P. v. Hall

Filed 6/16/08 P. v. Hall CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Elden S. Fox, Judge. Affirmed.

Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Nathan Hall appeals his conviction of one count of murder and one count of attempted murder. He claims it was prejudicial error for the court to admit evidence of an uncharged prior offense. He also claims the prosecutor committed misconduct during closing argument. We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Early in the morning of December 14, 2005, painters Helmut Mende (Mende), Alex Mende, Carl Ehlert and Jurgen Hapke arrived at the Wells Fargo Bank Building in Beverly Hills to dismantle the swing stage they had used while painting the building. The men brought a ladder over to the building. Hapke and Ehlert climbed the ladder to untie safety ropes on the swing stage. As Mende stood in the parking lot watching them, an older dark blue car drove slowly from the alley into the parking lot. Mende stepped aside to let the car go by. The car stopped in the middle of the driveway. Mende saw the car door open and a leg coming out. He thought the driver was in a hurry to use the ATM machine.

Mende turned back to his work, bending over to move an orange cone out of the way so the swing stage could be lowered. Just as he put his hand on the cone, he felt something hit his back. He immediately turned around and saw an African-American man jumping around with an object in his hand. It was later determined that the object was a knife. The man had a red scarf tied around the lower part of his face, and wore a black hat. The man was jumping back and forth like a boxer, stabbing at Mende with the knife. Mende backed up and fell to the ground. He lay on his back, kicking at the man.

Jurgen Hapke came down the ladder and came over to where Mende was fighting. Hapke confronted the man in an angry voice. The man turned toward Hapke, and the paper which had been wrapped around the knife fell off. The man stabbed Hapke several times, then ran back to his car. He turned back and smiled at Mende, then drove away.

Hapke died from a stab wound to the chest. Mende suffered stab wounds requiring stitches on his left bicep, his right arm near the elbow, and his right shoulder blade.

Police recovered the scarf and hat worn by the man from the parking lot. They also found a newspaper, a 13-inch kitchen knife, and broken pieces from the knifes handle. Russell Baldwin, a forensic scientist for the Orange County Sheriffs Department conducted DNA testing on these items. He determined that the same person left the majority of the DNA found on the hat and scarf. He submitted the DNA profile to the California Department of Justice CODIS criminal offender database. On December 22, 2005, appellants name was returned as a matching profile.

Later that day, the Beverly Hills Police Department conducted surveillance at appellants grandmothers house, watching for appellant. At approximately 7:00 p.m., Police Sergeant Jack Douglas called the house and spoke with Nora Hall, appellants grandmother. He explained that he had an arrest warrant for appellant, and asked if appellant was in the house. Ms. Hall replied that he was not in the house, and stated she had not seen appellant for about three weeks. Police officers announced they had a search warrant and demanded entry into the home. During the search, they found appellant in the attic, hiding under a mattress and some insulation. Witnesses identified Ms. Halls 1988 Cadillac as the car used by the perpetrator on December 14.

Appellant was arrested and charged with murder and attempted murder, with allegations as to both counts that he personally used a deadly weapon, and as to the attempted murder, that he inflicted great bodily injury on a victim over 70 years of age. It also was alleged that he had served four prior prison terms.

Appellant was found guilty on both counts, and all the allegations except great bodily injury were found true. He was sentenced to two consecutive life terms in state prison. He filed this timely appeal.

DISCUSSION

I

Prior to the start of trial, appellant moved to exclude evidence of an uncharged incident some eight months before the charged crimes, in which he was found in possession of a similar kitchen knife during a confrontation with police on a Metrolink train (the Metrolink incident).

At the hearing on the motion, Deputy Manuel De Armas testified that on April 22, 2005, he was conducting fare enforcement on board the Metrolink trains at platforms 5 and 6. He asked appellant for his ticket. Appellant said he did not have a ticket, that he was going for a trip, and he picked up the Koran and started reading. The officer again asked appellant for a ticket, and got no response. Appellant sat and read for a couple of minutes, then got up and walked off the train carrying a black computer laptop case.

Deputy De Armas stopped him and told him he was being detained for a fare violation. Appellant kept walking, ignoring the officer. After trying a second time to get appellant to stop, Deputy De Armas grabbed appellants wrists from behind. A struggle ensued, during which appellant broke free and turned around in a combative stance. The computer bag flew off his hands. De Armas grabbed appellants left arm and took him to the ground. De Armass partner, Deputy Jackson, arrived on the scene and sprayed appellant with pepper spray. The officers retrieved the computer bag and took appellant into custody. De Armas found a large knife, some coiled rope, and miscellaneous papers inside the bag. Deputy De Armas testified that appellant was found in violation of parole, in exchange for which the charges in the Metrolink incident were dismissed.

Officer John Czarnocki was one of the first officers at the crime scene in December 2005. He was asked to compare the knife found at the crime scene with the knife from the Metrolink incident. He said they were similar, in that they [b]oth have black handles. Both are the same length and width. Theyre both Smart Cook knives. Both knives had a Smart Cook logo, although the logo of the chef on the knife from the Metrolink incident was different from the logo on the knife used in the homicide.

Appellant argued that evidence that he was found in possession of a knife during the Metrolink incident and that the victim in the December 2005 incident was killed with a similar knife was not relevant, had very little probative value, and was improper character and propensity evidence. Evidence Code section 1101, subdivision (a) precludes evidence of specific instances of a persons conduct to prove his or her conduct on a different occasion. One of the exceptions to this prohibition is evidence of another crime when offered to proved identity. (Evid. Code, 1101, subd. (b).)

The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)

There was one striking similarity in the two incidents: they each involved a nearly identical Smart Cook kitchen knife of the same shape and size. The only distinction was that the knife used in the charged crimes was missing the Smart Cook chef emblem found on the knife involved in the Metrolink incident.

There also was some similarity in appellants conduct. When Deputy De Armas tried to stop appellant during the Metrolink incident, appellant turned around and assumed a combative stance. In the charged crimes, when Mende turned around after being hit in the back, he saw appellant jumping back and forth like a boxer, stabbing at him with the knife. We note, too, that the Metrolink incident occurred only eight months before the charged crimes. The identity of weapons, coupled with these additional factors, support the courts conclusion that the uncharged incident contained sufficient similarities to be relevant on the issue of identity.

Where there is sufficient similarity between the charged and uncharged acts to render the evidence relevant under Evidence Code section 1101, subdivision (b), the court must consider whether the probative value of the evidence outweighs the likelihood that its admission would create substantial danger of undue prejudice, confusion, or misleading of the jury. (People v. Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code, 352.)

In this case, the uncharged act was non-assaultive, and far less inflammatory than the charged crimes. The court excluded evidence of any statements made by appellant during the incident. It also warned counsel not to elicit evidence about whether appellant was prosecuted for the incident. With these limitations, the other act evidence would not tend to confuse or mislead the jury. The court did not abuse its discretion in finding that the probative value of the evidence outweighed the probability that it would be unduly prejudicial or confusing. Finding no error in the admission of this evidence, we also find no resulting violation of federal due process.

II

Appellant claims the prosecutor committed prejudicial misconduct during closing argument, when he implied that appellants use of Lawrence Sowers as a DNA expert was the result of expert shopping.

Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. (People v. Lucas (1995) 12 Cal.4th 415, 473.) Whether the inferences the prosecutor draws are reasonable is for the jury to decide. (Id. at p. 474.) Harsh and vivid attacks on the credibility of opposing witnesses are permitted, and counsel can argue from the evidence that a witnesss testimony is unsound, unbelievable, or even a patent lie. (People v. Arias (1996) 13 Cal.4th 92, 162.) (People v. Dennis (1998) 17 Cal.4th 468, 522.) Ultimately, the test for misconduct is whether the prosecutor has employed deceptive or reprehensible methods to persuade either the court or the jury. (Ibid.)

In considering appellants claim, we must view the challenged statement in the context of the argument as a whole. (People v. Dennis, supra, 17 Cal.4th at p. 522.) Just before the challenged statement, the prosecutor addressed Dr. Sowers qualifications: The expert presented to you by the defense in this case had never done, never done forensic DNA analysis and comparison like the one done in this case. And in fact, and I dont mean this to be insulting to him, but the only analysis he conducted in a forensic area that was close to this was on nonhumans. Then counsel made the statement which appellant claims is misconduct: Out of all the forensic experts, all the forensic experts to be called to the witness stand, [defense counsel] has Dr. Sowers testify. Gee, I wonder why that is. I wonder why that is. Maybe because the rest agreed with the findings? The one he could find was the person who --. Defense counsel objected, asserting there was no evidence in the record to support that claim. The court immediately instructed the jury: Ladies and gentlemen, thats argument. Thats not evidence in this case.

We find no misconduct. The prosecutor spent a substantial portion of his argument addressing the validity of the DNA test results. In doing so, he challenged the qualifications and opinions of the defense expert. He noted that Dr. Sowers had not been given all the information that was available with regard to test results and the dates of testing. He then argued, as quoted above, that Dr. Sowers was not experienced in forensic DNA testing on humans. Taken in context, the prosecutors rhetorical question why the defense would choose an expert so lacking in experience was merely argument, based on a reasonable inference from the evidence. The court promptly admonished the jury to consider it as argument, not evidence. There was no misconduct, and no prejudice.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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