Opinion
A146870
03-27-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND EDWARD WONG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-1303569)
Appellant Raymond Edward Wong (appellant) asserts a number of claims on appeal following his conviction for murder. We affirm.
PROCEDURAL BACKGROUND
In February 2013, an information was filed in Contra Costa County Superior Court charging appellant with the murder (Pen. Code, § 187) of Alice Sin (Ms. Sin). The information also alleged that in the commission of the murder appellant personally and intentionally used and discharged a firearm and caused great bodily injury and death. (Pen. Code, § 12022.53, subds. (b), (c), (d).)
A lying-in-wait special circumstance (Pen. Code, § 190.2, subd. (a)(15)) included in the information was dismissed in August 2013.
In June 2015, a jury found appellant guilty of first degree murder and found the firearm enhancement allegations true. In October 2015, the trial court imposed a prison term of 25 years to life for the murder conviction and a consecutive term of 25 years to life for the Penal Code section 12022.53, subdivision (d) firearm enhancement.
This appeal followed.
FACTUAL BACKGROUND
We do not attempt to summarize all of the relevant evidence in the case, because such a summary is unnecessary for resolution of the issues on appeal.
On November 22, 1999, appellant contacted the Pinole Police Department to report that the victim, Ms. Sin, was missing. Appellant said she had left their home on Estates Avenue the previous day around 10:30 a.m. in her 1991 Toyota Camry. She was going to a college study session and seemed "normal." Appellant and Ms. Sin had a son, Raymond, Jr., who was almost one year old.
Ms. Sin's father, Yue Wah Sin (Mr. Sin), had seen her on Saturday, November 20, 1999, the day before her reported disappearance. Mr. Sin testified he saw appellant and Ms. Sin arguing in their home about a month or two before she disappeared. They grabbed each other by the necks, but stopped when Mr. Sin threatened to call the police. Ms. Sin left and her father followed. She told him she wanted to leave appellant because she could not "stand it" anymore. Ms. Sin also told a childhood friend she "planned to start a life without" appellant because he was seeing another woman. She told a college friend she was pregnant and "scared to tell appellant." She thought he would be angry because he did not want another child.
On November 24, 1999, three days after Ms. Sin's reported disappearance, a police officer found her car in a Pinole shopping center parking lot. The trunk was nearly empty except for a large roll of shrink wrap and large zip ties, similar to those used by police officers to bind the hands of arrestees in mass arrest situations. A police search dog followed a scent from the car to the area of appellant's residence. A detective knocked on the door and it was answered by a woman named Jessica Tang. The detective asked for a personal effect of Ms. Sin's to aid in the police dog search; the detective observed that her clothing had been placed in plastic bags and her toothbrush and hairbrush had been placed in the garbage.
On November 29, 1999, Ms. Tang told a police detective that she was appellant's girlfriend and had recently had his baby, that she was at appellant's house to help take care of Raymond, Jr., and that she had gotten along with Ms. Sin for appellant's sake. But the detective learned the two women had each reported to the police that the other had made threatening and harassing calls. Appellant and Ms. Tang both told the police they were together in the Bay Area the day of the victim's disappearance (November 21), although their accounts differed in several respects.
On January 24, 2000, Ms. Sin's partially-decomposed body was discovered in Churchill County, Nevada, in a remote desert area about five miles on dirt roads from Interstate 80. Her black pants were pulled down around her ankles and her black shirt and undershirt were pulled up to her neck. Ms. Sin's hair was pulled back in a braid. Ms. Sin's legs were spread apart and between her legs there was a hole in the ground in which at least three badgers were living. An investigator observed a badger emerge from the hole and tear a small portion of flesh from the body's thigh. Monopoly money marked with acronyms used by white supremacist groups was found in the dirt and clothing. The autopsy showed Ms. Sin suffered several gunshot wounds, including to the left side of the head and to the center forehead. The skin of her face, right breast, and lower abdomen was missing, as were Ms. Sin's uterus, ovaries, and most of her bladder. The prosecution presented expert testimony that some of the injuries could have been caused by human mutilation; a defense expert opined all the injuries other than the gunshots were caused by animal scavenging (see Part III, post).
A predator management specialist for the Nevada Department of Wildlife testified for the defense and opined that the badgers dug their den after Ms. Sin's body was placed there.
On January 28, 2000, after seeing a picture of Ms. Sin in a newspaper, a Nevada husband and wife told a police investigator they might have seen Ms. Sin at a rest area that is a 24-minute drive from the location where Ms. Sin's body was found. They were working at the rest area and they saw an Asian couple have an argument in late November 1999. The woman was wearing black nylon workout clothes and her hair was in a long ponytail. The couple argued in a foreign language for about 30 minutes in front of a Toyota with California license plates; there may have been someone else inside the car. The eyewitnesses identified Ms. Sin's car in a photo lineup, and the wife identified appellant in a photo lineup.
The police searched appellant's Estates Avenue residence on January 26 and March 7, 2000. Among many other things, the officers discovered a black purse that contained a key to Ms. Sin's Camry. Appellant had told the police that Ms. Sin had taken the Camry the morning she disappeared and there was only one key to the car. The police found letters from Ms. Sin and Ms. Tang to appellant, in which each expressed love for appellant but also frustration regarding his continued relationship with the other woman. For example, in an April 1999 letter from Ms. Sin to appellant, she complained that he continued to spend time with "Jesse bitch," despite his claims to the contrary.
Computers recovered from appellant's residence contained, among other things, e-mails from Ms. Sin to Ms. Tang, and between Ms. Tang and appellant. The e-mails from Ms. Sin to Ms. Tang reflected a bitter rivalry over appellant's affection. In e-mails to appellant, Ms. Tang expressed her unhappiness with his continuing relationship with Ms. Sin; she said she "can't take it" and expressed the need to end their relationship. In response, appellant told Ms. Tang to wait and that they would be together soon. He told her he wanted her to help raise the son he had with Ms. Sin, stating "I want him to call you mommy, not some ghetto bitch." He also said, apparently regarding Ms. Sin, "I hate this bitch, she makes me sick." In another e-mail he told Ms. Tang, "If I had a choice, I would've killed her a long time ago. The only thing that was standing in the way was you. The more you harassed her, the harder it was for me to do. I could not have achieved my goal without implicating you. . . . Have faith and patience. Good things come to those who wait." A forensic computer examiner was able to reconstruct one side of an instant message conversation on November 29, 1999, that appeared to show appellant and Ms. Tang devising an alibi for the day of Ms. Sin's disappearance.
Appellant traveled to Calgary, Canada for a work assignment at the end of January 2000 and then remained after he learned police officers searched his house. On February 8, Bay Area news outlets received an e-mail message signed by the "Aryan Knights" and delivered from an e-mail address in the United Kingdom. The e-mail claimed the organization killed Ms. Sin due to her ethnicity. An analyst determined the e-mail had actually been sent from a cyber cafe in Calgary. One of the owners of the cafe recognized appellant. On February 16, appellant and Ms. Tang married in Calgary and then returned to California.
Appellant's Testimony
In addition to other witnesses presented by the defense, appellant testified at trial. He denied any involvement in Ms. Sin's murder. He acknowledged being involved with both Ms. Sin and Ms. Tang at the same time and recalled an occasion in 1998 when they physically fought over him. He claimed he wrote the e-mail referring to killing Ms. Sin only "to placate" Ms. Tang, who had threatened to kill Ms. Sin if appellant failed to stop seeing her.
Appellant admitted the story he and Ms. Tang told police about their whereabouts on November 21, 1999, was a lie; they made up the story because they did not want Ms. Tang's parents to know about Ms. Sin.
Appellant testified he allowed Ms. Tang to move into his house after Ms. Sin disappeared because he needed someone to help watch his son and he hoped Ms. Sin would be angered and come home. They bagged up Ms. Sin's belongings because her parents wanted her belongings. He claimed the black purse found by the police was Ms. Tang's purse; he did not know why the key to Ms. Sin's car was in the purse.
Appellant wrote the email to the Bay Area news organizations because he wanted them to ask why the police were not investigating white supremacist groups.
Appellant admitted he pled guilty to possession of child pornography in 2002 and served less than two years in federal prison. He also admitted he was arrested for failure to register as a sex offender in 2009. He was released on bail and then traveled to China; he was unable to return for his scheduled court appearance because Chinese authorities had his passport. He ended up starting a computer consulting company in China and did not return to the United States until December 2011.
Rebuttal Evidence
On rebuttal, among other things, the prosecution presented evidence regarding a violent story and violent images found on appellant's computers. (See Part V, post.)
DISCUSSION
I. The Trial Court Did Not Err in Declining to Dismiss the Jury Venire
Appellant contends the trial court erred in declining to dismiss the jury venire due to juror misconduct. The claim fails.
A. Background
On May 14, 2016, during the jury voir dire process but outside the presence of other prospective jurors, prospective juror Mr. S. said he had heard appellant was a registered sex offender. Mr. S. said he heard it from another prospective juror. He described the other juror as an African-American male resident of Pinole who had a shaved head and mustache. Mr. S. did not know if the other man had spoken to any others about appellant. Mr. S. said the information, if true, would make him more likely to find appellant guilty, but he said he believed in the presumption of innocence and the requirement of proof beyond a reasonable doubt. He said he would do his best to ignore what he heard if he were selected as a juror. The trial court found no basis to dismiss Mr. S. for cause because he appeared "very bright and thoughtful," and he "answered very clearly that if it's not in evidence in the case, he would not consider it."
The trial court and the attorneys determined that the prospective juror who had spoken to Mr. S. was probably Mr. W. Mr. W. said he was familiar with appellant because he kept "an eye on" the neighborhood and came across appellant's name while doing research on Megan's Law. He said he had not shared the information with any other prospective jurors. The court summoned the other prospective jurors to the courtroom and excused Mr. W. from jury service. The court asked the remaining prospective jurors to raise their hands if they had heard anything about the case outside the courtroom. Seven prospective jurors raised their hands and the court questioned each of them individually.
The parties stipulated to the dismissal of an African-American prospective juror, Mr. C., who said he had spoken about the case on two days with another black prospective juror, clearly Mr. W. Mr. W. told Mr. C. that appellant was a registered sex offender, appellant was guilty, a baby had died, and appellant had fled the country. No other jurors were present when Mr. W. made his comments, but Mr. W. seemed very talkative.
The parties also stipulated to the dismissal of a prospective juror who said she had heard two African-American male prospective jurors talk about the case outside the courtroom. One, who wore a checkered shirt, said the victim may have been pregnant; the other, who wore a blue vest, said the victim may have been killed for financial gain. Mr. W. wore a blue vest; comments by both counsel and the trial court indicate they believed the prospective juror in the checkered shirt was Mr. C.
Another prospective juror said a bald African-American man in a blue vest had told her appellant was a pedophile and that "[H]e did this." She was retained after she repeatedly insisted she could decide the case solely on the basis of the evidence presented in the courtroom.
She asserted the juror was still in the jury pool, but her description matched Mr. W.
The trial court dismissed a prospective juror who had learned about the case from her daughter-in-law, another who had not heard anything about the case but whose wife had been raped and threatened with death, and another who did not speak English well enough to follow the proceedings. A prospective juror who had heard about defense counsel but said he could be fair was retained.
After the seven prospective jurors had been questioned about their possible exposure to extrinsic evidence, defense counsel moved for a mistrial. He argued some prospective jurors might have been too timid to inform the trial court they had heard extrinsic information about the case. The court denied the motion. The court pointed out that the two prospective jurors who spoke about the case had been removed, that the others who heard information from those two had been questioned, and that all who received information had been excused other than one prospective juror who credibly insisted she could be fair. The court thought it was unlikely others had received information but not come forward, pointing out the range of potential biases that had been disclosed and stating "[t]he only evidence or information I have is that the jurors seem as a whole to be erring on the side of caution as I asked them to in disclosing any influence on them."
The trial court told the remaining prospective jurors it had learned that two other prospective jurors had talked about the case outside the courtroom. The court asked the remaining prospective jurors whether any of them had heard about the case from the discharged prospective jurors or any other external source, emphasizing that "nobody is in trouble" and "[d]on't be shy." Nobody raised their hand.
B. Analysis
"A juror's receipt or discussion of evidence not submitted at trial constitutes misconduct." (People v. Dykes (2009) 46 Cal.4th 731, 809.) "Juror misconduct raises a rebuttable presumption of prejudice; a trial court presented with competent evidence of juror misconduct must consider whether the evidence suggests a substantial likelihood that one or more jurors were biased by the misconduct." (Ibid.) A trial court's denial of a motion to dismiss an entire jury panel based upon a prospective juror's comments that allegedly expose the panel to bias is reviewed for abuse of discretion. (People v. Nguyen (1994) 23 Cal.App.4th 32, 41.)
Appellant contends the trial court erred in refusing to dismiss the jury venire because "[a]lthough only a handful of prospective jurors acknowledged that they heard the offending juror's remarks, there is an intolerable risk that other jurors were tainted by the juror's inappropriate comments." We disagree. Appellant's assertion that other prospective jurors were tainted but concealed the information from the trial court is entirely speculative. Appellant cites no authority that a speculative possibility of exposure to prejudicial information compels a trial court to dismiss a jury venire. The case appellant relies upon, Mach v. Stewart (9th Cir. 1997) 137 F.3d 630, is plainly distinguishable. There, a prospective juror who had worked with children as a social worker made four separate statements in front of the jury pool that "she had never been involved in a case in which a child accused an adult of sexual abuse where that child's statements had not been borne out." (Id. at pp. 632-633.) Further, the trial court failed to conduct further voir dire to determine whether the panel had been "infected by [the prospective juror's] expert-like statements." (Id. at 633.) The appellate court found error because, "Given the nature of [the prospective juror's] statements, the certainty with which they were delivered, the years of experience that led to them, and the number of times that they were repeated, we presume that at least one juror was tainted and entered into jury deliberations with the conviction that children simply never lie about being sexually abused." (Ibid.) In contrast, in the present case the problematic statements were not made before the whole jury pool and the trial court made a diligent effort to uncover any prospective jurors exposed to them. (See People v. Medina (1992) 51 Cal.3d 870, 889 ["discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant"].)
Appellant does not contend on appeal that the trial court erred in its questioning of the seven prospective jurors who indicated they had learned about the case, and appellant does not contend the court erred in retaining two of the seven. The court made a serious and persistent effort to uncover any prospective jurors who were exposed to outside information and thoroughly questioned those that did, dismissing individuals as appropriate. The court did not abuse its discretion. II. No Prejudicial Error in Admitting Evidence of Ms. Sin's "State of Mind"
Following the verdict, appellant filed a motion for new trial based on juror misconduct. The motion was based on an unsworn report from a defense investigator describing a post-trial conversation with an acquaintance of appellant's mother. According to the report, the acquaintance said she twice heard a juror talking to other jurors during trial recesses. On each occasion, the juror told the others appellant was a convicted sex offender and "there was no way he is innocent." The trial court did not err in denying the motion for new trial without an evidentiary hearing. As respondent points out in its brief on appeal, a trial court does not err in declining to hold a hearing regarding juror misconduct based on an unsworn hearsay declaration. (People v. Dykes, supra, 46 Cal.4th at pp. 809-811.) Appellant does not address the point in his reply brief.
Appellant contends the trial court abused its discretion in admitting the testimony of three prosecution witnesses to the effect that Ms. Sin told them she intended to leave appellant and was afraid to tell him she was pregnant. We need not decide whether the testimony was properly admitted as evidence of Ms. Sin's state of mind, because one of the statements was admissible as a spontaneous statement and it is not reasonably probable appellant was prejudiced by admission of the other two statements.
A. Background
During trial, Ms. Sin's father described an argument between appellant and Ms. Sin in September or November of 1999. Mr. Sin was at the Pinole residence, and he saw appellant and Ms. Sin arguing and grabbing each other's necks. Ms. Sin ran out of the house and her father followed. She was crying when Mr. Sin caught up with her and he drove her to a nearby football field. Mr. Sin testified he asked her, "What happened?" Before he described her response, appellant objected on hearsay grounds. The trial court overruled the objection, ruling the testimony was admissible evidence of Ms. Sin's state of mind and also a spontaneous statement. Mr. Sin testified she told him she "wanted to leave" appellant, because she could not "stand it now."
Amy Shum, a childhood friend of the victim, testified Ms. Sin told her she was "frustrated" about appellant because she knew he was seeing another woman and appellant "couldn't be clear with either one of the women." Ms. Sin said she had "planned to start a life" without appellant. Ms. Sin called the other woman "Jessica bitch."
Finally, Michelle Austin, a college classmate of Ms. Sin, testified Ms. Sin told her in late 1999 that she was pregnant. She said she "was scared to tell her boyfriend" because she "thought he was going to be angry." Ms. Sin explained they already had one child and she did not think her boyfriend wanted another.
B. Analysis
Appellant contends the statements relayed by Mr. Sin, Ms. Shum, and Ms. Austin were inadmissible hearsay because her state of mind was not relevant to any issue at trial. " 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) The trial court found Ms. Sin's statements were admissible for the purpose of showing her then existing state of mind. (§ 1250.)
All undesignated section references are to the Evidence Code.
We need not decide whether the statements were admissible evidence of Ms. Sin's state of mind, because any error as to admission of the statements under that hearsay exception was harmless. At the outset, the trial court did not abuse its discretion in concluding Ms. Sin's statement to her father was admissible as a spontaneous statement. Section 1240 permits the admission of an out-of-court statement if it "[p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant," and the statement "[w]as made spontaneously while the declarant was under the stress of excitement caused by such perception." " ' "To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." [Citations.]' [Citation.] Spontaneous statements are deemed sufficiently trustworthy to be admitted into evidence because ' " 'in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief.' " ' " (People v. Gutierrez (2009) 45 Cal.4th 789, 809-810.) " 'Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] . . . . Thus, if supported by substantial evidence, we must uphold the trial court's determination of preliminary facts." (People v. Banks (2014) 59 Cal.4th 1113, 1163, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
Appellant argues the spontaneous statement exception does not apply to Ms. Sin's statement to her father because the record does not show she made the statement "under the stress of excitement" (§ 1240) caused by her fight with appellant. However, the record supports an inference that the conversation took place shortly after the fight: Ms. Sin went to a nearby gas station, was followed and picked up by her father, and then was taken to the nearby field where the statement was made. Nothing in Mr. Sin's testimony suggests there were any significant delays at any point, or that Ms. Sin went from crying when she was picked up to entirely calm at the field. (See People v. Banks, supra, 59 Cal.4th at p. 1163 [statements given during two hour police interview encompassed by exception]; People v. Clark (2011) 52 Cal.4th 856, 926 ["Although [the declarant's] statement came two to seven hours after the shocking and disturbing events, it retained its spontaneity because, as the evidence showed, her mental and physical condition prevented her from reflecting on and fabricating her account of what had happened."]; People v. Poggi (1988) 45 Cal.3d 306, 319 [statements spontaneous even though declarant "had been calmed down sufficiently to be able to speak coherently"].) Appellant also argues Ms. Sin's statement expressing her intention to leave appellant did not "narrate, describe, or explain" her fight with appellant. However, the record supports an inference that Ms. Sin's statement purported to explain the fight, in answer to her father's question, "What happened?" Appellant cites no authority such a statement is outside the scope of the exception. Accordingly, the trial court did not abuse its discretion in admitting Ms. Sin's statement to her father as a spontaneous statement.
We further conclude that, in light of the proper admission of Ms. Sin's statement to her father and other evidence in the record, any error in admission of the statements to Ms. Shum and Ms. Austin was harmless. The statement related by Ms. Shum was similar to the statement related by Mr. Sin. The key part of both statements was Ms. Sin's assertion of an intent to leave appellant; the statement related by Ms. Shum made it clear the problem was the rivalry between Ms. Sin and Ms. Tang, but that would have been clear to the jurors from the other evidence in the case.
The statement related by Ms. Austin provided the additional information that Ms. Sin feared appellant would be angry when he learned she was pregnant because he did not want another child. But it is not reasonably probable the admission of that additional piece of evidence was prejudicial. (People v. Gutierrez, supra, 45 Cal.4th at p. 813.) In arguing the state of mind evidence was prejudicial, appellant suggests "admission of [Ms.] Sin's hearsay statements provided potent evidence that appellant may have had several motives to kill [Ms.] Sin, insofar as the statements informed the jury that [Ms.] Sin believed appellant would be angry when he learned she was pregnant, and that [Ms.] Sin intended to leave appellant and presumably take their infant son with her. The jury was likely to rely improperly on [Ms.] Sin's statements to infer that appellant may have been motivated to kill [Ms.] Sin out of anger at her intention to leave him, or to prevent her from taking their infant son from him, or to prevent her from having a second child that he apparently did not want . . . ." Most of that argument is disposed of by the proper admission of Mr. Sin's testimony, which informed the jury that Ms. Sin said she wanted to leave appellant. The additional information from Ms. Austin's testimony that the victim believed appellant would be unhappy with her pregnancy could not properly have been relied upon by the jury to find appellant murdered Ms. Sin because he did not want another child with her, because the statement was not admitted for the truth of her assertion about appellant's desires. Accordingly, the only prejudice we can consider is that flowing from the evidence that Ms. Sin was afraid of telling appellant about the pregnancy. There was evidence appellant was aware Ms. Sin was pregnant, and there was independent additional evidence of the difficulties in appellant's relationship with Ms. Sin and appellant's desire to be rid of her. Ms. Sin's fear of telling appellant about the pregnancy added to the credibility of her stated intent to leave appellant, but appellant has not articulated any other meaningful prejudice resulting from the admission of the statement reported by Ms. Austin.
Citing Chambers v. Mississippi (1973) 410 U.S. 284, appellant contends admission of Ms. Sin's hearsay statements violated his right to due process and therefore the prejudice standard for federal constitutional error applies. Chambers is distinguishable, as it involved the application of evidence rules to exclude favorable evidence, which in the particular circumstances of the case resulted in denial of the defendant's "right to a fair opportunity to defend against the State's accusations." (Id. at p. 294; see also People v. Cornwell (2005) 37 Cal.4th 50, 82, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)
The trial court expressly advised the jury to that effect during Ms. Austin's testimony, telling the jury, "I'm admitting [Ms. Sin's statements] for a limited purpose to evaluate [Ms. Sin's] state of mind . . . . but not for the truth of the matter stated by [Ms. Sin], for example, that she was pregnant, because that is hearsay. That's a fact as opposed to a state of mind."
Appellant's mother testified appellant told her Ms. Sin was pregnant more than a week before her disappearance. Ms. Sin's father testified appellant informed him of the pregnancy after the victim's disappearance.
Any error in admitting Ms. Sin's statements to Ms. Shum and Ms. Austin was harmless.
III. No Abuse of Discretion in Admission of Expert Testimony on Human Mutilation
Appellant contends the trial court abused its discretion in admitting unduly speculative expert opinion testimony concerning the possibility that human mutilation caused certain injuries on Ms. Sin's body. The claim fails. A. Background
Appellant moved before trial to prohibit the prosecution from presenting evidence or argument that appellant had mutilated Ms. Sin's body, arguing no evidence supported the theory. The trial court held an evidentiary hearing and ruled that expert testimony on the possibility of human mutilation was relevant and admissible.
At trial, Nevada sheriff's deputies explained that Ms. Sin's body was discovered naked from her ankles to her neck, and her legs were spread above a badger den in which at least three badgers were present. There was little skin on Ms. Sin's face and much of the flesh the right breast and lower abdomen was missing. The autopsy showed that the uterus, ovaries, and most of the bladder were missing. A deputy testified he saw a badger emerge from the hole and rip a piece of flesh from one of Ms. Sin's thighs.
During its case-in-chief, the prosecution presented expert testimony from Amy Barats, who observed Ms. Sin's body at the crime scene and during the autopsy. Ms. Barats was employed by the Churchill County Sheriff's Office in 1999, and she was working as a nurse practitioner specializing in internal medicine at the time of trial in 2015. Over the course of her two careers, Ms. Barats had observed "hundreds" of surgical incisions and "many" human bodies scavenged by animals (mostly dogs and cats). She testified as an expert on the condition of Ms. Sin's wounds. Ms. Barats opined that the margins of the wounds to the right breast and lower abdomen appeared "clean," as if made by an incision with a knife. Other wounds appeared more "jagged," as if torn by an animal. Ms. Barats admitted she had observed "only one or two" bodies that had been scavenged by animals in the wild.
Dr. Katherine Raven, who performed the autopsy, also testified during the prosecution's case-in-chief. She was a board-certified forensic pathologist with 20 years of experience and had performed over 4,500 autopsies. Dr. Raven had worked on hundreds of cases involving post-mortem animal scavenging but had never, to her knowledge, worked on a case involving scavenging by badgers. She opined the skin loss from the victim's face was due to postmortem animal scavenging. She pointed out that the injuries "were a little more rounded. They looked like they could be gnawing marks on the way the tissue was torn here." The prosecutor asked Dr. Raven whether "the sharp excision marks that you noted with regard to the tissue around what would have been [the victim's] right breast [is] consistent with human mutilation." She responded, "Yes. Certainly there was one margin that was very sharp . . . , so I could not exclude that there was some human mutilation." She also testified the same with regard to excision marks on the victim's abdomen. However, on cross-examination she acknowledged, "you can't really tell whether it's human or animal or . . . decomposition also."
The next expert to testify on the issue at trial was Dr. Michael Laufer, who testified for the defense. He opined that the wounds to Ms. Sin's right breast and lower abdomen were the result of natural decomposition and animal scavenging. That opinion was based on his assessment that the edges of the wounds were "scalloped," which was consistent with biting and tearing by a small animal. He also opined an animal could have removed the uterus and bladder without having to move aside the intestines. He also explained that desert scavengers commonly target the bladder as a source of water.
During the prosecution's rebuttal case, portions of the evidentiary hearing testimony of Dr. Raven and another expert, Dr. Brian Peterson were read to the jury. The portion of Dr. Raven's testimony included her statements that the injuries to the right breast and abdomen were consistent with human mutilation and that excision marks in those areas appeared very sharp. She stated, "There's no way to really say absolutely," but observed the right breast injury "has very sharp margins" and "it's a very unusual place for animal activity." She acknowledged that in her autopsy report she ascribed all of the injuries other than the gunshot wounds to animal scavenging.
In the portion of Dr. Peterson's testimony that was read to the jury, he stated he could not "rule out human activity as the cause for" the injuries to the abdomen. He opined that removal of the bladder and the uterus while leaving the bowels undisturbed was "more consistent with human activity" and "less consistent with animal activity." He explained, "it would be hard for an animal to, say, just push something aside to get to the uterus. It would be easier for a person to do that." Dr. Peterson also stated "human mutilation could be the cause for the removal of [the right] breast," which he characterized as "a mechanical removal." He also observed the "margins" to the injuries in those locations "were largely sharp. In other words there seems to be a clean division at the edges. In some cases, they were more of a notching effect, but in general the margins were not as ragged as you might see with tearing." Instead, the margins were "consistent with mechanical removal, say for example, with a sharp instrument." B. Analysis
During the evidentiary hearing, Dr. Peterson explained he was a board-certified forensic pathologist who had conducted more than 9,000 autopsies. He had not received specific training regarding animal injuries, but "there are stereotypical animal injuries that are part of what we normally analyze all the way from insects to carnivores, sure." There is "no specific expertise within forensic pathology" for "animal injury. It's just part of what we all do as the normal course of business."
" 'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness [citation] and to give testimony in the form of an opinion [citation].' " (People v. Vang (2011) 52 Cal.4th 1038, 1044.) Under section 801, subdivision (a), expert opinion testimony is admissible if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (See also Vang, at p. 1044.) "Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (People v. Torres (1995) 33 Cal.App.4th 37, 45.) Also, a trial court should "exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 3) speculative." (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772.) "[T]he court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture." (Id. at p. 772.) We review the trial court's "ruling excluding or admitting expert testimony for abuse of discretion." (Id. at p. 773.)
Appellant contends the prosecution witnesses were unqualified to testify "whether the damage to [Ms.] Sin's decomposing body was caused by postmortem animal scavenging or by human-caused mutilation." Appellant focuses on the experts' lack of specific training in distinguishing between animal- and human-caused wounds and lack of specific training about animals. But all three experts testified to substantial prior observations of injuries inflicted by animals and by human cutting. That provided a basis for the experts to opine whether an injury appeared to be inflicted by an animal or a human. And the testimony did not "cover[] a subject commonly understood by jurors" (People v. McDowell (2012) 54 Cal.4th 395, 427), who typically would not have experience with corpses subject to animal scavenging and human cutting.
Appellant cites no authority the precise training he describes was required. The case he relies on, People v. Hogan (1982) 31 Cal.3d 815, disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836, is distinguishable. There, the Supreme Court held it was error to admit a criminalist's opinion whether bloodstains were deposited by "spatters" or "wipes," because the criminalist's qualifications "boiled down to having observed many bloodstains." (Hogan, at p. 853.) In the present case, the experts had observed many injuries that were known to have resulted from animal bites and also many injuries that were known to have resulted from human cutting; they did not simply testify they had observed a lot of injuries. Hogan might be comparable if the criminalist there had testified to extensive past experience observing known blood "spatters" and known blood "wipes," which would have provided him a basis to distinguish between the two. (See People v. Jones (2012) 54 Cal.4th 1, 58 [pointing out that in Hogan the criminalist "merely had observed bloodstains at certain crime scenes and determined in his own mind whether they were 'spatters' or 'wipes' without ever verifying his conclusions in any way"].) Moreover, the testimony in the present case falls within " 'a long line of California decisions' that an expert medical witness is qualified 'to give an opinion of the cause of a particular injury on the basis of the expert's deduction from the appearance of the injury itself.' " (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293, disapproved on another ground in People v. Soto (2011) 31 Cal.4th 229, 248, fn. 12, quoting People v. Bledsoe (1984) 36 Cal.3d 236, 249.) Finally, "Once an expert witness establishes knowledge of a subject sufficient to permit his or her opinion to be considered by a jury, the question of the degree of the witness's knowledge goes to the weight of the evidence and not its admissibility." (Jones, supra, 54 Cal.4th at p. 59.) Thus, it was for the jury to decide what weight to give the experts' testimony in light of any weaknesses in their training.
Appellant makes a related contention that the experts' testimony was "speculative." However, the experts adequately explained that their opinions were based on their past observations of injuries by animals and by human cutting. That they did not express certainty and did not refer to studies to support their conclusions did not render their opinions so speculative as to be inadmissible. Notably, appellant's expert Dr. Laufer based his opinion that the injuries were caused by animals on the same criteria relied on by the prosecution's expert witnesses-the appearance of the wounds under consideration.
The trial court did not abuse its discretion in admitting the testimony of the prosecution's experts regarding the possibility that certain of Ms. Sin's injuries were the result of human mutilation.
IV. No Abuse of Discretion In Allowing the Prosecution to Impeach Appellant With His Child Pornography Conviction
Appellant contends the trial court abused its discretion in permitting the prosecution to impeach him on cross-examination with his prior conviction for possession of child pornography. We reject the claim.
In a motion in limine, appellant moved to exclude his 2002 conviction of possession of child pornography. The trial court ruled that if appellant were to testify, the prosecution could impeach his credibility with the conviction. After appellant finished testifying on direct examination, defense counsel asked the court to allow the prosecution to impeach appellant's credibility with only a "sanitized" version of his conviction of child pornography ("a conviction of a pornography related offense"). The court denied the request, reasoning that granting the defense request would deprive the evidence of all impeachment value. On cross-examination, the prosecutor elicited appellant's admission that he pled guilty in federal court to possession of child pornography and spent less than two years in federal custody.
Notably, appellant did not request a simple statement that he had been convicted of a crime of moral turpitude; instead, he requested that the jury only be informed of a generic pornography conviction.
Appellant does not dispute his child pornography conviction is a crime of moral turpitude that may be used to impeach him. (See People v. Clark, supra, 52 Cal.4th at p. 931 ["A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under . . . section 352."].) Nevertheless, he argues under section 352 that "admission of such a felony conviction for impeaching a criminal defendant's testimony at his jury trial is excessively prejudicial." It is undoubtedly true that admission of appellant's conviction exposed him to risk of undue prejudice, given the repugnancy of the offense. However, the offense was appellant's only felony conviction, and to exclude it as impeachment "would have given [appellant] a ' "false aura of veracity." ' " (People v. Hinton (2006) 37 Cal.4th 839, 888; accord People v. Clark, supra, 52 Cal.4th at p. 932.) Neither was the trial court required to "sanitize" the conviction by limiting the prosecutor to a reference to a "felony involving possession of pornography," or some similar statement. Such a characterization would have been confusing to the jury and might have led jurors to speculate regarding the conduct underlying the conviction. Furthermore, it was reasonable for the court to reason, "it's because it's child porn that it's moral turpitude, and to sanitize it to a nonmoral turpitude offense in my view deprives it of all the impeachment value."
Previously, the jury had heard a sanitized description of the child pornography offense because the prosecution sought to admit the conviction to counter a suggestion that others downloaded incriminating materials found on appellant's computers. The parties stipulated that appellant had "entered a guilty plea to a felony charge related to possession of the pornography that was recovered from all of the home computers as well as the Canadian laptop."
The trial court did not abuse its discretion under section 352 by denying appellant's request to "sanitize" the child pornography conviction for impeachment purposes. (People v. Clark, supra, 52 Cal.4th at p. 932.)
V. No Abuse of Discretion In Admitting Limited Evidence of Violent Pornography
Appellant contends the trial court erred in failing to exclude evidence of violent pornography found on appellant's computer. He contends the evidence was minimally probative and greatly prejudicial and should have been excluded under section 352. The claim fails.
"In determining the admissibility of the challenged evidence, we apply well-settled rules. Only relevant evidence is admissible. [Citation.] Relevant evidence is defined in [] section 210 as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' The test of relevance is whether the evidence tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." (People v. Garceau (1993) 6 Cal.4th 140, 176-177, disapproved on another ground in People v. Yeoman (2003) 31 Cal.4h 93, 117.) However, a trial court should exclude even relevant evidence where "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) "For this purpose, 'prejudicial' is not synonymous with 'damaging,' but refers instead to evidence that ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues." (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) We review the trial court's decision for abuse of discretion. (Ibid.)
One of appellant's motions in limine sought the exclusion of violent pornography discovered on his computers on the ground that the materials were irrelevant and subject to exclusion as unduly prejudicial under section 352. The trial court found some of the material was relevant because "[o]ne could certainly infer a sadistic and sexual intent" from the murder, but the court excluded the evidence from the prosecution's case-in-chief due to the risk of undue prejudice. The prosecutor sought reconsideration of the ruling on several occasions, and the trial court ultimately agreed following appellant's testimony. The court reasoned that, because appellant testified and was properly impeached with his conviction for possession of child pornography, the additional evidence of appellant's violent pornography would be less prejudicial than it would have been otherwise. But the trial court only permitted the prosecutor to present three items: (1) a "rape story that describes men cutting off the nipples of" a victim; (2) a series of photographs showing a "woman being stabbed in the breast and abdomen;" and (3) a photograph of a naked "woman who has been murdered and hung upside down and gutted in the abdomen." The court stated those three items were admissible on the issues of "intent, motive, and identity" because they "mirror[ed] the crime in this case." But the rest of appellant's collection of "mutilation porn" remained excluded.
In arguing the three items of violent pornography were irrelevant or only minimally probative, appellant argues, "There was no evidence about the discovery of the victim's body, the condition of the body, or any other aspects of the desert scene to suggest a connection to sexual perversion, nor was there evidence that the killer raped or sexually assaulted the victim or intentionally left the victim's body on top of the badger den. None of the forensic experts testified that the evidence implied that the killer had mutilated the victim's body in addition to shooting her. Rather the expert testimony about the victim's wounds established that human mutilation of the victim's body was a mere possibility that could not be entirely excluded."
We disagree with appellant's characterization of the record. Ms. Sin's lower garments were pulled down to her ankles and her upper garments were raised to her neck, which suggested a sexual motivation or perversion had some role in the crime. (See People v. Clark (1992) 3 Cal.4th 41, 127 ["The murder victims were all prostitutes and . . . all were found nude, suggesting a sexual motivation."]; People v. Jennings (1991) 53 Cal.3d 334, 367 ["When the body of a young woman is found unclothed in a remote locale, an inference arises that some sexual activity occurred"].) And two of the prosecution's experts (Amy Barats and Dr. Peterson) went beyond testifying that human mutilation was a possibility that could not be excluded. (See Part III, ante.) Instead, they testified that sharp edges around the removed right breast and the selective removal of the uterus was more consistent with human mutilation.
In light of that testimony, the evidence admitted by the trial court was probative. If the jury found that Ms. Sin's body was mutilated by her murderer, the evidence of violent pornography bearing significant similarities to the mutilation tended to prove appellant's identity as the murderer and a sadistic motivation underlying the murder. This case is analogous to People v. Clark, supra, 3 Cal.4th 41, in which the defendant allegedly decapitated a victim. (Id. at pp. 74-75.) There was evidence the defendant had solicited oral sex from prostitutes (id. at pp. 73, 83), and the California Supreme Court held the trial court properly admitted a page from a book "depicting a decapitated head orally copulating a severed penis" because the image "was probative of defendant's interest in that matter." (Id. at p. 129; see also People v. Avila (2014) 59 Cal.4th 496, 519 ["Evidence that defendant possessed child pornography . . . was probative of defendant's intent to commit lewd acts on the young murder victim in this case."].)
Appellant points out that one of the items admitted by the trial court-the rape story involving nipple cutting-was published more than a month after Ms. Sin's disappearance. However, appellant's possession of the story was relevant, even if could not have directly motivated the crime.
We agree with appellant that the three items of violent pornography admitted by the trial court had the potential for undue prejudice because of their depravity. But the court limited the risk by admitting only those items it believed depicted conduct "very close to the conduct that is alleged here." Moreover, the court properly considered in its balancing that the jury had already properly heard about appellant's conviction for child pornography. (See Part IV, ante.) The trial court did not abuse its discretion in concluding the probative value of the evidence was not substantially outweighed by the potential for undue prejudice due to the limited evidence demonstrating appellant had an additional depraved interest.
VI. No Abuse of Discretion as to the Firearms and Dynamite Impeachment Evidence
During the January 2000 search of appellant's Estates Avenue residence, police officers recovered rifles, handguns, ammunition, and explosives ("dynamite" and disabled hand grenades). The trial court ruled that the prosecution could not present evidence of appellant's possession of those items in its case-in-chief because there was no showing of a possible connection to the charged crime. After appellant testified, the prosecutor argued she should be allowed to impeach him with his prior acts demonstrating moral turpitude, including his possession of explosives and his failure to register assault weapons. Appellant objected that the prosecution had not shown his possession of the items was unlawful. The prosecutor referenced documentation showing that some of appellant's guns were unregistered assault weapons and that the dynamite was a prohibited explosive device.
The trial court ruled the prosecution could impeach appellant with the assault weapons and alleged explosives, but not the ammunition. In overruling appellant's objection based on the lack of a showing appellant's possession was unlawful, the court ruled the prosecutor could establish the foundation through cross-examination of appellant. During cross-examination and re-direct, appellant claimed that the alleged assault weapons had been registered for him by an El Cerrito police officer and that the sticks of "dynamite" were fireworks he bought in Mexico and brought back with the approval of customs officials. The prosecution did not present any additional evidence regarding the firearms or alleged explosives in its rebuttal, and the firearms and a photograph of the alleged dynamite were admitted into evidence near the end of trial.
Appellant contends the trial court abused its discretion when it allowed the prosecutor to impeach appellant during cross-examination with evidence of his possession of five firearms and alleged sticks of dynamite. Appellant does not dispute that unlawful possession of the items is an offense involving moral turpitude that may be used to impeach a witness. Instead, appellant argues the impeachment was improper because the prosecutor failed to establish a foundation that appellant's possession of those items was unlawful. Appellant cites section 403, subdivision (a), which provides that the proponent of evidence has the burden of producing evidence as to any "preliminary fact" underlying the relevance of the proffered evidence.
Appellant has not shown error. To the extent appellant challenges the propriety of the prosecutor's questions, the claim fails because appellant cites no authority such questions constitute "evidence" for the purpose of section 403, subdivision (a). Furthermore, appellant does not dispute the prosecutor had good faith belief appellant possessed the firearms and alleged dynamite unlawfully. (See People v. Williams (1991) 228 Cal.App.3d 146, 152 ["As long as the prosecution has a good faith belief in the existence of a prior, it may seek to use the conviction for the purpose of impeachment."].)
To the extent appellant challenges the admission into evidence of the firearms and a photograph of the alleged dynamite, the claim also fails. Appellant objected below on the ground of lack of a showing the firearms in his apartment were assault weapons subject to registration. The trial court overruled the objection, observing "This is cross-examination of the defendant. The foundation may be laid through the defendant. [¶] See if the People are able to make the foundational requirements until the weapons will be admitted." During the cross-examination of appellant, the prosecutor displayed and asked appellant about five of the firearms seized during the search of his home, as well as about a photograph of the alleged dynamite found in the home. The firearms and the photograph were admitted into evidence at the end of the trial during an unrecorded session. On appeal, appellant cites no authority that the trial court erred in allowing the prosecution to establish the foundation for admission of the evidence through cross-examination of appellant, and he cites to nowhere in the record where he objected to admission of the firearms and photograph on the ground that the foundation laid by the prosecutor during cross-examination was inadequate.
Appellant has not shown error as to the firearms and dynamite impeachment evidence.
Because we have not found the trial court committed multiple errors at trial, appellant's claim of cumulative error necessarily fails as well. --------
VII. No Need to Remand for Consideration of Striking Firearm Enhancement
The jury found true the Penal Code section 12022.53, subdivisions (b) through (d) firearm enhancement allegations. The trial court imposed a 25-year-to-life sentence enhancement under Penal Code section 12022.53, subdivision (d). At the time of sentencing, firearm enhancements under Penal Code section 12022.53 were mandatory and could not be stricken in the interests of justice. (See former Pen. Code, § 12022.53, subd. (h), as amended by Stats. 2010, ch. 711, § 5; People v. Felix (2003) 108 Cal.App.4th 994, 999.)
On October 11, 2017, the Governor signed Senate Bill 620. Effective January 1, 2018, the bill amended Penal Code section 12022.53, subdivision (h), to state, "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, § 2.) Appellant argues the amendment requires a remand for resentencing so the trial court can consider whether to exercise its newly-granted discretion to strike the firearm enhancement under Penal Code section 12022.53, subdivision (d).
Respondent agrees that the amendment to Penal Code section 12022.53, should be applied retroactively to cases not final on appeal under In re Estrada (1965) 63 Cal.2d 740, 746-748. But respondent argues a remand is unnecessary in the present case because the record shows the trial court would not have exercised its discretion to strike the firearm enhancement. We agree.
The situation before this court is akin to one in which a trial court misunderstands the scope of its discretion when imposing a sentence. (E.g., People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.) In such cases, the matter must be remanded to allow the trial court to properly exercise its discretion unless doing so would be an " 'idle act' " because " 'the record shows the trial court would not have exercised its discretion even if it believed it could do so.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
In the present case, the underlying offense was appellant's first degree murder of his pregnant girlfriend. In sentencing appellant, the trial court identified as aggravating factors that "this crime involved great violence, great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, and callousness;" "Ms. Sin, was particularly vulnerable as the defendant's common law wife, pregnant with their second child;" appellant "induce[d] another person, Ms. Tang, to participate in the commission of the crime;" "[t]he manner in which the crime was carried out did indicate extensive planning, sophistication, and professionalism in a preplanned effort to falsely claim that the murder was committed by a White supremacist group and then followed up with by [appellant's] fraudulent email" to that effect; appellant "took advantage of a position of trust as the victim's common law husband and the father of her child;" appellant's "violent conduct indicates he is a severe danger to society;" and appellant's "prior convictions are of increasing seriousness" and he previously served a federal prison term. The trial court found no mitigating factors, and appellant has suggested none in his brief on appeal on this issue. Given all the circumstances, no reasonable jurist would have found it was in the interest of justice to strike the firearm enhancement.
DISPOSITION
The trial court's judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.