which, in Hawkes’s opinion, could result in great bodily harm to that witness. Noel’s letter did not reference defendant, except to say: “Hope tomorrow is a good mail day. It always is if we hear from either you or Paul and a really great day if we hear from you both.”
Defendant also objects to the admission of four letters that Noel wrote to the inmates regarding the Presas. At the close of the prosecution’s case, the prosecutor read into the record a redacted letter from Noel to inmate Bretches, with the salutation, “Dear Dale and Paul, ” dated October 3, 2000, and marked “Confidential Legal Mail.” This letter expressed delight at the Presas meeting him at the door and their escape into the hallway after defendant was forced to let go of their leashes. Trial counsel for defendant stated on the record that she had no objection to the admission of this letter.
Noel wrote a similar letter sent October 10, 2000, to Bretches with the salutation, “Dear Dale and Paul, ” on joint legal letterhead and marked “Confidential Legal Mail.” In this letter he again describes an incident where the Presas escaped into the hallway when he entered the apartment. Defendant’s trial attorney again stated on the record that she had no objection to the admission of this letter.
On October 17, 2000, Noel wrote to Bretches about his reading Manstopper and his laughing when he read the part about his losing a finger. Finally, in a letter written by Noel to Schneider on January 11, 2001, on joint legal letterhead and marked, “Confidential Legal Mail, ” Noel recounted his becoming used to the “jail break” approach the Presas had and the Presas’ confrontation with two other dogs. He also reported an incident involving the Presas’ exiting the elevator door and meeting Whipple, “a timorous little mousy blond[e], who weighs less than Hera[.]” He remarked that Whipple almost “ha[d] a coronary[.]”
2. Our Prior Decision
In our prior decision, we concluded that, even if we presumed the trial court erred in admitting all of the six letters, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967)386 U.S. 18 (Chapman).) We concluded that other evidence introduced at trial independently substantiated the content of the letters. This analysis and conclusion remains unchanged as it applies to the second degree murder conviction.
We noted in our earlier opinion that the record contained extensive independent corroboration of the evidence in the two letters that the Presas escaped from defendant’s grasp and wandered freely in the hallway. Birkmaier testified that in October she encountered Hera, unattended and off leash, in the sixth floor hallway. In January 2001, seven to ten days prior to Whipple’s death, Putek encountered one of the Presas unattended on the sixth floor. Moreover, Putek recalled that on at least two or three prior occasions, he had heard one or more dogs running up and down the sixth floor hallway.
In addition, the evidence that defendant had difficulty controlling the Presas was overwhelming. In defendant’s own letter to Schneider, she admitted she could not stop Bane if he really wanted to go after another dog. A neighbor testified that he had seen defendant or Noel with one or both of the Presas on about six occasions and the Presas “were pulling at the leash and [defendant and Noel] holding the leashes were at the beck and call, at the will of the dogs.” Another neighbor, Curtiss, observed defendant with both Presas on three or four occasions; the Presas pulled defendant in different directions, as she struggled to maintain control. Another neighbor saw defendant and Noel yelling for the Presas in the garage. Bardack and Taylor saw Hera break free of defendant’s grasp while she was walking her on the street.
As for the letters where Noel states that defendant and he laughed when reading in Manstopper about his finger being bitten off, there was other evidence of Noel’s finger being bitten by Bane. Defendant does not dispute that the jury heard other evidence that Bane bit Noel’s finger off, but she complains the letter demonstrated a disregard for human life or callousness. Similarly, she claims that the letter describing Whipple as a “mousy” blonde was prejudicial because it showed disregard for the victim. We agree that the evidence that defendant laughed at the statement in Manstopper about Bane’s biting Noel’s finger off may have indicated a disregard for human life, but defendant, herself, testified that she laughed when Noel read her this reference in Manstopper. As to the interaction between Whipple and the dogs, Smith testified about Whipple’s fear of the animals and her being bitten by one of the dogs while Noel was present. Further, the negative comments defendant, herself, made regarding Whipple to the media provided stronger evidence of her attitude toward the victim than Noel’s description in the letter.
The last two letters admitted into evidence, which defendant claims constituted error, involved statements by Noel in support of Schneider. The first letter indicated that defendant supported Schneider’s stabbing of an attorney in court and that he would not attempt to stop Schneider should he try to escape. In the second letter, Noel identified the location of a witness for the prosecution in a federal case against the Aryan Brotherhood. Although the admission of these two letters is more troubling than the others, they were not impermissibly prejudicial. These letters were not the only evidence of the Aryan Brotherhood affiliation. Defendant, herself, admitted a close personal relationship with Schneider and knowledge that he was a member of the Aryan Brotherhood. Defendant’s attorney had mentioned that Schneider was in prison for attempted murder and asked defendant about this letter in her direct examination. The fact that the knife used in that stabbing had a symbol of the Aryan Brotherhood was admissible and provided further evidence of their association with the gang. The letters do show a callous disregard for people and society. However, the evidence evincing defendant’s disregard for the public was overwhelming when she made derisive comments about the people who had complained about the Presas, blamed Whipple for the attack, and failed to call 911 or assist the dying Whipple after the Presas had attacked her.
The evidence against defendant establishing implied malice for second degree murder was sufficient without the letters. Defendant’s own letters, her own testimony, her own admissions regarding her relationship with Schneider, her own comments to the media, her own admission regarding her knowledge about Presa Canarios, the evidence regarding the dogs’ lack of training and socialization, the literature about the dogs found in her apartment, and the witnesses’ testimony about seeing her unable to control the Presas provided evidence to support her conviction for second degree murder.
C. Not Allowing Defendant to Recount Noel’s Statements about Being Bitten by Bane
As she did in her first appeal, defendant contests the lower court’s ruling during that trial that she could not testify regarding Noel’s statement to her about being bitten by Bane. At trial, defendant testified that Noel told her after the incident how he was injured. When asked what Noel said to her, the People objected. Defense counsel then asked defendant if it was her understanding that Bane had bitten Noel on the hand, and the People again objected on the grounds of hearsay and lack of personal knowledge. The trial court sustained the objection and instructed the jury to “disregard any testimony about how the injury occurred in the absence of personal knowledge by Ms. Knoller.”
Defendant argues that Noel’s statement to her was admissible for the nonhearsay purpose of establishing defendant’s state of mind and excluding it violated her federal due process rights. Defendant did not raise this specific ground of admissibility in the trial court and may not rely upon it for the first time on appeal. (People v. Fauber (1992) 2 Cal.4th 792, 854 [defendant precluded from asserting nonhearsay purpose for admission of evidence for first time on appeal]; see also Evid. Code, § 354, subd. (a).) The constitutional nature of defendant’s claim does not excuse her failure to identify the theory of admissibility in the trial court. (Coleman v. Thompson (1991) 501 U.S. 722, 750 [a claim that is procedurally defaulted under state law may not support a finding of federal constitutional error].)
Further, as we concluded in our first opinion, defendant has failed to establish a constitutional violation. Application of the ordinary rules of evidence does not impermissibly infringe on the accused’s right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) “Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense.” (Id. at p. 1103.) Denying defendant the opportunity to testify about Noel’s statements about how he was injured clearly did not rise to the level of depriving defendant of a defense and therefore did not involve an alleged error of constitutional dimension. Further, defendant testified that she did not discover that Bane was the one that had injured Noel’s hand until she talked with Noel in the hospital emergency area prior to his having surgery. Thus, according to her own testimony, Noel did not tell her what happened right after the incident.
Defendant was asked why she kept Bane after the dog had bitten Noel, and she responded: “... I did not know that Bane was the one who had injured Robert’s hand. I found that out when Robert and I were talking in the hospital emergency area prior to his going up for surgery. That’s when he described to me how his hand was injured, because I wasn’t sure whether it had occurred by the Malinois or by Bane.”
Although defendant has failed to preserve this objection on appeal, in order to preclude any future possible ineffective assistance claim, we consider whether excluding this testimony was harmless under People v. Watson, supra, 46 Cal.2d 818. As stated above, defendant testified that she did not learn that Bane was the one that had caused the injury until after they went to the hospital. Thus, she did testify regarding her understanding of what had happened. Moreover, defendant did testify that she observed Noel trying “to manipulate Bane’s jaws and teeth to open, to have him open and release the Malinois.” Further, the jury heard Noel’s testimony before the grand jury that his hand accidentally slid into Bane’s mouth as the two dogs were biting each other and his testimony that “it wasn’t a situation where Bane was biting me.” Accordingly, defendant has completely failed to establish any prejudice.
D. Claim of Deprivation of Counsel
As she argued in her first appeal, defendant contends she was deprived of her constitutional right to counsel during the prosecution’s closing rebuttal argument when the court ordered her attorney, Nedra Ruiz, not to make any further objections or she would be placed in a holding cell. She maintains that the error resulted in a complete deprivation of counsel at a critical stage and demands automatic reversal.
The majority decided this issue adversely to defendant, and the Supreme Court did not grant review on this issue. In her reply brief, defendant claims that the law-of-the-case doctrine does not bar de novo review because she claims there is new authority and she cites United States v. Gonzalez-Lopez (2006) 548 U.S. 140 (Gonzalez-Lopez). She also claims that, if we conclude structural error does not apply, we must consider whether the court’s action was harmless under Chapman, supra, 386 U.S. 18.
The dissent would have reversed based on structural error all three of defendant’s convictions for second degree murder, involuntary manslaughter, and ownership of a mischievous animal causing death.
1. Closing Argument
The prosecution and counsel for both defendant and codefendant Noel presented their closing arguments to the jury without any significant infringement on their arguments by the trial court. However, after the prosecution had given a little more than one-third of its rebuttal closing argument, Ruiz, defendant’s attorney, objected on the basis that the prosecutor had misstated the evidence. The court admonished counsel that this was closing argument and told her that “[t]here will be no further interruptions or you will be out of the courtroom.”
Subsequently, the prosecution argued: “The evidence, and it’s uncontradicted, is that time and time again they were warned wear a muzzle, put a choke collar on and they said in Mr. Noel’s words I can do whatever I god damn please, I can go to any park I want with the dog off-leash.” Counsel for defendant objected, stating “the dog was on leash at all times.” At this point, the prosecution had made more than three-quarters of its rebuttal closing argument.
The court reprimanded Ruiz and stated the following: “Counsel, there will be no further objections. The jury will recall the evidence.
“Ladies and gentlemen, it is improper and counsel’s conduct is improper by standing up in closing argument and objecting to her recollection of what the evidence was. The jury will recall what the evidence is. Arguments of counsel are not evidence and it is improper.
“And, Ms. Ruiz, please take your seat now and not get up again or the next objection will be made from the holding cell behind you.
“Ladies and gentlemen, counsel are entitled to argue what they believe the evidence is. If they are wrong, the jury will recall that. What counsel say the evidence is, is not the evidence. And it is not a proper objection to stand up in the middle of closing argument and insert your own interpretation of what the evidence is.”
Neither Ruiz nor the attorney for Noel objected during the remainder of the prosecution’s closing rebuttal argument.
After the trial concluded, at the hearing on the motion for a new trial, the court considered the issue that its order to Ruiz to refrain from objecting any further supported a deprivation of counsel claim. The court explained: “This is not on the record and I am putting it on the record now for this reason. The way the courtroom in Los Angeles is set up, it’s a very big court, a large room, much wider than this one. The jury box is over to my right, to your collective left and the way the tables were set up, Ms. Ruiz and her client were over to my left so that when you look at the jury box, you can’t see them. Your back is turned, you have to physically turn.
“During the course of [the prosecutor’s] rebuttal on March 19th, where I was watching them, the court had caught––and this was independently verified by security staff down in Los Angeles. I was caught by a substantial amount of noise coming from the defense table and I looked over and Ms. Knoller and Ms. Ruiz were engaged in a very animated discussion with a lot of waving of hands which included on the part of Ms. Knoller the ‘Get up, get up, get up, ’ the waving of arms going up like that (indicating) and suddenly in the middle.... Ms. Ruiz for perhaps the second time in the trial did not make a speaking objection. She simply stood up and said ‘Misstates the evidence.’ It’s the court’s view that was an improper objection. The evidence that she was talking about was virtually impossible to identify and it was the court’s view––and this was independently corroborated by security staff, ... who was so concerned about the amount of noise that he got up to stand over there because he was afraid that something was going to happen. The waving of hands, the ‘stand up, ’ it appears to this court that this was an objection inserted into the record for the purposes of interrupting the flow of the prosecution’s rebuttal argument and nothing more than that. [¶]... [¶]
“This was a second objection which appeared to the court more to be––more designed to interrupt the flow of the prosecution’s rebuttal argument than anything else. And the court was quite stern with Ms. Ruiz. The court indicated that there would be no further objections. I wish I had inserted the word ‘improper’ in there, I didn’t, but my description to the jury afterwards of why it is not proper for counsel to stand up in the middle of an argument and dispute a rather small technical point of evidence, I certainly suggested that Ms. Ruiz remain in court and was free anytime under the obligation to insert whatever objections she deemed appropriate on behalf of her client. She was never removed. And this should be considered a compliment to Ms. Ruiz. I do not believe that she would be at all cowered into silence by any of my comments made from the bench.”
2. The Effect of the Court’s Order
Even if we presume Ruiz did refrain from making any further objections during the prosecutor’s rebuttal closing argument as a result of the court’s oral order and threat to place her in the holding cell, this did not deprive defendant of her Sixth Amendment right to the assistance of counsel requiring reversal per se. The Sixth Amendment guarantees a criminal defendant the right to assistance of counsel during critical stages of the proceedings. (Herring v. New York (1975) 422 U.S. 853, 857 (Herring) [trial judge’s order denying counsel opportunity to make summation at close of bench trial denied defendant assistance of counsel].) Closing argument is a critical stage of a criminal trial and the complete deprivation of the right to counsel at the defendant’s closing argument requires reversal per se. (Ibid.) However, in the present case, defendant had counsel for the prosecution’s closing argument, for her closing argument, and for most of the prosecution’s rebuttal closing argument.
Although defendant maintains that the court’s order unambiguously silenced her, the record establishes that immediately after it told Ruiz not to object any further or she would be placed in the holding cell, it explained to the jury that Ruiz’s conduct was “improper.” It then explained to the jury the reasons it perceived her conduct as being improper. Thus, a reasonable attorney would have interpreted the court’s order as indicating that Ruiz was not to make any further “improper” objections. To the extent the court’s ruling was ambiguous, Ruiz had a duty to seek clarification. (See Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 796 [“An attorney has the duty to protect the interests of his client. He has a right to press legitimate argument and to protest an erroneous ruling”].)
The Constitution “entitles a criminal defendant to a fair trial, not a perfect one.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) “Not every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel.” (Morris v. Slappy (1983) 461 U.S. 1, 11.) It is well settled that “ ‘most constitutional errors can be harmless.’ [Citation.] ‘[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.’ [Citation.] Indeed, we have found an error to be ‘structural, ’ and thus subject to automatic reversal, only in a ‘very limited class of cases.’ [Citations.]” (Neder v. United States (1999) 527 U.S. 1, 8, criticized on other grounds in People v. McCall (2004) 32 Cal.4th 175, 187, fn. 14.)
Constitutional violations that defy harmless-error review contain “a ‘defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.’ [Citation.] Such errors ‘infect the entire trial process, ’ [citation], and ‘necessarily render a trial fundamentally unfair, ’ [citation]. Put another way, these errors deprive defendants of ‘basic protections’ without which ‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence... and no criminal punishment may be regarded as fundamentally fair.’ [Citation.]” (Neder v. United States, supra, 527 U.S. at pp. 8-9.)
In our first opinion, we cited United States v. Cronic (1984) 466 U.S. 648 (Cronic), and concluded that the holding in Cronic required us to apply the harmless error analysis to this record. The United States Supreme Court stated in Cronic that the defendant is not entitled to perfect assistance and is only deprived of his or her Sixth Amendment right to effective assistance when the trial process “loses its character as a confrontation between adversaries....” (Id. at pp. 656-657, fn. omitted.) The most obvious example is “the complete denial of counsel” “at a critical stage.” (Id. at p. 659.) The Cronic court did not state that a limitation on counsel “during” a critical stage constitutes structural error.
The holding in Cronic, supra, 466 U.S. at pages 658-662, has been reiterated by the United States Supreme Court in Bell v. Cone (2002) 535 U.S. 685, 696 (Bell). The United States Supreme Court in Bell explained that it “identified three situations implicating the right to counsel [in Cronic]that involved circumstances ‘so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.’ [Citation.] [¶] First and ‘[m]ost obvious’ was the ‘complete denial of counsel.’ [Citation.] A trial would be presumptively unfair, we said, where the accused is denied the presence of counsel at ‘a critical stage, ’ [citation], ... [Fn. omitted.] Second, we posited that a similar presumption was warranted if ‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ [Citation.] Finally, we said... where counsel is called upon to render assistance under circumstances where competent counsel very likely could not, the defendant need not show that the proceedings were affected.” (Bell, supra, 535 U.S. at pp. 695-696.)
Under Cronic and Bell prejudice is presumed only under the most egregious conditions. Prejudice is presumed when the state interferes to the extent there is a complete deprivation of counsel during a critical stage of the proceeding. In addition, error by counsel may be presumed in the rare circumstances when counsel’s actions undermined the reliability of the finding of guilty, such as, when counsel repeatedly slept through the guilt phase of the trial (e.g., Burdine v. Johnson (5th Cir. 2001) 262 F.3d 336, 345), counsel was intoxicated during the entire trial (e.g., State v. Keller (1929) 57 N.D. 645 [223 N.W. 698]), or counsel had an actual conflict of interest affecting performance (Cuyler v. Sullivan (1980) 446 U.S. 335). In the present case, we are only concerned with the state’s interference causing the actual or constructive complete deprivation of counsel.
Defendant maintains that the standard set forth in Cronic and Bell was modified in Gonzalez-Lopez, supra, 548 U.S. 140, which was decided after we issued our first opinion in this matter. The court in Gonzalez-Lopez announced the following rule: “Where the right to be assisted by counsel of one’s choice is wrongly denied... it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation.” (Id. at p. 148.)
Defendant also cites to People v. Hernandez (2009) 178 Cal.App.4th 1510, but our Supreme Court granted review of this case on February 24, 2010 (S178823).
Contrary to defendant’s assertion, Gonzalez-Lopez did not refine or change harmless-error analysis for ensuring a fair trial under the Sixth Amendment. The court in Gonzalez-Lopez, supra, 548 U.S. 140, explained that the right to select counsel of one’s choice has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial, but has “been regarded as the root meaning of the constitutional guarantee.” (Id. at pp. 147-148.) When a court erroneously refuses to permit a defendant to select his or her attorney for the entire trial, on appeal, prejudice need not be shown because the “[d]eprivation of the right is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.” (Id. at p. 148.)
Defendant contends that the court in Gonzalez-Lopez disapproved of the fundamental test for structural error that we used in our prior opinion. Defendant’s contention is simply not correct. The court in Gonzalez-Lopez explained that there were two different types of errors: The first type of error occurs “ ‘during presentation of the case to the jury’ ” and its effect “may ‘be quantitatively assessed in the context of other evidence presented in order to determine whether [the error was] harmless beyond a reasonable doubt.’ ” (Gonzalez-Lopez, supra, 548 U.S. at p. 148.) The second type of constitutional error is structural defects and they defy harmless error standard because they “ ‘affect [t]he framework within which the trial proceeds, ’ ” and are not ‘simply an error in the trial process itself.’ ” (Ibid.) The court concluded that the “erroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as “structural error.” ’ ” (Id. at p. 150.)
The Gonzalez-Lopez decision impacts those cases where the court at the beginning of trial erroneously refused to permit the defendant to have his or her counsel of choice and a different attorney provided the defendant with representation throughout the trial. That is clearly not the situation here and Gonzalez-Lopez is not applicable to defendant’s appeal. Indeed, the definition of structural error used in Gonzalez-Lopez is precisely the one we applied in our prior opinion.
The situation before us does not approximate the situation in Gonzalez-Lopez or any of the other cases where a court has held that there is prejudice per se based on, actual or constructive, complete deprivation of counsel. Courts have concluded that there is actual or constructive complete deprivation of counsel as a result of the state’s actions in the following situations: counsel for defendant was prevented from giving any closing argument (e.g., Herring, supra, 422 U.S. at p. 857); no counsel was appointed for an indigent defendant in a robbery prosecution (Gideon v. Wainwright (1963) 372 U.S. 335); the defendant was prevented from consulting counsel “about anything” during a 17-hour overnight recess (Geders v. United States (1976) 425 U.S. 80); the state law required the defendant to testify first or not at all, which deprived the defendant of “the ‘guiding hand of counsel’ ” in the timing of this critical element of the defense (Brooks v. Tennessee (1972) 406 U.S. 605); the attorney was barred from conducting any direct examination of the client (Ferguson v. Georgia (1961) 365 U.S. 570); the defendant was deprived of any counsel during the supplemental instruction to the jury (French v. Jones (6th Cir. 2003) 332 F.3d 430); counsel was prevented from arguing an entire theory of the defense (e.g., Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739); counsel was stopped from cross-examining a particular witness (e.g., Davis v. Alaska, supra, 415 U.S. at pp. 317-318); the defendant had no counsel at his arraignment in a capital case (Hamilton v. Alabama (1961) 368 U.S. 52, 55); the defendant had no counsel when he entered a guilty plea at the preliminary hearing, and this initial plea was introduced into evidence at the defendant’s trial (White v. Maryland (1963) 373 U.S. 59, 60);and the defendant had requested counsel but did not receive any at the time he was convicted and sentenced (Williams v. Kaiser (1945) 323 U.S. 471).
The cases cited in Cronic, supra, 466 U.S. at page 659, “involve instances where something having to do with the truth-seeking process was prevented by court ruling, or where the part to be played in that process by defense counsel was wholly absent.” (Green v. Arn (6th Cir. 1987) 809 F.2d 1257, 1265, italics added.) The case before us differs significantly from these rare cases that have reversed for structural error as the truth-seeking or adversarial process was not significantly frustrated. Ruiz was not precluded from giving any part of her closing argument (e.g., Herring, supra, 422 U.S. at p. 857), from arguing an entire theory of the defense (e.g., Conde v. Henry, supra, 198 F.3d at p. 739), from communicating with her client (e.g., Geders v. United States, supra, 425 U.S. 80), or from cross-examining a particular witness (e.g., Davis v. Alaska, supra, 415 U.S. at pp. 317-318).
At best, the court limited Ruiz’s ability to object during the last part of the prosecution’s closing rebuttal argument. The Herring court clarified that the judge retains the power to control the courtroom, including limiting or interfering with the attorney’s argument: “This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion.” (Herring, supra, 422 U.S. at p. 862.) Here, the judge did not threaten Ruiz with being placed in the holding cell until after she had completely flouted his prior orders, including his admonition minutes earlier that if she continued to interrupt, she would be out of the courtroom.
Indeed, the trial court has the authority to control the courtroom. Here, it needed to control Ruiz who had defiantly ignored its warning that further interruptions would result in her being banished from the courtroom and who had shown a complete disregard for other court orders, even when such orders stated that a violation would result in contempt.
We note that the trial court exhibited significant patience in dealing with defendant’s counsel who had engaged in extremely disruptive behavior throughout the trial that included, but was not limited to, writhing on the floor during the trial, purposefully disobeying a prior gag order, improperly telling the jury that the victim was a lesbian by stating that charges were only brought against her client “to curry favor with the homosexual community, ” and disregarding the court’s prior admonitions not to interrupt.
Although not exactly the issue presented here, our Supreme Court has made clear that a ruling that adversely affects the defense’s closing argument does not necessarily result in prejudice per se. Our Supreme Court specified that to the extent that In re William F. (1974) 11 Cal.3d 249, “a case in which no argument at all was permitted[, ] implies that error adversely affecting defense counsel’s closing argument necessarily infringes on the defendant’s constitutional right to the assistance of counsel [citation], it is unsound and is hereby disapproved.” (People v. Bonin (1988) 46 Cal.3d 659, 695, fn. 4, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Here, defense counsel’s closing argument was not affected. Only her ability to object to the last fraction of the prosecutor’s rebuttal closing argument was arguably impacted.
Rather than point to any case that resulted in per se reversal under conditions similar to the situation present here, defendant cites to contempt cases. (See e.g., Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 695-697; Sacher v. United States (1952) 343 U.S. 1, 9; Cooper v. Superior Court (1961) 55 Cal.2d 291, 298-302 [“ ‘When a defendant has been denied any essential element of a fair trial or due process, even the broad saving provisions of section 4 1/2 of article VI of our state Constitution cannot remedy the vice and the judgment cannot stand’ ”].) These contempt decisions are concerned with courts’ failures to follow lawful contempt procedures.
Despite the limited applicability of these contempt cases, defendant quotes the following from Sacher v. United States, supra, 343 U.S. 1: “Of course, it is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court’s considered ruling.” (Id. at p. 9.) Defendant, however, excises the remainder of the court’s statement, which explains: “Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. But if the ruling is adverse, it is not counsel’s right to resist it or to insult the judge––his right is only respectfully to preserve his point for appeal. During a trial, lawyers must speak, each in his own time and within his allowed time, and with relevance and moderation. These are such obvious matters that we should not remind the bar of them were it not for the misconceptions manifest in this case.” (Ibid.) The Sacher decision does not suggest that any interference with the attorney’s ability to press his or her claim results in reversal. Rather, the court makes it clear that the attorney’s obligation is to make a record sufficient for appeal and the court retains the power to control the proceeding.
The other contempt cases cited by defendant are similarly unavailing. The court in Cooper v. Superior Court, supra, 55 Cal.2d 291, acknowledges that an attorney has a duty to make objections on his or her client’s behalf, and a judge cannot absolutely foreclose that. (Id. at p. 302.) The court in Cannon v. Commission on Judicial Qualifications, supra, 14 Cal.3d 678, reviewed the decision to remove a judge who had, as well as other actions, incarcerated public defenders and effectively denied the defendants the effective right to counsel because substituted counsel had insufficient time to prepare. (Id. at pp. 696-697.) Neither decision suggests that any threat of incarceration combined with a restriction on the ability to object results in prejudice per se. Indeed, our Supreme Court has clarified that the removal of counsel does not automatically result in prejudice. (People v. Jones (2004) 33 Cal.4th 234, 243-244 [trial court has authority to remove indigent defendant’s appointed attorney because of potential conflict of interest].) If removal does not result in automatic prejudice, then the threat of removal combined with the order not to make any more objections cannot result in automatic prejudice.
In any event, these contempt cases are essentially irrelevant to the issue before us. As already stressed, the complete deprivation of counsel is structural error because “the entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant....” (Arizona v. Fulminante (1991) 499 U.S. 279, 307, 309-310, italics added.) A constitutional deprivation is a structural defect “affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” (Id. at p. 310, see also People v. Bonin, supra, 46 Cal.3d at p. 695.) We know of no case holding that limiting an attorney’s role or ability to object during a portion of the closing argument results in prejudice per se. Ruiz does not argue that she was foreclosed from raising a defense, from presenting an argument, or from objecting throughout the entire critical stage of closing argument. Rather, her sole complaint is that she suffered prejudice because, subsequent to her being told to stop objecting, the prosecutor improperly appealed to the jurors’ passions and prejudice. Such a complaint is an issue of prejudice easily addressed by a harmless error analysis and does not approach the level of establishing that her trial was so fundamentally unfair that the court’s actions undermined the reliability of the finding of her guilt. (See, e.g., People v. Hill, supra, 17 Cal.4th at pp. 844-847.)
We are aware of a Kansas decision where the court instructed counsel to stop objecting during closing argument. (State v. Jeffrey (Kan. 2003) 75 P.3d 284.) The reviewing court concluded that the defense counsel had made two proper objections when the court prohibited further objections. (Id. at p. 290.) The reviewing court applied a harmless error analysis. (Id. at p. 292.)
Defendant ignores thewarning in Cronic that the defect “at the critical stage” must undermine the entire adversary process (Cronic, supra, 466 U.S. 657), and maintains that any limitation on counsel during a critical stage results in reversal per se. She quotes the following footnote in Cronic: “The court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” (Id. at p. 659, fn. 25.) According to defendant, the court “prevented” Ruiz from assisting her by ordering Ruiz not to object any further during the last portion of the prosecution’s rebuttal closing argument or she would be doing it from the holding cell. In a footnote, the United States Supreme Court in Bell v. Cone has explained the meaning of this footnote in Cronic. (Bell, supra, 535 U.S. at p. 696, fn. 3.) The court clarified that this footnote states that no prejudice needs to be shown when the criminal defendant “had actually or constructively been denied counsel [at a critical stage] by government action.” (Ibid.) As discussed, ante, the court expressly stated that the holding in Cronic is that the state’s action must result in the actual or constructive “ ‘complete denial of counsel.’ ” (Bell, supra, at p. 696, italics added.)
Here, harmless error applies in a situation where counsel objected all through trial and throughout most of the closing argument. As already highlighted, this is not a situation where Ruiz was barred from making an objection during the entire closing argument, nor was she in any way barred from making a motion or presenting evidence regarding a defense. Rather, this is a situation where the court instructed her not to interrupt any further or she would be expelled and placed in the holding cell. Rather than structural error, this situation is similar to when a reviewing court considers the erroneous overruling of an objection during closing rebuttal argument or considers prosecutorial or judicial misconduct when objecting would be futile (see, e.g., People v. Hill, supra, 17 Cal.4th at pp. 844-847). Under both of these circumstances, it is well settled that the reviewing court applies a harmless error analysis.
We express no opinion as to whether the complete foreclosure of objections during closing argument could result in structural error.
At best, defendant could argue that it was futile for her attorney to object during the final moments of the closing rebuttal argument, but automatically reversing the judgment on this basis contravenes our Supreme Court’s precedent. Our Supreme Court has applied the harmless error analysis in a situation where the attorney did not object to the alleged prosecutorial misconduct throughout the trial because the judge had made it clear that such objections would be denied and ridiculed. (People v. Hill, supra, 17 Cal.4th at pp. 821-822, 844-847 [counsel could infer from trial court’s prior rulings and comments that it disfavored additional interruptions during the questioning of witnesses or during closing argument and therefore Supreme Court applied harmless error to alleged prosecutorial misconduct].)
“[T]he harmless-error doctrine is essential to preserve the ‘principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ ” (Arizona v. Fulminante, supra, 499 U.S. at p. 308.) “Correctly applied, harmless error and structural error analyses produce identical results: unfair convictions are reversed while fair convictions are affirmed. Expanding the list of structural errors, however, is not mere legal abstraction. It can also be a dangerous endeavor. There is always the risk that a sometimes-harmless error will be classified as structural, thus resulting in the reversal of criminal convictions obtained pursuant to a fair trial. Given this risk, judges should be wary of prescribing new errors requiring automatic reversal. Indeed, before a court adds a new error to the list of structural errors (and thereby requires the reversal of every criminal conviction in which the error occurs), the court must be certain that the error’s presence would render every such trial unfair.” (Sherman v. Smith (4th Cir. 1996) 89 F.3d 1134, 1138.)
3. Harmless Error
Even if no structural error, defendant argues that the trial court’s telling her attorney not to object was prejudicial under Chapman, supra, 386 U.S. 18. Defendant contends that statements by both the judge and prosecutor prejudiced her. We conclude that any alleged prosecutorial or judicial misconduct was harmless beyond a reasonable doubt.
a. Prosecutorial Misconduct
Defendant’s argument of prejudice stems from statements made by the prosecutor at the end of his rebuttal closing argument and after the judge had made his “holding cell” comment. Specifically, defendant objects to the following argument made by the prosecutor: “Last thing I want you to think about, please, because this is a murder case and you try to recreate Diane Whipple’s time in that hallway, what is it she saw before that first bite?... [¶] Mr. Noel writes ‘Before I could get my body in the doorway to block them, they pushed forward into the hall and took off side by side down the hall toward the elevator in a celebratory stampede.’ Think of Diane. ‘240 pounds of Presa wall-to-wall bouncing off and heading for the wall at the end of the hall.’ Exactly where Diane was standing before she was bitten by these dogs.
“Think about the ten minutes that she was ripped to death and her clothes ripped off her and then think about this because this is how she died because of their recklessness. Every time she tried to breathe, think of a breath in. Every time she tried to breathe, her throat closed in on itself, every time. And she crawled, this young woman despite her... try to get home and she tried to breathe again and her throat closed in again. She tried to breathe again and she was alone, she was alone unable to even talk. And the dog was still running loose with her and she tried to breathe again, and her voice closing down with two holes in her larynx and she crawled and she tried to push herself up and she crawled some more to try to get home and no one was there, no one. That’s what these people’s recklessness did, caused that kind of death.”
Ruiz’s closing argument emphasized that defendant had a profound respect for life and that she did everything in her power to save Whipple from the dogs. Thus, the prosecutor’s argument that defendant abandoned Whipple in the hallway was proper rebuttal and helped establish her disregard for human life. Further, the evidence of Whipple’s severe injuries was particularly relevant to dispute defendant’s claim that she attempted to protect Whipple. Officer Forrestal testified that, when she arrived on the scene, she spotted Whipple, who was attempting to crawl towards her apartment and who was bleeding profusely from a severe neck wound. Cardenas, an EMT who arrived at the scene and administered first aid to Whipple, testified that Whipple had a large wound to her neck, which was bleeding profusely, and that Whipple was having problems breathing.
In addition, defendant argues that the prosecutor improperly appealed to the jurors to “consider the suffering of the victim.” (People v. Stansbury (1993) 4 Cal.4th 1017, 1057, revd. on other grounds sub nom. Stansbury v. California (1994) 511 U.S. 318; People v. Fields (1983) 35 Cal.3d 329, 362; Talle (1952) 111 Cal.App.2d 650, 676-677; People v. Pitts (1990) 223 Cal.App.3d 606, 701-707, superseded by statute on other grounds; People v. Simington (1993) 19 Cal.App.4th 1374, 1378-1379; see also People v. Pensinger (1991) 52 Cal.3d 1210, 1250 [ prosecutor asked jurors to suppose crime had happened to their children].) “[A]n appeal for sympathy for the victim is out of place during an objective determination of guilt.” (Stansbury, supra, at p. 1057.) The prosecutor has an independent duty to avoid inflammatory argument designed only to prejudice or inflame the jury. (Cf. People v. DeSantis (1992) 2 Cal.4th 1198, 1249.) A conviction cannot be based on innuendo or improper inferences drawn from inflammatory and irrelevant matters. (See, e.g., People v. Wagner (1975) 13 Cal.3d 612, 619, superseded by constitutional amendment on another issue.)
We disagree that the prosecutor’s statements were simply an appeal to the jury to consider the suffering of the victim. Here, the prosecutor did not ask the jurors to place themselves in the position of Whipple as occurred in People v. Fields, but rather told them to try to recreate the scene in the hallway. We agree, however, when the prosecutor invited the jurors to “think” of Whipple, he was appealing to the jurors to view the case through the eyes of Whipple rather than to view the evidence objectively. (See, e.g., People v. Fields, supra, 35 Cal.3d at pp. 361-362.) Accordingly, the extent to which these remarks appealed to the jury’s passion and prejudice, they were improper.
We note that most courts have held such comments not to be prejudicial. (See, e.g., People v. Fields, supra, 35 Cal.3d at p. 362 [no prejudice]; People v. Stansbury, supra, 4 Cal.4th at p. 1057 [same]; People v. Simington, supra, 19 Cal.App.4th at p 1379 [same].) Here, any error was harmless beyond a reasonable doubt. These few comments by the prosecutor that invited the jurors to “think of Diane” do not warrant reversal and must be viewed in their context. (See Stansbury, supra, at p. 1057.) These comments primarily focused on the evidence and the court instructed the jury not to be swayed by sympathy, passion, or prejudice in reaching its verdict.
We conclude that the evidence against defendant was strong and there is not a reasonable possibility that the prosecutor’s comments affected the verdict and therefore any prejudice based on prosecutorial misconduct was harmless beyond a reasonable doubt.
b. Judicial Misconduct
Defendant contends that the court’s statements to Ruiz that she needed to remain quiet or face the holding cell, as well as reprimanding her for making an objection, constituted judicial misconduct and was prejudicial under Chapman, supra, 46 Cal.2d at page 24. Defendant asserts that the court’s unwarranted reprimand conveyed to the jury that Ruiz was not to be trusted. (People v. Mahoney (1927) 201 Cal. 618, 626-627; People v. Zammora (1944) 66 Cal.App.2d 166.) Defendant complains that the prosecutor interrupted Ruiz’s closing argument based on inappropriate argument, which she characterizes as essentially an objection based on the misstatement of the evidence. The court did not castigate the prosecutor. In contrast, she was severely reprimanded for objecting on the basis of the prosecutor’s misstating the evidence. Further, defendant asserts that she had the right to object on this basis. (See McCann v. Municipal Court (1990) 221 Cal.App.3d 527, 539.)
A trial court commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit the defense or create the impression it sides with the prosecution. (People v. Fudge, supra, 7 Cal.4th at p. 1107.) A judge’s comments are evaluated “ ‘on a case-by-case basis, noting whether the peculiar content and circumstances of the court’s remarks deprived the accused of his right to trial by jury.’ [Citation.] ‘The propriety and prejudicial effect of a particular comment are judged both by its content and by the circumstances in which it was made.’ ” (People v. Sanders (1995) 11 Cal.4th 475, 531-532.)
Defendant cites People v. Mahoney, supra, 201 Cal. 618 and People v. Zammora, supra, 66 Cal.App.2d 166, where the reviewing courts concluded prejudicial judicial misconduct occurred. In Zammora, the trial judge accused counsel of repeatedly making unfounded objections, suggested the attorney look up what a leading question was, sarcastically referred to someone using ventriloquism to make counsel’s statements for him, and accused counsel of being asleep. (People v. Zammora, supra, at p. 209.) In Mahoney, the court remarked, “ ‘ “Now, that question... you know is not a proper question. I am willing to allow a lot for ignorance, but some questions pass the bounds, and that is one of them.” ’ ” (People v. Mahoney, supra, at p. 624.) This same judge commented that counsel’s objection was “ ‘ “idiotic” ’ ” and had not “ ‘ “a scintilla of sense.” ’ ” (Id. at p. 625.) The trial court in Mahoney made 23 remarks, disparaged a defense expert witness in the jury’s presence, and questioned defense witnesses in a manner that demonstrated a clear bias for the prosecution. (Id. at pp. 621-623.)
The facts of the decisions cited by defendant are very different from the misconduct alleged here. The judge in the case before us did not exhibit a persistent antagonism toward defense counsel by continuously belittling her in the jury’s presence. Indeed, the court was rather tolerant of Ruiz’s speaking objections and her constant attempts to insert her own interpretations of the evidence. The court repeatedly warned her to stop without disparaging her skills as an attorney. Even in the court’s statement that serves as the basis for the allegation of misconduct, the court was clear to inform the jury that it believed Ruiz was improperly objecting based on her recollection of evidence and it reminded the jury that arguments of counsel are not evidence. The court did not speak derisively about Ruiz or the defenses presented.
Further, the court had warned Ruiz, “[t]here will be no further interruptions or you will be out of the courtroom[, ]” shortly before making the remark about the “holding cell.” This stern warning apparently had no effect because Ruiz, very shortly thereafter, objected again on the same basis. The court believed the sole purpose of Ruiz’s objection was to disrupt the prosecution’s rebuttal closing argument. Although the court probably should not have threatened Ruiz with the holding cell, it appears that the earlier threat to remove her had no effect.
The entire transcript does not demonstrate unfairness or undue criticism of defense counsel, but a desire to control the proceedings. (Pen. Code, § 1044; People v. Fudge, supra, 7 Cal.4th at p. 1108 [trial court entitled to “exercise[e] its reasonable control of the trial”].) At most, the court improperly became angry when it perceived Ruiz as being disruptive. The trial court does not commit misconduct simply by evidencing irritation with counsel or admonishing counsel in the jury’s presence. (People v. Carpenter (1997) 15 Cal.4th 312, 353, superseded by statute on another issue.) These comments fall far short of establishing misconduct or “betray[ing] a bias against defense counsel.” (People v. Wright (1990) 52 Cal.3d 367, 411, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 458-459.)
The evidence supported the verdict of second degree murder and we conclude that the court’s comments did not, beyond a reasonable doubt, contribute to the verdict.
E. Cumulative Error
Defendant contends that the abovementioned alleged errors resulted in cumulative error, requiring reversal. We have concluded that defendant has failed to demonstrate prejudicial error on any of the grounds raised in her appeal and these alleged errors, whether reviewed separately or cumulatively, were nonprejudicial. (See, e.g., People v. Salcido (2008) 44 Cal.4th 93, 156; People v. Halvorsen (2007) 42 Cal.4th 379, 422.)
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.
Defendant devotes much time to arguing that the finder of fact is to assess credibility. Defendant ignores that the finder of fact in the present case was the jury and Judge Warren was not to disregard the verdict or decide what result he would have reached if the case had been tried without a jury. (People v. Robarge, supra, 41 Cal.2d at p. 633.) His role was to “consider the proper weight to be accorded to the evidence and then decide whether or not, in [his] opinion, there is sufficient credible evidence to support the verdict.” (Ibid.) We, however, agree with the court in People v. Dickens (2005) 130 Cal.App.4th 1245 regarding the following: “Our Supreme Court created a dilemma by stating on the one hand that the trial court must ‘consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict, ’ and on the other that the court should not ‘disregard the verdict’ or ‘decide what result it would have reached if the case had been tried without a jury.’ (Robarge, supra, 41 Cal.2d at p. 633; see also People v. Davis [1995] 10 Cal.4th [463, ] 523-524 [trial court’s exercise of discretion must be ‘guided’ by presumption that verdict is correct].) It is conceptually difficult both to give deference to the jury’s verdict and to independently determine whether the verdict is supported by sufficient credible evidence and overrule the verdict if it is not supported by such evidence. Nevertheless, Robarge and the other cases we have cited make it abundantly clear that a decision to grant a new trial on the basis of insufficient evidence is an abuse of discretion only if it is arbitrary or irrational, and that such a decision is not arbitrary or irrational if a reasonable trier of fact could have reached a result different from that reached by the jury.” (Dickens, supra, at p. 1252, fn. 3.)
Even if we agree that the court’s order did forbid Ruiz from making any further objections, defendant is somewhat disingenuous when she asserts that this oral order by the court cowed Ruiz into foregoing her duty to her client to represent her client’s interests zealously (see, e.g., Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 126-127). Not only had the court’s threat just minutes earlier that Ruiz would “be out of the courtroom” if she made any further interruptions had no effect on silencing Ruiz, but Ruiz had purposefully violated an earlier gag order. Prior to the trial, the court issued a gag order, which was modified on several occasions. The amended order specified, among other things, that no attorney connected to this case was to make any extrajudicial statements relating to this case for dissemination by any means of public communication, and it then set forth a few exceptions. The order specified: “This exception does not authorize comments regarding the credibility or veracity of any witness nor any comment regarding the effect the testimony would have on the charges.” It expressly stated that a violation of this order was “to be treated as contempt.”