Opinion
F073702
05-31-2018
THE PEOPLE, Plaintiff and Respondent, v. ZHI JIAN MEI, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1431285)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Ashley, Judge. Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
After he failed to return home from work one night, the body of victim Wing Ming Chan was found in a common area of the building housing his restaurant. Defendant Zhi Jian Mei, who was a cook at the restaurant, was arrested hours later and charged with first degree felony murder and robbery, with a sentence enhancement allegation attached to both counts for use of a deadly and dangerous weapon. (Pen. Code, §§ 187, subd. (a), 211, 12022, subd. (b)(1).) Following a trial by jury, defendant was convicted of second degree murder committed with a deadly and dangerous weapon, but was acquitted of the robbery count. The trial court sentenced defendant to 15 years to life for murder plus an additional one year for the weapon enhancement, for a total indeterminate term of 16 years to life.
All further statutory references are to the Penal Code.
In this appeal, defendant challenges the trial court's denial of his motion to suppress his statement to detectives on the ground that it was coerced and therefore involuntary, in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He also challenges the admission of the prosecution's blood spatter pattern evidence on the ground that the criminalist lacked the qualifications to testify as an expert witness on that issue. Defendant claims both errors were prejudicial, requiring reversal of his conviction.
With respect to defendant's Miranda claim, the People argue that some of the circumstances identified by defendant in this appeal as coercive were forfeited because they were not raised in the trial court. As to those circumstances preserved for appeal, the People dispute that defendant's statement was the result of a coercive interrogation. In addition, they contend that admission of his statement was not prejudicial. With respect to admission of the blood spatter pattern evidence, the People argue the prosecution's witness was qualified to render an expert opinion on blood spatter patterns and any error in admitting the evidence was harmless.
We find no error in the admission of defendant's statement to detectives or in permitting the prosecution's expert witness to testify on blood spatter patterns. As to both claims, we also conclude there was no prejudice to defendant, even assuming error, and we affirm the judgment.
FACTUAL SUMMARY
I. Prosecution Case
Chan owned and operated a Chinese food restaurant in Modesto, and was in the process of opening a second restaurant. On the evening of May 4, 2011, Chan's wife and teenage daughter dined with him at the restaurant, as was their practice, and he was happy to see them. The restaurant closed at 9:00 p.m. and, at approximately 9:30 p.m., Chan's friend and former employee, Ming L., stopped by. Ming and Chan sat and talked for several hours at a table in the main dining area. Chan was drinking beer.
Chan's blood-alcohol level was 0.10 percent at the time of his death.
Between 11:00 and 11:30 p.m., defendant stopped by the restaurant. He had worked that day and after ending his shift in the mid-afternoon, he spent five or six hours gambling at a card room. At that time, he owed Chan $800 and another restaurant employee $1,500.
Ming testified Chan was relaxed that night and his mood remained unchanged when defendant arrived. Ming had told police that Chan was stressed and he explained at trial that Chan was just having some minor problems with the health department, but was relaxed because he had learned the issues were not major. Defendant joined Chan and Ming at a table, but after 10 or 15 minutes, defendant and Chan went in the back of the restaurant to talk. Ming could not hear them talking and did not observe anything out of the ordinary. Five or 10 minutes later, Ming, believing the two had private business to discuss, left without saying goodbye. It was close to midnight.
Chan's wife awoke around midnight and realized he was not home. She called the restaurant's phone and Chan's cell phone, but got no response. A couple of hours later, she woke their daughter and together they went to the restaurant. The door was unlocked, the lights were on and Chan's truck was parked outside. Chan's wife went inside and checked the restroom, but she sensed something was wrong and went back outside, where she called Alan W., a friend. Alan arrived and the three of them went inside. As they checked the restaurant, Chan's wife saw blood on the handle of the storage room door leading to the common hallway behind the restaurant, which was shared by the businesses in the shopping center. Alan opened the door and Chan's wife saw him on the floor, where he was lying face down in a large pool of blood. Chan's wife observed Chan was not moving and saw a lot of blood. She did not look any closer and called 911. The group met police in the parking lot.
Chan's wife had also called Ming after discovering Chan was not home, and Ming arrived at the scene. He informed police that defendant had been at the restaurant that night after closing.
Defendant answered the door of his apartment for detectives at approximately 5:30 a.m. His hands were actively bleeding and bandaged, and there was blood in his car, visible through the windshield. Inside the apartment, police found a bloody tissue or bandage in a trash can and, inside a box in a closet, they found a broken, bloody cleaver-style knife with a blade eight inches long and two and one half to three inches wide. Bloody clothing, shoes, towels and bandages were located in bags in a dumpster in the apartment complex. One of the bags in the dumpster that contained bloody clothing was a Thai jasmine rice bag. A bag of the same rice was located inside the kitchen of defendant's apartment. Inside the trunk of defendant's car was a heavily bloodstained shirt and there was blood on the interior driver's side door panel, armrest and handle, as well as on the steering wheel, dashboard and driver's seat cushion. Chan's wallet was found inside the car's center console.
Chan's recovered wallet contained $217 in cash, some checks and other items, including his driver's license. Chan's truck keys and two rolls of bills, one totaling $800 and the other totaling $781, were located in Chan's pants pockets. The restaurant's daily start-up money, totaling $261 in bills plus change, was also left untouched in a cookie tin on a shelf below the cash register.
Chan was hit 141 times with the cleaver. He sustained 80 blows to his head and neck alone, which severed an ear and disfigured his face. He also sustained 30 blows to the top of his head, with one blow penetrating his skullcap, and he had defensive wounds to his arms and hands. No single wound was fatal and Chan died from blood loss.
Chan's and defendant's DNA was found on the blade and the handle of the cleaver recovered from defendant's apartment. Chan's DNA was also found on the bloody jeans located in the dumpster of defendant's apartment complex and on the bloody shirt located in defendant's car trunk. DNA from Chan's fingernail scrapings matched Chan as the major contributor, as expected, and defendant as the minor contributor.
II. Defense Case
A. Defendant's Testimony
Defendant testified that after work on May 4, 2011, he gambled at a card room hoping to win some money, but he was not successful. After gambling for hours, he planned to buy some baby formula at the grocery store next to the restaurant before heading home. Defendant had worked for Chan for three years, but had decided to relocate to Las Vegas where his mother lived. He testified he had no family in Modesto and his mother had lined up a restaurant job for him in Las Vegas with one of her friends.
Seeing Chan and Ming in the front of the restaurant, defendant decided to stop in and tell Chan he was giving his two-week notice. Defendant sat down with Chan and Ming and had some tea. Chan was acting normal, but his face was a little red. Chan asked defendant why he was there and defendant said he had something to tell Chan. They went into the kitchen and then into the back hallway so Chan could smoke.
Defendant told Chan he was leaving, but would work another two weeks. Defendant testified that Chan's temperament was usually fine, but occasionally it was bad and he was stressed that night because of his new restaurant. At first Chan seemed to think defendant was joking, but he then became angry, told defendant he could not leave at that time and accused defendant of "messing with [him]." Chan stood up from the table at which they were sitting and began cursing defendant and his parents. Defendant then stood up, told Chan to stop cursing him and said he was giving Chan time to replace him. Chan was angry and looked like he wanted to hit someone.
Defendant testified he wanted to exit through the storage room door, which led to the common building hallway and then outside to the parking lot, but Chan was standing in front of it and pushed him twice, grabbed him and wrapped his arm around defendant's neck. Chan, who was larger than defendant, put his fingers around defendant's neck and squeezed. Chan grabbed a small knife in the storage area and cut defendant's right shoulder and hand with it. Defendant was very afraid. He managed to pull away from Chan and return to the kitchen, where he grabbed a cleaver. Chan followed defendant and stood around six feet away with the small knife in his hand. Chan dared defendant to come over to him, and defendant raised the cleaver and took a step toward Chan in an effort to scare him away. Defendant told Chan not to follow him anymore, but Chan said, "What if I follow you?" Defendant took a few steps toward Chan, who then took a few steps back.
Chan was 5 feet 9 inches tall and weighed 195 pounds, while defendant weighed approximately 130 pounds.
Chan went through a door and defendant lost sight of him. Defendant poked his head through the doorway to see if Chan had gone. Chan suddenly rushed him, grabbed him and dragged him toward the back hallway. In the ensuing struggle, the cleaver flung from defendant's hand and defendant no longer saw the small knife Chan had been holding. Chan pinned defendant against the wall and grabbed his neck, making it difficult to breathe. Chan slipped and both men ended up on the ground, struggling. He testified that after that, he had a loss of memory or consciousness.
Defendant denied stealing Chan's wallet and testified he did not know how it got in the center console of his car, but that his roommate also worked at the restaurant and had access to his car, including taking his work break in it. Defendant testified he did not remember how he got home or going inside his apartment and, although he told detectives he hit Chan until he was exhausted, he did not remember that. He also did not know how he hit Chan or how his clothes got bloody. He testified the situation at the restaurant was very chaotic and he was very afraid after Chan hit him with the knife.
B. Other Evidence
After defendant was booked into jail, he told a registered nurse he did not remember 90 percent of what happened and he blacked out during the crime. Dr. Martin Blinder, a psychiatrist, testified that defendant's description to the nurse is consistent with a fugue or dissociative state, which is the most reasonable explanation for the crime. Dr. Blinder opined the blows to Chan "were so numerous, and so pointless as to [have] probably been administered without conscious thought."
Dr. Judy Melinek, a forensic pathologist, testified defendant had injuries to his hands, forearms and upper arms that were primarily defensive, and injuries to his face and chest that were primarily assaultive. In addition to the cuts, lacerations and puncture wounds on his hands, defendant had bruising on his throat and an abrasion on the side of his neck. Dr. Melinek testified these injuries were consistent with strangulation and a knife attack but, on cross-examination, she also testified the marks on defendant's neck could be consistent with Chan pushing defendant away and defendant could have cut himself or been injured in a struggle over the cleaver.
DISCUSSION
I. Admission of Defendant's Interrogation Statement
A. Background
It has long been established that Miranda "'and its progeny protect the privilege against self-incrimination by precluding suspects from being subjected to custodial interrogation unless and until they have knowingly and voluntarily waived their rights to remain silent, to have an attorney present, and, if indigent, to have counsel appointed. [Citations.] "If a suspect indicates 'in any manner and at any stage of the process,' prior to or during questioning, that he or she wishes to consult with an attorney, the defendant may not be interrogated." [Citation.]' [Citation.] 'To establish a valid Miranda waiver, the prosecution bears the burden of establishing by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary under the totality of the circumstances of the interrogation.' [Citations.]
"As well, '[b]oth the state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial.' [Citations.] As with Miranda waivers, the People bear the burden of establishing by a preponderance of the evidence the voluntariness of a confession. [Citations.]
"In reviewing the trial court's denial of a suppression motion on Miranda and involuntariness grounds, '"'we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.'"' [Citations.] Where ... [the] interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review." (People v. Duff (2014) 58 Cal.4th 527, 551; accord, People v. Wall (2017) 3 Cal.5th 1048, 1065-1066; People v. Linton (2013) 56 Cal.4th 1146, 1171.)
Defendant's statement was audio and visually recorded.
C. Analysis
1. Forfeiture
Defendant challenges not his waiver of rights in this case, but the voluntariness of his statement to detectives. Defendant, whose native language is Cantonese, contends that in combination, the length of the interrogation, his lack of sleep, his injuries and language translation issues resulted in a coercive interrogation that rendered his statement involuntary.
As an initial matter, the People argue that because defendant did not identify in the trial court the length of his interrogation or his injuries as circumstances that contributed to the involuntariness of his statement, he has forfeited those issues on appeal. Defendant responds that he raised the issue of timeframe with respect to length of time between being taken into custody and the interrogation, the length of the interrogation itself and the total time he went without sleep.
"A defendant ordinarily forfeits elements of a voluntariness claim that were not raised below." (People v. Williams (2010) 49 Cal.4th 405, 435; accord, People v. Rundle (2008) 43 Cal.4th 76, 121, disapproved in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In the trial court, the focus of defendant's motion to exclude his statement was lack of sleep; errors by Federal Bureau of Investigation Special Agent Kenneth Tam, who was acting as a Cantonese interpreter during the interrogation; Detective James Munoz's mention of penalties, and defendant's comment that his head was spinning. However, in the context of discussing his lack of sleep, defendant's motion mentions the interrogation length and "the significant injuries to his hands," which required sutures. In light of our conclusion that defendant's claim fails on its merits, we assume without deciding that the reference to these factors in the context of defendant's lack of sleep is sufficient to preserve them for appeal.
2. No Error
"The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion" and "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." (Colorado v. Connelly (1986) 479 U.S. 157, 167, 170; see People v. Cunningham (2015) 61 Cal.4th 609, 643.) "The test for the voluntariness of a custodial statement is whether the statement is '"the product of an essentially free and unconstrained choice"' or whether the defendant's '"will has been overborne and his capacity for self-determination critically impaired"' by coercion. [Citation.] No single factor is dispositive; 'rather courts consider the totality of [the] circumstances.' [Citations.] Relevant considerations include '"the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health."'" (People v. Cunningham, supra, at pp. 642-643.) "'In assessing allegedly coercive police tactics, "[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable."'" (Id. at p. 643.)
The statement at issue in this case was the product of a single interrogation that lasted approximately four and one-half hours, conducted by Detectives Munoz and Ra Pouv of the Modesto Police Department. Defendant, who came to the United States from China in 1997, spoke limited English, but Tam was present at the police department's request and acted as a Cantonese interpreter.
In his motion to suppress, defendant stated, without citation to evidence, the interrogation lasted five hours and 20 minutes, while Detective Munoz testified under oath it lasted four to four and one-half hours. The exact length of the interrogation is not material to our analysis, however.
Defendant told detectives he had worked a half-day at the restaurant on May 4, 2011. He got off at 3:00 or 3:30 p.m. and was tired, so he went to the mall and took a walk. After getting something to eat at the mall, he played blackjack from approximately 6:00 p.m. to 11:00 p.m. At around 11:10 p.m., he returned to the restaurant, where Chan and Ming were inside talking.
Detectives first contacted defendant at his apartment at 5:30 a.m. on May 5, 2011, several hours after Chan's body was discovered. Based on the bloody and bandaged appearance of his hands, defendant was detained and he sat in a patrol car at his apartment complex until he was transported to the police station at approximately 7:20 a.m. Shortly before noon, defendant was taken to the hospital, where he received some sutures to his fingers. He was transported back to the police station sometime after 4:00 p.m. The interrogation then began shortly after 5:00 p.m. and continued for approximately four and one-half hours.
Defendant argues that the interrogation was lengthy and from the time he began his restaurant shift on May 4, 2011, until the conclusion of the interrogation, he had not slept in 35 or 36 hours. A four to five hour interrogation is not brief, but neither is it excessively long. In this case, the interrogation was accomplished by the same two detectives without any need for a change in police personnel, and defendant was provided with food, drink, a blanket for warmth and a cigarette break. (See Ashcraft v. Tennessee (1944) 322 U.S. 143, 149-154 [continuous 36-hour interrogation conducted by relays of officers and punctuated by only one five-minute break from questioning so inherently coercive that any confession was involuntary]; People v. Winbush (2017) 2 Cal.5th 402, 448-449 [statement voluntary where 15-hour interrogation was broken into sessions and separated by breaks]; People v. Carrington (2009) 47 Cal.4th 145, 175 [the defendant's will to resist not overborne during eight-hour interrogation].)
The parties stipulated that the officer who transported defendant to the hospital for treatment offered him food, but defendant wanted to wait until after he was treated. Afterward, he was provided, at his request, two hamburgers and a soda. Defendant was also provided with water during the interrogation, a blanket when he said he was cold and, at his request, a break to smoke a cigarette.
After defendant was read his Miranda rights, he stated his head was spinning, as he points out in argument, but the import of that comment is not clear and Detective Munoz responded by telling him to take his time. Defendant then expressed his willingness to talk about what happened.
Defendant also stated he was tired after he got off work, but he made that comment in the context of explaining that he went to the mall after work to walk around. While defendant was not observed sleeping between the time detectives knocked on his apartment door and the conclusion of his interrogation, at no time during the interrogation did defendant tell detectives he was tired, nor did he request to discontinue the questioning on that or any other basis. Detective Munoz testified defendant did not appear tired and based on our review of the recorded interrogation, we find that observation supported by the record; defendant exhibited no outward signs that he was so exhausted his will was overborn.
The record is insufficient to determine if defendant slept between the time of the crime and the detectives' knock at his front door.
Regarding defendant's injuries, his hands were bandaged and actively bleeding when he was first contacted by detectives. Approximately six and one-half hours later, he was transported to the hospital, where he received six sutures to one laceration and one suture to another. There is no indication he received any pain medication, as he points out, but he did not complain about pain or injury, and the injury to his hands was minor relative to the level that has been found to render a statement involuntary. (Mincey v. Arizona (1978) 437 U.S. 385, 396-402 [following shooting, defendant interrogated in intensive care unit, where he would remain for another month, despite repeatedly asking to stop so he could get a lawyer and while in unbearable pain, hooked up to multiple tubes, unable to talk due to tube down his throat, and unable to provide entire coherent responses]; see People v. Duff, supra, 58 Cal.4th at p. 556 [confession not involuntary where the defendant complained of pain from injuries sustained in scuffle with police]; In re Walker (1974) 10 Cal.3d 764, 774-775, 777 [confession not involuntary where petitioner struck in head twice with gun butt, shot twice and bleeding badly, but pain did not appear to reflect on his competency].)
Finally, we are not persuaded there existed a language barrier that rendered the interrogation coercive. The trial court ruled there was no Miranda issue with respect to defendant's waiver of rights and defendant does not challenge that ruling on appeal. Agent Tam was not a certified Cantonese interpreter, but he grew up with parents who were native Cantonese speakers and it was the primary language in the home. He also testified he took a six-week refresher course from the FBI. Defendant understood some English and at times answered questions in English. Tam testified he was able to translate English to Cantonese successfully 75 percent of the time and the other 25 percent of the time, he attempted to convey meaning using other words. He testified that he had no difficulty talking to defendant and he understood 95 percent of what defendant said.
Defendant contends Tam said his Cantonese was bad during the interrogation, but there is an audio-visual recording of the interrogation and defendant had the recording reviewed by a certified Cantonese interpreter. While the interpreter made some corrections to the original transcript that was prepared, the material substance of the interrogation remained the same and, critically, none of the corrections made and nothing in the interrogation hint at the existence of language barrier-related coercion. (See People v. Salcido (2008) 44 Cal.4th 93, 128-129 [rejecting claim Miranda warnings were ineffective because the defendant could not communicate effectively in English, where the recorded interview established that the detective asked whether defendant wanted advisements in English or Spanish and whether he was more comfortable conversing in English or Spanish, and that Spanish-speaking agents were present for consultation].)
Detective Munoz testified during the Evidence Code section 402 hearing on the Miranda issues that Tam made the comment during a conversation with defendant and it was a joke. At trial, Tam explained the comment reflected his ability to speak Cantonese in comparison with defendant's ability to speak Cantonese, and was essentially an expression of appreciation to defendant for working with him during the interrogation.
The certified interpreter, who testified at trial, initially agreed with Tam's 75 percent estimate. As her testimony continued, she downgraded that figure to 65 percent and then, acknowledging the difficulty with quantification, stated Tam's interpretations were incorrect 25 percent of the time.
The focus of our inquiry is whether, as a result of coercive police conduct, defendant's will was overborne. (People v. Winbush, supra, 2 Cal.5th at p. 452.) We do not agree with defendant that the circumstances present here worked to "unduly heighten the pressure on [him] to confess" (People v. Wall, supra, 3 Cal.5th at p. 1067), and he has provided no authority that persuades us otherwise. Accordingly, we reject defendant's claim that the trial court erred in finding his statement voluntary and therefore admissible. We also find that even if we assume error, it was harmless in this case.
B. No Prejudice
The standard of review applicable to federal constitutional errors is set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (Arizona v. Fulminante (1991) 499 U.S. 279, 309-312; People v. Elizalde (2015) 61 Cal.4th 523, 542; People v. Cahill (1993) 5 Cal.4th 478, 510.) Under Chapman, we "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Gonzalez (2012) 54 Cal.4th 643, 663). "'To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86; accord, People v. Leon (2016) 243 Cal.App.4th 1003, 1020.) We consider "not only the evidence that would support the judgment, but also the impact of the inadmissible evidence on the final outcome." (People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.)
Defendant's statement to police was consistent in part with his trial testimony. However, defendant did not tell detectives Chan grabbed a knife in the storage room and cut him on the shoulder and hand. Instead, he stated there was only one knife involved, which was the cleaver he grabbed from the kitchen. He also did not tell detectives that Chan had his arm or hand around defendant's neck or that Chan tried to strangle him, although he said Chan pushed him, described a struggle between the two men, and said he was scared.
At one point during the interrogation, Tam translated, "He got a knife, you have a knife, how did you get cut?" Subsequently, defendant clarified there was only one knife.
Citing Arizona v. Fulminante, supra, 499 U.S. at page 310, defendant argues that the admission of his statement was prejudicial. We disagree. Defendant's statement to police contrasted with his later trial testimony that Chan pulled a knife on him first and attempted to strangle him, but unlike in Arizona v. Fulminante, his statement was not the linchpin in the prosecution's case against him. (Id. at p. 297 [unlikely the defendant in Fulminante would have been prosecuted at all in the absence of his confession].)
To the contrary, defendant was identified as the last person seen with Chan the night of his death and at the location of his death by someone who knew them both, and the physical evidence that tied defendant to the crime was overwhelming. Defendant had obviously fresh injuries to his hands early the next morning when he was contacted, the murder weapon was recovered from inside his apartment and Chan's wallet was found in the center console of his car. Chan's and defendant's DNA was on the murder weapon located in defendant's apartment and in the scrapings from Chan's fingernails, and Chan's DNA was found on the bloody clothing located in defendant's car and the dumpster at his apartment complex. Although defendant testified Chan picked up a small knife in the storage room and cut him with it first, no such knife was located and other than traditional silverware knives in a cart, police only found three cleaver-style knives, which were clean and stored in a nook in the kitchen. As well, although Dr. Melinek testified that defendant's injuries were consistent with being cut by a small knife, she also conceded they were consistent with being cut by the cleaver during the struggle.
The state of the evidence was reflected in the defense strategy, which successfully focused in part on attacking the prosecution's robbery theory to avoid a felony-murder conviction. The defense also focused, unsuccessfully, on attempting to persuade the jury that Chan was the initial aggressor and was killed by defendant in self-defense or imperfect self-defense, that defendant lacked the intent to kill due to a dissociative or fugue state, or that defendant was provoked and acted in the heat of passion.
Further, defendant testified he was able to pull free from Chan and return to the kitchen, where he grabbed the cleaver in fear. The prosecution, however, presented rebuttal evidence that from the kitchen, the entrance into the dining area, and with it the possibility of escape through the front door, was approximately 11 feet closer than the entrance to the storeroom where the fatal struggle commenced. Given the overwhelming evidence linking defendant to the crime, the lack of a satisfactory explanation why defendant did not simply flee through the front of the restaurant after pulling free from Chan, and the sheer, prolonged brutality of Chan's killing, we find any error in admitting defendant's statement harmless beyond a reasonable doubt.
II. Admission of Expert Testimony on Blood Pattern Evidence
A. Background
Evidence Code section 801, which controls expert testimony, provides:
"If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:
"(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
"(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."
Evidence Code section 720, which controls expert qualification, provides:
"(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.
"(b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony."
Defendant sought to preclude Elizabeth Schreiber, a senior criminalist with the California Department of Justice, from testifying on blood spatter patterns and he claims the trial court abused its discretion in permitting the testimony in the absence of an adequate foundation for her expertise on that issue. Defendant contends the error was prejudicial because Schreiber opined, based on blood spatter patterns, that the attack on Chan began in the storage area and continued into the common hallway, there was a lot of motion, and Chan was in different positions in the hallway. Defendant contends there was reasonable doubt as to who the initial aggressor was and "Schreiber's opinion likely had substantial impact on the jury."
We agree with the People that the trial court did not err in permitting the testimony and that any error was harmless.
B. Standard of Review
"The trial court's determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse. [Citation.] '"Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility."'" (People v. Bolin (1998) 18 Cal.4th 297, 321-322; accord, People v. Nelson (2016) 1 Cal.5th 513, 536; People v. Jones (2013) 57 Cal.4th 899, 949-950.)
C. Analysis
1. No Error
a. Schreiber's Qualifications
Defendant draws support for his argument that the trial court erred in permitting Schreiber to testify on blood spatter pattern evidence from the California Supreme Court's decision in People v. Hogan (1982) 31 Cal.3d 815 (Hogan), disapproved in part on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836. In Hogan, the court concluded that the criminalist who testified for the prosecution was not qualified to render an expert opinion on the source of the bloodstains on the defendant's pants and shoes. (Id. at pp. 851-853.) The court found the criminalist's "qualifications as an expert to determine whether blood had been spattered or transferred by contact were nonexistent" and "boiled down to having observed many bloodstains." (Id. at pp. 852-853.) He had no formal education or training on bloodstain evidence, and had not reached any determinations through laboratory analyses. (Id. at p. 852.) Instead, his background on bloodstain evidence was limited to viewing an exhibit prepared by an unknown criminalist demonstrating blood patterns, reading one book on blood patterns and observing bloodstains at crime scenes, after which he would determine—without any verification whatsoever—whether the stains were "spatters or 'wipes.'" (Ibid.) The court stated, "[M]ere observation of preexisting stains without inquiry, analysis or experiment, does not invest the criminalist with expertise to determine whether the stains were deposited by 'spatters' or 'wipes.'" (Id. at p. 853.)
We do not agree with defendant that Schreiber's qualifications suffered from the same deficiencies that informed the decision in Hogan. At the time of trial, Schreiber had been with the Department of Justice for 22 years. She has a degree in cellular molecular biology, and had taken two 40-hour crime scene investigation courses and a three-day wound pathology course. Schreiber also testified that she had responded to several hundred crime scenes over a period of 20 years and most involved some sort of blood, and that within the department, there was some in-house debriefing of crime scenes photos. Relevant to her blood spatter pattern expertise and in contrast with the criminalist in Hogan, Schreiber took a 40-hour class on blood spatter evidence hosted by the FBI and for the past 22 years, she completed an annual internal crime scene and blood spatter proficiency exercise prepared by supervisors. Schreiber testified that the FBI training course provided the basis for her blood spatter evidence expertise and the annual proficiency exercises kept her skills on the subject current. Thus, unlike the criminalist in Hogan, Schreiber had specialized training on the subject and her skills were evaluated annually by superiors.
b. Schreiber's Failure to Read Report and Study
During trial, defense counsel questioned Schreiber regarding her familiarity with a 2009 report from the National Academy of Sciences entitled "Strengthening Forensic Science in the United States: A Path Forward" and a 2014 scientific study entitled "Reliability Assessment of Current Methods in Bloodstain Pattern Analysis." Schreiber was familiar with but had not read the 2009 report, which was responsive to perceived forensic science weaknesses, and she was neither familiar with nor had she read the 2014 study, which addressed limitations or uncertainties with respect to bloodstain pattern analysis. In support of his argument on appeal, defendant also relies in part on the fact that Schreiber had not read either the report or the study. However, in the trial court and on appeal, defendant limited his challenge to Schreiber's qualifications, and, as discussed next, did not attack the admissibility of blood pattern evidence itself. Defendant provides no authority for the proposition that the fact Schreiber had not read a particular report or a particular study rendered her unqualified as an expert in the area. In response to defense counsel's questions, Schreiber addressed the general subject matter of the report and the study, and she explained the bases for her disagreement with issues raised by counsel as they pertained to the report and the study.
The California Supreme Court has explained that "[t]he trial court's preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies. Rather, it conducts a 'circumscribed inquiry' to 'determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert's general theory or technique is valid.' [Citation.] The goal of trial court gatekeeping is simply to exclude 'clearly invalid and unreliable' expert opinion. [Citation.] In short, the gatekeeper's role 'is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 772 (Sargon).)
In California, the so-called Kelly test established in People v. Kelly (1976) 17 Cal.3d 24 controls challenges to the reliability of scientific testing and its scientific basis for purposes of determining admissibility. (People v. Lucas (2014) 60 Cal.4th 153, 244-245, disapproved in part on other grounds by People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19; accord, Sargon, supra, 55 Cal.4th at p. 772, fn. 6.) "'The first prong requires proof that the technique is generally accepted as reliable in the relevant scientific community. [Citation.] The second prong requires proof that the witness testifying about the technique and its application is a properly qualified expert on the subject. [Citation.] The third prong requires proof that the person performing the test in the particular case used correct scientific procedures.'" (People v. Lucas, supra, at p. 244.)
In this case, the parties and the trial court agreed there was no Kelly issue with respect to Schreiber's testimony. While we do not view defendant's opening brief as advancing a claim based on Kelly, he argues in his reply brief that "[g]iven the uncertainties associated with analysis of bloodstain patterns, it is not sufficient to argue ... that an expert's lack of proper training or deficiency in the expert's judgment goes to the weight of the evidence, not admissibility." Defendant correctly states that the lack of proper credentials to testify as an expert on a particular issue goes to admissibility, but his argument suggests conflation of the issue of the scientific reliability or basis underlying a particular subject with the issue of the expert's qualifications to testify on a particular subject. To the extent such a conflation has occurred, we observe that any challenge to the scientific reliability of blood spatter pattern evidence was not preserved for appeal because it was not raised below. (People v. Ochoa (1998) 19 Cal.4th 353, 414; People v. Kaurish (1990) 52 Cal.3d 648, 688.)
We are not persuaded by defendant's characterization of "Schreiber's testimony [as] too speculative and based largely on conjecture." (See Sargon, supra, 55 Cal.4th at p. 770.) We conclude Schreiber was sufficiently qualified to testify as an expert on blood spatter patterns, and the fact that she had not read the 2009 report or the 2014 study did not, on the record in this case, undermine those qualifications. Instead, that fact went to the weight of her opinion, which was a matter for the jury to resolve. A trial court enjoys broad discretion in determining whether a witness qualifies to testify as an expert on a particular issue, and we do not agree that the court's determination in this instance constituted an abuse of discretion. (E.g., People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063; People v. Combs (2004) 34 Cal.4th 821, 849; People v. Farnam (2002) 28 Cal.4th 107, 162; People v. Bolin, supra, 18 Cal.4th at pp. 321-322; People v. Clark (1993) 5 Cal.4th 950, 1018-1019, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Accordingly, we reject defendant's claim of error.
2. No Prejudice
As well, we conclude there was no prejudice to defendant as a result of the admission of the evidence. With respect to the applicable standard of review, the only authority defendant cites in support of his contention that the federal standard of review applies in this context is Hicks v. Oklahoma (1980) 447 U.S. 343, 346. However, that case involved not the erroneous admission of expert testimony but the denial of a statutory right to have a jury determine punishment, which the court recognized "is a right that substantially affects the punishment imposed." (Id. at p. 347.) As such, the issue involved not merely "the denial of a procedural right of exclusively state concern," but "a substantial and legitimate expectation that [the defendant] will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, [citation], and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State." (Id. at p. 346.) Thus, we do not find Hicks v. Oklahoma either controlling or persuasive authority for the proposition advanced by defendant.
The California Supreme Court has determined that "'[t]he erroneous admission of expert testimony only warrants reversal if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."'" (People v. Pearson (2013) 56 Cal.4th 393, 446.) We therefore apply the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 837, which "'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.'" (People v. Beltran (2013) 56 Cal.4th 935, 956, quoting People v. Breverman (1998) 19 Cal.4th 142, 177.)
Schreiber did not offer an opinion on the specific sequence of events, what occurred between defendant and Chan during the altercation, or who was the initial aggressor. There is no dispute that a violent struggle occurred, leaving a bloody crime scene in two locations: the storage area inside the restaurant and the common hallway, where Chan's body was found. There is also no dispute that Chan died of blood loss after being struck 141 times with a cleaver. In comparison, defendant's injuries were minor. Given the evidence presented, which included testimony from multiple witnesses and both photographs and video of the crime scene, it was obvious the altercation began in the storage area and ended in the hallway where Chan bled out. It was also obvious from the blood evidence on walls, doors and objects that there was a lot of motion and Chan, as the major contributor of the blood, was in different positions at different times.
To the extent defendant's challenge targets Schreiber's use of the word "attack," we are unpersuaded by the argument that her use of this word "likely had a substantial impact on the jury" as related to the issue of who initiated the altercation for purposes of defendant's self-defense theory. As we have discussed, this was an extremely strong case for the prosecution. Even if the jury believed defendant's testimony that Chan was the initial aggressor, defendant's explanation for failing to exit the restaurant once he freed himself and returned to the kitchen was extremely weak. Moreover, the violence inflicted on Chan was grossly disproportionate to defendant's claimed need to defend himself and escape Chan. Under these circumstances, there is simply no reasonable probability of a more favorable verdict in the absence of Schreiber's blood spatter pattern testimony. (People v. Pearson, supra, 56 Cal.4th at p. 446.)
Defendant testified he was trying to scare Chan. In his statement to detectives, he said Chan was following him and he wanted to scare Chan.
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J.