Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 195570.
Richman, J.
James L. Tolds appeals from a conviction of second degree murder in the bludgeoning death of his girlfriend, Tanya Lewis, for which he was sentenced to 36 years to life in prison. (Pen. Code, § 187.) He raises issues related to jury instructions, prosecutorial misconduct, erroneous admission of evidence, insufficient proof of a prior conviction, and denial of jury trial on the identity element of the prior conviction.
Statutory references, unless otherwise designated, are to the Penal Code.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts
Defendant and Lewis, who had been dating for about four months, lived in separate rooms on the second floor of the Arlington Hotel in the Tenderloin district of San Francisco. They had a volatile relationship, fueled mostly by Lewis’s verbal abuse. For the most part defendant did not respond with verbal insults or threats; rather, he tended to passively tolerate Lewis’s abuse.
About a week before the killing, however, during an argument over defendant’s room keys, he told Lewis, “If you don’t give me my keys, bitch, I’m going to fuck you up.” Lewis, who was 5’9” tall and weighed 280 pounds, responded, “If you run up on me, I’ll lay you down right where you stand.” As defendant retreated up the stairs Lewis chased him, threatening to knock him “upside [his] mother fucking head.”
In the morning hours on June 26, 2004, Lewis was yelling at defendant and throwing things down the hallway. Defendant sat on his bed with his head down and did not yell back at Lewis. There was broken glass on the floor of defendant’s room. Either later that day or the day before, defendant’s next door neighbor, Patricia Cartwright, saw him go downstairs, while Lewis yelled at him. He yelled back, “Somebody better come get this woman.” He then told Lewis, “You better leave me alone.”
At about 5:00 p.m. on June 26, the desk manager downstairs heard breaking glass outside the hotel and thought a vase had fallen from the window of defendant’s room. He went upstairs and knocked on defendant’s door. Defendant opened the door just a crack, not allowing the clerk to see inside. Defendant acknowledged the vase had fallen from his window and said he would clean up the broken glass later. He seemed normal in his interaction with the clerk.
Cartwright was watching television sometime after 5:00 p.m. She was startled by a “loud boom” coming from defendant’s room, like the sound of someone falling to the floor. She did not hear an argument preceding the noise, although she normally could hear arguments next door. From within defendant’s room she heard Lewis say, “Help. Somebody help me, please. Oh, God.” Cartwright went to defendant’s room and knocked, but no one answered. Cartwright later heard a lot of water running in the sink in defendant’s room. She also heard the bathroom door across the hall open, and when she looked out her peephole she saw the bathroom door opening and closing.
At about 10:00 p.m., defendant came downstairs and asked the desk clerk to call 911, saying his girlfriend had killed herself in his room The clerk came upstairs and saw a body on the floor of defendant’s room. The left side of the face was caved in and the right side bulged outward. The desk clerk could not tell if the victim was a man or a woman. He called 911.
When the police arrived they found defendant crouched next to Lewis’s lifeless body. They asked him to leave the room and handcuffed him while they investigated. Defendant told the officer he did not need to be handcuffed because his girlfriend “beat herself.”
Inside the room officers found Lewis lying in a pool of blood near defendant’s bed. A 10-pound barbell was lying near her head. Lewis’s head was misshapen from multiple blows: eight scalp lacerations, including five separate blows to the back of the head, as well as nearly 30 facial lacerations (which could have been caused by fewer blows). Both of Lewis’s eye globes had collapsed. Her nose and other facial bones were fractured and had collapsed into her face so that it appeared that Lewis’s nose was missing or deformed. Multiple teeth were fractured; or missing and had been lost recently. Any one of several blows could have independently caused death.
The state of the body was such that Lewis’s wounds could not have been self inflicted. There was simply too much trauma to the head.
Lewis’s naked torso was covered with a wet sweatshirt. The room did not show signs of a struggle. The bedding and box springs, however, were bloody. There was a small amount of blood spatter on the wall, furniture and ceiling.
Alcohol and cleaning supplies were found near the sink in defendant’s room. There were signs that attempts had been made to clean up the area. Several of Lewis’s missing teeth had been placed on the edge of the sink. A bloody toothbrush near the teeth and the appearance of the teeth suggested that some of them had been scrubbed with the toothbrush.
In the bathroom across the hall the police found a smear of blood on the door frame and a few drops of blood on the floor. In the bathtub they found defendant’s quilt soaking in a tub full of blood-tinged water.
Defendant was cooperative with the police but appeared rather dazed in his initial interactions. After completing their preliminary crime scene investigation the police arrested defendant. He appeared normal and calm and did not have trouble with his balance as he was escorted from the building.
When he arrived at the police station defendant had scrapes on the backs of both hands and his right hand was swollen, but he was calm and cooperative and had no other visible injuries. The police went through a checklist of possible physical conditions or injuries, and defendant reported no other complaints of injury or pain. He had no evident head injuries and there was no medical indication he had been unconscious.
Defendant did tell the police he suffered from seizures. However, defendant told them he had not been unconscious within the past eight hours and had last suffered a seizure a week earlier.
Defendant threatened to commit suicide several times while in custody. For that reason, and because of the injury to his hand, defendant was taken to San Francisco General Hospital, and X-rays there revealed a right thumb (metacarpal) fracture.
The chief medical examiner, who examined defendant in the hours after his arrest, testified the thumb injury could have occurred when defendant clutched the barbell with his right hand while striking it against Lewis’s skull. She also testified it could have been caused by other blunt force trauma and hypothetically could have been inflicted while defendant attempted to block a blow from a dumbbell wielded by a third person. The radiologist who examined the X-rays of defendant’s hand testified that type of injury was most commonly caused by a fall or a “direct blow.”
The charges and trial
Defendant was charged with murder on June 28, 2004, with an enhancement for personal use of a deadly weapon. (§§ 187, 12022, subd. (b)(1).) An amended information was filed August 16, 2005, adding the allegation that defendant had suffered a prior conviction for assault with a deadly weapon (knife) on July 23, 1987. (§ 245, subd. (a)(1).) He pled not guilty and denied the prior conviction. On December 13, 2005, he entered a plea of not guilty by reason of insanity.
Defendant was ultimately brought to trial in October 2007. The long delays were occasioned largely by psychological examinations and reports.
Defendant’s statements regarding his injuries
After he was arrested, defendant continued to assert that Lewis had killed herself. He told police she was “hitting herself in the head” with her fists, so he went to the store to get away from her. Defendant said when he came back from the store Lewis grabbed at his hand, scratched him, and then apologized. He expressly told police Lewis had not attacked him with a weapon. Defendant repeatedly said he did not know what happened to Lewis but also insisted he “never put [his] hands on her.” A portion of the DVD recording of defendant’s interview was played for the jury.
Defendant told the staff at San Francisco General Hospital a few hours after his police interview that his hand was injured when it was “struck with [an] object during [an] altercation.” The hospital medical records containing that statement were in evidence.
Beginning a few days after the killing defendant told several court-appointed and other psychologists in confidential reports that Lewis attacked him with one of his barbells that had been stowed under his bed. Defendant said he threw up his right hand to protect his head just as Lewis swung the dumbbell at his head. The dumbbell struck his hand, which in turn hit his head, and that was all he could recall. He said he started sweating and felt dizzy after being struck and “saw stars” before his memory went blank. The court allowed experts on both sides to testify to the gist of these reports at trial for the limited purpose of explaining how the reports affected their professional opinions.
Defendant first claimed five days after the killing that Lewis assaulted him with a dumbbell to Roland Levy, M.D., who was hired by the defense to examine defendant. Defendant told Levy “he tried to grab a barbell from his girlfriend when she came at him swinging it. He then went blank.”
Defendant did not testify at trial.
The expert testimony
Defense expert psychologist, Constance Hills, had seen defendant and administered psychological tests to him in 2001 in connection with his application for SSI benefits. She had not seen him since. As part of her evaluation in 2001 Hills examined records relating to two prior head injuries defendant had suffered: one when he was 17 and was struck behind the ear with brass knuckles, and another when he was 20 or 21 and was struck on the head with a shotgun. The first injury resulted in some hearing loss, and the second put him into a coma for five days and left a scar on top of his head.
Hills was trying to determine whether defendant’s problems functioning in everyday life were caused by alcohol and drug abuse, his prior head injuries, or a psychiatric problem. She concluded his problems were most likely attributable to an untreated psychosis. Defendant had some delusional thinking, imagining that God spoke to him through the television set. In 2001, Hills believed he suffered from both depression and psychosis. She further opined defendant’s brain was damaged as of June 2004. Given that pre-existing brain damage, if he sustained an additional blow to the head, Hills said it could have caused him to go into a delirium and to do things he would not remember.
Neuropsychologist Young, who testifyied for the defense, met with defendant in November 2005 and again a year later. She administered several psychological tests to determine the functioning of defendant’s brain, concluding his brain had been damaged prior to the offense. The earlier brain damage could have been due to fetal alcohol syndrome, multiple head injuries, or defendant’s own alcohol abuse. A single photon emission computed tomography (SPECT) scan ordered by Young showed brain damage consistent with Young’s finding of decreased function.
During an interview in November 2006 defendant told Young that Lewis came at him holding a dumbbell over her head with both hands. Defendant told Drs. Chamberlain and French that he put up his hand to block the blow. He was knocked against the closet and began to feel dizzy. (See footnote 2, ante.) He also told Young that he “saw stars” and could not remember anything else until he “came to” and found himself on the floor.
Young’s testimony was admitted under Evidence Code section 801, subdivision (b), which allows an expert to testify to matters “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.” (Italics added.) The court ruled experts could reasonably use defendant’s statements about the events surrounding Lewis’s death to form an opinion in their field of expertise. But such use of that information did not make the hearsay independently admissible to prove the truth of defendant’s statements. This was explained to the jury.
Through a hypothetical question Young testified this scenario could have resulted in a concussion and a delirium, with the blow from the dumbbell being transmitted from the hand, through the skull, injuring the brain. Such a blow to the head might or might not leave a mark. Young opined it was “more probable than not” defendant suffered a head injury and an altered state of consciousness on the date of the killing. In such a state he could have reacted aggressively to the blow in an instinctive “fight or flight” response without being aware of his actions. Although defendant could have simply bludgeoned his girlfriend to death in a rage, his behavior was “more likely to be unconscious and unknowing.”
Young discounted inconsistencies in defendant’s account of the crime to the police, as amnesia is associated with delirium. She believed his later accounts of the surrounding circumstances were a belatedly recovered memory consistent with brain injury resulting in delirium. Young claimed defendant’s version of events during the police interview could have resulted from “confabulation, ” in which someone who has lost memory will attempt to fill in the gaps to explain a partially forgotten incident to himself. Young testified defendant was “very confused” and irritable during the police interview―two symptoms of a concussion―and she was confident he was not malingering.
The defense and prosecution experts agreed that an injured brain, such as defendant’s, is more vulnerable to additional later injuries and more likely to develop a delirium. A traumatic insult to a previously injured brain is likely to have a much greater effect than the same injury to a healthy brain.
A prosecution rebuttal expert, Dr. Michael Shore, also agreed that defendant had a damaged brain. But he disagreed that defendant suffered a reinjury to his brain, a concussion, or a delirium on the day of the killing. He based his opinion in part on the fact that defendant exhibited none of the expected objective symptoms of a concussion, such as nausea, confusion, dizziness, or headache. Shore also reviewed the DVD of defendant’s interview with police (which Young had not done) and noted “a certain level of belligerence.” He was convinced defendant displayed no confusion or other evidence of a concussion.
Young reviewed the transcript of the interview but not the DVD.
Shore also testified defendant’s lack of retrograde amnesia (i.e., amnesia about events just prior to the hypothetical blow to his head) was a factor suggesting he had not experienced a concussion, as patients who suffer lost memory after such a blow usually exhibit a loss of memory of events just preceding the trauma. Shore found it suspicious that defendant claimed to remember becoming sweaty and “seeing stars” just before he lost consciousness. He did not believe the brain injury shown on the SPECT exam occurred on June 26, 2004, and thought the hypothetical defense scenario did “not seem medically likely, probable [or] even possible.”
A second prosecution rebuttal expert, Dr. Jonathan French, had originally been appointed by the court to examine defendant on three occasions in January and February 2006. He agreed defendant had a history of head injury but did not agree there was significant symptomatic evidence of temporal or frontal lobe damage. He had reviewed defendant’s psychiatric records from 11 years in state prison, which showed no episodes of unconsciousness or delirium, although they reported occasional hallucinations and periods of depression.
Like Shore, French was skeptical of defendant’s self-reported version of the crime, and he agreed that lack of retrograde amnesia was important in assessing the evidence. He called defendant’s behavior during the police interview “pure street, ” noting that defendant was at times “combative” and evaded answering pointed questions about Lewis’s death.
The defense theory
Defense counsel argued a defense of unconsciousness based largely on Young’s testimony. According to that theory, defendant’s right thumb was injured when he raised his right hand to defend himself from Lewis’s blow with the dumbbell. The move cushioned the blow, but its force was nevertheless transferred through defendant’s hand onto his skull, without leaving a mark on his head, resulting in an additional insult to his previously damaged brain. This, in turn, resulted in a concussion and a delirium which rendered defendant legally unconscious. Although defendant appears to have responded with rage while in this delirium, he was unaware of his own actions and was not legally responsible for Lewis’s death.
Defense counsel also used defendant’s bizarre behavior after the crime (e.g., removing Lewis’s clothes and covering her with a wet sweatshirt, scrubbing her teeth in the sink, and his dazed appearance when the police arrived) to substantiate his theory of defense.
Verdicts
On November 27, 2007, the jury returned a guilty verdict of second degree murder and found defendant used a deadly weapon in the commission of the offense, to wit, a barbell.
Following the guilt phase, the sanity phase trial was conducted. The jury found defendant was not insane at the time of the offense.
On November 28, 2007, the trial on the prior conviction commenced. Two days later the jury found defendant suffered a prior conviction of assault with a deadly weapon (§ 245, subd. (a)(1)) in 1987 and found he personally used a deadly or dangerous weapon in committing that offense.
Sentencing
On March 7, 2008, defendant was sentenced to 15 years to life in prison as the base term for the murder. The court doubled the minimum term to 30 years based on the prior conviction under the second strike provisions of the three strikes law. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) It also imposed a separate five-year enhancement under section 667, subdivision (a). Finally, a true finding on the enhancement for use of a deadly weapon added another year to the sentence, making the aggregate term 36 years to life.
DISCUSSION
II. JURY INSTRUCTION ISSUES
A. Background
Although the defense testimony was directed to a theory of unconsciousness, defendant also requested jury instructions on self-defense, imperfect self-defense, and heat of passion voluntary manslaughter.
Defendant points to three statements he made in the hours after the killing that he claims supported such instructions: (1) he told police he went to the store to get away from Lewis “beating on [his] head, ” and (2) he told them Lewis hit or “grabbed” his hand and scratched him when he returned from the store. The third statement was to doctors at the hospital indicating his thumb had been “struck with [an] object during [an] altercation.”
Defendant lists the following additional items of evidence as circumstantial support for the three instructions: (1) defendant’s right thumb was broken during the attack, most likely as a result of “a direct blow”; (2) defendant is left-handed; (3) defendant appeared dazed when first interacting with the police; (4) Young and Hills testified defendant’s injuries and behavior were consistent with having been attacked first by Lewis with the barbell; (5) Lewis had been throwing things earlier in the day; and (6) Lewis threatened defendant with physical violence on an occasion prior to the murder.
On the heat of passion theory, defendant further cites French’s belief that Lewis pushed him emotionally until he “just snapped” and lost control. French speculated there may have been a specific precipitating event, perhaps even a blow with a barbell, that caused defendant to snap. He pointed out, however, that the only person who really knew what happened that evening was defendant himself.
After requesting additional briefing, conscientiously reviewing the authorities cited by the parties, and considering the various items of evidence relied upon by the defense, the court concluded there was no substantial evidence of self-defense, imperfect self-defense, or heat of passion. The court noted, “there is really no evidence that Ms. Lewis was responsible for either the head injury or the broken thumb.” In so ruling, the court reminded counsel that Young’s testimony about defendant’s description of events surrounding the killing was in response to a hypothetical question, and defendant’s statements were admitted for the limited purpose of explaining the basis of Young’s expert opinion. Since defendant did not testify, the court also found no evidence he acted from fear or in heat of passion.
B. Legal principles relating to jury instructions
A trial court is required to instruct the jury sua sponte “on general principles of law that are ‘closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.’ [Citation.]” (People v. Moye (2009) 47 Cal.4th 537, 554 (Moye).) This includes the duty to instruct sua sponte on any lesser included offenses, such as voluntary manslaughter, supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162 (Breverman); People v. Barton (1995) 12 Cal.4th 186, 194-195 (Barton).) The converse of this rule is that the court is not required to instruct on theories the jury could not reasonably find to be true. (Breverman, supra, 19 Cal.4that p. 154; People v. Wickersham (1982) 32 Cal.3d 307, 324-325, overruled on other grounds in Barton, supra, 12 Cal.4th at p. 201.) A trial court must also instruct the jury, upon request, on any theory of defense that is supported by substantial evidence. (People v. Sisuphan (2010) 181 Cal.App.4th 800, 806.)
Substantial evidence is defined as “ ‘ “evidence from which a jury composed of reasonable [persons] could... conclude[]” ’ that the lesser offense, but not the greater, was committed.” (Breverman, supra, 19 Cal.4th at p. 162.) It is evidence of “ ‘ “ponderable legal significance, ... reasonable in nature, credible, and of solid value.” ’ ” (People v. Campbell (1994) 25 Cal.App.4th 402, 408.) “The trial court need not give instructions based solely on conjecture and speculation.” (People v. Young (2005) 34 Cal.4th 1149, 1200.) And while substantial evidence may consist of inferences, such inferences must be logical and reasonable. (Evid. Code, § 600, subd. (b).)
On appeal we review independently the question whether the trial court failed to instruct on defenses and lesser included offenses. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78 (Oropeza).)
C. Self-defense and imperfect self-defense
On the questions of self-defense and imperfect self-defense, we can cut to the chase. Even if we agreed with defendant that the instructions were improperly denied, we could not find any such error prejudicial. Both self-defense and imperfect self defense require that the defendant employ no more force than necessary to repel the aggressor. (CALCRIM Nos. 505, 3474; CALJIC Nos. 5.52 [Self-Defense―When Danger Ceases], 5.53 [Self-Defense Not an Excuse After Adversary Disabled]; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 76, pp. 410-411.) Defendant acknowledged these limiting principles in the jury instructions he requested and in his briefs in this court.
Imperfect self-defense is not properly regarded as a defense, but rather as a form of voluntary manslaughter. (Breverman, supra, 19 Cal.4th at p. 159; Barton, supra, 12 Cal.4th at p. 200.)
The rain of blows defendant visited upon Lewis undoubtedly exceeded a reasonable response in self-defense. In such circumstances the court was not required to instruct on either actual or imperfect self-defense. (People v. Hardin (2000) 85 Cal.App.4th 625, 634, fn. 7 [imperfect self-defense denied to defendant who bludgeoned elderly woman to death after invading her home under cocaine-induced belief he was being pursued by killers]; People v. DeLeon (1992) 10 Cal.App.4th 815, 820, 825 [defendant who fired weapon at purported assailants as they turned and walked away was not entitled to either actual or imperfect self-defense instructions]; People v. Uriarte (1990) 223 Cal.App.3d 192, 195-198 [delusional defendant, who killed two people and shot two more because he falsely believed they “abused” his wife while holding her hostage in their closet, not entitled to self-defense instruction in part because he shot one victim after disabling him and shot an additional person not implicated in his delusional belief].)
Even assuming for purposes of argument the court erred in refusing the instructions and the stringent federal standard of prejudice would apply (Chapman v. California (1967) 386 U.S. 18 (Chapman)), Lewis was beaten so many times with such sheer savagery that no reasonable juror could have found defendant halted his attack as soon as she was rendered non-threatening. Neither a self-defense nor an imperfect self defense theory would have stood a reasonable chance of success even if the requested instructions had been given.
D. Heat of passion
The factor that distinguishes the “heat of passion” form of voluntary manslaughter from murder is provocation by the victim. (Moye, supra, 47 Cal.4th at p. 549.) The underlying theory is that the defendant was so overwhelmed by the victim’s provocation that his reason was temporarily obscured. The killing therefore is not treated as the product of his voluntary choice, but rather is reduced to voluntary manslaughter.
A heat of passion theory includes both objective and subjective elements. (Moye, supra, 47 Cal.4th at p. 549.) To satisfy the objective element of this form of voluntary manslaughter, the victim’s conduct must have been “ ‘sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.’ [Citations.].” (Id. at p. 550.) The subjective element requires the defendant “to have killed while under ‘the actual influence of a strong passion’ induced by such provocation, ” without an opportunity to regain control of his emotions. (Ibid.)
The Supreme Court has repeatedly emphasized that the requirement of substantial evidence is not met by the existence of “any evidence... no matter how weak” of circumstances that might lead to an impassioned response. (Moye, supra, 47 Cal.4th at p. 553; Barton, supra, 12 Cal.4th at p. 195, fn. 4.) In Moye, the defendant bludgeoned the victim to death with a baseball bat after being in a fistfight with his brother the night before, during which the victim intervened on his brother’s behalf. According to defendant’s own account, on the morning of the homicide, as defendant pulled his car over to make peace with the victim, the victim kicked the defendant’s car. (Moye, supra, 47 Cal.4th at pp. 542, 545.) The defendant, who was the sole witness to the final encounter, testified he jumped out of the car and chased the victim, who then turned on him and assaulted him with a baseball bat. (Id. at p. 545 546.) Moye described being hit several times with the baseball bat, disarming his assailant, and then beating him to death in response to the victim’s continuing advances. (Id. at p. 546.)
Self-defense and imperfect self-defense instructions were given, but the Supreme Court held a heat of passion instruction was properly refused. The defendant’s own testimony showed he responded to the threat in a rational defensive manner, not in a passion-inflamed fury. (Moye, supra, 47 Cal.4th at pp. 546, 553-554.)
Moye supports the trial court’s decision to deny a heat of passion instruction in this case. Here the defendant did not claim to have defended himself in a rational manner. Instead he claimed he knew nothing of how Lewis met her end, but it was his “understanding” that she killed herself.
Even when defendant “recovered” his memory of Lewis’s attack, he still never admitted bludgeoning Lewis. Both the claim of having played no role in the murder and the claim of having been unconscious are inconsistent with the mitigating instructions proposed by defendant. Moye tells us that we need not ignore defendant’s actual statements to the police―nor need we credit as truthful defendant’s subsequent statements to psychologists―in assessing whether there was substantial evidence to support the requested instructions.
E. No substantial evidence of assault by Lewis or objective provocation
At bottom, all three defense-proposed instructions inherently rely upon defendant’s own hearsay claim of an attack by Lewis, which Young recounted to the jury. (See fn. 2, ante.) But the court properly rejected this evidence because it was admitted solely as a basis for the experts’ opinions, not for the truth of the matter stated. The jury was so instructed. In ruling on the requested jury instructions the court reminded counsel the hearsay was not “in evidence” and was “not evidence that can be relied upon.” We read this as a comment on the limited admissibility of such evidence, not a weighing of the credibility of the testimony, as suggested by defendant. It would have been improper for the jury to rely on defendant’s hearsay for a broader purpose. (See fn. 3, ante.) (Price, supra, 1 Cal.4th at p. 416 [an “expert may not under the guise of stating reasons for an opinion bring before the jury incompetent hearsay evidence”].)
In the moments immediately preceding the bludgeoning, defendant himself described Lewis’s conduct as involving nothing more provocative than hitting him on or grabbing him by the hand, which would not constitute reasonable provocation for an assault with a dumbbell. He described only trivial acts of aggression that would not have aroused the passions of an ordinarily reasonable person and would not have justified the use of deadly force.
Likewise his “beating on my head” statement did not constitute substantial evidence that Lewis attacked him. It does not appear he meant the comment literally. In any case he said he left the building to escape, not that he reacted by assaulting Lewis. His sojourn to the store would have given him time to cool off. (CALCRIM No. 570.) And finally, his report to doctors that his thumb had been “struck with [an] object during [an] altercation” did not amount to substantial evidence that Lewis attacked him. He did not accuse Lewis of wielding that object, and when asked pointedly by the police, denied that Lewis attacked him with any sort of weapon.
As for the circumstantial evidence, the court ultimately concluded that none of the circumstantial evidence gave rise to reasonable inferences of self-defense or heat of passion. We agree. At best it invited a series of suppositions that, far from being reasonable, was complicated and highly imaginative.
The hand injury alone raises no reasonable inference as to its cause, and that it was a right-hand injury while defendant is left-handed does not elevate it to the level of substantial evidence. Defendant could have hit his own right hand while inflicting blows on Lewis with his left. He could have started battering her with the dumbbell in his left hand and switched hands mid-attack. He could have bludgeoned her while holding the barbell in both hands. We do not suggest a “reasonable inference” must be the only possible inference from the evidence, but it must be logical and certainly more than rank speculation.
Though there was evidence of past badgering by Lewis and evidence she had been throwing things earlier in the day, there was no evidence of imminent danger to defendant, and there had been a sufficient cooling off period since Lewis’s morning tirade to foreclose a heat of passion theory. (Moye, supra, 47 Cal.4th at pp. 551-552 [neither fight the night before nor car kicking incident constituted sufficient provocation].) Evidence of Lewis’s pugnacious personality does not support a reasonable inference that she actually attacked him that evening. Cartwright testified that Lewis was throwing things down the hallway and specifically said she was not throwing them at defendant. Defendant himself told police that Lewis threw things and broke them, while explaining she was not violent toward him on the date of her death.
The evidence that Lewis threatened defendant during their argument over his keys was not offered or admitted to prove she attacked him on the day she was killed. (Evid. Code, §§ 1101, subd. (a), 1103, subd. (a)(1).) It was admitted solely in accordance with the rule that one who has previously been threatened by an attacker is entitled to respond with quicker and harsher measures than one who has not been similarly threatened. (People v. Humphrey (1996) 13 Cal.4th 1073, 1094; CALCRIM Nos. 505, 571.) A threat made a week before the killing could not reasonably form the basis of a self-defense, imperfect self-defense, or heat of passion theory.
Had the threats been admitted to prove Lewis’s propensity for violence, the prosecution would have been allowed to introduce evidence of defendant’s character for violence. (Evid. Code, § 1103, subd. (b).)
F. No substantial evidence of conscious self-defense or subjective heat of passion
Just as there is a subjective element in heat of passion, to support a theory of either actual or imperfect self-defense the defendant “must actually believe in the need to defend himself against imminent peril to life or great bodily injury.” (Oropeza, supra, 151 Cal.App.4th at p. 82.) No witness observed the killing, and thus there was no third party testimony that defendant acted out of fear or other passion at the time of the fatal confrontation. Since defendant did not testify about his own mental state, and none of his statements in evidence referred to fear or other strong emotion, the court found no substantial evidence to support the subjective element of any of the three theories. This was not a negative inference from defendant’s silence, but simply a refusal to credit his hearsay statements for their truth.
Although defendant would have us hold that certain objective facts provided substantial circumstantial evidence that would justify strong subjective emotions, it is not enough that defendant could have been angry or fearful at the time of the attack. Those conceivable inferences do not amount to substantial evidence in the face of contradictory statements by defendant.
Evidence of a provocative initial attack by the decedent does not alone justify a heat of passion instruction. “Nothing in Breverman suggests an instruction on heat of passion is required in every case in which the only evidence of unreasonable self-defense is the circumstance that a defendant is attacked and consequently fears for his life. In Breverman there was affirmative evidence that the defendant panicked in the face of an attack on his car and home by a mob of angry men and had come out shooting, and continued shooting, even after the group had turned and ran. ‘At one point in his police statement, defendant suggested that he acted in one continuous, chaotic response to the riotous events outside his door.’ [Citation.]).” (Moye, supra, 47 Cal.4th at p. 555, italics added.) Without similar evidence, a heat of passion instruction was properly denied in Moye. (Id. at pp. 555-558.)
In his statement to the police, defendant never claimed he killed Lewis in self defense or heat of passion. He not only claimed he “never put [his] hands on” her, but all of his statements, including his hearsay statements to mental health professionals, consistently claimed he had no memory whatsoever of attacking Lewis with the dumbbell.
The lack of direct evidence that he actually responded in self-defense or heat of passion to Lewis’s bullying, given that he was responsive to direct questioning about the surrounding events during the police interview, is telling. “[N]o principle of law required the trial judge below to disregard the evidence in order to find that the jury should consider whether defendant subjectively killed in the heat of passion, when no substantial evidence supported that theory of manslaughter, and the evidence actually introduced on the point-the defendant’s own testimony-was to the contrary.” (Moye, supra, 47 Cal.4th at p. 554.)
Other cases, too, stand for the proposition that evidence of objective circumstances that might inspire a person in defendant’s position to act in self-defense is insufficient to satisfy the subjective aspect of self-defense or imperfect self-defense. (Oropeza, supra, 151 Cal.App.4th at p. 77, 81-83 [self-defense instruction properly refused in road rage shooting, despite evidence victim’s truck swerved at defendant’s truck, because defense theory was that another occupant of the truck, not defendant, fired the fatal shot]; People v. Hill (2005) 131 Cal.App.4th 1089, 1102, overruled on other grounds in People v. French (2008) 43 Cal.4th 36, 48, fn. 5 [self-defense instruction properly denied where defendant did not testify, no other witnesses testified he behaved fearfully, and he raised no issue of self-defense when interviewed by police].)
Defendant’s reliance on French’s testimony that defendant may have “just snapped” when he killed Lewis is a far reach. French speculated there may have been some final provocation that pushed defendant over the edge and was even willing to surmise defendant could have been “clocked by a dumbbell.” As French pointed out, however, no one except defendant could know what actually occurred because no one else was there. Such testimony obviously involved conjecture and did not constitute substantial evidence that defendant was, in fact, “clocked by a dumbbell” and thereby provoked into a rage.
Viewing the evidence cited by defendant in light of the whole record, and in light of his own police interview, none of the circumstantial evidence highlighted by defendant amounted to substantial evidence in support of the requested instructions.
Even if we assume error, it was not prejudicial. (Moye, supra, 47 Cal.4th at pp. 555-556 [standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) applies]; Breverman, supra, 19 Cal.4th at p. 178 [same].) The jury evidently rejected Young’s hypothesis of how the bludgeoning occurred. If it had believed the premise of Young’s opinion (i.e., that Lewis struck defendant first with the dumbbell), it likely would have accepted her conclusion (i.e., that defendant suffered a concussion and delirium).
The prosecution experts did not testify that defendant was assaulted and sustained a concussion, but was nevertheless conscious and intentional in his reaction. Rather, their testimony was that defendant’s behavior during and after the murder was inconsistent with Young’s premise. It therefore appears the jury resolved the provocation issue adversely to defendant in connection with his unconsciousness defense, and any instructional error was harmless.
II. PROSECUTORIAL MISCONDUCT
A. Background
Defense counsel filed an in limine motion requesting that no evidence of defendant’s prior bad acts, including arrests or convictions, be allowed in evidence, either for impeachment or otherwise. (Evid. Code, § 1101.) The prosecutor for her part sought to impeach defendant with his 1987 prior conviction of assault with a deadly weapon (knife) if he elected to testify. Considering the evidence for impeachment, the court ruled the prior conviction was admissible as an unspecified prior felony conviction. (Evid. Code, § 788.)
When informed by the prosecutor that an expert witness might have relied on prison psychiatric records, and such records might therefore be relevant, the court ruled that no questions should be asked without first approaching the bench for a ruling. Specifically, the court said: “So before the word ‘prison’ or ‘Department of Corrections’ is used, if you all would be kind enough to approach the bench and we can sort it out then.”
Nevertheless, during cross-examination of defense expert Hills, the prosecutor asked, “Have you read any police reports from his prior―from his prior cases?” Defense counsel made a contemporaneous objection, there was a sidebar discussion, and the court overruled the objection. The prosecutor immediately continued questioning Hills about whether she had considered defendant’s “prior arrests, ” including those for “spousal battery and assault with a deadly weapon” as well as “alcohol and drug-related” offenses. Defense counsel did not object. But when the line of questioning continued with an inquiry whether Hills had considered psychiatric records from the Department of Corrections (CDC), defense counsel objected under Evidence Code section 352 and moved for a mistrial outside the jury’s presence.
The court denied the mistrial motion but reprimanded the prosecutor for violating the in limine ruling. The court noted that its ruling at sidebar probably would not have changed, but asking the question without a sidebar was misconduct. The court ordered the prosecutor’s last question stricken. It admonished the jury, “Folks, the last question by the prosecution to which Mr. Gayle objected, is stricken. [¶] You may recall that when we first started the trial, I told you that if I strike any testimony or any question you must disregard it. You can’t discuss it again and you cannot consider it for any reason.”
Defense counsel renewed his mistrial motion the next day and again at the end of trial. He claimed the admonition had not been strong enough and proposed three additional alternative admonitions. The court agreed the prosecutor had committed misconduct but denied the mistrial motions because it believed an admonition could cure the harm.
The court did not adopt any of defense counsel’s proposed admonitions, but it did strike the prosecutor’s intermediate questions of Hills and gave the jury a stronger admonition: “Before we begin, when Ms. Garcia was cross-examining Dr. Hills―I guess it was the day before yesterday―she asked the following question: [¶] ‘Now, you said in your report on page 2, under relevant psychosocial history, you called it relevant, right?’ [¶] Dr. Hill’s [sic] answer: ‘Right.’ [¶] ‘Q. Where you talk about his arrests were mostly alcohol or drug related, including those of spousal battery and assault with a deadly weapon. [¶] Can you tell us where you got the information about these arrests? [¶] The prosecutor asked those questions in violation of a court ruling that I made prior to trial. That question should not have been asked without a further ruling from the court. [¶] I am going to strike those questions and answers. You are to disregard those questions and answers and not to consider them for any purpose.” Thus, the court made clear both to the attorneys and the jury that the gist of the misconduct was the violation of the court’s order, not the substance of the questioning per se.
In fact, shortly thereafter the court held a hearing under Evidence Code section 402 and allowed the prosecutor to ask future expert witnesses about the materials they relied upon in reaching their opinions, including CDC psychiatric records and records of defendant’s prior arrests, for the limited purpose of impeaching the defense experts and assessing the reliability of the conflicting expert opinions. This was explained to the jury.
Nevertheless, the misconduct was raised by defense counsel as grounds for a new trial on March 5, 2008. The court denied the motion on the ground that any misconduct had been cured by admonition.
B. Discussion
We review the denial of both the mistrial motions and the motion for a new trial under the deferential abuse of discretion standard. (People v. Wallace (2008) 44 Cal.4th 1032, 1084; People v. Frankfort (1953) 114 Cal.App.2d 680, 707.)
It is beyond cavil that evidence of prior misconduct is inadmissible to prove a defendant’s conduct on a specific occasion or to prove his predisposition to commit a crime. (Evid. Code, § 1101, subd. (a).) We likewise have no quarrel with defendant’s premise that a prosecutor’s direct violation of a court order is misconduct. (See People v. Batts (2003) 30 Cal.4th 660, 670, 697; Price, supra, 1 Cal.4th at p. 451.)
Defendant contends the prosecutor committed misconduct in violation of these principles in questioning Hills. The cases cited by defendant, however, involved the prosecutor’s elicitation of inadmissible evidence. (People v. Crew (2003) 31 Cal.4th 822, 839; People v. Smithey (1999) 20 Cal.4th 936, 960; People v. Duvernay (1941) 43 Cal.App.2d 823, 828-829.) The court in our case, by contrast, ultimately ruled the expert witnesses could be questioned about whether they had relied upon defendant’s arrest records and CDC psychiatric records. Thus, the jury learned of the same matters through the testimony of other witnesses and would have learned of such matters even in the absence of misconduct.
Other cases cited by defendant involved a prosecutor’s reference in the jury’s presence to prior convictions which otherwise were not in evidence and which may never have occurred. (People v. Bolton (1979) 23 Cal.3d 208, 212 [“Appellant, in fact, had no prior criminal record”]; People v. Sanchez (1950) 35 Cal.2d 522, 529-530 [unproven prior felony]; see also, People v. Ford (1948) 89 Cal.App.2d 467, 469-471 [erroneous statement that defendant’s acquaintance had been convicted of crime].) In the present case, no false insinuations were made by the prosecutor.
Defendant also claims the prosecutor’s questioning implied that defendant had “served an extended prison sentence” for both assault with a deadly weapon and spousal battery. But the question itself pertained to an arrest for spousal battery, not a conviction or service of a prison term, and the jury was instructed that the attorneys’ questions were not evidence.
Indeed, because the prosecutor’s questioning was ultimately upheld as proper, her only misconduct was in failing to seek a ruling prior to asking the question. The jury was instructed not to draw propensity inferences and to use the evidence solely in assessing the expert opinion. The court itself eventually noted that it probably would have made a different in limine ruling if it had been fully informed at the time that the experts had relied on the CDC and arrest records.
A prosecutor’s misconduct violates the federal Constitution only when her conduct infects the trial with “ ‘ “ ‘such unfairness as to make the conviction a denial of due process’ ” ’ ”; under state law she is guilty of misconduct if her conduct involves “ ‘ “ ‘deceptive or reprehensible methods to attempt to persuade either the court or the jury’ ” ’ ” (People v. Hill (1998) 17 Cal.4th 800, 819; see also, Darden v. Wainwright (1986) 477 U.S. 168, 181; People v. Avila (2006) 38 Cal.4th 491, 610.) In these less egregious situations, such misconduct is subject to the state law standard of prejudice. (People v. Espinoza (1992) 3 Cal.4th 806, 821; Watson, supra, 46 Cal.2d at p. 836.)
Although we agree the prosecutor committed misconduct by violating the court’s order, we certainly cannot agree that it infected the entire trial with unfairness so as to constitute a due process violation. Nor could we find the misconduct prejudicial. Instead, the issue developed into a nonissue over the course of the trial, and the admonitions given were sufficient. We therefore address the admissibility issue directly.
III. ADMISSIBILITY OF PRIOR MISCONDUCT EVIDENCE
Defendant also claims the court erred in allowing other expert witnesses to be questioned about their reliance or lack of reliance on defendant’s prior arrest reports and CDC medical records.
Ordinarily evidence of a prior arrest or period of incarceration is inadmissible either as proof of guilt or as impeachment. Such evidence is highly prejudicial because of propensity inferences that may be drawn from it. (People v. Medina (1995) 11 Cal.4th 694, 769; People v. Anderson (1978) 20 Cal.3d 647, 650-651.)
But it is also true that the jury is entitled to be informed of materials that an expert witness relied on in reaching his or her opinion. (Evid. Code, §§ 801, subd. (b), 802.) “Expert testimony may be founded on material that is not admitted into evidence and on evidence that is ordinarily inadmissible, such as hearsay, as long as the material is reliable and of a type reasonably relied upon by experts in the particular field in forming opinions.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1463.) In this case, the arrest reports and CDC medical records themselves were not admitted in evidence, but their use by expert witnesses was admitted for the purpose of assessing the credibility and reliability of the experts’ opinions. The court explained this to the jury.
We find no error in the court’s ruling. The admissibility of evidence is reviewed for abuse of discretion only. (People v. Cowan (2010) 50 Cal.4th 401, 482.) Here, the court reasonably concluded the various expert opinions could better be evaluated in light of whether they did or did not take into account the earlier arrests and medical records.
Defendant had been in prison for 11 years, from 1987 to 1998. All of the experts reviewed his medical records from that period in forming their opinions and all were familiar with defendant’s prior record of arrests. They differed, of course, in the weight they accorded various aspects of that information.
Defendant argues that the source of such psychiatric evidence was irrelevant. But the fact that defendant was physically confined for that entire period―and therefore subject to more or less constant observation―makes their source relevant. A similar 11 year history of records while defendant was at large in society would be less probative because there would be a greater likelihood that episodes of delirium could have gone undetected.
This is especially true since defendant was homeless during part of his time in free society, which could lead a reasonable juror to infer he would not have had ready access to psychiatric care. A juror uninformed of the source of the records might attribute less significance to the lack of evidence of delirium during that extended period. On the other hand, a different juror might consider the prison psychiatric records less reliable than those of another hospital because of cynicism about the prison health care system. In addition, knowing that certain symptoms were or were not observed in the stressful environment of prison might properly influence the jury’s assessment of the expert opinions.
Similarly, whether an expert witness considered or ignored other incidents in which defendant came into police contact may have tended to show bias or reliance upon incomplete information. This could influence jurors either to credit or reject the expert’s ultimate opinion.
We see no error in the court’s ruling, much less an abuse of discretion.
IV. ADMISSIBILITY OF AUTOPSY PHOTOGRAPHS
A. Background
During trial the prosecutor was allowed to project onto a 12-foot by 12-foot section of the courtroom wall five selected autopsy photographs showing different aspects of the injuries sustained by Lewis. She explained this was the best way to demonstrate to the jury the nature and extent of the injuries, as well as providing circumstantial evidence of intent. Defense counsel argued there was no dispute about Lewis’s injuries. He called the photographs a “gruesome spectacle” and said he himself found them “extremely difficult to deal with.”
The court reviewed the photographs and concluded they were more probative than prejudicial, specifically finding them relevant to the issue of self-defense, as well as potentially to premeditation and planning. It also reviewed two of the photos as projected onto the wall, noting the color was “not particularly vivid.” At defendant’s request, the court agreed to give a cautionary instruction before showing the photographs to the jury.
The five photographs were projected onto the wall during the testimony of the assistant medical examiner who performed the autopsy. The doctor used a laser pointer to designate in the photos the injuries to which she testified.
The court admonished the jury before the photos were shown: “You are going to be viewing some photographs that to most of you will be very unpleasant. You may naturally feel certain emotions when looking at the photographs. Your emotions should play no role in your analysis of the evidence or application of the law. [¶] Please be mindful that you must base your decisions in this case solely on the evidence and not on your feelings or emotions about the photographs or anything else.”
B. Discussion
The admissibility of autopsy photographs is reviewed only for abuse of discretion. (People v. Mills (2010) 48 Cal.4th 158, 190-192; see also, People v. Scheid (1997) 16 Cal.4th 1, 13; People v. Bryden (1998) 63 Cal.App.4th 159, 185.) So long as the evidence is relevant, weighing the probative value of the photographs against their prejudicial effect, as with other determinations under Evidence Code section 352, is left principally to the trial court. (Bryden, supra, 63 Cal.App.4th at p. 185-186.)
Defendant contends the evidence was not relevant because the nature and extent of Lewis’s injuries was not in dispute. As the Supreme Court has explained, however, “the absence of a defense challenge to particular aspects of the prosecution’s case or its witnesses does not render victim photographs irrelevant.” (People v. Lewis (2001) 25 Cal.4th 610, 641.)
Defendant argues the autopsy photos were too gruesome and largely cumulative and therefore should have been excluded. (People v. Anderson (1987) 43 Cal.3d 1104, 1137; People v. Gibson (1976) 56 Cal.App.3d 119, 134-136.) But the Supreme Court has held that photographs are not automatically inadmissible simply because they are cumulative. (Scheid, supra, 16 Cal.4th at pp. 14-18.)
The autopsy photographs were properly admitted to help the jury understand the coroner’s testimony (People v. Lewis, supra, 25 Cal.4th at pp. 641-642), to refute any claim of self-defense, and potentially to help the jury assess malice, premeditation and deliberation (Price, supra, 1 Cal.4th at p. 441). A photograph of defendant’s hand injury was already in evidence. Photographs of Lewis’s injuries were therefore relevant to show the extent of her injuries compared with defendant’s. We discern no abuse of discretion in the court’s weighing of probative value versus prejudicial effect, especially because it cautioned the jury not to be influenced by the emotions the photos evoked. (People v. Memro (1995) 11 Cal.4th 786, 866, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
Defendant argues admissibility cannot be upheld on its relevance to self-defense because the court denied a jury instruction on self-defense. When the court ruled on the photographs, however, it was not clear what additional evidence might come in. Defense counsel had indicated before trial that self-defense would be raised.
Even if the court had abused its discretion, reversal would not be warranted unless it were reasonably probable the jury would have reached a different result had the photographs been excluded. (Scheid, supra, 16 Cal.4th at p. 21; Watson, supra, 46 Cal.2d at p. 836.) Given the graphic testimony about Lewis’s extensive injuries and the strength of the evidence of defendant’s guilt, we find no reasonable likelihood the autopsy photos adversely influenced the outcome of the trial. (Cf. Scheid, supra, 16 Cal.4th at p. 20; People v. Cole (2004) 33 Cal.4th 1158, 1199 [photographs were “ ‘no more inflammatory than the graphic testimony’ ”].)
V. SUFFICIENCY OF EVIDENCE OF PRIOR CONVICTION
A. Background
The amended information alleged that defendant had previously been convicted of assault with a deadly weapon in 1987 and that the prior conviction was a felony strike prior “within the meaning of California Penal Code Sections 667(d) and 667(e), and 1170.12(b) and (c).” The strike prior ended up adding 20 years to defendant’s sentence. Defendant claims there was insufficient evidence to prove the prior conviction, specifically insufficient proof of identity and insufficient evidence the prior conviction was a felony, rather than a misdemeanor.
The sole documentary proof of the prior conviction was a change of plea transcript dated July 23, 1987, in which James Tolds entered a guilty plea to a felony charge of violating section 245, subdivision (a)(1), as well as admitting he personally used a deadly weapon in committing that offense on June 23, 1987.
On the issue of identity, Inspector Antonio Casillas of the San Francisco Police Department, who investigated both the 1987 stabbing and the Lewis murder, testified outside the jury’s presence (§ 1025, subd. (c)) that defendant was the same James Tolds he had interviewed as a suspect in a stabbing that took place on June 23, 1987, at an apartment on Pine Street in San Francisco. The trial court found, and instructed the jury, that defendant was the same James Tolds named in the plea transcript.
Before the jury trial began on the prior conviction the court inquired whether there was an abstract of judgment. The prosecutor said there was, but that she only intended to introduce the plea transcript. The court offered to allow her to reopen her case to introduce the abstract, but defense counsel objected, and the prosecutor declined.
We are perplexed by the prosecutor’s failure to introduce the abstract of judgment or a section 969b packet, given that such evidence was readily available. The section 969b packet reflects a certification date of November 2, 2007, long before the trial on the prior conviction.
After the plea transcript was admitted, defense counsel moved outside the jury’s presence for a finding in defendant’s favor on constitutional and statutory grounds (§ 1118), arguing the prosecution’s evidence was insufficient to go to the jury. His motions were denied.
Defense counsel made the same argument in summation to the jury. He pointed out defendant was advised the plea was “not binding on the Superior Court, and if the Superior Court withdraws its approval at the time for sentencing, then you will be allowed to take back your guilty plea....”
During deliberations, the jury sent three notes to the court asking about the effect of the plea. First they inquired, “What is the legal definition of the word ‘conviction.’ ? What conditions must technically be met in order to satisfy this definition? [¶] Does acceptance of a plea bargain constitute a ‘conviction’?” This question was asked at 3:50 p.m. on the first day of deliberation and was answered five minutes later. The court wrote to the jury, “ ‘Conviction’ means the ascertainment of guilt, which among other things, may occur when the defendant voluntarily enters his plea of guilty to the offense.” The court based its answer on People v. Rhoads (1990) 221 Cal.App.3d 56 (Rhoads).
This is numbered last in the clerk’s transcript, but the time of receipt and response shows this question was the first question asked during deliberations on the prior conviction.
At 4:30 p.m., the jury asked, “Under what conditions does a voluntary plea of guilty not ascertain guilt?” and “Does conviction occur when the defendant voluntarily enters his plea of guilt to the offense[?]”
On the next court day the court answered both questions with the identical advice: “Defendant suffers a conviction when he pleads guilty.” This answer was based on People v. Shirley (1993) 18 Cal.App.4th 40, 47.
Twenty minutes later the jury returned a true finding on the prior conviction and personal use allegations. The jury’s verdict did not include a finding that the prior conviction was a strike. That issue is one normally determined by the court, not the jury. (People v. Kelii (1999) 21 Cal.4th 452, 458-459 (Kelii). However, by the end of the trial, the court also had not made such an express finding.
The verdict read: “We, the jury in the above entitled cause, having found the defendant guilty of Murder in the Second Degree, with the allegation of the use of a deadly weapon found to be true, now find the allegation that defendant, on or about the 23rd day of July, 1987, did suffer a conviction for the crime of Assault with a Deadly Weapon, with an allegation that he used a dangerous and deadly weapon to wit: a knife, to be True.”
On January 30, 2008, the prosecution filed a “People’s Sentencing Memorandum and Points and Authorities, ” which attached various exhibits, including a probation report from the 1987 assault with a deadly weapon, a rap sheet, a section 969b packet, and several prior police incident reports. The section 969b packet included an abstract of judgment showing that on December 2, 1987, a felony two-year sentence was imposed for the assault with a deadly weapon.
When the murder case came on for sentencing, the court stated it had “read and considered” the sentencing memorandum. It then imposed a second strike sentence and further enhancement under section 667, subdivision (a). The court never made an express on-the-record finding that the prior conviction was a strike. Defense counsel raised no objection to the sentencing procedure or the materials relied upon by the court and made no objection regarding the lack of an express strike finding either at trial or at sentencing.
B. Identity
The right to trial by jury on a prior conviction allegation is provided by state statute, not the federal or state Constitutions. (People v. Epps (2001) 25 Cal.4th 19, 23 (Epps).) The pertinent statutes give defendants a right to have the jury determine only whether they “suffered” a prior conviction. (Id. at p. 25; §§ 1025, 1158.) The court determines whether the defendant is the same person previously convicted. (§ 1025, subd. (c); Epps, supra, 25 Cal.4th at p. 25; People v. Garcia (2003) 107 Cal.App.4th 1159, 1165.) Indeed, the statutes “appear to leave the jury little to do except to determine whether those documents [admitted to prove the prior conviction] are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged.” (People v. Kelii, supra, 21 Cal.4th at pp. 458-459.)
Normally identity of name is sufficient to prove the defendant is the same person identified in the record of a prior conviction. (People v. Mendoza (1986) 183 Cal.App.3d 390, 401; People v. Brucker (1983) 148 Cal.App.3d 230, 242 [misspelled name].) Nor is the name “James Tolds” so common it should be exempt from that rule. (Cf. People v. Luckett (1969) 1 Cal.App.3d 248, 253 [presumption does not apply when the name is common]; People v. Wong Sang Lung (1906) 3 Cal.App. 221, 224-225 [same].)
Moreover, the prosecutor did not rely solely on the identity of the two names but also presented the testimony of Inspector Casillas. Such testimony is permissible, even though it goes outside the record of the prior conviction. (People v. Martinez (2000) 22 Cal.4th 106, 118.) The plea transcript showed that a month after the stabbing investigated by Casillas in which defendant was a suspect, “James Tolds” entered a guilty plea to felony assault with a deadly weapon, admitting he personally used a knife on June 23, 1987. When considered together, the evidence provided identity of name, date, offense, weapon and city. It was sufficient to show defendant was the same person convicted. (See People v. Garcia (1970) 4 Cal.App.3d 904, 911-912.)
C. Insufficiency of evidence that plea to wobbler was a strike felony conviction
1. Overview
Defendant next contends the evidence was insufficient to prove his prior conviction because the offense was a wobbler and no evidence of the sentence was introduced at the trial. He points out there was no agreed-upon disposition in the prior case and his plea was “contingent” on approval by the superior court. The plea agreement anticipated he would have a diagnostic evaluation under section 1203.03, after which he would be sentenced. Probation remained a possibility, and the only agreement as to sentencing was a two-year maximum. Such a plea, defendant claims, is insufficient to prove a felony conviction.
More fundamentally he claims the transcript of a guilty plea to a wobbler cannot, without more, establish that he was convicted of a prior felony, as required for imposition of a three strikes sentence. (§ 667, subds. (d) & (e), 1170.12, subds. (b)(1) & (c)(1).) He claims a conviction of a wobbler is not entered until either a felony or misdemeanor sentence is pronounced, and without proof of disposition, there was insufficient evidence to support a true finding.
Finally, he claims the court directed a verdict in violation of his constitutional rights when it instructed the jury―in response to several inquiries―that a conviction occurs when a guilty plea is entered.
We dismiss at the outset the argument that the conviction was not proved because the plea was contingent. Rhoads held the contingent nature of a plea did not alter the fact that the conviction occurred at the time of the plea. (Rhoads, supra, 221 Cal.App.3d at pp. 59-60). We consider that question settled and reject this aspect of defendant’s argument. (See also, People v. Balderas(1985) 41 Cal.3d at p. 203.)
With respect to the main thrust of his argument, however, defendant is partially correct. We agree that because his prior conviction was a “wobbler” the evidence introduced before the jury was insufficient to prove it was a felony, and therefore insufficient to prove it was a strike. However, the jury served a limited function in that it was asked to determine only as historical fact whether defendant had “suffered” the conviction. (Epps, supra, 25 Cal.4th at p. 25.)Whether that conviction constituted a strike was an issue for the court to decide, and by the time the court sentenced defendant to a second-strike term there was ample evidence the conviction was a strike felony.
2. Analysis
A wobbler is an offense that may be sentenced alternatively as a felony or a misdemeanor. (§ 17; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 975 (Alvarez).) The characterization of such an offense depends upon the sentence imposed. (Alvarez, supra, 14 Cal.4th at p. 975; People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 360, fn. 17; People v. Trausch (1995) 36 Cal.App.4th 1239, 1245 1247; People v. Vessell (1995) 36 Cal.App.4th 285, 291-294.) “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes... [¶] [a]fter a judgment imposing a punishment other than imprisonment in the state prison.” (§ 17, subd. (b)(1).)
These cases were concerned with whether trial courts retained power after the adoption of the three strikes law to declare a wobbler a misdemeanor, not with classifying a prior conviction as a misdemeanor or felony.
In addition, “[t]he determination of whether a prior conviction is a prior felony conviction for purposes of [the three strikes law] shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor.” (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) This provision appears to be designed specifically to exempt wobblers sentenced as misdemeanors from being treated as strike priors. (See People v. Feyrer (2010) 48 Cal.4th 426, 441-444 (Feyrer); People v. Glee (2000) 82 Cal.App.4th 99, 105-106; People v. Williams (1996) 49 Cal.App.4th 1632, 1639 (Williams).)
Thus, whether an alleged strike prior was, in fact, a qualifying felony under the three strikes law cannot be determined in the case of a wobbler without proof of the sentence imposed. The prosecutor proved to the jury that defendant was convicted of assault with a deadly weapon, but whether that conviction constituted a strike prior required further proof.
Several of the cases cited by the parties are only partially helpful because they were concerned with the timing of conviction, not the felony or misdemeanor classification. Typically those cases involved a defendant who pled guilty to one offense and committed another offense before he was sentenced on the first. The question raised was whether the first guilty plea constituted a “prior” conviction for enhancement or other purposes. (Rhoads, supra, 221 Cal.App.3d at pp. 59-60; see also, People v. Balderas, supra, 41 Cal.3d 144, 203 [admission of prior conviction in death penalty trial]; Shirley, supra, 18 Cal.App.4th at pp. 43-44 [great bodily injury finding struck for sentencing calculation was still a serious felony].) Such cases hold the conviction occurred upon entry of the plea, and Balderas so held with respect to a wobbler. But given the focus of these cases-on when the conviction occurred, rather than its characterization as a felony or misdemeanor-they alone do not answer the question before us. (See People v. Superior Court (Perez), supra, 38 Cal.App.4th at p. 359, fn. 15.)
Division Five of this court also determined that a guilty plea to a wobbler constitutes a conviction for purposes of DNA sample collection, even if the crime is later reduced to a misdemeanor. The opinion was based largely on statutory interpretation of section 296. (Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 821-822.) In reaching that conclusion Coffey distinguished determination of strike priors, saying in dictum, “the three strikes law expressly states that the nature of a ‘conviction’ for three strikes purposes is to be determined at sentencing.” (Id. at p. 819.)
The case most directly supportive of defendant’s position is Williams, in which the Sixth District held a burglary to which defendant had pled guilty, but in which sentence had not yet been pronounced when the current offense was committed, was still a “prior” conviction for three strikes sentencing purposes. (Williams, supra, 49 Cal.App.4th at p. 1639.) The court observed in dictum, however, “when a prior offense is a ‘wobbler, ’ a plea or verdict does not establish whether it is a felony; rather the sentence does. Thus, when the prior offense is a ‘wobbler, ’ the phrase ‘prior convictions’ must include the pronouncement of sentence because only then can it be determined whether three strikes applies.” (Williams, supra, 49 Cal.App.4th at p. 1639.) The crime in Williams was evidently “by definition a serious or violent felony, ” so the statement about wobblers is dictum. (Ibid.) Nevertheless, Williams plainly suggests proof of a prior strike felony would require proof of the sentence imposed whenever the prior offense was a wobbler.
The Supreme Court last year addressed a related issue in Feyrer, supra, 48 Cal.4th 426, explaining that a wobbler is “deemed” a felony when the plea is entered, but may be “reclassified” as a misdemeanor by subsequent judicial action. (Id. at pp. 438-439.) Feyrer was convicted by plea of assault by means of force likely to produce great bodily injury, a wobbler. Pursuant to a plea agreement, he also admitted he inflicted great bodily injury on the victim (his father). (Id. at p. 430.) The plea agreement was that Feyrer would serve six months in county jail, would remain on probation for five years, and the conviction would be considered a strike if he committed another offense. (Id. at pp. 431-432.) When the trial court implemented the agreement, it suspended imposition of sentence and granted probation on the agreed-upon conditions. (Id. at p. 432.)
Defendant performed well on probation, and after early termination of probation, asked the court to recharacterize his crime as a misdemeanor. (Feyrer, supra, 48 Cal.4th at pp. 432-433.) Section 17, subdivision (b)(3) allows a court, either at initial granting of probation or thereafter upon application, to reduce a wobbler to a misdemeanor. The trial court denied Feyrer’s request, however, expressing the view that it had no such authority. (Id. at p. 433.)
The Supreme Court held it did have that authority. (Feyrer, supra, 48 Cal.4th at pp. 440 441.) But Feyrer also held the crime would remain a felony for three strikes purposes: “It is evident that the court’s reduction of such an offense will not alter the status of the offense as a prior felony conviction for purposes of the Three Strikes law [citation] in the event the defendant were to commit a felony offense in the future.” (Feyrer, supra, 48 Cal.4th at p. 444). This observation appears in part to have been based on the specific terms of the plea agreement. (Id. at p. 437.) More to the point, it was also based on the statutory provision that a strike determination “is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor.” (Id. at pp. 442, fn. 8.) Feyrer requested reclassification due to his postplea conduct; the offense was not “automatically” converted to a misdemeanor as it would have been had a misdemeanor sentence been imposed at initial sentencing. (§§ 17, subd. (b)(1), 667, subd. (d)(1).) Thus, Feyrer’s prior conviction remained a qualifying felony for three strikes purposes. (See also, People v. Franklin (1997) 57 Cal.App.4th 68, 73-74 [wobbler reduced to misdemeanor under § 17, subd. (c) was felony strike prior].) We do not read this portion of Feyrer as having any application to wobblers initially sentenced as misdemeanors under section 17, subdivision (b)(1).
From the foregoing cases we distill three general rules. First, for three strikes purposes, a guilty plea to a wobbler is “deemed” a felony conviction at the time the plea is entered. (Feyrer, supra, 48 Cal.4th at p. 438 439; see also, People v. Laino (2004) 32 Cal.4th 878, 896; People v. Banks (1959) 53 Cal.2d 370, 390-391.) Second, if a misdemeanor sentence is imposed thereafter then the offense is “reclassified” as a misdemeanor. Third, for purposes of determining whether a wobbler is a felony or misdemeanor under the three strikes law, the initial sentence is determinative; it is considered a nonstrike if “the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor.” (§§ 667, subd. (d)(1); 1170.12, subd. (b)(1).)
We find it unnecessary to decide whether such a “reclassification” would be retroactive or prospective only. (Compare People v. Queen (2006) 141 Cal.App.4th 838, 842-843 [“if the offense is made a misdemeanor at the initial sentencing, this determination is retroactive to the date guilt was decided, rendering the conviction a nonstrike”] with Feyrer, supra, 48 Cal.4th at p. 439 [if defendant pleads guilty to a wobbler, but “ultimately a misdemeanor sentence is imposed, the offense is a misdemeanor from that point on, but not retroactively”].) The comment in Queen referred to a misdemeanor sentence at initial sentencing (§17, subd. (b)(1)), whereas the reclassification discussed in Feyrer was after a successful period of probation (§ 17, subd. (b)(3)).
Thus, defendant sustained a felony conviction at the time of his plea, which would have been reduced to a misdemeanor only if a misdemeanor sentence had later been imposed. At the conclusion of the trial on the prior conviction, no evidence had been received regarding the sentence imposed on defendant’s prior offense. But the sentence was not necessary for the jury to determine he had “suffered” a prior conviction for the “crime” of assault with a deadly weapon. That was all the jury was called upon to decide and all it did decide. (See fn. 12, ante.) The jury’s findings were supported by substantial evidence.
The separate question whether the prior conviction qualified as a strike prior felony was an issue for the court, not the jury. (People v. Kelii, supra, 21 Cal.4th at pp. 455-456; see also, People v. McGee (2006) 38 Cal.4th 682, 685-686 [whether out-of-state prior conviction qualifies as a strike]; Epps, supra, 25 Cal.4th at p. 26 [identity and potentially additional issues]; People v. Wiley (1995) 9 Cal.4th 580, 592 [whether priors were “brought and tried separately”].) The felony/misdemeanor distinction, like the foregoing issues, is largely a matter of law, not fact, and is the “type of inquiry traditionally performed by judges as part of the sentencing function.” (Kelii, supra, 21 Cal.4th at p. 456; cf. Oregon v. Ice (2009) 555 U.S. 160, __, 129 S.Ct. 711, 717.) We therefore conclude the felony/misdemeanor characterization of a wobbler should be left to the court.
Since the People bear the burden of proving beyond a reasonable doubt all elements of a prior conviction allegation (People v. Monge (1997) 16 Cal.4th 826, 834; People v. Haney (1994) 26 Cal.App.4th 472, 475), it may well be there was insufficient evidence to prove the prior conviction was a strike at the close of the trial. However, given the jury’s limited role, this evidentiary lacuna did not affect the jury’s findings and was remedied before a strike sentence was imposed.
We reject defendant’s argument that by answering the jury’s notes to the effect that defendant suffered a conviction on the date of his plea the court directed a verdict for the People. The answers given were legally correct and were sufficient for the limited role played by the jury. The court did not usurp the jury’s function.
As to whether the court properly found the prior conviction was a strike prior, it did not make a strike finding at the conclusion of the trial. Indeed, it appears from the transcript the court was disinclined to consider the evidence sufficient without an abstract of judgment. The prosecutor apparently took a cue from the judge’s remarks and produced the abstract as part of the prison packet before sentencing.
The court also did not make an express finding that the prior conviction was a strike at sentencing, but it impliedly so found by imposing a second-strike sentence. (Cf. People v. Belmares (2003) 106 Cal.App.4th 19, 27-28.) By then the court had before it proof that a two-year felony sentence had been imposed on December 2, 1987. Thus the offense “deemed” a felony upon defendant’s plea also remained after sentencing a felony and a strike prior. (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1), 1192.7, subd. (c)(23), (c)(31).) To the extent there was any procedural irregularity defendant forfeited it by failing to object.
There was no miscarriage of justice. (Cal. Const., art. VI, § 13; Epps, supra, 25 Cal.4th at pp. 28-30; Watson, supra, 46 Cal.2d at p. 836.) Even assuming there was error to which the federal standard of prejudice would apply (Chapman, supra, 386 U.S. 18) the documentary proof ultimately appearing in the record is irrefutable. We are convinced beyond a reasonable doubt that no outcome more favorable to defendant would have obtained had more perfect procedures been employed.
VII. NO RIGHT TO JURY TRIAL ON IDENTITY ISSUE OF PRIOR CONVICTION
Defendant concedes the courts have ruled against him on the claim that he had a federal and state constitutional right to a jury trial on the identity issue in connection with his prior conviction. (People v. Towne (2008) 44 Cal.4th 63, 81; Epps, supra, 25 Cal.4th at pp. 26-27; People v. Garcia, supra, 107 Cal.App.4th at p. 1165.) He raises the claim solely to preserve it for federal review. He has done so.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.
Defendant repeated that story to John Chamberlain and Jonathan French, two court-appointed psychologists who evaluated defendant in early 2006. As the story had by then developed, defendant tried to break off the relationship with Lewis on the evening of her death, but she said she would “kill him” before she would live without him. Defendant then left the apartment to smoke a cigarette, or, in one version, went to the bathroom. When he returned Lewis was holding one of the dumbbells. “She again threatened to kill him. She swung the dumbbell and he blocked it with his hand. He was knocked into the closet, began sweating, saw stars, and thought he was going to die. He did not remember anything until he ‘came to.’ When he ‘came to, ’ he was standing and his girlfriend was on the floor.” Neither Levy nor Chamberlain testified, and their reports were not in evidence, but experts on both sides relied upon the various pretrial examinations and reports.
In November 2006, defendant repeated this story in substance to Dr. Myla Young, a defense expert witness. He told Young that Lewis threw an ashtray at him before attacking him with the dumbbell. In other particulars the version told to Young closely tracked the statements to Chamberlain and French.
The prosecutor objected to Young’s repetition of defendant’s statements to her, and moved to exclude such testimony, but the objection was overruled. The court admitted the testimony for the limited purpose of explaining the basis of Young’s expert opinion. (Evid. Code, § 801, subd. (b).) The ruling was generous to the defense. (See People v. Moore (2011) 51 Cal.4th 386, 405; People v. Price (1991) 1 Cal.4th 324, 415-416 (Price).)