Peoplev.Duenas

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)Nov 21, 2018
C075348 (Cal. Ct. App. Nov. 21, 2018)

C075348

11-21-2018

THE PEOPLE, Plaintiff and Respondent, v. MARK GILBERT DUENAS, Defendant and Appellant.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F7155)

Defendant Mark Gilbert Duenas appeals following his conviction for first degree murder of his wife, Karen Duenas, in her bedroom in their Cottonwood home in Shasta County. (Pen. Code, § 187, subd. (a); unless otherwise set forth, statutory section references that follow are found in the Penal Code.) Defendant claims evidentiary and instructional error and ineffective assistance of counsel in failing to make evidentiary objections to criminalist experiments with blood, law enforcement officer testimony about blood, and the value of retirement assets defendant might lose in a divorce. The guilty verdict came in a second trial after a jury at a first trial was unable to reach a verdict.

In this appeal, we affirm the judgment. There remains pending in the trial court a petition for writ of habeas corpus complaining that defendant's trial counsel was also deficient in failing to obtain defense experts.

FACTS AND PROCEEDINGS

Defendant's wife of 33 years was stabbed to death in her bedroom on the night of Friday, May 4, 2012. There was no sexual assault, no theft, no ransacking. She and defendant slept in separate bedrooms because he snored and got up early. Doors to the outside were unlocked, which was common for this family.

Defendant phoned 911 at 12:56 a.m. on Saturday, May 5th. The audiotape is unclear as to whether the initial words are:

"I gotta - I killed my wife. Shit. I mean, blood everywhere" -- or

"I gotta - I found my wife sick. I mean, blood everywhere."

Defendant said he had no idea what happened. He heard her, came into the room, and saw blood everywhere.

Police obtained expert audio enhancement. They played the tape for defendant at a slowed speed. He did not dispute that the words were "killed my wife" but denied that those initial words were his voice, despite admitting he made the 911 call. He suspected police trickery. Yet in two jailhouse visits, defendant acknowledged that the taped words were "I killed my wife" and "I said whatever they said I said . . . ."

Defendant woke up his sleeping teenage son, Casey, and sent him to get his adult son, Jason, who lived next door and was an EMT and volunteer firefighter. When Jason arrived, he saw a lot of blood, and defendant was wiping the victim's forehead with a rag.

Deputy sheriff Troy McCoy, arrived at 1:06 a.m., 10 minutes after defendant's 911 call. The victim was on her back on the bedroom floor, her skin an ashen color, blood everywhere, and an unplugged heating pad under her buttocks. The blood on the victim appeared dried; it was a dark color and was not shiny or oozing. Her face had been wiped, and a bloody washcloth was on the floor. Blood on the floor was no longer pooling but had soaked into the carpet, which struck McCoy as unusual because this was a nice part of town and high-end carpet usually does not soak up blood that fast. McCoy acknowledged he had no special training in carpets but had years of experience. Over defense objection, McCoy gave his opinion that the attack had not just happened within the last few minutes but happened "sometime prior."

Sergeant Michael Peery arrived at 1:10 a.m. The victim was a bluish ashen color and was obviously deceased. Blood in the victim's nose appeared coagulated. He saw striations down her face where blood had run, been wiped, and hardened. A "good amount" of blood had already soaked into the carpet and started to coagulate.

At the scene, defendant told detectives he was awakened by a "crazy noise" like animals fighting "around 12:00-ish," looked outside but did not see anything, saw the light was on in his wife's bedroom, opened the door, saw her face-down on the floor in a pool of blood, and called 911. Her body made a "gurgling" sound or a "flutter" when he turned it over. He was wearing a T-shirt and "boxer briefs." He put on gym shorts and shoes and moved his car out of the garage to allow emergency vehicles better access.

When the detective commented, "I don't see any blood on you," defendant said the blood was all on the other side of his wife, he rolled her over by her legs which were not bloody, and he did get some blood on him but had washed it off. Defendant's teenage son Casey had also noticed that defendant's clothes did not appear bloody or wet when defendant awakened Casey, despite the large volume of blood on the victim.

Defendant told police "the guy knew what he was doing or something. Because the way he cut her, that's the only cut I saw. And there's tons of blood." [Detective says, "Mh-hm."] "But there was none there coming out when I -- whoever did it [italics added] -- I don't . . . ."

In a taped interview with a detective, after being read his Miranda rights, defendant immediately volunteered that for the past year he was engaged in a long-distance relationship by phone conversations and text messages with another woman, Annette G., who lives in Idaho but knew defendant when they were teenagers. Defendant sought out Annette via Facebook. They had liked each other as teenagers but never pursued a relationship and lost contact after she moved to Idaho. Defendant told police he was scared that maybe Annette's husband was "psycho or something" and killed defendant's wife as a way to punish defendant, even though the man had never made any threats. Annette's husband was eliminated as a suspect when it was determined he was at a church function in Idaho the night the victim was killed.

Defendant communicated with Annette because his wife Karen was busy with nursing school and he was lonely. Nursing school was an acknowledged stressor for Karen because the program was difficult. But she was also upset because her husband was involved with another woman. She nevertheless presented a façade of a happy marriage, particularly for the sake of her son who still lived with them.

Defendant and Annette exchanged family photos. They planned to get together when she visited her father in Sacramento in May 2011, but did not do so, because she decided it was morally wrong. Karen found out about Annette and confronted defendant, who promised to end the relationship, but about a month later he started using a friend's phone to contact Annette, and in September or October he bought a new phone just so he could call her. Their contacts increased to a few texts per week and talking about once a week. On three occasions, he said he loved Annette, and she said she loved him. He sent her a mix tape of songs from the 1970's. Defendant sent her a handmade Christmas card and gift cards.

Annette said maybe she and defendant would be together one day. He said, "Maybe when we're old and gray and in wheelchairs" but then said, "for us to ever be together, something bad would have to happen." She said they would never want anything bad to happen. In a later conversation, defendant repeated, "for us to be together, something bad would have to happen."

In January 2012, Annette decided to end the contact because she felt guilty. She told her husband everything, told defendant that she told her husband, and told defendant not to contact her anymore. Annette's husband texted defendant that if defendant tried to contact Annette again, the husband would tell defendant's wife. Defendant nevertheless texted Annette to wish her happy birthday on February 23, 2012. She told her husband. Both Annette and her husband told defendant to stop all contact. Annette's husband texted defendant's wife about the latest contact, and defendant's wife responded. Annette wrote a letter of apology to defendant's wife, which her husband mailed on February 27, 2012.

Defendant acknowledged to police that his wife Karen was upset about his relationship with Annette. Karen knew details that defendant surmised she learned from Annette's husband. When Karen learned defendant broke his promise by texting Annette in February 2012, Karen was "Not screaming upset, just crying upset."

Yet defendant claimed to police that he and his wife were fine, the "whole Annette thing was history," Karen had not brought it up for a couple of months, and neither he nor Karen wanted a divorce.

Defendant falsely told police that he deleted Annette's phone number and never tried to contact Annette after her February birthday, but he kept her phone number under a decoy name in his phone, and phone records showed the last text message from him to her was on April 10, 2012 (less than a month before the murder). And a police search of defendant's work locker after the murder revealed that he had Annette's phone number taped inside his locker.

In April 2012, Karen confided in her father about her problem with defendant and a woman in another state. After Karen's death, her father spoke with defendant about Karen being very upset, but defendant denied it and said she was acting normally. And in April 2012, Karen talked to her son Jacob about defendant and texts she came across and a letter she received, and her son saw she was sad. Karen had also previously confided in her daughter-in-law (Jason's wife) about finding text messages between defendant and another woman and later about receiving a letter from the other woman that made Karen sad. The trial court instructed the jury on the limited purpose of evidence of the victim's state of mind. Defendant apparently was unaware that his wife had told others because he told police that no one else knew about his affair except "a couple guys at work."

The defense sought to portray a happy marriage at trial. For example, they spoke with friends about "bucket list" plans; they sat together at their children's sporting events; and there was no evidence of any domestic violence.

Over defense objection, a nursing student who knew the victim from school but was not close with her, testified she saw the victim at school the day before the murder, leaning against a wall with a phone in her hand, appearing to be sad and upset in contrast to her usual happy demeanor. When asked if anything was wrong, the victim said she was "fine" and waved off the student in a manner that did not seem fine. The student did not go to the police but was contacted by the police after the first trial and before the second trial.

The victim's body was removed from the crime scene around 10:30 a.m. Saturday morning, more than nine hours after defendant called 911. Crime scene investigator (CSI) Samantha Cheney believed the body was in full or nearly full rigor mortis at that time.

Forensic pathologist Dr. Susan Comfort performed the autopsy. There were no signs of sexual assault. There was a very large stab wound to the victim's upper chest (three and three-eighths inches long and three and three-quarters inches deep) that cut through the sternum and rib, transecting the aorta and windpipe, and penetrating the third thoracic vertebrae. She lost consciousness within about 10 seconds, and her heart stopped in about two minutes. After her windpipe was cut, she would not have been able to speak or make much sound. She lost a substantial amount of blood within minutes. Blood mixing with air from the lungs would make a gushing or gurgling sound nearly instantaneous with the trachea and aorta being severed. But if she had been face down and then rolled over, air trapped in the lungs could have escaped and made a gurgling sound when the body was moved. She also had two smaller stab wounds on her upper back and a fairly fresh bruise below her left collar bone. Shallow wounds to her palm and base of thumb appeared to be defensive wounds. The cause of death was multiple stab wounds. A kitchen knife in the home was the right size to have inflicted the wounds but could not be identified as the weapon.

The pathologist did not give an estimated time of death. Rigor mortis is not an exact science. Fully-developed rigor mortis can occur between eight to 12 hours after death. High temperatures or a violent death can speed the process, while cold temperatures slow it down.

CSI Samantha Cheney believed the victim's face had been wiped twice, with some drying of blood between the first and second wipe, because she observed "skeletonization." Blood dries from the outside in, because the edges are thinner and dry quicker, and the center has more volume and dries slower. Factors affecting dry time include the amount of blood, room temperature, and air movement (wind). A greater amount of blood would take longer to dry than a smaller amount.

Some drying had to have occurred after the first wiping in order for the skeletonization to have occurred. The skeletonization Cheney observed was inconsistent with blood being wiped only once while fresh. Water added to dried blood could either smear or rehydrate the blood to make it appear wet.

Cheney conducted experiments with her own uncoagulated blood. There was no skeletonization at the 15-minute mark but, when wiped a second time at 20 minutes, skeletonization had occurred. Cheney had not noted the room temperature at the crime scene and therefore did not reproduce that factor.

Cheney opined the victim's face was wiped once, continued to bleed, and was wiped again more than 15 minutes later.

Criminalist Rebecca Gaxiola examined defendant's clothing and found blood stains and a mixture of DNA consistent with both defendant and the victim. Chemical tests indicated blood on large diffuse areas of clothing where no stains were visible.

In the second trial, Gaxiola testified about experiments she performed after the first trial to determine whether it was possible to have clothing test positive for blood if blood got on the cloth but was washed away so there was no visible stain. She purchased athletic garments of similar, but not identical, material, cut them into sections, applied blood, submitted them to different washing methods, and then applied the chemical tests. The fragment she washed in a sink showed no visible blood stain, but the chemicals revealed a smeary appearance "not too much different" from defendant's shorts. Gaxiola concluded it was possible for chemical tests to detect blood on cloth that had been washed leaving no visible bloodstains. She opined there were four reasonable possibilities as to how blood could have been on defendant's clothes without leaving visible stains: (1) each area of clothing came into contact with dilute blood; (2) something stained with dilute blood came into contact with the clothing; (3) the clothing came into contact with dried blood; or (4) wet blood got on the clothing but was washed away.

Gaxiola could not exclude the possibilities that defendant wiped blood off someone with a wet rag and then touched his shorts, or came into contact with the victim directly and then washed his hands and touched his clothes, but in that case she would not expect to find blood on all of the surfaces where it was found.

Neither Casey nor Jason heard the noise reported by defendant, but the brothers are sound sleepers. Various other people in the vicinity heard various noises that Friday night, but earlier (between 10:00 and 11:00 p.m.) than reported by defendant. There was a party with teenagers a couple of blocks away, and a separate gathering at another home in the vicinity. Some people reported seeing people or vehicles in the area that night, but nothing connected to the killing (which the defense attributed to deficient police work). The window screen to the victim's bedroom was cut on three sides. Casey's friend had accidentally damaged the screen with a Wiffle Ball bat weeks earlier, leaving a small flap. Undisturbed surroundings and difficulty to open the window indicated absence of recent entry through the window into the bedroom, though a defense investigator achieved entry in a matter of seconds. Police searched defendant's and neighboring yards but found no material evidence. A brown stain on the hot tub, which defendant had drained the day after the murder, later tested presumptively positive for blood but was not confirmed.

The prosecution's theory was that defendant killed his wife earlier in the evening while their teenage son went out to a 9:00 p.m. movie with friends, and defendant rinsed her blood from his clothes before the blood dried and stained the cloth, because he hoped their son would discover the body. The teen sometimes checked in with his mother when he arrived home but did not do so that night. Had Casey discovered the victim's body, he presumably would have awakened defendant and been able to state there was no blood visible on defendant, after which it would not matter if defendant got blood on him. When the son came home and went directly to bed, defendant made the 911 call himself but inadvertently blurted out an admission that he killed his wife. He wiped the dried blood on the victim with a wet rag to make it appear fresh rather than something that happened earlier when only defendant and the victim were home.

In November 2013, the jury found defendant guilty of first degree murder. The verdict did not specify which of the charged theories the jury adopted -- premeditation/deliberation or lying-in-wait.

In December 2013, the trial court sentenced defendant to 25 years to life in prison.

DISCUSSION

I

Testimony That Victim Was Upset the Day Before She Was Killed

Defendant argues the trial court abused its discretion by allowing, over defense objection, the nursing student's testimony that the victim appeared upset the day before she died. We see no abuse of discretion and no prejudice.

The defense argued the evidence was irrelevant because it was not known why the victim was upset or whether defendant knew anything about it. The trial court said the proffered testimony by itself did not prove anything and did not prove the reason the victim was upset, but it was circumstantial evidence of the victim's state of mind, which was in issue because defendant's claim that things were fine conflicted with other evidence that the victim confided in others shortly before she died. Even though the probative value was not strong, the potential for misuse, misleading the jury or prejudice to the defendant was very slight.

Defendant argues the nursing student's testimony was irrelevant and unduly prejudicial and violated his right to due process. He claims the prosecutor in closing argument relied on the nursing student's testimony as one more link in the prosecution's "chain of speculation" that the victim was planning to divorce defendant, and everything "came to a head" the night of the murder. However, the prosecutor did not rely on the nursing student but merely added this independent witness's observation -- that the generally happy victim appeared upset -- to other evidence that the victim was upset shortly before her death. Other evidence indicated the victim was upset about defendant's dalliance with his Idaho friend -- e.g., the victim received the other woman's apology letter in early March 2012; and the victim reached out in April 2012 to confide in her father, her son Jacob, and her daughter-in-law. Although defendant had told his wife the affair was over, he texted the other woman in April 2012. It was reasonable to infer the victim knew or believed the affair was not over.

A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse of discretion, which may be found if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner. (People v. Coddington (2000) 23 Cal.4th 529, 587-588.)

Defendant argues the trial court should have excluded the evidence as irrelevant. (People v. Thompson (1981) 127 Cal.App.3d 13, 18 [irrelevant evidence must be excluded].) However, the evidence had some relevance as observation by an independent witness that the victim was uncharacteristically upset, in contrast to defendant's claim to the victim's father that everything was fine.

Defendant argues the evidence was not admissible to show the victim's state of mind, because Evidence Code section 1250 allows hearsay evidence of state of mind only when the declarant's state of mind is itself an issue, and the evidence is offered to prove or explain the declarant's conduct. However, this statute is inapplicable because, as noted by the trial court, no evidence was being admitted of any hearsay declarations by the victim about her state of mind. Her utterance that she was "fine" in response to the student's inquiry was not being admitted to show the victim was fine.

Defendant argues the evidence should have been excluded under Evidence Code section 352 as more prejudicial than probative, because the nursing student's observation that the victim was upset was irrelevant in the absence of evidence that the phone call had something to do with defendant or the state of the couple's marriage. Defendant invokes the heightened standard of Chapman v. California (1967) 386 U.S. 18, 24 , commanding reversal unless we can determine that error was harmless beyond a reasonable doubt. Defendant notes this standard applies if arbitrary denial of a crucial state-law mandated safeguard under the Evidence Code violates the defendant's due process rights under the United States Constitution, Fourteenth Amendment, rendering the trial fundamentally unfair. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346 ; People v. Partida (2005) 37 Cal.4th 428, 436.)

However, defendant fails to identify any due process violation rendering the trial fundamentally unfair, and so the appropriate standard is whether it is reasonably probable that defendant would have obtained a better result but for the error. (People v. Watson (1956) 46 Cal.2d 818.)

Even assuming for the sake of argument that the evidence should have been excluded under Evidence Code section 352, there was no conceivable prejudice under any standard. The nursing student's testimony was brief, covering only six pages of the reporter's transcript. Other evidence established that the victim was upset shortly before she was killed and that she was upset because of defendant's affair and broken promises to end the affair.

We conclude defendant fails to show grounds for reversal based on the nursing student's testimony.

II

Claims of Ineffective Assistance of Counsel

In his opening brief on appeal, defendant contends his trial counsel rendered constitutionally deficient performance by failing to object to specific evidence: (1) Gaxiola's and Cheney's experiments with blood, (2) Sergeant Peery's and Deputy McCoy's opinion testimony that the blood appeared dried and coagulated, and (3) CPA George Lewellen's testimony about retirement accounts. In a pending habeas corpus petition in the trial court, defendant faults trial counsel for failing to secure defense experts on blood and interpretation of the 911 call. The habeas corpus petition is not before us. We reject defendant's contentions in this appeal.

A. Legal Principles and Standard of Review

A criminal defendant has a right to effective assistance of counsel under the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 215.) In order to establish ineffective assistance of counsel, defendant must show both that (1) his trial counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced defendant in that it is reasonably probable defendant would have obtained a better result but for counsel's defects. (Strickland, supra, 466 U.S. at p. 689; Ledesma, supra, 43 Cal.3d at pp. 216-218.)

Except in those rare instances where there is no conceivable tactical purpose for counsel's actions, claims of ineffective assistance of counsel generally must be raised in a petition for writ of habeas corpus based on matter outside the record. (People v. Salcido (2008) 44 Cal.4th 93, 172.) This is particularly so where the asserted deficiency arises from trial counsel's failure to object to evidence, because deciding whether to object is inherently tactical, and failure to object rarely establishes ineffective assistance of counsel. (Ibid.)

Unless a defendant establishes to the contrary, we presume trial counsel's performance fell within the wide range of professional competence and that counsel's action or inaction can be explained as a matter of sound trial strategy. (People v. Centeno (2014) 60 Cal.4th 659, 674-675.) When the record on direct appeal sheds no light on why trial counsel failed to act in the manner challenged, the defendant must show there was no conceivable tactical purpose for counsel's act or omission. (Ibid.)

B. Experimental Evidence

Defendant argues trial counsel's failure to object to experimental evidence constituted ineffective assistance of counsel warranting reversal. We disagree.

Experimental evidence is admissible in the trial court's discretion if (1) it is relevant; (2) it is conducted under substantially similar, though not necessarily identical, conditions as those of the actual occurrence; (3) it is conducted by a qualified person; and (4) it will not consume undue time, confuse the issues, or mislead the jury. (People v. Bradford (1997) 15 Cal.4th 1229, 1326 (Bradford).)

1. Gaxiola's Experiment

Gaxiola's testing of defendant's clothing with chemicals LMG, Fluorescein, and Luminol, showed a lot of presumptive positives for blood where no bloodstains were visible. This was unusual. She knew blood can still be detected if clothing with a dried bloodstain is washed several times. The unusual result raised the question whether blood could be detected if wet blood was washed away before it left a visible stain. She conducted an experiment to see if chemicals would detect blood on cloth if blood was washed away before it left a visible stain.

Gaxiola bought garments similar, but not identical to, defendant's clothes. She cut each article of clothing into sections, tested for blood, and found none. She left one section as is, as a control. She applied two milliliters of blood to each of the other sections. She rinsed some sections in hot water until no blood was visible (about 30 seconds), wrung them out, and allowed them to dry overnight. She washed other sections in a washing machine with laundry detergent, and left them in the machine overnight to dry. She did not check if blood could be detected in the washing machine.

No blood was visible to the eye on the dried fragments, but chemical testing on the fragments washed in the sink showed a smeary appearance "not too much different" from defendant's shorts. Chemicals applied to the fabric washed in the machine had a more "spotty, speckled appearance." Blood was still detected with presumptive tests after rinsing out wet blood from the fabric such that no blood was visible to the naked eye. Another lab analyst reviewed Gaxiola's notes, findings, and conclusions, and agreed they were reasonable.

As indicated, Gaxiola testified to several possibilities as to how blood could have been on defendant's clothes without leaving visible stains: (1) each area of clothing came into contact with dilute blood; (2) something stained with dilute blood came into contact with the clothing; (3) the clothing came into contact with dried blood; or (4) blood on the clothing was partially removed by cleaning or washing. She could not exclude that a combination of these possibilities may have been at play here, but blood was detected on a much larger area than would be expected from mere contact with dilute or dried blood, e.g., from defendant touching his clothes after washing blood from his hands or Jason having dried blood on his hand when he patted defendant on the back.

Gaxiola agreed there was no way to determine the actual amount of blood that had been applied to defendant's clothing. She used two milliliters for her experiment because it looked like a decent amount. She used human blood with anticoagulants but agreed the amount of anticoagulant in stored blood is greater than that found in fresh blood because a preservative is added to stored blood. Defendant's shirt and the test shirt were both 100 percent polyester. As to defendant's shorts and the test shorts, one was all polyester while the other was 84 percent polyester and 16 percent elastin. Gaxiola said that any difference in fabric would not affect her opinion because her experiment merely attempted to see if blood could be detected after washing in the absence of visible stains.

Defendant argues there could be no conceivable tactical explanation for trial counsel's failure to object to evidence of Gaxiola's experiment. Defendant focuses on the dissimilarities. Defendant also complains that Gaxiola did not do other experiments, for example to see how long it would take fabric to dry.

However, the absence of identical conditions does not establish the absence of conceivable tactical reasons not to object.

The foundation requirement for experimental conditions requires only substantial similarity, not identical conditions. (Bradford, supra, 15 Cal.4th at p. 1326.) The point of this experiment was to determine whether it is possible to get a positive test for blood if wet blood has been washed from cloth leaving no visible stain. Given the known information and limited purpose of the experiment, counsel could reasonably view the evidence as admissible and choose to exploit the dissimilarities in closing argument to the jury -- as counsel did in this case in arguing the police investigation was inadequate.

Defendant cites People v. Bonin (1989) 47 Cal.3d 808 (Bonin), which held the trial court erred in overruling a defense objection to a criminalist's testimony that he wrapped a T-shirt around his arm and concluded the resulting marks were similar to those on the murder victim's neck, and therefore the ligature marks on the victim's neck could have been made by a T-shirt as a witness testified. (Id. at pp. 846-848.) The prosecutor failed to show the experiment was conducted under conditions similar to the murder. It was not self-evident that the criminalist's upper arm and the victim's neck were similar or that pressure was applied in the same way. (Id. at p. 847.) And the criminalist conceded on cross-examination that he was unqualified to conduct the experiment. (Ibid.) The Supreme Court nevertheless concluded the trial court's error was harmless. (Id. at p. 848.)

Bonin does not help defendant in this appeal show ineffective assistance of counsel. Defendant here fails to show the trial court would have been required to exclude the evidence had counsel objected.

2. Cheney's Experiment

Defendant claims trial counsel was deficient with respect to CSI Cheney's skeletonization experiment. We disagree.

It was undisputed that defendant wiped blood off the victim's face with a wet wash cloth. CSI Cheney believed the victim's face had been wiped twice, with some drying of blood between the first and second wipe, because there was skeletonization. Blood dries from the outside in, and skeletonization occurs when the outside edges, which are thinner, dry quicker than the center. The skeletonization she observed was inconsistent with blood being wiped only once while fresh. Water added to dried blood could either smear or rehydrate the blood to make it appear wet.

Cheney conducted experiments with her own uncoagulated blood. There was no skeletonization at the 15-minute mark but, when wiped a second time at 20 minutes, skeletonization had occurred. Factors that can affect drying time include the amount of blood, room temperature, and air movement. Cheney had not noted the room temperature at the crime scene and therefore did not reproduce that factor.

Cheney opined the victim's face was wiped once, continued to bleed, and was wiped again after 15 minutes after blood had dried.

Defendant argues trial counsel rendered ineffective assistance by failing to object to Cheney's experiment, which should have been excluded because it was not conducted under substantially similar conditions of temperature or humidity as the actual occurrence. Defendant claims there can be no conceivable tactical purpose for counsel's failure to object, since the evidence was harmful and tended to mislead the jury into accepting the prosecution's theory that defendant killed his wife and waited a period of time before calling 911.

We reject defendant's argument that counsel's failure to object was inexplicable. A mere failure to object to evidence seldom establishes counsel's incompetence. (People v. Ghent (1987) 43 Cal.3d 739, 772.) Counsel could reasonably make a tactical decision to allow the evidence because the failure to reproduce exact conditions fit it with the theory the defense had argued so successfully in the first trial and repeated in its argument to the second jury -- that the government was sloppy in investigating the crime because it jumped to a conclusion that defendant was the perpetrator. Defense counsel argued to the jury in the second trial: "We see Sam[antha] Cheney taking her own blood to test how long it takes for blood to dry for her skeletonization theory, something she read about. [W]hat's -- what does it matter that a small, tiny amount of blood dries that Sam[antha] Cheney witnesses and large amounts of blood? What's -- what's the corollary there? Where's the science?"

Defendant quotes from People v. Modell (1956) 143 Cal.App.2d 724: "The law respecting evidence of experiments is uniform. They must have been made under substantially the same conditions as those existing when the alleged occurrence took place. The conditions need not be identical but must be so nearly so as to render the experiment reliable and free from uncertainty." (Id. at p. 729.) When the prosecution has not shown the conditions to be the same, the evidence is inadmissible. (Ibid.) However, Modell merely held a defendant forfeited any objection to the evidence by failing to object in the trial court. (Id. at pp. 729-730.)

Defendant fails to show the trial counsel's performance was deficient in failing to object to the evidence.

We conclude defendant fails to show ineffective assistance of counsel regarding experiments.

C. Law Enforcement Officers' Testimony About Blood

Defendant argues his trial counsel rendered ineffective assistance of counsel by failing to make adequate objection to Sergeant Peery's and Deputy McCoy's testimony that the victim's blood appeared coagulated and had soaked into the carpet indicating some time had passed before the 911 call. We see no basis for reversal.

Deputy McCoy arrived 10 minutes after the 911 call. The blood on the victim's face and body appeared dry; it was not dripping or oozing or shiny but was a dull brown or dark red. There was a large area of blood on the floor that was not pooling on top of the carpet but rather had soaked into the carpet. This indicated the blood had not been deposited within the last few minutes. It appeared the victim's face had been wiped and her hair pushed off her forehead. Her face was ashen. A washcloth covered with apparent blood was on the floor. Based on his training and experience, McCoy opined the attack had not just happened within the last few minutes but had happened "sometime prior."

When the defense objected that McCoy's testimony about blood soaking into the carpet lacked foundation, the prosecutor elicited McCoy's prior experience. He had been involved in about 20 homicide investigations, including two or three stabbings, and has seen blood hundreds of times in his work.

The defense did not object to testimony of Sergeant Peery, who arrived a few minutes after McCoy, and said the blood on the victim's face appeared dried and coagulated, and blood had soaked into the carpet and started to coagulate. Peery had 17 years of law enforcement experience, but his primary function was patrol.

On appeal, defendant argues trial counsel had no conceivable tactical reason not to object that the witnesses' testimony went beyond mere observation about drying blood and constituted unqualified expert opinion that the stabbing occurred well before defendant made the 911 call.

However, neither witness purported to know when the stabbing occurred. McCoy merely said it happened "sometime prior" and not within "minutes" of his arrival. Since 10 minutes had already passed between the 911 call and his arrival, McCoy's testimony on this point did not hurt defendant. Accordingly, counsel was not deficient in failing to object.

Nor does defendant show any objectionable expert testimony.

Evidence Code section 720, subdivision (a), provides: "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert."

Matters that go beyond common experience and depend on particular scientific knowledge are not proper subjects of lay opinion testimony. (People v. DeHoyos (2013) 57 Cal.4th 79, 131.)

While expert testimony is frequently used to explain blood splatter evidence, expert qualification is not necessary when the witness, as in this case, merely identifies the substance observed as what appeared to be blood and describes what it looked like, i.e., whether it appeared to be wet, dried, or coagulated. The decisive consideration in determining the necessity of expert opinion is whether the subject of inquiry is one of such common knowledge that persons of ordinary education could reach a conclusion as intelligently as the witness or whether the matter is sufficiently beyond common experience that the opinion of an expert is required. (People v. Cole (1956) 47 Cal.2d 99, 103.)

Here, the lay opinions of McCoy and Peery about the blood on the victim appearing dried and coagulated and the blood appearing to have soaked into the carpet, was rationally based on their perceptions (Evid. Code, § 800, subd. (a)).

To the extent expertise was needed, the law enforcement training and experience of both witnesses more than sufficed.

Defendant fails to show ineffective assistance of counsel in counsel's failure to object to the testimony of McCoy or Peery.

D. Retirement Assets

CPA Lewellen, who values assets in divorce cases, was asked to determine what would happen in the event of a divorce. Defendant's retirement accounts, valued at over $840,000, would have been community assets divided in a divorce. In the first trial, the judge overruled defense objections to the CPA's testimony as speculative and lacking in foundation. The judge sustained an objection that the testimony assumed facts not in evidence but allowed the inquiry as a hypothetical question.

Defendant claims his trial counsel was deficient in failing to object to the testimony in the second trial, because there was no evidence the victim intended to divorce defendant. Defendant argues the evidence therefore lacked probative value, lacked foundation, was based on speculation that the victim was planning to get a divorce, and was more prejudicial than probative. He argues the evidence allowed the prosecutor in closing argument to invite the jury to speculate, "what does [defendant] stand to lose if she -- if she just divorces him?" Defendant "worked his whole -- throughout the marriage and had the -- the pension, the retirement. This isn't a wealthy family. They live week to week, uhm, had lots of bills, and he stands to lose half of that in a divorce as well." The prosecutor also argued that defendant, who believed no one except his wife knew about Annette, would fear his transgression would come to light in a divorce and hurt his reputation.

However, contrary to defendant's argument, it was not necessary to prove the victim actually intended to divorce defendant in order for the evidence of lost retirement assets to be properly admitted. Given the undisputed marital difficulties arising from defendant's dalliance with Annette and his breach of promises not to contact Annette anymore and his awareness that his wife was upset, a trier of fact could reasonably infer that divorce was a possibility or that defendant considered it a possibility. This possibility of divorce made the evidence relevant and admissible such that defendant fails to show that counsel was deficient in failing to object.

Defendant cites People v. Bush (1978) 84 Cal.App.3d 294, 307, which held that evidence of the husband/victim's $35,000 life insurance policy should have been excluded since it improperly allowed the jury to speculate about a motive for murder solely because the wife/defendant knew about the policy. However, the appellate court found error because the only basis for offering the evidence was that a third party helped the wife kill her husband, but there was no evidence of a third party. (Ibid.) The wife, whose husband had previously beaten her and threatened to put her in her grave, killed the husband as he assaulted her. The trial court had granted the wife's motion for acquittal on first degree and second degree murder for lack of malice aforethought. The appellate court reversed the conviction for involuntary manslaughter because the trial court erred in refusing a jury instruction that one who has received threats against her life is justified in acting more quickly and strongly to protect herself against an assault. (Id. at pp. 302, 304, 307.) It would be a "deplorable precedent" to allow evidence of minimal life insurance, which most married people have, where there was no evidence of a killing for financial gain. (Id. at p. 307.)

Bush has no bearing on this case, where the prosecution did not seek to use the CPA's testimony as evidence of a killing for financial gain.

We conclude defendant fails to show grounds for reversal -- individual or cumulative -- based on ineffective assistance of counsel in failing to object to the foregoing evidence.

III

Jury Instructions

Defendant argues the trial court prejudicially erred in instructing the jury on consciousness of guilt under CALCRIM Nos. 362 and 371. We reject the contention.

Defendant did not object in the trial court, but on appeal the People do not dispute defendant's reliance on section 1259, that "The appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."

The trial court instructed the jury with CALCRIM No. 362 that "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."

The court also instructed the jury with CALCRIM No. 371 that "If the defendant tried to create false evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."

Defendant argues these instructions impermissibly allowed the jury to infer that defendant lied, hid, and fabricated evidence in an effort to mislead law enforcement. Defendant argues both instructions gave more weight to the prosecutor's view of the facts and essentially told the jurors that the trial court endorsed the prosecutor's view. Defendant thinks the instructions were unfairly partisan and argumentative. Defendant also claims the instructions unconstitutionally embody two irrational permissive inferences that violate due process.

Defendant acknowledges his arguments have been rejected by the California Supreme Court, in addressing the CALJIC predecessors to the CALCRIM instructions. (People v. Whisenhunt (2008) 44 Cal.4th 174, 221-222; People v. Stitely (2005) 35 Cal.4th 514, 555; People v. Jackson (1996) 13 Cal.4th 1164, 1222-1225.) Defendant nevertheless argues: "But where there is insufficient competent evidence from which a jury can reasonably infer the defendant intentionally lied, covered up or hid evidence, giving consciousness of guilt instructions is prejudicial because they imply to the jury that he, in fact, did these things." Defendant cites People v. Guiton (1993) 4 Cal.4th 1116, 1129, that it is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.

Defendant argues there was no competent evidence that he intentionally hid or fabricated evidence. However, this argument is based on defendant's misguided view that we must disregard the evidence and inferences he does not like, such as his blurting out, "I killed my wife" in his 911 call, his rehydrating dried blood on the victim's face with a wet rag, and rinsing blood stains from his clothes. And he neglects other evidence, such as his lies to police that he deleted Annette's phone number and had no contact after her February birthday, when in fact he kept her number listed under a decoy name and texted her in April.

We conclude defendant fails to show instructional error.

IV

Claim of Prejudice from Cumulative Error

Having reviewed all of defendant's contentions, we reject his claim that he was prejudiced by the cumulative effect of errors.

DISPOSITION

The judgment is affirmed.

HULL, Acting P. J. We concur: ROBIE, J. BUTZ, J.