Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD204988, Frederick L. Link, Judge.
NARES, Acting P. J.
In March 2008 a jury found Gerald Michael Nash guilty of one count of willful, deliberate and premeditated murder (Pen. Code, §§ 187, subd. (a), 189). The jury also found true the allegation that Nash personally and intentionally discharged a firearm, resulting in great bodily injury and death (§ 12022.53, subd. (d)). The court sentenced Nash to a prison term of 50 years to life, consisting of a 25-year-to-life term for the murder conviction and a consecutive 25-year-to-life term for the firearm enhancement.
All further references are to the Penal Code unless otherwise specified.
On appeal Nash asserts (1) the court erred by admitting notes he wrote about kidnapping, torturing and killing victims (the torture notes) and evidence suggesting he was seeking to change his identity (identity theft evidence); and (2) there is no substantial evidence that the killing was committed with premeditation, deliberation or planning. We affirm.
FACTUAL BACKGROUND
A. People's Case
On the morning of February 26, 2007, Fernando Illanes observed something suspicious in a ravine below the 300 block of Hollister Street. Illanes notified his supervisor Armando Becerra, and the two drove back to the area to investigate. When Becerra got out of his truck to look around, he saw a torso in the Otay River. Becerra used his cell phone to contact police.
All further calendar dates are to the year 2007 unless otherwise specified.
When police arrived, they observed the torso had no head, and its legs were severed above the knees. The hands were missing. There was a white braided rope tied tightly around each wrist. The victim was wearing a pair of jeans, which had bleach stains on them where they had been cut. The victim was also wearing a dark-colored, zippered sweat shirt. The victim had no tattoos, wallet or other identifying information. There was a small amount of blood on the curb above the river. There were pieces of red duct tape by the torso.
On February 27, Caltrans landscape workers Marta Rodriguez and David Jiminez were picking up trash and debris near the junction of the Interstate 5 and 163 freeways. They found a human left hand in some debris by the shoulder of the road. The hand had not been there a day earlier, on February 26. They notified their lead worker, who contacted police.
When police arrived and observed the hand, they noticed the middle fingernail was completely missing.
That same day, at around 6:15 a.m., Kenneth Kazezski, a tow truck driver, was removing debris from alongside southbound Interstate 5. Kazezski saw a black bag on the shoulder of the freeway, just south of 28th Street. When Kazezski opened the bag to check its contents, a human head rolled out. Kazezski called police.
The head was covered in blood and had been severed at the neck. There was a bullet hole through the top portion of the left ear, and the left side of the skull. There were bloodstains and tissue along the shoulder of the freeway.
On April 6, Randy Walls searched a stream bed by his property in Harbison Canyon after noticing that his dog smelled like it had discovered a dead animal. After searching for a few hours using binoculars, Walls discovered a black trash bag at the bottom of a ravine. When Walls looked at the bag more closely the next day, he saw a human leg protruding from the bag. The leg had the lower portion of a pair of jeans and a sock on it. Walls called the sheriff's department.
Using cadaver dogs, sheriff's deputies discovered a second leg near the location where the first leg had been discovered. It also was in a plastic bag, with a sock on the foot. Both legs were severed at the knees. The pant legs had bleach stains consistent with the stains found on the pants attached to the torso.
Upon discovery of the torso, homicide detectives began efforts to identify the victim. Detective Jonathan Smith unzipped the sweatshirt and discovered a key chain attached to the left side of the victim's jeans. An Albertson's preferred customer card was affixed to the key chain. Detective Brett Burkett obtained the location of the Albertson's store where the card had been issued. Detective Burkett then went to the store and obtained recent surveillance video. Through the video, he was able to link the card to a man the video depicted at a checkout line making a purchase. The man was wearing the same clothing as was found on the victim.
Detectives aired the video on the local news and prepared a press release asking citizens to come forward if they could identify the victim. Shortly thereafter, calls began to come in. Belinda Dileo, a librarian at the downtown branch of the San Diego public library recognized the victim as "[t]he baseball card guy." Employees at the library gave him that nickname because he came in regularly and always checked out the same book, one about collecting baseball cards. According to Dileo, on the afternoon of February 18, Nash came in looking for the victim. Nash was shouting and his face was frozen with rage. Having not seen the victim that day, Dileo directed Nash to the arts section on the second floor.
Julian Bojorquez, who ran a fitness club at Robb Field in Ocean Beach, knew the victim by his name, Allen Hawes. Hawes was a homeless man who paid to use the shower facilities at Robb Field. Bojorquez also saw Hawes occasionally at a bus stop in Ocean Beach. Hawes always had a backpack with him. Bojorquez last saw Hawes at the shower facilities on Wednesday, February 21, or Thursday, February 22.
Tame Cavallero, assistant manager at Extra Storage in Chula Vista, knew Hawes because he because he rented a storage unit there. Hawes came to the facility a couple of times a week and on weekends. He did his laundry at a nearby Laundromat and, while he was waiting for his laundry, he would spend time at his storage unit. Hawes was easily recognizable because he had a cleft palate and wore large round glasses. Cavallero last saw Hawes on Saturday, February 17.
Chris Renko and Tony Reeder, employees at the Ever So Naughty (ESN) adult bookstore and theater on Palm Avenue in National City, about a mile from the Otay River, recognized Hawes from the news video. Employees of ESN nicknamed him "pillow man" because he often slept in the theater or in one of the peepshow booths. Hawes had been coming in for years and always had his backpack with him.
Nash was a clerk at ESN who worked the graveyard shift. Nash and Renko shared a rental home that was in back of ESN. Once or twice a week, Hawes would show up at the beginning of Nash's shift and would stay until Nash's shift ended. Hawes would pull up a chair next to Nash while he was working and the two would talk for hours. Beginning in late 2006, Hawes's visits with Nash became more frequent. Nash quit his job at ESN in December 2006. When Nash quit, Hawes left ESN and told Reeder he would not be returning. Sometime in early February 2007, Renko saw Hawes standing by ESN, wearing his backpack.
On February 26, Renko and Reeder saw the news footage showing Hawes at the Albertson's. Two acquaintances of Hawes, Dan Hicks and Kathy Miranda, came into ESN and said they recognized Hawes from the news footage. Nash came into ESN shortly thereafter. While he was there, the news footage was replayed. Nash stated that he did not think the person in the news clip was Hawes. When Renko said he was going to call the police, Nash responded that he would "look into it" but did not think it was necessary to call the police until they were sure it was Hawes. Nash then insisted it was not Hawes on the news footage.
Nash did not seem concerned about Hawes and left the building without writing down the tip line number shown in the story. When Nash returned later that night and Reeder mentioned the newscast about Hawes, Nash responded by throwing his hands in the air and stating, "Haven't seen him in a month."
When Renko's shift was over, he called the tip line, advising law enforcement that Hawes was a regular customer of ESN. In response, Detective Burkett, along with Detective Maria Rivera, went to ESN to interview Renko and identify other possible witnesses. When they arrived, they were directed to the house behind ESN where Renko and Nash lived. The detectives entered the residence and separated Renko and Nash to interview them.
Detective Burkett showed Nash a copy of the press release showing the supermarket picture of Hawes. Nash responded he had not seen the video that had been telecast and told him he could not be "100 percent sure" the photo depicted his friend, Allen. Nash told Burkett the last time he had seen Hawes was three or four weeks earlier. He told Burkett that when he had worked the graveyard shift he would allow Hawes to sleep in the back of the bookstore from time to time.
Burkett asked Nash if he had any cars. Nash responded that he had a red Ford T-Bird and a blue Ford Tempo and agreed to let him look at the cars. Nash led Detective Burkett to the T-Bird, and Burkett opened the trunk. Inside the trunk was a Rubbermaid plastic bin, an unopened roll of red duct tape, gray duct tape and a blade for a bow saw. The red duct tape was similar in appearance to that found near the torso. Detective Burkett asked Nash why he had the bow saw blade. Nash replied that he planned to use it to trim trees around the house. Detective Burkett looked around the house and saw no trees. Renko testified that Nash never did any yard work around the house.
At Detective Burkett's request, Nash led him to the Ford Tempo. The seats were covered by black trash bags. Detective Burkett asked Nash why the bags were on the seats. Nash responded that he was getting the car detailed. Renko testified that Nash never had his cars detailed.
Nash said he did not have any more cars. Having already learned through his own investigation that Nash had a van, Detective Burkett asked Nash, "Where is your van?" Nash responded, "Oh yes, I do have one," and pointed to an older van parked down the street. Nash unlocked the side door of the van and Detective Burkett looked in. When Detective Burkett looked inside, he saw a bottle of bleach on the floorboard that had a bloodstain on it.
Detective Burkett asked Nash if he had any storage units. Nash responded that he had one in Point Loma and agreed to accompany Detectives Burkett and Rivera in their car to show it to them. Nash directed the detectives to an area at Nimitz Boulevard and Harbor Drive, but there was no storage facility there. As the detectives were driving Nash home, southbound on Interstate 5, Nash mumbled, "Yeah, we just passed it... it's getting close to be closing time there." Nash then directed detectives to National City Self-Storage. Nash told the detectives that he had not been to that facility since February 1 or 2. However, records from the facility showed that Nash was there on February 22 and again on February 24.
When they opened Nash's storage unit, Detectives Burkett and Rivera saw Hawes's backpack on the ground by the door. Detective Burkett asked Nash why he had Hawes's backpack in his storage unit. Nash gulped loudly, looked away, and said something about "Allen must have left it in my van." Detective Burkett unzipped the backpack. Inside were numerous baseball cards, toiletries, paperwork in Hawes's name, and an article from the February 22 edition of the San Diego Union Tribune. Nash told detectives he had no other storage facilities. In fact, Nash had another unit at Acropolis Self Storage Center in National City. Records revealed Nash had visited that storage unit on February 26 and 28.
While Detectives Burkett and Rivera were driving around with Nash, Detective Smith conducted a cursory search of Nash's residence with the assistance of forensic specialist Dorrie Savage. In the dining room they found some white underwear in a coffee can, soaking in liquid detergent. They also found a WalMart bag containing a Home Depot receipt dated February 22, an unopened package of rope, an opened box of trash bags, a package of pink nylon rope, white towels, empty grocery bags, five pieces of frayed white rope with stains on them, and a large roll of black plastic tarp.
Later that evening, Nash was questioned by Detective Smith at the police station. Sometime after midnight, Detective Smith drove Nash home. While driving him home, Detective Smith noticed that Nash was wearing older shoes but with new shoelaces. When he asked Nash about them Nash told the detective he had thrown the old shoelaces in a dumpster, but the trash had already been picked up. Before leaving Nash at his house, Detective Smith gave Nash his phone number and Nash agreed to call him no later than 7:00 a.m. the next morning.
When Nash got home, Renko was there. Nash was irate. He told Renko he had "some scores to settle." He told Renko he did not know why police were questioning him, as he barely knew Hawes. Nash then told him he was going to do some cleaning. Nash picked up a bag of trash and told Renko he was going to put it in the dumpster. Renko did not see Nash again that night.
By 8:00 a.m. the next morning, Nash had not contacted Detective Smith. Detective Smith drove out to Nash's residence, but Nash was not there, and he was unable to reach Nash on his cell phone. That afternoon, Detective Smith again called Nash on his cell phone. Nash answered the phone. However, when Detective Smith started talking, Nash hung up.
At around midnight, Nash telephoned Renko and told him he was calling "to make sure everything had cooled down." He told Renko he was not sure if he would be there the next day to pay rent, but would send it by courier if he could not be there. At around 5:15 a.m. on March 1, Nash returned to the residence. Nash started collecting boxes and brought them outside. Nash told Renko he was going to "put some things in storage." Renko called Detective Smith and told him Nash had come home.
Officers were dispatched to Nash's residence and they placed him under arrest. In a search incident to the arrest, Detective Rivera found in Nash's possession various items, including ear plugs, approximately $1,900 in cash, and a card key for room 221 in the Super 8 Motel in National City. Through further investigation, Detective Rivera discovered that Nash checked into the motel on February 28, with a checkout date of March 1.
Searches were conducted at various locations associated with Nash. A search of the dumpster next to ESN revealed trash bags containing paperwork in Nash's name, several pairs of gloves, some of which were bloody, a bloody inflatable mattress, rope with bloodstains, bloody plastic sheeting, a blue blanket with blood stains, stained T-shirts and rags, a carpet wet with a combination of blood and rubbing alcohol, and Sprite bottles. One of the Sprite bottles had been fashioned into a homemade gun silencer. There was a second homemade silencer made from a PowerAde bottle. There were also several handwritten notes about the murder of Hawes and disposal of the body. One of the notes found in the dumpster, dated two weeks before the murder, included the notations, "arrange head rags," "get wallet above all" and "wet vac." Another note read, "It's set, just follow thru!" Another read, "Help with van... shoot!" Another read, in capital letters, "THIS HAS TO BE DONE." Others read, "cutting time," "tools required" and "wash saw." The notes were peppered with references to Hawes. The notes included a hand-drawn map depicting the area where Hawes's legs were found.
Detectives conducted a more thorough search of Nash's residence. They found a hacksaw with a yellow blade, a separate hacksaw blade, a Styrofoam cup with handwriting about bullet holes, tape and scissors. They also found a book called "New I.D. in America," a wallet containing an identification card and a driver's license in the name of a Gary Shelstad, as well as three wallets containing identification cards for various women.
Detectives also discovered handwritten notes about various ways to abduct, torture and kill a victim, and then dispose of the victim's body so that it could not be found. These "torture notes" contained a list of how to abduct an individual. The possibilities listed included pretending to need help changing a flat tire, taping the victim's mouth and eyes, and using ear plugs on the victim. The notes referred to "indoctrinating" the victim, containing such words as "smother," "drown," "shoot," "elect. shocks," "disfigure," "wrist links," "burn," "upside down," "hot, cold water," "punch," "fingernails," and "teeth." The notes contained a heading, "widespread disposal." They also included possible means of disposal, including grinding or chopping the body, and spreading the remains over forest and other land. The notes also stated, "[M]ake sure disposal equip is available from start in case of premature demise." The notes identified possible victims as children and young women. The notes also contained references to various sexual "activities" to perform on the victim.
In a grey Ford T-Bird Nash purchased after his vehicles were impounded, police found an Igloo cooler containing ammunition for a.357-caliber handgun, and two.22-caliber rifles. Inside of a grey, metal tackle box was a Ruger.357 magnum revolver with ammunition in the chamber. The tackle box also contained a metal gun silencer, a.22-caliber rifle with duct tape on the handle and the ammunition magazine inside, another loaded.22-caliber rifle, a knife, a sheath with a stopwatch attached, a security guard's badge, a security guard's license in Nash's name, a flashlight, a comb in the shape of a knife, and miscellaneous gun cleaning items.
A search of Nash's blue Ford Tempo revealed a page of handwritten notes with references to making a gun silencer. There was also a folder with four pages of notes concerning the murder of Hawes, the dismemberment of his body, the disposal of his remains, and the cleanup once disposal was complete. The notes made such statements as, "chain neck/ankles," "pin arms," and "duct tape." The notes contained several references to "ice" and "van." Notes found in the trunk of the Tempo read "release of scruples" and made reference to a gun silencer.
Inside Nash's van police discovered a bottle of bleach with a bloodstain, and two plastic trash bags containing wet clothing with reddish-brown stains in a laundry basket.
When detectives searched the room Nash had rented at the Super 8 motel in National City, they discovered more handwritten notes concerning the murder of Hawes and disposal of his body. They found a brown briefcase containing a joint application for a VISA credit card dated January 19, signed by both Nash and Hawes. Inside a brown attaché case was a plastic wallet with Hawes's name on it, a grocery card with Hawes's name, Hawes's California identification card, and Hawes's eyeglasses. In another attaché case, detectives found a copy of the press release requesting help identifying Hawes, check stubs, and an employment application.
A search was conducted at Nash's storage unit at Acropolis Self Storage. There, detectives found a black trash bag and two hand saws, one with a blue handle.
Christopher Swalwell, a deputy medical examiner, performed autopsies on Hawes's torso, head and left hand. The torso was severed at the wrists, mid-thigh and neck. The cuts were consistent with the use of a bow saw. Swawell opined a bow saw seized from Nash's possessions could have been used to remove the left hand and head. Swawell could not determine if the middle fingernail on the severed hand was removed prior to or after Hawes's death. A later autopsy performed on the severed legs revealed that they were severed using the same type of saw used to remove the hands and head.
The autopsy on the head showed a gunshot wound above the left ear, with no exit wound. There were several bullet fragments lodged inside the head. The absence of soot, stippling or other foreign substances indicated the gun was fired from a distance of at least three feet. Swawell opined the cause of death was the gunshot wound to the head, and the manner of death was homicide.
John Durina, a criminalist and firearm expert, examined the guns recovered from Nash's grey Ford T-Bird, and the silencer made from the Sprite bottle. Nash's.357 magnum had one empty cartridge, behind the firing pin. The bullet fragments recovered from Hawes's skull were fired from that gun. The silencer had burn marks on the inside and outside of the bottle, indicating it had been used with a weapon.
Criminalist Tess Hemmerling performed a DNA analysis on items of evidence seized in the case. Several of the pairs of gloves had Nash's DNA on the inside and Hawes's DNA on the exterior. There were human blood stains on the bleach bottle, plastic drop cloth, and Nash's carpet. Hemmerling was unable to obtain a readable profile from these items. When Hemmerling disassembled the blue-handled bow saw recovered from Acropolis Self Storage, she found blood and tissue embedded in the circular portion of the saw. The DNA on this evidence was a match for that of Hawes.
David Oleksow, a forensic document examiner, analyzed the handwritten notes by comparing them to samples of Nash's handwriting. His analysis indicated the first 13 pages of notes found in the dumpster were written by Nash. He was reasonably certain Nash wrote the remaining 37 pages. There were also indications Nash wrote the "torture notes." In Oleskaw's opinion, those notes were written at least 10 years before the other notes. There were also indications the writing on the Styrofoam cup was Nash's. Oleksaw was reasonably certain Nash wrote the notes found in his cars.
B. Defense Case
Nash testified in his defense. He stated that he wrote the torture notes for a class project in the spring of 1972. The remaining notes were reminders to himself to repair and test drive his cars, ice his sore knee, work on projects in the yard and around the house, plan for retirement, and run various errands. He purchased shovels, tarps and saws to use for his projects. He claimed the handwriting on the Styrofoam cup was not his. When asked why he had a book entitled "New I.D. in America," he stated he was conducting research after his wallet was stolen. He testified he was in possession of other people's wallets because they had left them at ESN, and he was storing them in his van.
Nash stated that he and Hawes were friends. They got along very well. He gave Hawes a set of keys to his van after he stopped working at ESN so Hawes would have a place to sleep. Hawes would leave his backpacks in the van because they were too heavy for him to carry. The backpack police found in his storage unit was originally in his van. When he saw it there he moved it to his red T-Bird as he was afraid someone would burglarize his van. After a couple of days, he set it down while he was at his storage unit looking for something else and forgot about it.
Nash claimed Hawes's blood was everywhere because Hawes had frequent nosebleeds. Nash admitted all three guns were his. When asked why he had a gun silencer, Nash stated he planned to fire practice shots in the neighborhood and did not want to make a lot of noise.
Nash testified that when Renko and Reeder told him of Hawes's death, his response was initially that it "sounds... like a bunch of nonsense." However, Nash then remembered Hawes had left his backpack in his van, which he thought was "odd." Nash then decided to "try to get some information together for the detectives." As he was gathering information, he noticed his gun box had been moved, there were bloody items in his house, and there was a bow saw in the yard. When asked why he did not contact Detective Smith as he promised to do, he stated that he was afraid he would be accused of planting evidence so he elected to investigate the matter on his own.
Nash denied looking for Hawes at the downtown library and stated he had last seen Hawes on February 17. He denied killing Hawes, cutting up his body, or driving around San Diego County discarding his body parts. Nash claimed "it was a well-planned frame-up." Nash believed that the frame-up was the result of "some fashion [of] communication between the killers and at least one employee in the store." Nash concluded that some things must have been planted in the dumpster by homeless drug dealers, who had broken into the dumpster in the past and that Renko must have participated in the frame-up by orchestrating the discovery by police of the planted evidence in the dumpster and by attempting to plant evidence such as Hawes's wallet and glasses and tampering with Nash's guns. Nash believed Reeder was also involved in the murder "because he knew a lot of druggies, given his history and his situation."
Nash called as character witnesses two waitresses at Jalisco's cafe, two former coworkers, and a homeless individual who frequented ESN. They all testified Nash was kind, peaceful, hard working and nonviolent.
DISCUSSION
I. ADMISSION OF TORTURE NOTES AND IDENTITY THEFT EVIDENCE
Nash asserts the court abused it discretion and violated his constitutional rights to due process and a fair trial by allowing the prosecutor to introduce (1) notes concerning abduction, torture, and disposal of remains of victims; and (2) information concerning possible identity theft (the book "New I.D. in America" and his possession of various individuals' identification). This contention is unavailing.
A. Background
Prior to trial, the prosecution filed a motion in limine to admit various items of evidence discovered during the investigation of Hawes's death. Included in the motion were the 10 pages of torture notes found during the search of Nash's bedroom, concerning abduction, torture and disposal of remains, described, ante.
Defense counsel in turn filed a motion in limine seeking to exclude evidence of Nash's prior bad acts, including possession of child pornography, pornography, obituaries, identity theft evidence and the torture notes referenced, ante.
At the hearing on the motions, the court excluded the child pornography, finding it irrelevant to the charge of murder. As to general pornography, the prosecutor stated the only reference would be to the fact Nash worked at an adult bookstore. Discussing the torture notes, the prosecutor argued they were relevant because they contained descriptions of ways to dispose of a body, similar to the way the body parts were dispersed in this case. The notes also listed methods of cleaning up blood. They also mentioned disabling a victim by binding and taping the eyes and mouth, as well as using ear plugs. Ear plugs were recovered from Nash, and duct tape was recovered from the dumpster and near the dismembered torso. The prosecutor also argued the notes revealed a possible motive because they talked about torture, including removing a fingernail, and Hawes was missing a fingernail on his left hand. The prosecutor explained the torture notes provided a possible motive to what might seem to a jury an otherwise inexplicable crime.
Defense counsel argued the notes were inadmissible because the victim type was different (i.e., the notes made reference to abducting children and young women), and they contained generic means of abducting a person. Defense counsel argued they should be excluded under Evidence Code section 352 as "cumulative," as it was unknown when they were written and over 50 pages of other notes were seized in connection with the case.
The court found that the notes did not constitute prior bad acts evidence, but were part of the evidence against Nash. The court found the notes relevant and that they were not subject to exclusion under Evidence Code section 352.
With regard to the identity theft information, the prosecutor explained that notes found in the dumpster contained references to the victim and statements such as "assume I.D.; T.R. next with 357 silencer." The evidence consisted of a book on how to create a fake identity and newspaper clippings on the same subject. Police also found obituaries of males who were about Nash's age and noted that Nash and Hawes were about the same age. This provided another possible motive to murder Hawes: to assume his identity. Defense counsel responded that the obituaries could be of Nash's friends. The court denied the defense motion to exclude the identity theft evidence, finding it evidence of motive.
Reeder's initials are "T.R."
After Nash testified at trial that the notes were part of a school term paper he wrote over 20 years prior to Hawes's death, defense counsel renewed his motion to exclude the notes. He argued that because they were over 10 years old and because the medical examiner could not conclusively determine how Hawes's fingernail was removed, they were irrelevant. The court again denied defense counsel's motion.
B. Analysis
Evidence Code section 1101 provides in part: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Although Evidence Code section 1101 does not use the term "prior bad acts," case law interpreting this statute has adopted that term and construes the statute to preclude evidence of other, unrelated bad acts or crimes to prove disposition to commit the charged crime. (See People v. Lindberg (2008) 45 Cal.4th 1, 21-22 [prior uncharged robbery]; People v. Kipp (1998) 18 Cal.4th 349, 369 [uncharged rape & murder].) The purpose of Evidence Code section 1101 is to ensure a defendant is "tried upon the crime charged and is not tried upon an antisocial history." (People v. Aeschlimann (1972) 28 Cal.App.3d460, 473.)
The "torture notes" at issue here were not evidence of unrelated "prior bad acts," but rather were circumstantial evidence that supported his conviction of the crime charged. Criminal intent is seldom proved by direct evidence and often must be inferred from a defendant's conduct. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380.) Prior statements by a defendant frequently are relevant to show intent for the charged crime, without the necessity of an analysis under Evidence Code section 1101.
For example, in People v. Kraft (2000) 23 Cal.4th 978, the California Supreme Court held that a trial court did not err in allowing the prosecutor to introduce a "death list" in which the defendant wrote down, in code, names of his intended murder victims. (Id. at pp. 1033-1036.) In People v. Crew (2003) 31 Cal.4th 822, the California Supreme Court found relevant and admissible a defendant's statement to a relative, "I've done so many things. I think I would like to kill someone, just to see if I could get away with it." (Id. at p. 842.) In People v. Zepeda (2008) 167 Cal.App.4th 25, the Court of Appeal upheld admission of rap lyrics written by the defendant, a gang member charged with murder, about his gang affiliation, guns and the murder of rival gang members. (Id. at pp. 32-35.)
In this case, the torture notes were relevant to show Nash had a long-time obsession with abducting, torturing and killing someone, culminating in the murder of Hawes. They discussed not only the means of obtaining a victim, but the manner of killing and how to dispose of a body in a manner similar to the disposal of body parts in this case. The identity theft evidence was relevant to show a plan by Nash, once he had killed Hawes, to either assume Hawes's identity or the identity of someone else. Thus, the evidence was circumstantial evidence supporting the charged crime itself, not unrelated "prior bad acts."
Further, assuming arguendo these items of evidence fall within Evidence Code section 1101, the court properly exercised its discretion it ruling they were admissible. As detailed, ante, this evidence was relevant to prove intent and motive. Thus, we must now analyze the evidence to see whether the probative value of the evidence was "substantially outweighed by the probability that its admission [would] create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352; People v. Ewoldt (1994) 7 Cal.4th 380, 404.)
Prejudice, as used in Evidence Code section 352, means the creation of an emotional bias against the defendant through evidence with little probative value. (People v. Karis (1988) 46 Cal.3d 612, 638.)
However, " '[all] evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis, supra, 46 Cal.3d at p. 638.)
Nash asserts the prejudicial nature of the torture notes substantially outweighed their probative value because (1) the proposed victims were either children or young women, (1) the torture described was not inflicted on Hawes, and (3) the notes were too remote as they were admittedly written over 10 years prior to Hawes's murder.
However, despite some differences between the torture notes and the murder of Hawes, the similarities are sufficient to make them admissible. The least degree of similarity between the prior acts and charged acts is sufficient to prove intent. (People v. Soper (2009) 45 Cal.4th 759, 776.) Nash befriended Hawes, a homeless man who was vulnerable, like the children and young women mentioned in the notes. There is evidence he was bound and was missing a fingernail on his left hand. Hawes was dismembered and his body parts were distributed over a large area. Further, the torture notes were not any more prejudicial than the notes Nash wrote of the actual planning of Hawes's murder and disposing of evidence after the fact.
As to the identity theft evidence, Nash had identities of various people, including a navy contractor named Gary Shelstad, in the same general location in his home. Along with the identities, Nash had a book about changing a person's identity. Most important, Nash had Hawes's identification and personal items in an attaché case in his hotel room. Considering the evidence as a whole, its probative value far outweighed any prejudicial impact.
There is also no merit to Nash's contention the introduction of this evidence violated his Fourteenth Amendment right to due process. Claims involving an alleged improper admission of evidence under state law do not ordinarily implicate the due process clause. A due process clause violation arises only if the trial itself was fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 67-68; People v. Partida (2005) 37 Cal.4th 428, 439.) Admission of prior acts evidence results in a constitutional violation "[o]nly if there are no permissible inferences the jury may draw from the evidence." (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920, italics omitted.) As explained, ante, the jury could infer motive and intent from the torture notes. The identity theft evidence was circumstantial evidence of motive.
Finally, to the extent the court abused its discretion in admitting the notes or identity theft evidence, Nash cannot show that evidence was so prejudicial as to warrant a reversal. There is no basis for Nash's assertion the focus on this evidence was so great as to turn the trial into an "inquisition" and a "character assassination." The prosecution called 27 witnesses whose testimony, including cross-examination, comprised over 1,000 pages of the reporter's transcript. In the prosecution's case-in-chief, the notes were mentioned only by forensic specialist Savage, who testified about the fact they were found, and document examiner Oleksow, who testified there were indications the handwriting belonged to Nash. The testimony about the identity theft evidence was equally brief, consisting of testimony by Detectives Robert Donaldson and Savage, listing the items recovered during the search of Nash's home.
This evidence was not mentioned again until Nash's testimony when he gave less than credible explanations for their presence in his home. Even during Nash's testimony, defense counsel focused on the other notes Nash wrote about the murder itself and on the damaging items of physical evidence found in his home, his cars, his motel room, and his storage unit.
Further, the court instructed the jury under CALCRIM No. 303 on how to evaluate such evidence offered for a limited purpose. We presume the jury followed the court's instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.)
Finally, the other physical evidence and notes seized from Nash provided ample independent evidence of intent, planning and motive. As will be detailed in part II of this opinion, there is overwhelming evidence of Nash's guilt. Accordingly, it is not reasonably probable that the outcome would have been more favorable to Nash if the torture notes and identity theft evidence had been excluded. (People v. Kipp, supra, 18 Cal.4th at p. 374.)
II. SUFFICIENCY OF THE EVIDENCE
Nash asserts there is no substantial evidence of premeditation and deliberation to support his conviction for first degree murder. We reject this contention.
A. Standard of Review
The critical inquiry on review of the sufficiency of the evidence is whether the record reasonably supports a finding of guilt beyond a reasonable doubt. This inquiry does not require a court to " 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576.) Thus, " ' "[i]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 933; People v. Stanley (1995) 10 Cal.4th 764, 793.) A reviewing court must accord deference to the jury and not substitute its evaluation of a witness's credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
B. Analysis
Section 189 provides in relevant part, "All murder which is perpetrated by means of... willful, deliberate, and premeditated killing... is murder of the first degree."
"In this context, 'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' [Citation.] The process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....' " (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
In People v. Anderson (1968) 70 Cal.2d 15, the California Supreme Court " 'identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing. However,... "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse." ' " (People v. Steele (2002) 27 Cal.4th 1230, 1249.)
Here, there is substantial evidence of all three factors identified in Anderson relevant to proving deliberation and premeditation. First, there was ample evidence of planning. Three separate gun silencers were found among Nash's possessions. He purchased rope, gloves, tarp, saws, duct tape, buckets, large trash bags and cleaning agents. Nash's notes show a thought out, deliberate plan for Hawes's murder. Even disregarding the torture notes, the notes Nash wrote immediately preceding and after the killing show a well thought out plan. Notes found in the blue Ford Tempo read "chain neck/ankles," "pin arms," and "duct tape." The notes contained several references to "ice" and "van." The notes found in the trunk of the Tempo read "release of scruples" and made reference to a gun silencer. On the Styrofoam cup, Nash wrote "bullet hole," "scissors" and "glove"
There is also substantial evidence of three possible motives for the killing. The librarian at the downtown library testified about Nash coming in looking for Hawes, shouting and enraged. This was evidence Nash had a falling out with Hawes, providing one possible motive for murder. The identity theft evidence, along with Nash's possession of Hawes's possessions and the joint credit card application, were evidence Nash wanted to assume Hawes's identity. Finally, the torture notes written at least 10 years prior, in combination with the more recent notes, were circumstantial evidence Nash was a psychopath who had been planning to commit a murder for a long time.
Finally, the manner of the killing supported the jury's verdict. Hawes was shot once in the head, behind his left ear. The gun was fired from a distance of at least three feet. Nash used a silencer when committing the murder, in order to muffle sound. Nash used hollow-point bullets, which are designed to be more lethal by expanding on contact. Finally, Nash took great care to dismember the body, place the body parts in trash bags, and scatter the remains in remote areas of the county.
In sum, the evidence is not only substantial, but overwhelming, that Nash is guilty of first degree murder.
DISPOSITION
The judgment is affirmed.
WE CONCUR, McDONALD, J., AARON, J.