Filed 3/29/17 P. v. Byrne CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

GERALD GUY BYRNE,

Defendant and Appellant.


G051764

(Super. Ct. No. 11CF3436)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury found defendant Gerald Guy Byrne guilty of second degree murder. The court sentenced defendant to a determinate term of 10 years for two prior serious felony convictions it found to be true. The prior felony convictions were also strikes, resulting in a consecutive indeterminate term of 45 years to life.
Defendant contends the court committed prejudicial error in its ruling on two evidentiary issues. First, the court admitted evidence that in a confrontation on the night before the murder, an employee of the victim stated to the victim that defendant raped her the day before. Defendant denied the allegation, asserting the sexual encounter was consensual. The victim, however, took the employee’s allegation to be true, thereby angering defendant, and providing the prosecution’s theory of a motive for the killing. Second, the court admitted evidence of a criminal threat made against the employee, her father, and her boyfriend, also on the night before the murder. The court ruled the evidence was relevant to defendant’s state of mind (anger at being disbelieved and fear of being incarcerated) on the evening before the murder. Defendant further argues these errors were cumulative, requiring reversal. We disagree and affirm the judgment.

FACTS

Defendant does not challenge the sufficiency of the evidence supporting his conviction. Thus, the underlying facts are relevant only for purposes of placing the alleged evidentiary errors in context so that the admissibility of the challenged evidence can be assessed under Evidence Code section 1101, subdivision (b). We summarize the facts with that purpose in mind, in the light most favorable to the court’s rulings. (People v. Carter (2005) 36 Cal.4th 1114, 1148.)
The victim, Charles Samo, was a safety engineer who earned his living by providing expert trial testimony. On July 21, 2009, his housekeeper found him dead in his bed shortly before 11:00 p.m. He had died sometime between 5:30 a.m. and 11:30 p.m. on July 20, after having been severely beaten and strangled.
The relationships between Samo, defendant, and several of the witnesses in this case are somewhat convoluted. Our narrative begins some five years earlier, when Samo’s neighbor, Richard Espinosa, introduced him to Melinda Quecke, a prostitute. Samo saw something in her and wanted to be her “sugar daddy” so that she no longer had to be paid for sex. Thereafter, he paid her rent and bills, and gave her a cell phone and a car. Samo also paid Quecke to do paperwork and to go with him when inspecting accident sites.
Before meeting Samo, Quecke had been in a long-term relationship with defendant, who had lived with her in her home until police took him into custody at the end of 2008, either on a parole violation or for trespassing. At one point during that time, defendant told her he was on parole and would make it “worth his while” and kill her if he had to go back into custody.
After defendant was taken into custody, Quecke met Kale, who moved into her house. They developed a relationship and were married by the time of trial.
When defendant was released from custody in January 2009, Quecke introduced defendant to Samo. Samo took a liking to defendant and paid him to do odd jobs around his home. Later, Samo gave defendant a cell phone and hired him to accompany him on accident site inspections. Sometimes, defendant, Samo, and Quecke went on the site inspections together; other times, only two of them would go. Defendant also “pick[ed] up the slack when” Quecke was not available due to her drug use. Quecke had been using drugs including herion and methamphetamine for over 20 years (since she was 14 years old) and had only stopped at the end of 2009.
During this period, Quecke considered defendant and herself to be in a relationship and they had sex several times. In the two months before Samo’s death, Quecke had sex with defendant, Samo, Kale, Espinoza, and maybe others. Quecke never told Kale about defendant. Kale did not like defendant and would have been “furious.” Quecke lied to Kale when she was going to see defendant at work. Kale did not want Quecke seeing defendant, much less working with him.
Samo originally had two offices; one in Costa Mesa and the other in his condominium in Santa Ana. Samo allowed defendant to stay at his Costa Mesa office. After Samo closed that office, he allowed defendant to stay outside on the back patio or laundry area of his condominium. Samo did not want defendant inside the condominium. But, when Samo was home, he would leave the sliding glass door open to allow defendant to enter and use the shower or work. Defendant only had a key to the pool house. Other than having defendant re-park his car, Samo did not want defendant driving his or Quecke’s car.
On July 18, 2009, Quecke went on a site inspection with Samo. About five minutes before they pulled up to Samo’s condominium, Samo informed her defendant would be there. Quecke also knew defendant would be at the condominium because she had previously asked defendant to obtain drugs. Although Quecke had previously told Samo she did not want to work at his condominium while defendant was there she said it was okay that day.
Defendant was at the condominium when Samo and Quecke arrived. Quecke was not feeling well, but stayed to finish some work for Samo. Defendant, Samo, and Quecke all worked together that day with no problems. At some point Samo left, leaving just defendant and Quecke at the condominium. When they were done with their work, Quecke agreed to give defendant a ride.
Before they left, defendant asked to use the bathroom in the pool house. They went there and smoked methamphetamine. Afterwards, Quecke wanted to leave but defendant began acting differently. He pulled his penis out of his pants and accused Kale of having called his parole officer, demanding Quecke look him in the eye and tell him that was not true. Quecke denied it because she knew defendant would get very angry at anyone who did that.
Quecke tried to walk away but defendant grabbed her hand and placed it on his penis. She did not want to have sex with defendant because she felt so sick she wanted to vomit. Quecke even offered to pay him not to have sex. But every time she attempted to get away, defendant pulled her back and forced her to have sex, stopping only when Quecke said she felt like throwing up. Although Quecke cried while trying to fight him off, she eventually gave in to get it over with.
Defendant drove Quecke’s car to her house because she was feeling too sick. When they reached her house, Quecke gave him money and asked him to buy some food and cigarettes for her. Defendant took the money but did not return that night.
Because defendant still had her car, Samo picked Quecke up the next day for another site inspection. Samo appeared upset and talked to defendant on the telephone on the way to the job site. Quecke also called and texted defendant about her car. When defendant failed to respond, she texted him that if he did not return the car immediately, she was going to tell Samo about the incident in the pool house bathroom the night before. Defendant did not respond to the text until about half an hour later. By then, Quecke had told Samo that defendant had forced her to have sex with him on the previous night. While Samo did not normally “get involved in domestic things,” he seemed “[m]aybe a little bit concerned” because he was her friend and mentor.
Defendant eventually called back and said he would leave Quecke’s car in a parking lot of a store, but it was not there when Samo and Quecke stopped by. Nor was the car at Quecke’s house, where Samo dropped her off. Defendant later returned Quecke’s car at Samo’s condominium complex. Quecke’s parents drove her and Kale to get the car. On the way, Quecke told them defendant had forced her to have sex the day before. When they arrived, Quecke could not open the car because the keys were not on the back tire where they were supposed to be.
Quecke saw defendant walking up the sidewalk in front of Samo’s condominium as she, her father, Michael Godwin, and Kale were on their way there. Samo opened the door and Quecke and defendant walked in while Godwin and Kale remained outside the front door. Quecke went to the master bedroom to retrieve her laptop. As she walked in, she saw shattered glass and a discussion took place about it between her, defendant and Samo. Samo was upset because he had not planned to stay at the condominium that night, but because of the broken glass door he would have to stay there. Samo told defendant he would have to pay for the repairs out of his earnings. Defendant apologized for breaking it and agreed to take care of the damage.
When Samo, Quecke, and defendant walked outside the condominium, Godwin and Kale confronted defendant about the rape. Samo asked, “Did this really happen?” Defendant denied it, saying the sex was consensual and Quecke was lying. Samo responded that he believed Quecke. Defendant became upset and raised his voice at Samo.
When Godwin mentioned calling the police, Samo stated, “You need to leave. They’re calling the police, and I don’t want any liability happening here. You guys need to get off the property.” Samo was irritated with the “conversation about forced sex on his property” because he was concerned about being sued.
As the parties walked away, defendant handed Kale the keys to Quecke’s car. As he did so, defendant said to Kale something like, “Ha Ha. You know, when you get in the car, click, click, boom.” “You guys are all dead.” Quecke knew defendant was referring to the car exploding but did not believe that would happen. Quecke saw defendant walk toward Samo’s condominium.
Godwin and Kale pressured Quecke to call the police to report the rape. Quecke did not want to do so because she did not believe she had been raped. She nevertheless called 911 and told the dispatcher she needed to file a report that someone had raped her the night before, stole her car, and made a threat. When a police officer arrived, however, Quecke told her she did not believe she had been raped and did not want to press charges.
The next morning, July 20, Samo did not respond to Quecke’s calls. Nor did he answer the door later that day when another employee arrived for a planned trip to Las Vegas, or respond to her calls or messages.
The following night around 11:00 p.m., Samo’s housekeeper discovered his dead body and told Espinoza. Espinoza notified Quecke and said defendant had killed Samo. The news scared Quecke, as did her belief she saw defendant that night at the end of her street, walking back and forth. Upset and crying, Quecke went over to a friend’s home and used some drugs.
At around 3:45 a.m., an officer picked Quecke up and took her to the police station. She asked if defendant would find out she was there because she was afraid he would kill her. She also reported defendant had told her he was on parole and would kill her to make it worth his while if he had to go back to prison. Quecke identified a picture of defendant but refused to sign and date it because she was scared defendant would find out she had identified him. The officer asked questions about Quecke’s rape and took photographs of the visible bruises on her arms. Quecke also told the officer she had secretly contacted defendant’s parole officer when defendant was homeless and staying at Samo’s prior Costa Mesa office and did not want defendant to find out.
A few days later, a patrol officer found Samo’s missing car. It had been reported as stolen and connected with an ongoing homicide investigation. The driver’s side window was smashed. A rock lay on the driver’s side floorboard and a sheet covered the driver’s seat. Investigators found defendant’s DNA on the sheet, the gear shaft, and a coffee cup sleeve discovered inside the car. They also located defendant’s cell phone in the driver’s door along with Samo’s wallet, with his identification and credit cards, inside the trunk.
About five days after the incident in front of Samo’s condominium, defendant left Orange County and went to Washington. In October 2011, he was in arrested in Washington on misdemeanor charges including providing false information about his identity and returned to California.

DISCUSSION

The Dispute Over Whether Evidence of Quecke’s Rape Allegation was Admissible
Defendant moved in limine to exclude evidence he allegedly raped Quecke, arguing it was not probative to the issue of whether he killed Samo, and any minimal probative value was substantially outweighed by its prejudice. At the hearing, the prosecutor argued she intended to introduce Quecke’s rape allegation to establish defendant’s motive to kill Samo, who had taken her side during the confrontation outside Samo’s condominium and told defendant to leave because the police were being called. According to the prosecutor, this “outraged” defendant because he thought the sex was consensual and was angered that Samo would take Quecke’s word rather than his. Defendant was intent on staying out of prison and Samo jeopardized that goal by taking Quecke’s side. Also, defendant was a third striker who had previously said that if he was going away, he was “going to make it worth [his] while.”
Defense counsel countered that allowing Quecke to testify about the alleged rape would require additional inquiry into the allegation and her credibility. Additionally, there was a missing link between the rape accusation and motive for murder because Samo told defendant “to flee” after taking Quecke’s side. But defense counsel agreed “a limiting instruction would be appropriate” to help mitigate any damage should the court admit the evidence.
The court denied defendant’s motion to exclude evidence of the rape allegation. In doing so, the court agreed with the prosecution that the issue was not whether rape occurred. “The key issue is that she made the allegation . . . .” The court indicated it would give a limiting instruction and permit evidence that normally would be excluded under section 352. This would include questions about Quecke’s status as a prostitute and her drug use because that was the only fair way for the story to be properly presented to the jury.
After the close of Quecke’s testimony, the trial court gave the following limiting instruction:
“The People have presented evidence alleging that Melinda Quecke reported to Charles Samo that the defendant committed a sexual assault or rape against her.
“The defendant is not charged with sexual assault or rape. Your role is not to decide whether or not the defendant actually committed sexual assault or rape against Melinda Quecke.
“Whether the defendant committed such conduct is not in and of itself evidence that he committed murder as charged in count 1 of the information. You may consider this evidence only for the limited purpose of determining whether or not the defendant had a motive to commit the crime of murder as charged in count 1 of the information. Do not consider this evidence for any other purpose.”

The Court Did Not Abuse its Discretion in Permitting Evidence of the Rape Allegation
Defendant contends the court abused its discretion in allowing evidence of Quecke’s rape allegation “because Samo’s awareness that [defendant] raped Quecke was not enough evidence to establish an inference that [defendant] had a motive to kill Samo.”
Evidence of a defendant’s uncharged misconduct is generally inadmissible to prove his or her conduct on a specific occasion or his or her propensity for criminal activity. (§ 1101, subd. (a).) However, such evidence may be admitted to prove some other material fact in the case, such as motive. (Id., subd. (b).) We review a trial court’s ruling under section 1101 for abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043, 1114.)
“Other crimes evidence is admissible to establish two different types or categories of motive evidence. In the first category, ‘the uncharged act supplies the motive for the charged crime; the uncharged act is cause, and the charged crime is effect.’ [Citation.] ‘In the second category, the uncharged act evidences the existence of a motive, but the act does not supply the motive. . . . [T]he motive is the cause, and both the charged and uncharged acts are effects. Both crimes are explainable as a result of the same motive.’” (People v. Spector (2011) 194 Cal.App.4th 1335, 1381.)
Defendant acknowledges the motive evidence in this case falls within the first category, “where there is a nexus between the uncharged offense and the crime and the uncharged offense provides the cause and the crime is the effect.” Defendant claims, however, that the “prosecution did not show a genuine conflict between Samo and [himself] on the issue of Quecke’s rape providing [him] an actual motive to kill Samo,” allowing the jury to speculate he had such a motive. We are not persuaded.
“Specific incidents showing prior quarrels or antagonism between a defendant and the victim are admissible.” (People v. Benton (1979) 100 Cal.App.3d 92, 98; see People v. Cartier (1960) 54 Cal.2d 300, 311 [“Evidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the former is properly admitted and is competent to show the motive and state of mind of the defendant”].) A defendant is “not entitled to have the jury determine his guilt or innocence on a false presentation that his and the victim’s relationship and their parting were peaceful and friendly.” (People v. Zack (1986) 184 Cal.App.3d 409, 415.)
Here, the prosecutor was entitled to present the theory that Samo’s belief that defendant had raped Quecke antagonized defendant. The evidence showed defendant became antagonized when Samo said he believed Queck over defendant, as he became upset and raised his voice when talking to Samo. Killing is often motivated by anger. (See, e.g., People v. Arcega (1982) 32 Cal.3d 504, 519; People v. Jackson (1981) 121 Cal.App.3d 862, 873.) Defendant was also intent on staying out of prison, whatever the cost, and a reasonable jury could have inferred that defendant viewed Samo’s conduct in believing he had raped Quecke as jeopardizing that goal. (See People v. Salas (1972) 7 Cal.3d 812, 824-825 [jury “could reasonably have inferred that defendant from the beginning planned to kill anyone interfering with the successful perpetration of the robbery and could reasonably conclude that defendant killed [the victim] in accordance with that plan”].)
Defendant argues there needed to be “[m]ore evidence of a growing tension between Samo and” him for the rape allegation evidence to be admitted. Not so. As explained long ago by our Supreme Court, “it is not necessary to show personal enmity on the part of the defendant against the deceased [citation], [and it] is sufficient . . . to show that the defendant at and just prior to the deadly assault did entertain a strong feeling of resentment against the deceased.” (People v. Fleming (1933) 218 Cal. 300, 309; see People v. Manriquez (2005) 37 Cal.4th 547, 577 [single verbal altercation engaged in several minutes before shooting sufficed to support jury’s findings of premeditation and deliberation].) Similar to an objection that evidence is too remote, an absence of sufficient evidence of a growing tension between Samo and defendant might lessen the weight of the evidence of the rape allegation, “but did not render it inadmissible.” (People v. Shaver (1936) 7 Cal.2d 586, 593; see People v. Cartier, supra, 54 Cal.2d at p. 311 [“The objection that the evidence is too remote goes to its weight rather than to its admissibility”].) The same applies to defendant’s claim the evidence was insufficient to permit admission of the rape allegation because Samo also told him to leave before the police arrived.
Defendant maintains that even if the rape established a motive, the court should have excluded it under section 352 because the evidence consumed an undue amount of time, which may have confused the jury into believing their role was to decide whether he raped Quecke. The contention lacks merit.
According to defendant, the testimony regarding Quecke’s rape allegation consumed approximately 200 pages. Assuming defendant’s figures are correct, this was not an undue consumption of time, especially since trial testimony consumed approximately 2064 pages, which means the rape allegation testimony took up less than 10 percent of the total testimony. (See People v. Frazier (2001) 89 Cal.App.4th 30, 42 [defendant was not prejudiced by amount of time it took to present evidence of uncharged crimes where evidence related to those crimes consumed 27 percent of total trial transcript]; see also, People v. Escudero (2010) 183 Cal.App.4th 302, 312 [same where prior sexual offenses evidence consumed 53 percent of witness testimony].) “As we have explained above, the evidence of [the uncharged rape] was otherwise properly admitted and we cannot say spending less than [10 percent] of the total trial time on th[is] issue[] was prejudicial as a matter of law.” (Frazier, at p. 42.) The trial court did not abuse its discretion when it determined that the danger of undue prejudice did not outweigh the probative value of the prior sexual offense evidence to further the prosecution’s theory of motive.
We also disagree with defendant that the “overwhelming evidence of rape” (underlining omitted) confused the jury into engaging “in fact-finding on the rape.” First, as just explained, the rape evidence consumed less than 10 percent of the total testimony. Second, the court did not, as defendant contends, simply instruct “the jury that they were not to conclude that from the rape evidence ‘that the defendant is a person of bad character or is predisposed to commit any crime.’” Rather, the court specifically informed the jury defendant had not been charged with rape and its role was not to decide whether he committed it. The court then instructed the jury that the evidence of rape was not to be considered for any purpose other than whether defendant had a motive to murder Samo. We presume the jury consists of “intelligent persons who are fully able to understand, correlate and follow the instructions given to them.” (People v. Archer (1989) 215 Cal.App.3d 197, 204.) Absent some affirmative indication in the record to the contrary, and here there is none, we presume the jury followed the instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
In light of our conclusion, we reject defendant’s claim that the court’s abuse of discretion violated his due process rights.

Admission of Defendant’s Threat to Quecke, Kale and Godwin
Defendant also moved in limine to exclude evidence that he threatened to kill Quecke, Kale and Godwin by suggesting Quecke’s car might go “boom” when they entered it. He argued the evidence was irrelevant to the murder charge because Samo did not witness the alleged threat and there was no evidence Samo took part in calling the police. The court denied the motion, finding among other things, that the threat, having been made anywhere from three to eight hours before Samo’s death, was admissible to show defendant’s state of mind.
Defendant argues his threat to Quecke, Godwin and Kale lacked any nexus to his motive for killing Samo and thus the court prejudicially erred in admitting the threats.
To establish motive, the uncharged and charged offenses must share a nexus in regard to (1) the uncharged crime causing the motive for the uncharged offense, or (2) the uncharged crime having the same motive as the charged crime. (People v. Spector, supra, 194 Cal.App.4th at p. 1381.) Here, the threat revealed defendant’s anger at being accused of a rape he believed he did not commit, the same anger the prosecution contended was the motive for the murder. A rational jury could also have found defendant’s threat to Quecke, Godwin and Kale evidenced his state of mind to avoid prison at all costs. The fact defendant murdered only Samo does not make the threat evidence otherwise inadmissible.

Cumulative Error
Defendant’s final contention is that the cumulative effect of the errors he has identified resulted in the denial of a fair trial. (People v. Duran (1976) 16 Cal.3d 282, 295-296.) We reject this contention because of the reasons already stated, we find no prejudicial error to cumulate. (People v. Koontz (2002) 27 Cal.4th 1041, 1094.)

DISPOSITION

The judgment is affirmed.




IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.