NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. CM037880, CM037881)
Defendants Lisa Marie Pounds and Suzan May Pounds, daughter and mother, stole nearly half a million dollars worth of gold coins and other property from the home of the victims, a husband and wife, taking advantage of wife's hospitalization and husband's subsequent death. Defendants were convicted by jury of one count of first degree burglary (Count 1), two counts of second degree burglary (Counts 2 and 5), one count of theft from an elder adult (Count 3), and one count of grand theft (Count 6). With respect to Count 3, the jury found the theft involved a taking of more than $100,000. The jury also found defendants committed two or more related felonies, a material element of which was fraud or embezzlement, and this related felony conduct involved the taking of more than $150,000. The trial court, finding this to be an unusual case, granted each defendant probation for a period of 10 years with various conditions, including a term of credit for time already served in jail for Lisa and serving a term of one year in the county jail for Suzan.
Because of the shared last name, we refer to defendants by their first names.
Count 4 charged Lisa with money laundering. The jury was unable to reach a unanimous verdict with respect to this count and a mistrial was declared as to it.
On appeal, defendants contend the trial court prejudicially erred and violated their federal constitutional rights by (1) preventing Suzan from testifying that husband, on his deathbed, gave her permission to take certain property, and preventing Lisa from testifying she believed such permission had been given; (2) precluding presentation of a third party culpability defense based on evidence other people had access to the victims' home at the time the property was taken; (3) disallowing testimony from a proposed defense expert in "law enforcement investigations, procedures, and techniques," who was expected to testify certain aspects of the investigation into these crimes were not properly handled; and (4) the cumulative prejudicial effect of the foregoing assertions of error requires reversal of their convictions.
We affirm. While the trial court should have allowed Suzan to testify regarding husband's purported grant of permission, we conclude this error was harmless. We reject defendants' remaining contentions. The proposed third party culpability evidence was properly excluded because it merely consisted of possible motive and opportunity to commit the crimes and was devoid of any evidence linking the third persons to the perpetration of the specific crimes charged against defendants. Testimony from the proposed defense expert was also properly excluded. Having concluded there was only one error, which was harmless, defendants' claim of cumulative prejudice also fails.
The victims were married for nearly 60 years. They lived in a house in Gridley. In March 2012, husband was receiving daily in-home hospice care, but was cared for primarily by wife, who was 75 years old. On March 27, their son was home for a visit and told his mother she needed to go to the hospital. Wife acceded to this request, but first arranged for Suzan to come over to care for husband while she was gone. She believed she would be back in a few hours. Wife collapsed when she arrived at the hospital and was admitted into the intensive care unit (ICU), where she was treated for cardiac arrest, pneumonia, and kidney failure, among other things. She would not return home for two months.
As arranged, Suzan came over to the house to care for husband. Wife had known Suzan for over 20 years. They worked together for three or four years at a trucking company before wife retired in 1994. Suzan was a truck driver and wife worked in the office as the office manager. What wife considered a friendship began sometime after Suzan became pregnant with Lisa. After wife retired, she would see Suzan three to five times a year. Having an accounting background, wife periodically prepared tax documents for Suzan and her husband, Lowell, and did the same for Lisa when she entered the workforce. As payment for these services, Suzan and Lowell would take wife and husband to dinner in Sacramento. After husband became ill, Suzan would also come over to the house periodically to help wife care for him, which is the reason wife called her to care for husband on this occasion.
Husband died three days later, on March 30, 2012. Three days after that, the victims' neighbor saw a burgundy Lexus pull up to the house. He identified Lisa as the driver of the car. After going inside the house for about 20 minutes, Lisa returned to the car, backed it up to the back of the house, went inside the house again, and then returned to the car carrying a bankers box. The neighbor could not see what was in the box. Lisa placed the box in the trunk of the car as Suzan stood next to the back door. One or two days later, the neighbor saw a Chevy pickup pull up to the back of the house. Suzan, Lisa, and Lisa's husband, Eric Anderson, took various items from a workshop behind the house and loaded them into the truck. Among the items the neighbor saw loaded into the truck was a plumber's snake, an air compressor, and a pressure washer. When he came out to find out what was going on, Suzan told him wife and husband gave her permission to take the property. At trial, Suzan and Lisa admitted taking these items. Suzan also admitted taking several solar panels and related equipment. They denied taking anything else. However, according to the neighbor's testimony, the truck was filled with "many other things" when defendants and Anderson drove away that day.
At some point during this period, while still in the ICU, wife asked her sister to retrieve her diamond rings from the house and told her where to find them. When the sister went to the house, the rings were not where wife said they would be. Instead, Suzan retrieved them from the kitchen and handed them to her. Wife's sister also took wife's purse and returned to the hospital.
Wife was transferred from the ICU to a regular hospital room about two weeks later and was then moved to a rehabilitation facility. In the meantime, wife's niece came to stay at the house and informed wife's sister the house appeared to have been broken into and ransacked. Wife's sister filed a burglary report with the police department on April 5, one or two days after the neighbor saw defendants and Anderson loading up the pickup. Wife was not informed of the burglary until she was moved to the rehabilitation facility. When she returned home at the end of May, she discovered nearly half a million dollars worth of property had been taken from the house, workshop, and a storage shed.
Inside the house, wife and husband had a gun safe that contained, in addition to various guns and ammunition, 180 one-ounce gold coins, three or four silver proofs, some presidential dollar coins, and an envelope containing about $1,500 in $100 bills. The gold, silver proofs, presidential coins, and cash were missing from the safe. The value of the gold alone was about $325,000 at the time it was taken. Wife and husband kept the combination to the safe in a spreadsheet file on their computer. The file, named, "safecombinations.xls," was accessed and deleted on April 2, the same day the neighbor saw Lisa back her Lexus up to the house and place a bankers box in the trunk. Other items missing from the house included wife's jewelry, a laptop computer, and a television. Items missing from the workshop and storage shed included the aforementioned solar panels, related equipment, and air compressor, as well as a cherry picker, thousands of dollars worth of tools and tool boxes, and various items of dried food and bathroom supplies.
On May 8, Lisa deposited $155,000 in $100 bills into a bank account she held jointly with an ex-boyfriend. On May 23, she transferred $156,123 from that account to another account held solely in her name. Based on having prepared their tax returns, wife testified she did not believe either Lisa or Suzan could have saved this amount of money.
On June 4, search warrants were executed at the homes of both Lisa and Suzan. Wife went to both locations. At Suzan's house, wife identified the solar panels, related equipment, plumber's snake, television, and various tools she recognized as having belonged to her husband. At Lisa's house, wife identified two of the silver proofs and one of the presidential coins that had been taken from the safe. The silver proofs were found in a dresser drawer and the presidential coin was found in a trailer in the driveway. Victims' son also identified various items of his parents' property recovered at each location. In all, over 70 items were located at Suzan's house and over 60 items were located at Lisa's house.
On June 6, two days after stolen items were located at her house, Lisa tried to withdraw the entirety of her bank account. The bank was unable to fulfill such a large request, but allowed her to withdraw $10,000. She returned the following day and attempted to withdraw the remaining balance, but by then law enforcement representatives had frozen the account.
Lisa and Suzan each testified in her own defense. We dispense with a detailed recitation of their testimony here. For present purposes, it will suffice to note they presented a common defense that differed depending on the items of property they were accused of taking. With respect to the items the neighbor saw them take, they admitted doing so. Suzan also admitted taking the solar panels and related equipment. As we explain in greater detail below, Suzan attempted to testify that husband gave her permission to take these items because he was angry at his son and did not want him to inherit them after he passed away. The trial court would not allow this testimony, finding it to be inadmissible hearsay. Suzan and Lisa denied taking anything else. With respect to the television found at Suzan's house, Suzan testified that husband gave it to her in front of wife prior to her hospitalization.
With respect to other items recovered from the two houses, the defense theory was that these items were erroneously identified as having belonged to the victims. For instance, Suzan testified she purchased the two silver proofs found at Lisa's house and gave them to Lisa as a gift. An uncle had also given them various coin and proof sets as a gift. Finally, with respect to the one-ounce gold coins taken from the safe but never recovered, the prosecution's theory was the gold was sold for the $155,000 amount Lisa deposited into her bank account on May 8. In their defense, Lisa and Suzan testified they each mistrusted banks and had saved up that sum in cash over the years. Suzan testified she and Lowell had saved up $85,000 in cash in a safe that they loaned to Lisa to enable her to buy a house with Anderson. Lisa testified she had saved about $20,000 in cash in her sock drawer and the remaining $50,000 or so came from Anderson, who saved his money in a lock box.
Suzan's sister, Cindy Kosmerl, who was a realtor and notary in Las Vegas, testified she notarized such a loan agreement on February 17, 2012. However, while the entry in the notary record book for this notarization had this February date, it was entered in the book after an entry dated March 26, 2012, indicating the notarization likely occurred after March 26 and was backdated February 17.
Anderson's ability to save up such a sum was somewhat corroborated by testimony from his father, who testified he allowed Anderson to live rent free for many years at a house he owned and later found out his son had been charging various roommates rent and putting the money in a lock box.
The defense also presented testimony from a forensic accountant. Based on information received from the defense, and without much corroborating documentation, he testified it would have been theoretically possible for Lowell to have saved up the $85,000 purportedly loaned to Lisa, and for Anderson to have saved up the remaining amount.
Defendants contend the trial court prejudicially erred and violated their federal constitutional rights by preventing Suzan from testifying that husband gave her permission to take the items of property she admitted taking from his workshop and storage shed, and also by preventing Lisa from testifying she believed such permission had been given. While we agree the trial court should have allowed Suzan to testify regarding husband's purported grant of permission, we conclude the error was harmless.
The defense sought to elicit testimony from Suzan that husband gave her permission to take various items from his workshop and storage shed because he was angry at his son and did not want him to inherit them after he died. As defense counsel described the situation in arguing the admissibility of the proffered testimony, the son went over to the house against his father's wishes and brought a friend, who was recently released from prison and who was also not welcome in the house. According to counsel, the son told Suzan not to tell his father of their presence in the house. When the son's friend started looking around the room where husband's hospital bed was, apparently with the aid of "opera glasses, or some type of binoculars," husband became "enraged." He and his son started yelling at each other. During the fight, husband accused his wife of infidelity and said he did not want his son to inherit any of his property because he was not his father. Husband told Suzan to call the police, which she did. There was then "a three-hour lull" because husband had become "so enraged that he basically can't talk." Later in the evening, husband explained to Suzan the reason he was so upset. As counsel described: "He doesn't believe that [victims' son] is his biological son. He talks about other matters involving the character of his son. He discusses more specifically that he would just take the property that is there at the house. He specifically tells [Suzan] to take that property. He explains exactly the solar panels, where they're located, the batteries, the control box, and says specifically to take those items. He says specifically to take other items and finally says, 'Take whatever you can, basically, from outside. This should not be left to [the son].' " Counsel then described husband's last day, including the comings and goings of various people, and offered that husband told Suzan several times: " 'Do not leave the property around here for [the son]' [and] 'Take the tools. I don't want [the son] to have those.' " Counsel argued such testimony was relevant and admissible to prove Suzan's state of mind at the time she took the items in question.
In response, the prosecutor argued: "This would be hearsay. The People don't have a fair opportunity to cross-examine [husband] because he passed away, so essentially [Suzan] can say whatever it is she wants [husband to have] said without [him] being confronted with those statements." The prosecutor also pointed out the trial court had already excluded third party culpability evidence and argued it was improper for defense counsel to attempt to relitigate that issue by offering Suzan's testimony concerning various people in the house during husband's final days.
We discuss the trial court's ruling regarding third party culpability evidence later in this opinion.
The trial court excluded husband's purported statements granting Suzan permission to take the property, explaining: "[T]hose statements are quintessential hearsay. They're offered by the defense in this case by someone other than a witness while testifying at the hearing, and they are offered to prove the truth of the matter stated, i.e., that [Suzan] had permission to take the property and that [husband] did not want his son to inherit or receive any of the property." The trial court was not persuaded by defense counsel's argument that the statements were being offered as circumstantial evidence of Suzan's state of mind and added: "The danger in admitting hearsay of this nature is that the declarant's statements cannot in any way be tested for their truthfulness, and that is the case here."
With respect to Lisa, who testified before this ruling was made, it does not appear defense counsel attempted to elicit testimony she believed Suzan had obtained permission to take the property from husband. On cross-examination, the prosecutor elicited testimony Lisa believed she "would  have" had permission from wife to take the property. During redirect, defense counsel sought to elicit testimony that various family members also took items from the house and did not have any problem with Suzan and Lisa doing the same. Counsel argued such testimony was relevant to Lisa's belief she had permission to take the property she and her mother took. The trial court confirmed its previous ruling excluding third party culpability evidence and further found such evidence would not "add anything to this witness's state of mind as it relates to the permission to remove items from the home." There was no indication Lisa wished to testify Suzan told her they had permission from husband to take the property. We therefore confine our analysis of this issue to the trial court's ruling preventing Suzan from testifying to husband's purported grant of permission.
With many exceptions, hearsay evidence, i.e., "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," is inadmissible. (Evid. Code, § 1200.) "Under this definition, as under existing case law, a statement that is offered for some purpose other than to prove the fact stated therein is not hearsay." (Sen. Com. on Judiciary, com. on Assem. Bill No. 3212 (1965 Reg. Sess.) reprinted at 29B pt. 4 West's Ann. Evid. Code (2015 ed.) foll. § 1200, p. 3.)
Undesignated statutory references are to the Evidence Code.
For example, "extrajudicial statements are not hearsay when offered to prove the state of mind evoked in another by their utterance." (People v. Thurmond (1985) 175 Cal.App.3d 865, 871.) Moreover, " '[a] declarant's statement may become relevant on some issue in a case merely because the words were spoken or written, and irrespective of the truth or falsity of any assertions contained in the statement. If a fact in controversy is whether certain words were spoken or written and not whether the words were true, evidence that these words were spoken or written is admissible as nonhearsay evidence.' [Citation.] Often, such evidence is referred to as ' "operative facts." ' [Citations.] As originally articulated, the operative fact doctrine was as follows: ' "There is a well-established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said or done and not as to whether these things were true or false, and in these cases the words or acts are admissible not as hearsay, but as original evidence." [Citations.] In these situations, the words themselves, written or oral, are "operative facts," and an issue in the case is whether they were uttered or written. [Citation.]' [Citation.]" (People v. Fields (1998) 61 Cal.App.4th 1063, 1068-1069; see also People v. Henry (1948) 86 Cal.App.2d 785, 789; People v. Rosson (1962) 202 Cal.App.2d 480, 486.)
In People v. Burnham (1986) 176 Cal.App.3d 1134, the Court of Appeal explained that testimony regarding a rape victim's purported verbal consent to the sex act is properly understood as offered for both nonhearsay purposes described above: "When a defendant testifies the victim said 'I consent,' the evidence is relevant for the specific nonhearsay purpose of proving the defendant had reason to believe the victim consented [citation] and for the additional purpose of proving the victim consented." (Id. at p. 1144.) Citing People v. Nelson (1985) 166 Cal.App.3d 1209, the court continued: "Proof of the victim's consent by her out-of-court statement indicating consent is admissible, under the prevailing theory, as a nonhearsay 'operative fact.' " (Burnham, supra, at p. 1145, fn. 10.) In Nelson, a case involving consent to search a vehicle, the Court of Appeal further explained: " 'The words of consent are relevant as words of authorization. They are, therefore, nonhearsay and they become relevant to the issue of consent to search merely from the fact that the words are spoken. [One's] internal state of mind is not relevant on the issue of consent. It is the saying of the words of consent that is the issue involved, just as the saying of the words of a contract is nonhearsay and becomes the relevant issue involved to determine whether there is a contract.' [Citations.]" (Nelson, supra, at p. 1215.)
Similarly, here, Suzan sought to testify that husband gave her permission to take various items she admittedly took. Regardless of whether or not husband was telling the truth about wanting Suzan to have the property, or the reasons he purportedly did not want his son to have it, if he told Suzan to take the property, such words of consent would be highly probative of her state of mind when she took the property. Moreover, a complete defense arises from the very fact these words were spoken, regardless of their truth or falsity, assuming the jury actually believed Suzan's testimony they were in fact spoken. Thus, the trial court incorrectly concluded husband's purported statements granting Suzan permission to take the property were inadmissible hearsay. They were not hearsay at all.
We now turn to the question of prejudice. "When the reviewing court applying state law finds an erroneous exclusion of defense evidence, the usual standard of review for state law error applies: the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant." (People v. Humphrey (1996) 13 Cal.4th 1073, 1089; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Defendants argue the exclusion of this permission testimony violated their federal constitutional rights to testify and to present a defense and should therefore be reviewed for prejudice under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). We disagree.
In People v. Cudjo (1993) 6 Cal.4th 585 (Cudjo), a murder case, the trial court excluded testimony from a defense witness that would have related an out-of-court confession from "the other prime suspect in the case" where the purported confession was made "under circumstances providing substantial assurances that the confession was trustworthy." (Id. at p. 609.) After determining this testimony was erroneously excluded based on the trial court's impression that the witness who was to relate the hearsay "was a probable liar" (id. at p. 608), our Supreme Court concluded the error did not violate the defendant's federal due process and fair trial rights. (Id. at pp. 610-611.) The court explained: " 'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.] . . . [T]his principle applies perforce to evidence of third-party culpability. . . .' [Citation.] [¶] It follows, for the most part, that the mere erroneous exercise of discretion under such 'normal' rules does not implicate the federal Constitution. Even in capital cases, we have consistently assumed that when a trial court misapplies . . . section 352 to exclude defense evidence, including third-party-culpability evidence, the applicable standard of prejudice is that for state law error, as set forth in [Watson, supra, 46 Cal.2d. 818]." (Id. at p. 611.)
In her dissent, Justice Kennard disagreed the Watson standard of prejudice applied. She would have concluded the erroneous exclusion of the evidence violated the defendant's constitutional right to present a defense, requiring application of the Chapman standard. (Cudjo, supra, 6 Cal.4th at pp. 638-642 (dis. opn. of Kennard, J.).) In response, the majority stated: "The United States Supreme Court has held that the constitutional right to present and confront material witnesses may be infringed by general rules of evidence or procedure which preclude material testimony or pertinent cross-examination for arbitrary reasons, such as unwarranted and overbroad assumptions of untrustworthiness. However, the high court has never suggested that a trial court commits constitutional error whenever it individually assesses and rejects a material defense witness as incredible. [Citations.] [¶] We reiterate that in general under California law, the credibility of individual witnesses 'is properly the province of the jury.' [Citation.] Nonetheless, absent clearer guidance from above, we will not lightly assume that a trial court invites federal constitutional scrutiny each and every time it decides, on the basis of the particular circumstances, to exclude a defense witness as unworthy of credit. We decline to extend the federal decisions in the manner proposed by defendant and in Justice Kennard's dissent. We conclude that the Watson standard of prejudice applies to the trial court's mistake." (Cudjo, supra, at pp. 611-612.)
Similarly, here, the trial court excluded evidence it considered to be inadmissible hearsay based, at least in part, on its conclusion there would be no way to verify whether Suzan was telling the truth about husband's purported statements. While this was error, and while the excluded evidence was material to the defense, we do not believe the evidence excluded in this case was any more vital to the defense than that erroneously excluded in Cudjo, supra, 6 Cal.4th 585. Nor did the trial court here exclude Suzan's testimony concerning husband's purported permission based on a general rule of evidence or procedure precluding such testimony for an arbitrary reason. (See, e.g., Rock v. Arkansas (1987) 483 U.S. 44 [general rule prohibiting admission of hypnotically refreshed testimony]; Chambers v. Mississippi (1973) 410 U.S. 284 [general rule precluding cross-examination of party's own witness].) Instead, as in Cudjo, the trial court excluded the testimony based on the particular circumstances before it. We therefore follow Cudjo and apply the Watson standard to the trial court's error.
Applying that standard, we conclude there is no reasonable probability of a more favorable outcome absent the error. We first note, while Suzan was not allowed to directly testify husband gave her permission to take the property, she was allowed to testify she "told [the neighbor] the whole story," i.e., "[husband] didn't want [his son] to have it and he told [her] that [she] should take it." She also testified she told the investigating officer the same thing. Thus, while Suzan was not allowed to testify that what she told these people was true, she was later able to testify she did not steal the items she took from the workshop and storage shed; like the television husband gave her, these items were "also a gift." From this, we believe the jury would have surmised Suzan was sticking to the story she told the neighbor and the investigating officer.
The evidence against Lisa and Suzan was also quite strong. The neighbor watched as Lisa and Suzan loaded up a truck bed with various items from the workshop and storage shed and then drove away with the property. While this was the property Suzan claimed husband gave her permission to take, this was not all of the property taken. Three days after husband died, the same day the spreadsheet file containing the combination to the safe was accessed and deleted, the neighbor also saw Lisa back her Lexus up to the back of the house and place a bankers box in the trunk while Suzan stood at the back door. While Lisa denied this box contained the gold that was taken from the safe, based on the timing of the file access and deletion, and the fact $155,000 was deposited into one of Lisa's bank accounts the following month, roughly half the value of the gold taken from the safe, the jury could have reasonably concluded this box contained the stolen gold. Such a conclusion was also supported by the fact other items taken from the safe, i.e., two silver proofs and one presidential coin, were also found at Lisa's house. The jury obviously did not believe Suzan's testimony these silver proofs were purchased by her and given to Lisa, and were therefore misidentified as having been taken from the safe. Moreover, two days after these and other items were found at Lisa's house, she tried to empty out her bank account. Nor did the jury believe their collective testimony that $85,000 was saved up by Suzan and Lowell and loaned to Lisa towards the purchase of a house and Lisa and Anderson saved up the remaining $70,000. Their defense expert merely testified it was theoretically possible for these amounts to have been saved up, but even he admitted he was basing that conclusion on information received from the defense without much corroborating documentation. And while the purported loan agreement was evidenced by a notarization, it was executed by Suzan's sister and was obviously backdated to precede the date of the theft from the safe.
In light of all of this evidence, we cannot conclude a reasonable probability exists that admission of Suzan's self-serving testimony that husband gave her permission to take property from the workshop and storage shed after a fight with his son would have affected the outcome. Reversal is therefore not required.
Exclusion of Third Party Culpability Evidence
Defendants also claim the trial court prejudicially erred and further violated their constitutional rights by precluding presentation of a third party culpability defense based on evidence other people had access to the victims' home at the time the property was taken. We disagree.
The prosecution moved in limine to exclude any evidence of third party culpability, specifically referring to its belief the defense would attempt to argue victims' son and his friend stole items from the house. The prosecution argued, while these individuals arguably had the opportunity to steal from the house, there was no direct or circumstantial evidence linking either victims' son or his friend to the specific crimes charged against Lisa and Suzan.
At the hearing on the motion, defense counsel claimed "there are a minimum of at least five people that have access to the house during the time that is alleged . . . to be the date of the commission of the offense," but offered a specific argument only with respect to the victims' son. Counsel argued the son was present at the house several times around the time of his father's death, had keys to the house and access to the computer that contained the file with the safe combination, had "an addiction and history of theft, including burglary," had previously broken into the house "through a doggie door," and was initially reported to law enforcement as the person who likely stole items from the house. In response, the prosecutor argued this offer of proof merely established opportunity to commit the crimes and further explained the reason victims' son previously entered the house through the doggie door, according to wife's testimony during the preliminary hearing, was because his father needed to be taken to the hospital and the son did not have a key to the house at the time. The trial court ruled, "there is insufficient evidence linking [the son] to this specific offense," but indicated it would revisit the issue outside the presence of the jury "if something new develops."
Later in the day, defense counsel asked the trial court whether he would be allowed to mention the "other person or persons that took items from the residence," without specifically stating who these people were or what items they supposedly took. The trial court responded it had "clearly ruled that there is no evidence that there are third parties responsible" for the crimes alleged against defendants. Counsel asked: "Will I be allowed to examine that?" When the trial court reminded counsel he had only made an offer of proof as to victims' son, counsel responded: "There are several other people that took items from the residence; they are mentioned by law enforcement." Counsel argued: "There's things that are taken from the residence, and a theft is alleged. I believe that's very direct evidence as to was that with permission or without permission. Was that their property? Was it not their property? Why are they at somebody else's house removing property? I think that's what this whole case is about. And that the -- the law enforcement reports that information and that . . . information should be brought forth, that there are several people removing items of property from the house." The trial court confirmed its previous ruling excluding evidence of third party culpability.
The following day, defense counsel asked the trial court: "I will at least be able to ask questions such as who was reported originally to law enforcement, those kinds of things? Who was in the house, and those kinds of things?" The trial court asked what the relevance would be. Counsel answered: "The relevance is that there [were] many people coming and going at this specific time of the hospitalization and death. Those people were numerous in the house and the area, and that I think it gives a clear picture of the actual circumstances of the events surrounding the days alleged rather than a myopic view of only one person being there." The prosecutor responded that "absent any specific evidence linking certain other individuals to the crime -- [defense counsel] hasn't stated anything that would allow third-party culpability evidence to be admitted." Defense counsel then restated his argument with respect to victims' son that he characterized as "very specific," and asked to be allowed to "give a clear picture of what was going on during the days that are alleged." The trial court again ruled evidence of third party culpability would be excluded, at least absent "a [section] 402 hearing on whichever witness made the report to law enforcement that [defense counsel was] referring to . . . ." Counsel indicated this person was wife's sister, and he also wished to examine wife outside the presence of the jury regarding the people who had access to her house and the combination to the safe. Counsel then identified those he believed had such access: victims' son, his friend, wife's sister and niece, and husband's brother and sister-in-law.
The trial court asked defense counsel: "And what additional information or evidence do you have linking those people to the offenses that your clients are charged with?" Counsel responded: "As to Count 1, apparently the exact same evidence that links my clients in that there is access by these people to the computer and to the paper files in the house and, therefore, to the combination to the safe, where, again, the gravamen of the offenses, as far as property, are alleged to have been occurring; and that there are other people that have access to the keys to the house, and that includes at least [victims' son]; that [wife's] sister was actually the person . . . who found the combination to the safe; and that there was significan[t] time between the finding or having access to that computer and/or safe combination where they alone had control of the house, and that is [wife's sister and niece]." The trial court ruled: "Based on that offer of proof, again, there is insufficient evidence to link any of these third parties to the offenses." The trial court did, however, indicate counsel would be allowed to question witnesses concerning who else was in the house at the time of the crimes.
During defense counsel's opening statement to the jury, he stated several other people had access to the house and suggested they therefore also had access to the combination to the safe. At sidebar, the trial court admonished counsel he was violating the in limine ruling. Counsel responded: "Your Honor, I thought this morning when you said we were going to talk about access --" The trial court interjected: "You asked if you could inquire of the witnesses who else was in the house, and I allowed that. Your comments to this jury are directly in contradiction to the Court's order." After excusing the jury from the courtroom, the court asked counsel to explain his inability to follow the in limine ruling. Counsel responded he believed he was allowed to question witnesses about who else had access to the house at the time of the crimes, pointed out "it is that access that allows people to get at the safe combination and ultimately the contents of the safe," but then denied he was suggesting "they're culpable," adding, "all I'm saying is there's access." The court then reiterated its previous ruling excluding evidence of third party culpability, reversed its ruling counsel could question witnesses concerning who else was present in the house, and further explained counsel had not demonstrated how evidence others had access to the house was relevant to any issue other than the theory someone other than defendants was guilty of the crimes. Counsel confirmed the latter point by arguing, once again, evidence of access to the house was admissible to prove third party culpability. The trial court, yet again, ruled such evidence would be excluded.
Defense counsel attempted to relitigate the issue during trial as well. At one point, counsel sought to question the investigating officer concerning a statement he took from husband's brother and sister-in-law, during which they admitted to taking certain items from the house, according to defense counsel's offer of proof, "truckloads of items." The prosecutor objected, explaining that "none of those items were property that was listed as stolen by [wife]." The trial court confirmed its prior ruling, explaining this new offer of proof did not provide a sufficient link to connect husband's brother and sister-in-law to the taking of the items Lisa and Suzan were charged with taking. Two additional attempts to relitigate the issue were also rejected. As mentioned previously, one such attempt involved counsel seeking to question Lisa about husband's brother and sister-in-law taking these items. Essentially conceding these items were not the same items defendants were charged with taking, counsel argued such testimony was relevant to Lisa's purported belief she had permission to take the property she and her mother admitted taking. The trial court again confirmed its previous ruling.
We finally note evidence of the presence of other people at the house, specifically, victims' son and wife's sister and niece, was nevertheless admitted at various times during the trial. The trial court also noted as much when it denied defendants' new trial motion that was based in part on the exclusion of third party culpability evidence.
In People v. Hall (1986) 41 Cal.3d 826, our Supreme Court held third party culpability evidence is admissible if the evidence is "capable of raising a reasonable doubt of defendant's guilt," clarifying that "evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Id. at p. 833, italics added; see also People v. Panah (2005) 35 Cal.4th 395, 481.) "We review a trial court's rulings on the admission and exclusion of evidence for abuse of discretion." (People v. Chism (2014) 58 Cal.4th 1266, 1291.)
Here, as the trial court correctly and repeatedly ruled, there was no direct or circumstantial evidence linking victims' son, his friend, wife's sister and niece, or husband's brother and sister-in-law to the specific crimes charged against defendants. Of course, none of these people took the specific items defendants admitted taking; nor did they take the items recovered from defendants' respective houses. Defendants do not appear to argue otherwise. Instead, their arguments center on the property taken from the safe. However, while each person listed above was apparently in the house at one time or another during the relevant time period, and therefore could have accessed the safe combination, this is evidence of mere opportunity. We also acknowledge any of these people may have had a motive to steal over $300,000 worth of gold coins. But evidence of motive and opportunity is not enough. (People v. Hall, supra, 41 Cal.3d at p. 833.) The only people linked by circumstantial evidence to the actual taking of the gold coins and other items from the safe were defendants. Specifically, two of the silver proofs and one presidential coin also taken from the safe were found at Lisa's house. And while the gold coins were not recovered, the same day the computer file with the safe combination was accessed and deleted, the neighbor saw Lisa back her Lexus up to the back of the house and place a bankers box in the trunk while Suzan stood at the back door. While Lisa denied this box contained anything taken from the safe, based on the timing of the computer file access and deletion, and the fact $155,000 was deposited into one of Lisa's bank accounts the following month, the jury could have reasonably concluded this box contained the stolen gold coins. Lisa also attempted to clear out her bank account shortly after the silver proofs and presidential coin were found at her house.
Contrary to defendants' arguments on appeal, the fact wife's sister was the one who reported the burglary and eventually gave the investigating officer the safe combination on a piece of paper that allowed him to open the safe and determine the gold coins and other items were missing, does not provide a circumstantial link to the commission of the crime. Her possession of the safe combination after the crime was committed does not establish she had that combination on the day of the crime and used it to open the safe and remove the gold and other items. It merely establishes she, like anyone else in the house, had access to the combination and therefore had access to the safe. It is also pure speculation to suggest her report of the burglary "may very well have been an attempt to frame [defendants] for the theft of the gold and the contents of the safe." We also note when she initially reported the burglary, wife's sister apparently blamed victims' son, not defendants, which was also speculation on her part. Defendants further argue husband's brother and sister-in-law admitted taking property from the house. While true, the items they took were not reported stolen. Thus, the fact they took these items does not circumstantially link them to the theft from the safe. Evidence linking wife's niece or son's friend to the theft from the safe was even more nonexistent. Because there was no direct or circumstantial evidence linking any of the third parties to the theft from the safe, the trial court properly excluded evidence of their access to the house and prevented defense counsel from arguing third party culpability as a defense.
Finally, we also reject defendants' assertion the exclusion of the proffered evidence and argument violated their federal constitutional rights. As the United States Supreme Court has explained, "rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged," such as requiring direct or circumstantial evidence connecting the third party to the commission of the specific crime, "are widely accepted" as not violating a defendant's constitutional right to present a defense. (Holmes v. South Carolina (2006) 547 U.S. 319, 327 .)
Exclusion of Expert Testimony
Defendants further assert the trial court prejudicially erred and violated their constitutional rights by excluding testimony from their proposed defense expert. They are mistaken.
"A person is qualified to testify as an expert if he [or she] has special knowledge, skill, experience, training, or education sufficient to qualify him [or her] as an expert on the subject to which [the] 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." (§ 720, subd. (a).) Such expert opinion testimony is limited to matters that are "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (§ 801, subd. (a).) "The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion." (People v. McDowell (2012) 54 Cal.4th 395, 426.)
Here, defendants sought to call Stephen Howard, a retired law enforcement professional, as an expert in "investigative procedures and techniques" to be used in investigating "thefts from structures specifically," such as proper methods of "evidence examination and retention." The trial court excluded the testimony, explaining: "As best I can gather, the subject matter that is the basis of this proposed expert's opinion is that the [investigating] officer should have examined or determined point of entry, that fingerprints were not preserved or examined, that pictures were not taken to preserve evidence, and that the crime scene was not properly memorialized. [¶] The proposed expert's expertise in the area of theft from structures, burglaries, dates back to the early '80s, his last burglary investigation being 1982. He has subsequently been mainly involved with the California Highway Patrol and does not appear to the Court to have extensive additional information or expertise as it relates to burglaries and thefts from structures. [¶] Subsequent questioning by [defense counsel] attempted to elicit his expertise in the area of fingerprints and preserving and collecting fingerprints, and his training and experience related to one specific case where he was a trainee in the San Jose Police Department, and his training in the basic academy. I don't find that that expertise sufficiently -- as testified to in the [section] 402 hearing sufficiently supports this witness putting himself out as an expert in fingerprints and fingerprint collection. [¶] Further, the Court has asked [defense counsel] multiple times for the specific opinion that he intends to elicit, and that has not been forthcoming. In fact, there is no specific opinion, just that the two -- [defense counsel] and the proposed witness -- have an understanding of the deficiencies based on their common experience. That does not rise to the required level of specificity that is necessary when the Court makes such a specific inquiry. [¶] It does not appear to this Court that the area . . . this proposed expert would intend to proffer even a vague generalized opinion about the level of investigation is beyond the -- or that adds anything to a lay person's knowledge or skill or expertise in general."
Contrary to Suzan's argument on appeal, while the trial court noted defense counsel did not provide timely discovery with respect to this proposed expert, the court did not specifically rule exclusion was being imposed as a late discovery sanction under Penal Code section 1054.5. We therefore need not determine whether exclusion would have been proper under this provision and express no opinion on the matter. --------
Far from being an abuse of discretion, we conclude the trial court's analysis of the issue was well-reasoned and supported by the evidence adduced during the section 402 hearing. Nevertheless, relying on People v. Prince (2007) 40 Cal.4th 1179 (Prince), defendants argue, "Howard's expert testimony would have aided the jury in evaluating the adequacy of law enforcement's investigation in this case." Such reliance is misplaced. In Prince, the defendant challenged the trial court's ruling allowing an FBI agent to testify that "based on his experience comparing the records of hundreds of crime scenes, various common marks among the six charged homicides led him to conclude the crimes were committed by the same person." (Prince, supra, at p. 1219.) Our Supreme Court held admission of the expert opinion testimony was not an abuse of discretion, explaining: "Notwithstanding the ability of jurors to review the evidence before them and draw commonsense inferences, it may aid them to learn from a person with extensive training in crime scene analysis, who has examined not only the evidence in the particular case but has in mind his or her experience in analyzing hundreds of other cases, whether certain features that appear in all the charged crimes are comparatively rare, and therefore suggest in the expert's opinion that the crimes were committed by the same person." (Id. at p. 1223.)
Here, unlike Prince, supra, 40 Cal.4th 1179, Howard's testimony was not being offered to express a specific opinion regarding the commission of the charged crimes that was based not only on his review of the evidence, but also on his extensive experience analyzing similar crimes. Instead, he was being offered to opine the investigation was inadequate, apparently because the police did not establish a point of entry, adequately photograph the crime scene, or take fingerprints from the safe or computer. The trial court ruled such testimony was not sufficiently beyond common experience it would assist the jury. We cannot conclude this was an abuse of discretion. Indeed, as defense counsel himself acknowledged in arguing the admissibility of Howard's testimony, "[t]his is almost mundane" and "rudimentary." This conclusion makes it unnecessary to determine whether or not Howard was qualified to testify as an expert under section 720. Even assuming he was, the general investigation-related opinion to which he was offered to testify was not admissible under section 801.
Nor did the exclusion of Howard's proposed testimony violate defendants' federal constitutional rights. " 'A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court's application of ordinary rules of evidence . . . generally does not infringe upon this right [citations].' [Citation.] 'Although the high court in [Chambers v. Mississippi, supra, 410 U.S. at pp. 302-303] determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question "the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures." [Citation.]' [Citation.]" (People v. Goodwillie (2007) 147 Cal.App.4th 695, 724.) Here, as the trial court correctly observed, its ruling did not "preclude the defense from arguing that the investigation was insufficient. The defense has completely laid out to the jury through cross-examination deficiencies including failure to take photographs, failure to take fingerprints, failure to preserve certain types of evidence, and those arguments can effectively be made without the necessity of an expert to testify to any of the areas, even in general, that [defense counsel] ha[s] presented." Counsel made such arguments during his closing argument to the jury. Thus, the trial court's ruling did not deprive defendants of their right to present a defense.
Having concluded there was a single error that was itself harmless, we must also reject defendants' assertion cumulative prejudice requires reversal.
The judgment is affirmed.
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________