Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. F415531, Michael L. Duffy, Judge
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Zee Rodriguez, Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Matthew James Levine appeals from the judgment entered following his conviction by a jury of the first degree murder of his 84-year-old grandmother, Dorothy Autrey. (Pen. Code, §§ 187, subd. (a), 189.) The conviction was based on a deliberate and premeditated killing. The jury also convicted appellant of elder abuse. (Id., § 368, subd. (b)(1).) Appellant was sentenced to prison for 25 years to life.
Appellant contends that the trial court made two evidentiary errors: (1) it admitted evidence of his possession of firearms; and (2) it admitted tape recordings of statements that he had made in jail. Appellant also contends that the evidence is insufficient to support the jury's finding that the murder was deliberate and premeditated. Finally, appellant contends that the trial court failed to properly instruct the jury. We affirm.
Facts
Dorothy Autrey was born in October 1923. (10RT 2743) She had two children: James and Janie. Janie had three children: appellant, Gabrielle, and Samuel. Autrey owned a house in Cayucos. In 2002 appellant and his girlfriend moved into Autrey's house. Appellant told his girlfriend that, when Autrey died, he would inherit the house and some bank accounts.
In March 2003 appellant and his girlfriend were arrested for driving under the influence. After the arrests, Autrey demanded that they move out of her house because their "drinking was out of control" and they "were not following the rules of the house." Before they moved out, Autrey told appellant that "he was out of [her] will and would not be able to get back in."
Later on, appellant's relationship with Autrey improved, and she permitted him to move back into her house without his girlfriend. In April 2007 Autrey changed her estate plan so that appellant would inherit her house. Appellant would " 'share any bank accounts or bonds with [his siblings, ] Samuel and Gabrielle.' " Appellant told his girlfriend that "he was back in the will." Appellant said Autrey "doesn't have that much longer to go."
In March 2007 appellant was being treated by a dental assistant. "[O]ut of the blue, " appellant said to her, " '[I]f you just throw a body [into] the ocean, ... there would be no evidence because they can't find the body.' "
In January 2008 Autrey encountered a neighbor at a store. The neighbor testified that Autrey was "very upset" because her "things [were] missing or disappearing." Appellant had told Autrey that he was "taking [her things] to the Goodwill." Autrey stated to her neighbor that she wanted appellant to move out of her house.
Norma Irland was Autrey's friend. Autrey complained to Irland that Appellant "had tor[n] the house up." Autrey told Irland "many times" that she did " 'not need anyone living with [her]' " and that she " 'would be happier by [herself].' " Appellant said to Irland, " 'Someday soon this [the house] is going to be mine.' "
On February 20, 2008, Irland had dinner with Autrey at Autrey's house. Appellant was there and was supposed to have cooked the dinner. After dinner, Irland returned home and at 8:10 p.m. received a telephone call from Autrey's house. When Irland answered the telephone, the party who had made the call hung up without saying anything. The following day, appellant telephoned the San Luis Obispo County Sheriff's Department to report that Autrey was missing.
The sheriff's department conducted an investigation. Through a chemical test, experts determined that blood had been present in various parts of Autrey's vehicle, house, and garage.
On March 25, 2008, appellant came to the sheriff's department with his attorney and made the following statement:
Appellant was naked in the kitchen "looking through the cabinets" for a snack. Autrey came into the kitchen and was very upset. She said that appellant was "getting just like Jimmy, " appellant's alcoholic uncle. Appellant "turned around to say I'm not like Jimmy." Appellant accidentally swung his elbow into Autrey's chest. Autrey "flew across the room" and "hit her back on the counter." Autrey fell to the floor, and appellant saw "her back was... crooked." "[I]t looked like her back was broken." She was not moving and blood was coming out of her nose. Blood also may have been coming out of her mouth. Appellant "could tell she was dead."
Appellant "freaked out.... [A]ll [he] could think about was [he] had to hide [his] grandma." Appellant put her body inside a suitcase, "but her feet wouldn't fit in." Appellant used a hand cart to take the suitcase down the stairs to the garage. Autrey's feet were "sticking out" of the suitcase. He put the suitcase inside the trunk of Autrey's vehicle. Appellant drove the vehicle to "a steep embankment" that was "facing the ocean." He threw the suitcase over the embankment. He did not know whether the body "went all the way into the water."
Appellant grieved over Autrey's death: "[I]'ve been sick pretty much, in my stomach ever since, I... just lay on my couch, crying cause I want my grandma to come back and I know it's not gonna happen...." "[A]ll I do is I just sit around crying, every single day and night... all I wanted is Grandma to come back. I just want her back." While "sobbing, " appellant lamented: "[M]y family they, they can't even have a funeral, they can't have a funeral...." Appellant said that Autrey was "the most wonderful person in the world."
Appellant offered to show the deputies the spot where he had disposed of Autrey's body, but he did not know if he could "pinpoint it exactly." Autrey's body was never found.
Gary A. Walter, a pathologist for the San Luis Obispo County Coroner's Office, testified as follows: Walter has seen many fractured backs, but he has "never seen a fractured back distorted such that one could just visually look at it and tell that it had been broken." If Autrey had fractured her back as a result of striking the counter in the kitchen, it was unlikely that the fracture would have resulted in rapid death. The fracture would not have caused bleeding from the nose or mouth. The large amount of blood in Autrey's house and garage was inconsistent with a nosebleed but was consistent with a stabbing.
Admission of Appellant's Possession of Firearms
Appellant contends that the trial court erroneously admitted evidence of a loaded rifle magazine found inside appellant's pickup truck, a loaded pistol found inside a safe in appellant's bedroom, and two rifles found in appellant's bedroom. Appellant argues that the firearms evidence was irrelevant character evidence. Even if it were relevant, appellant asserts that the evidence should have been excluded pursuant to Evidence Code section 352 because its probative value was substantially outweighed by its prejudicial impact.
All further statutory references are to the Evidence Code unless otherwise stated. Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
In responding to defense counsel's objection to the admission of the firearms evidence, the prosecutor stated, "Unfortunately, because... [appellant] successfully disposed of the body, it's difficult to be certain exactly how he killed the victim." The prosecutor conceded that he could not prove that appellant had "used any of the firearms in the commission of the murder." But the prosecutor asserted that "the fact that [appellant] possessed firearms is evidence that he could have [used them]."
The trial court weighed "the probative versus the prejudicial value" of the evidence. The court decided to admit the evidence because, "other than [appellant's] explanation for the death, there's no other evidence."
"An appellate court applies the abuse of discretion standard to review any ruling by a trial court on the admissibility of the evidence, including a ruling on an Evidence Code section 352 objection. [Citation.]" (People v. Cox (2003) 30 Cal.4th 916, 955.) "The [trial] court's ' "discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered." ' [Citation.]" (Poniktera v. Seiler (2010) 181 Cal.App.4th 121, 142.)
The trial court did not abuse its discretion in admitting the firearms evidence. Because appellant had disposed of Autrey's body, the cause of her death was unknown. The firearms had probative value because they could have been used to kill Autrey.
In People v. Cox, supra, 30 Cal.4th 916, the cause of the victims' death could also not be determined. Our Supreme Court upheld the trial court's admission of evidence of three guns found in the defendant's car. The court reasoned, "Although the prosecutor argued that the evidence pointed to a stabbing, such argument did not preclude the reasonable possibility that one or all three of the victims had been shot. (See, e.g., People v. Manson (1976) 61 Cal.App.3d 102, 207... ['The trier of fact is not limited to any hierarchy of theories selected by the prosecution'].)" (People v. Cox, supra, 30 Cal.4that p. 956, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The court noted that, in an earlier case, it had "stated the rule of admissibility as follows: 'When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant's possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon. [Citations.]' " (People v. Cox, supra, 30 Cal.4th at p. 956.).)
Appellant's mere possession of the firearms was not unduly prejudicial. "[A]n interest in firearms - one shared by many law-abiding citizens - does not necessarily imply a violent character." (People v. Thomas (1992) 2 Cal.4th 489, 522.) Accordingly, the trial court reasonably concluded that the probative value of the firearms evidence was not substantially outweighed by its prejudicial impact.
Because the trial court did not abuse its discretion in admitting the firearms evidence, we reject appellant's contention that the admission of the evidence violated his constitutional right to due process of law.
Admission of Tape Recordings
Content of Tape Recordings
The prosecutor asked the trial court to allow the jury to hear tape recordings of (1) two telephone conversations between appellant and his sister, Gabrielle, while appellant was in jail, and (2) a conversation between appellant and Gabrielle during her visit with appellant at the jail.
The first telephone conversation occurred on March 26, 2008, the day after appellant's arrest and statement to the police. Appellant complained that "the cops" had "pulled me out of my cell at five thirty in the morning to go look for grandma." Appellant and Gabrielle conversed about Autrey's estate. Gabrielle said that the attorney for the estate had told her and her brother, Samuel, that they "were gonna get everything." Appellant replied, "[I]t's just you and Sam and then that way, ... when I get out, you guys can help me out." "[Y]ou and Sam are gonna get everything. I don't think Sam's gonna be greedy so you can probably save my house."
The second conversation occurred on March 28, 2008. Appellant and Gabrielle discussed Autrey's financial accounts.
The jail visit occurred on April 5, 2008. Appellant stated that there was a letter dated "a couple years ago" that said he "had already earned the house." The letter also said that Autrey "didn't want anyone to share it with [him]." Appellant asked Gabrielle if she could "sign" the house over to his father, who would "take care of the bills" until he got out of jail.
Appellant and Gabrielle agreed that appellant may still be a beneficiary of Autrey's estate if he were convicted of manslaughter. Appellant asked Gabrielle to "find out" from her attorney what would "exclude" him from inheriting Autrey's property. Appellant said he was "pretty sure" he would not be barred from the inheritance "as long as there's no intent." Appellant asserted: "[M]urder means you wanted to kill somebody and you were trying to kill somebody and the... ones below it involuntary and... stuff like that... means you didn't... try."
During appellant's conversations with his sister over the telephone and at the jail, with one exception he expressed no feelings of grief or sadness concerning the killing of his grandmother. The one exception was during the conversation at the jail when appellant said, "I mean I feel bad about what happened but I feel worse about [unintelligible]...."
Trial Court Argument and Court's Ruling
The prosecutor argued that the recordings were admissible to show that appellant was "obsessively thinking about the estate and about his inheritance with the house, that all he cares about is inheriting the house. He doesn't care about his grandmother." The prosecutor declared: "I remind the court that [appellant] said in his opening statement that the bottom line is the defendant loved his grandmother. My proposal is that [the recordings are] absolutely inconsistent with his having any feelings of affection toward his grandmother." The prosecutor noted that, the day before appellant had the first telephone conversation with his sister, "he was openly sobbing and saying [to the police] that all he wanted was for his grandmother to come back. That's why we are offering this. It shows that he was insincere when he claimed that the reason he had come forward and spoken to the police is that he couldn't live with it anymore, that he felt terrible about what had happened and he just wanted his grandmother to come back." The court said that it would consider the matter after it had listened to the recordings.
The following day, the court said that it had twice listened to the recordings and had read the transcripts of the recordings "several times." Defense counsel argued that the recordings constituted inadmissible hearsay, character, and impeachment evidence. Furthermore, counsel asked that the evidence be excluded pursuant to section 352.
The prosecutor argued that any hearsay statements by appellant were admissible as admissions pursuant to section 1220. The prosecutor asserted that the recorded statements were offered not for the purpose of showing appellant's bad character, but for the purpose of showing that "[appellant] was concerned throughout as to whether he would continue to inherit the house." The prosecutor noted that, if appellant really cared about his grandmother, "[o]ne would have expected that he would be motivated at the point entirely by remorse and by a desire that his grandmother somehow be returned. And instead, he seems to be motivated by a desire to inherit the house." Thus, the recorded statements are "powerful evidence of his motive... in [committing] the murder."
In ruling that the recordings were admissible, the trial court reasoned: "I think [the recordings] are relevant.... [T]here are certainly things in there that I think allow reasonable jurors to think that [appellant], who was so sad and sobbing the day before, is now rather matter of fact today in talking about things, in fact, complaining about being gotten up at 5:30 in the morning to go look for his grandmother. [¶] So things are inconsistent with the way he had appeared just the day before. And there are many, many references to the house, to the accounts.... [A] jury may reasonably believe that it was showing a rather selfish interest in Mrs. Autrey's estate.... [¶] And I've done the weighing in 352 and find specifically that they are more probative than prejudicial, and I don't believe it's going to be confusing. So I think on 352 grounds, these things should come in."
Discussion
Appellant contends that the recordings were inadmissible hearsay evidence.
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (§ 1200.) The recorded statements were not hearsay evidence because they were not offered to prove the truth of the matters stated. Instead, they were offered to show that appellant did not care about his grandmother and was concerned only about inheriting her property. The statements were also offered to impeach appellant's earlier emotional declaration to the police that he was totally distraught about his grandmother's death and just wanted her to come back. Even if appellant's recorded statements were hearsay, they were admissible under the admissions exception to the hearsay rule. (§ 1220.)
Section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party...."
Appellant contends that "the entirety of the tape recorded conversations constituted impermissible impeachment because the defendant had not testified and the prosecution was attempting to impeach the defendant's statements which had been introduced by the prosecution, not by the defense." This contention is without merit. Nothing prevents a prosecutor from impeaching a defendant's extrajudicial statements that the prosecutor has previously introduced. (See People v. Osorio (2008) 165 Cal.App.4th 603, 615-617.)
People v. Beyea (1974) 38 Cal.App.3d 176, is distinguishable. In Beyea two witnesses testified for the prosecution at the preliminary hearing. When they failed to appear at the trial, their preliminary hearing testimony was admitted under the former testimony exception to the hearsay rule. (§ 1291.) The prosecution was then permitted to impeach their preliminary hearing testimony with prior inconsistent statements. The appellate court concluded that the prior inconsistent statements had been erroneously admitted. The court noted: "Defendants correctly contend that the time for the introduction of the [prior inconsistent] statements in question was at the preliminary hearing because of the foundational requirement that the witness be afforded the opportunity to explain any apparent inconsistencies [citation]." (Id., at p. 194.) Unlike Beyea, here the prosecution was not impeaching the testimony of witnesses who had testified on its behalf at the preliminary hearing. Instead, it was impeaching appellant's statements to the police with subsequent statements that he had made to his sister. Any hearsay statements were independently admissible under the admissions exception to the hearsay rule. (§ 1220.)
We reject appellant's contention that the admission of his recorded statements "constituted improper character evidence under... section 1101, subdivision (a)." The recorded statements were not offered to show a trait of appellant's character. They were offered to show appellant's motive for the killing: that he wanted to inherit his grandmother's property.
Finally, appellant argues that the trial court abused its discretion under section 352 because the probative value of the recorded statements was substantially outweighed by the danger that their admission would cause undue prejudice and would mislead the jury. Appellant expresses concern "that the taped jail conversations would cause the jury to speculate on the impact that their verdict would have upon the distribution of Autrey's estate and, more particularly invite speculation that appellant would benefit as a result of a favorable verdict."
The trial court did not abuse its discretion under section 352. The recordings had substantial probative value and were not inflammatory. Any danger of misleading the jury was eliminated by the following jury instruction: "You have heard evidence regarding how the possible range of results in a criminal action may possibly affect distribution of a decedent's estate to a potential beneficiary. You are not to consider in any manner how this trial or its possible results may affect the distribution of Mrs. Autrey's estate to any beneficiary, and are not to mention the issue in your deliberations. [¶] You may consider the evidence regarding how the possible range of results in a criminal action may possibly affect distribution of Mrs. Autrey's estate only to the extent that you consider knowledge of that information by the defendant to be a possible component of a motive."
Sufficiency of the Evidence
To convict a defendant of first degree premeditated murder, the prosecution must establish "beyond a reasonable doubt[] that [the defendant] acted with the specific intent to kill, and with premeditation and deliberation. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1223.) Appellant does not dispute that the evidence is sufficient to establish that he intended to kill his grandmother. He contends that the evidence is insufficient to establish premeditation and deliberation.
Standard of Review
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]... [A] reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] 'This standard applies whether direct or circumstantial evidence is involved.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 701.)
Discussion
"A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) " ' "An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported - preexisting motive, planning activity, and manner of killing - but "[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation." ' [Citation.]" (People v. Burney (2009) 47 Cal.4th 203, 235.)
Appellant unquestionably had a motive to kill his grandmother: he wanted to inherit her house and his share of her financial accounts. Appellant may have feared that Autrey was again going to disinherit him. She had disinherited him in 2003 when she had ousted him from her house because of his excessive drinking and failure to follow "the rules of the house." It is reasonable to infer that, during the months before Autrey's death, the relationship between her and appellant was deteriorating. Autrey complained to her friend, Norma Irland, that appellant "had tor[n] the house up." Autrey told Irland "many times" that she did " 'not need anyone living with [her]' " and that she " 'would be happier by [herself].' " In January 2008, one month before her death, Autrey told her neighbor that she was "very upset" because her "things [were] missing or disappearing." Appellant had told Autrey that he was "taking [her things] to the Goodwill." Autrey stated to her neighbor that she wanted appellant to move out of her house.
There was evidence of planning activity. In March 2007 appellant said to a dental assistant, " '[I]f you just throw a body [into] the ocean, ... there would be no evidence because they can't find the body.' " Appellant told the police that he had thrown Autrey's body off "a steep embankment" that was "facing the ocean."
Furthermore, appellant implied that Autrey did not have much longer to live when he said to Irland, " 'Someday soon this [the house] is going to be mine.' " He also stated outright to his girlfriend that Autrey "doesn't have that much longer to go." But appellant had no reasonable grounds to believe that Autrey would die soon. For an 84 year-old person, Autrey was in good health. Shortly before her death, Autrey was healthy enough to go on a three-week cruise down the Amazon River in Brazil.
Planning is also shown by the "hang-up call" that Irland received the evening before appellant reported Autrey missing. After dinner with Autrey that evening, Irland returned home and at 8:10 p.m. received a telephone call from Autrey's house. When Irland answered the telephone, the party who had made the call hung up without saying anything.
Because appellant disposed of Autrey's body, there is no evidence as to the manner in which she was killed. But the jury could reasonably infer that appellant had not led deputies to the spot where he had disposed of the body because the body would have shown that he had intentionally killed Autrey pursuant to a preconceived plan. The pathologist opined that the large amount of blood in Autrey's house and garage was consistent with a stabbing.
Accordingly, substantial evidence supports the elements of premeditation and deliberation required for first degree murder.
Jury Instruction
Appellant claims that the trial court erred in failing to instruct the jury sua sponte "that if they entertained a reasonable doubt whether appellant was guilty of first or of second degree murder, that they must find [him] guilty only of second degree murder." Appellant argues that the court was required to instruct the jury "to resolve doubt as to the degree of an offense in favor of [appellant]."
Appellant's argument is based on Penal Code section 1097 and People v. Dewberry (1959) 51 Cal.2d 548. Section 1097 provides: "When it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only." In People v. Dewberry, supra, 51 Cal.2d at p. 555, our Supreme Court declared: "[W]hen the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense. [Citations.]"
The trial court did not err. The instructions adequately informed the jury that, if it had a reasonable doubt as to the degree of murder, it could not convict appellant of first degree murder. The court gave CALCRIM No. 521, which included the following instruction: "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder."
Disposition
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.