P. v. Davis

Filed 11/2/07 P. v. Davis CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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In 1985 someone stabbed Jane Hylton to death. Fourteen years later, in 1999, detectives reopened the case. Detectives again interviewed Constance Dahl, one of the three people who discovered Hyltons body, about the murder. Confronted many years after the fact, Dahl confessed that defendant Ricky Leo Davis murdered Hylton following an argument about Hyltons 13-year-old daughter, Angela.^[1] Dahl and Angela helped defendant clean up the murder scene and then the trio feigned discovering the body. An information charged defendant with murder. (Pen. Code, 187, subd. (a).)^[2] A jury found defendant guilty of second degree murder. Sentenced to 16 years to life, defendant appeals, contending: (1) the court erred in excluding evidence indicating Hyltons husband killed her, (2) the court erred in allowing the prosecution to introduce evidence of a prior angry altercation between defendant and a neighbor, (3) the court violated defendants constitutional rights in intrusively questioning a hold-out juror while defendant was not present, and (4) the parole revocation fine is improper. The People concede the trial court improperly imposed the parole revocation fine, which we shall strike. In all other respects we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Following Dahls revelations, defendant was charged with murder. The information also alleged defendant used a knife to commit the murder and that the offense was a serious felony. Defendant entered a plea of not guilty.

An initial jury trial ended in a mistrial. A second jury trial followed.

The Trial

Dahls Testimony

Dahl acknowledged she pled guilty to voluntary manslaughter in Hyltons murder and faced a possible sentence of up to 11 years. Dahl would not be sentenced until she completed her testimony.

Dahl began dating defendant in 1985. The couple lived with defendants mother and the mothers boyfriend. Defendant physically abused Dahl; he hit her a couple times. Defendant and Dahl both used methamphetamine.

In July 1985 54-year-old Hylton left her husband and was staying at defendants mothers house. Hylton brought her 13-year-old daughter, Angela.

On July 6, 1985, Dahl arrived home in the afternoon. She found defendant installing a car battery he said he had stolen. Dahl took some methamphetamine and showered. Afterward, Dahl went downstairs and worked on a word puzzle. Hylton and Angela were inside the house.

Hylton and Angela began arguing about Angelas going out somewhere. Hylton objected when defendant offered to give Angela a ride into town. At this point, defendant and Hylton were upstairs; Angela was downstairs.

Hylton and defendant continued to argue. Hylton called defendant a scumbag, and defendant pushed her. Hylton tried to push past defendant, who punched her in the face. Hylton and defendant began pushing each other. Defendant struck Hylton again and ordered Dahl to go outside and make sure no one was coming. Angela yelled at defendant, telling him not to hurt her mother. Dahl went outside and then returned. Defendant continued to hit Hylton.

Dahl attempted to break up the fight by jumping on defendants back but jumped on Hylton instead. She tried to bite defendant but unintentionally bit Hylton. Hylton and Dahl dropped to the floor. Defendant again ordered Dahl to go outside, and again she complied.

While outside, Dahl heard shouting, thumping, running, and a door slamming. She also heard Hylton screaming and pleading for defendant not to hurt her. Dahl heard more thumps and gurgling, followed by silence. Dahl heard Angela and defendant talking. Angela was crying and asked if she was dead or breathing. Angela also asked what they could do. Defendant told Dahl to stay outside.

When defendant finally allowed Dahl back into the house, she saw blood all over the bottom of the stairs. Dahl saw blood everywhere as she climbed the stairs. Defendant hovered over Hyltons body at the top of the stairs. Defendant told Dahl to help move the body. Initially Dahl hesitated, but defendant threatened that if she refused she would end up just like Hylton. Dahl complied and described Hyltons body as cool, stiff, and rubbery.

After moving Hyltons body onto a bed, Dahl went downstairs to wash the blood off her hands. Angela took a shower. Defendant would not let Angela and Dahl talk to one another. Defendant took off his clothes, showered, and changed into clean clothes. He told Dahl and Angela to tell the police they had returned from a party to find Hylton dead.

The trio got into defendants car, drove to the store, and bought beer. They drove to a nearby pond, drank the beer, and discussed the story they would tell the police. Defendant repeated that they would tell the police they had gone to a party and returned home to find Hyltons body. Angela sat in silence, occasionally giving one-word answers.

After they left the pond, defendant, Dahl, and Angela drove to Wayne Zuccos house to buy drugs.^[3] They then returned to the house, letting Angela out of the car just before they arrived. Angela walked up to the house and met Dahl and defendant, and they all went inside. Defendant and Dahl helped Angela get in bed. Angela got up, found her mother, and became hysterical. Dahl also began to cry after seeing Hyltons body.

Dahl tried to console Angela, but defendant forced Dahl to go downstairs to call the police. Dahl called 911 as defendant watched. She told police there had been a murder and that they had found Hyltons body.

Dahl then called Angelas sister, Sue Ann Schroder, as defendant instructed. Dahl told Schroder that Hylton had been in an accident. Schroder could hear Angela crying in the background. Angela said, I didnt do this. Schroder assumed Hylton had been in a car accident. A short time later Dahl called back and told Schroder that Hylton was at defendants residence.

Before the police arrived, defendant told Dahl and Angela what to tell the police. Dahl complied to avoid being the next victim.

When the police arrived, Dahl told them that she and defendant had gone to a party. When they returned, they discovered Angela crying in the bushes. After they put Angela to bed, Dahl and defendant discovered Hyltons body. As the police investigated, Dahl, defendant, and Angela went to the store and bought cigarettes. Upon their return, police arrested defendant for cultivating marijuana.

The next day Dahl found bloody towels in a basket in the garage of defendants residence. Dahl contacted police and they took the towels. Dahl never saw or spoke to Angela again.

After defendant was released from jail, he and Dahl moved to Sacramento. Defendant hit Dahl for [o]pening her mouth about Hylton. Although Dahl felt disgusted about the murder, she was too afraid initially to leave defendant or contact police. Dahl finally did leave defendant and moved away. A few months later defendant called Dahl and asked her to marry him; Dahl refused the offer.

After his arrest, defendant and Dahl were in court to be arraigned for Hyltons murder. Defendant told Dahl he was going to get her. While they were being housed in separate holding cells, defendant yelled at Dahl and asked why she was doing this.

Dahls Later Statements to Police

In 1999 El Dorado County Sheriffs Detectives Rick Fitzgerald and Richard Strasser reopened the case and interviewed Dahl.^[4] Dahl began by repeating her earlier version of events. Fitzgerald told Dahl police found fingerprints on Hyltons legs. Dahl asked if they were her prints. Dahl believed the prints could have been hers, but out of fear she did not tell the detectives.

Fitzgerald interviewed Dahl several times, trying to get the complete story surrounding Hyltons murder. By the end of the third interview, Dahl cried and seemed relieved. Dahl gave her statements willingly. She previously hesitated to tell what she knew because she wanted to forget what happened.

The jury heard a tape during trial of the initial interrogation. On the tape, the detectives told Dahl they knew she was present at the time of the murder based on physical evidence and tests. The detectives told Dahl the train is coming through right now, they were giving Dahl a golden opportunity to talk to them first, and she was get[ting] the easiest ride.

Dahl told the detectives she remembered a big argument in the hallway and a fight. Defendant made Dahl help him place Hyltons body on the bed. Defendant took a shower after the murder. Angela helped move the body. Dahl later stated she saw defendant hit Hylton but had no memory of defendants stabbing her.

In January 2000 Detectives Fitzgerald and Strasser again interviewed Dahl. During the interrogation, Dahl told a story similar to her trial testimony. In a February 2001 interview, Dahl again repeated the version of events she testified to at trial, with a few details added. Finally, in an April 2003 interview, Dahls recitation of the events of the evening of the murder closely matched her trial testimony.

Angelas Trial Testimony

At time of trial, Angela was 33. She had been married for almost 10 years, had two children, and worked as a human resources manager.

Following her mothers murder, Angela lived with her sister. Angela was molested by her brother-in-law and ended up in a unit for dependents at juvenile hall.

Angela testified that a few days before the murder, she traveled to Disneyland with a friends family. When she returned, her mother picked her up and they went to the house of a friend. Her mother told her she had left Angelas stepfather.

When they reached defendants house, Angela met defendant and his girlfriend. Angela left the house and walked to a nearby pond. She met three boys, Calvin, Mike Green, and another, who introduced themselves. One boys brother had a keg of beer, and the boys invited her over. She told them she needed to go home and change, and they agreed to meet her later.

At the house, Angela made a fake telephone call, pretending to talk to a friend. Her mother gave her permission to go to the friends house to watch movies.

Angela left the house and met the boys outside. They walked to a tennis court and began drinking. Angela had been gone a long time and was afraid she would get in trouble with her mother. She returned home and sat outside the house with Mike Green.

Defendant and Dahl arrived, and Angela went inside with them. Dahl put Angela in the upstairs bedroom. Suddenly Angela heard Dahl screaming. Angela got up and found her mother dead, with blood all over her.

Angela started freaking out, and Dahl tried to calm her. After sheriffs deputies arrived at the scene, a deputy spoke with Angela, who was still extremely upset. Angela told the deputy that she, Dahl, and defendant entered the house together. Defendant and Dahl escorted Angela to a bedroom. Defendant saw blood in the hallway and told Angela to stay in the bedroom while he investigated. Defendant told Angela that her mother was badly hurt but still alive. As the deputy spoke with her, Angela learned her mother was dead. She became hysterical and could not answer any more questions. After Dahl called Angelas sister, Angela sat on the front steps until she arrived.

Officers and Angelas family told Angela she needed to help because she was the only one who knew what had happened. Angela tried to piece a theory together of what had happened. Angelas sister visited a psychic, who told her the murderer had grey hair.

Angela also testified about various dreams she had that revealed what happened the night of the murder. Soon after the murder, she told officers of a dream in slow motion. A man, whose face she could not see, was beating her mother. He wore a dark sweatshirt and had grey hair. She told officers about the dream in an effort to aid the investigation.

Angela had many other dreams. One was like a Mafia hit, in which her mother hid from her husband and from death. In another Angela and her mother were in a car accident and Angela could not save her mother.

Angela refused an offer of immunity by the prosecution because she had nothing to hide. She felt verbally beat up by officers questioning about the murder. When interviewed years after the murder, one officer told her he was surprised she was not a crack whore. Another officer told her she was going down for this and would lose her children.

Angela could not state definitively that defendant did not kill her mother because she did not see the murder. She would not hesitate to tell what had happened if she knew. Angela did not see defendant do anything to her mother. No one threatened Angela about her testimony, and she was not covering up for anyone. Angela had nothing to do with her mothers murder, and Dahls story was not true.

Angelas Earlier Interviews

Not long after the murder, detectives interviewed Angela. Angelas sister, a social worker, and a friend accompanied her to the interview. Afterward Angela appeared dazed and refused to speak. Her sister became angry and tried to physically attack Angela.

The following year, a police officer from Santa Rosa interviewed Angela on another matter. Angela brought up her mothers death. She stated she did not kill her mother. Angela repeated the scenario she later testified to at trial. Angela also stated she did not think she killed her mother because she would not have the ability to get rid of the weapon and clean up the blood. She speculated that maybe one of the boys she met that night murdered her mother. One of the boys had a knife and was throwing it on the ground.

Angela told detectives about a dream of a man who was bald but long hair stabbing her mother; a woman wearing a sweatshirt and jeans was also there. She told one detective that if she talked about what happened to her mother that night, it would get her into trouble.

An expert on posttraumatic stress disorder testified that if Angela witnessed defendant stabbing her mother to death, she probably experienced intense trauma. The expert stated Angelas memory could have been malleable if she was in a state of shock. The expert also testified that Angelas version of events and the dreams she described could result from her attempts to repress the event or from partial amnesia.

The Investigation

After police arrived at the murder scene, they found blood in the entryway, on the upstairs bedroom door jamb, in the upstairs bedroom, and on the bathroom sink and cabinet. Blood also covered an overturned lamp.

Hyltons bloody body lay on the bed, covered in wounds to her arms, face, and body. Police confirmed Hylton was dead; her body was cool to the touch. The body appeared staged, as though it had been moved after death onto the bed.

An autopsy revealed Hylton died from bleeding from 29 stab wounds. Her body was bruised, and there was a bite mark on her left shoulder, inflicted while she was still alive. Part of Hyltons chin was found in the bedroom.

Hylton was probably killed between 6:00 p.m. and midnight. The contents of Hyltons stomach, as well as the temperature of the body and development of rigor mortis, placed the time of death at earlier in the evening rather than later.

At the scene of the murder, Deputy Larry Hennick interviewed defendant, who seemed calm. Defendants hair was wet and he appeared to have recently showered. Defendant initially stated he found Hyltons body on the floor and checked Hyltons pulse.

Deputy James Barnes also noted defendant looked like he had recently showered. Defendants hair was slicked back and he was barefoot. Defendant appeared exhilarated and giddy. Defendant giggled and found it funny that Barnes carried a shotgun.

After Deputy David Stuessi arrived, he noted defendant smelled of alcohol. Defendant looked extremely clean. He did not smell like someone who had been partying most of the night. Dahl appeared upset and nervous. Dahl and defendant paced around the living room, speaking in hushed tones.

Defendant told Stuessi that he and Dahl had gone to a party. Angela left separately at the same time. The three returned to the house at the same time.

Police later obtained a blood sample from defendant. According to the criminalist who processed the crime scene, blood found near the front door was reasonably fresh and was consistent with defendants blood type, but not with Hyltons blood type. A washcloth found at the scene also contained blood consistent with defendants, but not Hyltons, blood type. A blood stain from the sink was consistent with Hyltons blood type.

Subsequent Events

In 1999 investigators reopened the investigation into Hyltons death. Detectives again interviewed Dahl and Angela as previously discussed.

In 2003 defendant wrote to his girlfriend, Leuvena Messer, and told her not to talk to detectives. In another letter, defendant cast aspersions on those attempting to build a case against him. Defendant told his mother to tell other witnesses not to cooperate with police. According to defendant, officers had their chance to build a case against him 18 years earlier. In a May 2003 letter, defendant asked Messer to go to the Amador County jail to talk with Dahl and ask her why.

Defendant asked Messer to pay for a private detective. He told Messer the money would be well spent because he had an absolute foolproof plan that is really going to work. Defendant also informed Messer: Babe, this is so perfect I should have been a brain surgeon. I got the whole story figured out. She is going to bite, hook, line, and sinker. Trust me on this one, my love, it will be the best money that you have ever spent. Actually, it guarantees my freedom.

Defendant asked Messer to gather ammunition against Dahl. According to defendant, his mother found evidence dating from 1985 that totally throws their whole theory out the door.

In July 2003 Messer went to Amador County to take care of a moving violation and ended up in jail. Messer wrote a letter to defendant saying that she hoped to see the Crazy Lady, defendants moniker for Dahl. Dahl refused to talk to Messer about the murder.

While she was in jail, Messer told Kristen Webb, another inmate, that she was looking for her boyfriends ex-girlfriend, Dahl. Messer told Webb she couldnt understand why Dahl couldnt keep her mouth shut. Messer also said that, prior to the murder, a lady and her daughter came to live with defendants family. Messer told Webb that defendant murdered the woman.

Messer also told Webb that defendant placed Hyltons body in his bed so that it would explain any of defendants DNA found on the body. Messer stated that defendant stabbed Hylton 27 times and made Dahl watch. Although Webb tried to contact authorities about Messers statements, no one responded. Webb tried to tell Dahl about her conversation with Messer, but Dahl would not talk to Webb. Webb testified she did not ask for any special favors in return for her testimony.^[5]

A private investigator, Gregory Delatore, testified that Messer hired him to track down witnesses who would corroborate defendants version of events surrounding the murder. Defendant asked the investigator to find some fellow party-goers from that night. Defendant told Delatore he robbed banks and stole, but he was not a murderer. In September 2003 defendant gave Delatore a handwritten account of what happened the night of the murder. However, defendants version of events was inconsistent with information Delatore unearthed about the party.

Defendants Subsequent Statements to Police

In December 1999 detectives interviewed defendant in prison in Southern California. Defendant stated he and Dahl left the residence the evening of the murder to go to a party. On the way they picked up Sandy Myer, Gabby Sundsted, and Michelle Halk. Defendant and Dahl returned around 3:00 a.m. and met Angela outside the house. Angela waited outside because she was afraid she would get in trouble for coming home so late. Defendant and Dahl took Angela to her room. Dahl kicked off her shoes and said the floor was sticky. They called for Hylton, but no one answered. They found Hylton lying on the bed and Dahl called for help. Defendant said it had always bothered him that he never checked her for a pulse.

Defendant recalled that Angela had been angry with Hylton. Defendant believed Angela might have been involved in her mothers murder. He denied moving or touching Hyltons body. Defendant could not explain why his blood was found on the front porch.

When detectives told defendant that Dahl had confessed, defendant sat back and smirked. However, as detectives began to recite Dahls version of events, defendant sat up and accused Dahl of lying. Defendant grew angry, pushed away from the table, and hurled insults at the detectives.

Defendants Alibi Witnesses

Sandy Myer and Gabriele Sundsted both testified they attended a party with defendant and Dahl on the evening of the murder. However, in an earlier interview, Myer told a detective someone took her to a party that night, but she did not say defendant picked her up.

On two occasions, once during pretrial motions and once during the trial, a detective saw Myer speaking with Sundsted. When another detective tried to interview Myer, she said she was not on [their] side. In another interview, Sundsted said she had been to several parties with defendant and Dahl, but too much time had passed for her to remember the details.

Carol Watson, employed by the district attorneys office as a victim/witness advocate, accompanied Hyltons daughter to trial. During a break in Sundsteds testimony, Sundsted grabbed Myer and they went down a stairway. Watson saw them go to a car, and she followed to give one of them a witness claim form. Myer said she was hungry and Watson accompanied the pair to a coffee shop. As they were returning to the court, Sundsted commented that it was hard to be on the stand. Sundsted went on to say, Yeah, but I got to do whatever it takes to get somebody off. Watson asked who Sundsted was trying to get off, and Sundsted said Dahl was the only one who changed her story.

Michelle Hodgkin testified she knew Myer and Sundsted. After the murder, defendants mother called Hodgkin and told her that defendant had picked up Hodgkin, Sundsted, and Myer and taken them to a party on the night of the murder, and later had given them a ride home. Hodgkin denied this happened. At a prior hearing, Sundsted approached Hodgkin and asked if she remembered the party.

DNA Evidence

A forensic examiner testified that he analyzed DNA samples from Hyltons fingernails, blood near the door, a white hand towel, a yellow washcloth, and blood near the sink. The examiner tested the samples against blood from Hylton, her husband, Angela, Dahl, and defendant. The blood near the door was defendants. The white towel contained Dahls DNA. Defendant could not be excluded as a contributor.

The fingernail scrapings and blood near the sink were matched to Hylton. A fingernail found at the scene also tested positive for male DNA but did not match defendant. The washcloth also contained DNA that did not match defendant.

Evidence of Defendants Past Violence

One of defendants neighbors, Carolyn Bray, testified that she saw defendant screaming and dragging his girlfriend up the driveway by her hair prior to the murder. On previous occasions Bray heard screaming and yelling.

On the night of the murder, Bray hosted a backyard party that lasted from 6:00 p.m. to 10:00 p.m. At around 10:00 p.m., as her guests left, Bray noticed someone kissing a girl in defendants driveway.

Another neighbor, William Bishop, had several unpleasant exchanges with defendant. Bishop, a narcotics officer, became upset in 1983 when defendants dog was allowed to run loose. The dog entered Bishops yard, chased children, and tried to bite them. Defendant picked up the dog, walked across the street, and tossed the dog over the fence.

The dog subsequently returned, and Bishop called the sheriffs office to request that an animal control officer take the dog. As Bishop was talking to some neighbors, he heard a female voice inside defendants house say, Ricky, the fucking neighbor across the street called the fucking sheriffs office about the fucking goddamn dog. Defendant said, If you shoot my dog, Ill blow up your house, boom, boom, boom, boom, and then he laughed. Bishop told the woman he had a gun and a badge; she replied, What did you do, steal it? Thats what you cops do, steal. You fucking pig, oink, oink, oink.

Later that evening, Bishops son-in-law told him a woman had attempted to sic a dog on him. Bishop armed himself and went outside. Defendant screamed from his driveway: [Y]our mother is an Afghanistan whore, she is a whore, she fucks niggers on J Street. I will get your daughter. I will get her virginity. I will burn your house down. Bishop tried to talk to defendant, but defendant responded: Ill kill you; Ill kill your wife; Ill kill your daughter.

Bishop told his wife to call the sheriffs office. Defendant reached into the back of his truck, pulled out a metal bar, and started to cross the street, swinging the bar. Defendant continued to yell death threats. Bishop stood his ground, holding his gun. Defendant appeared surprised, went back to his truck, threw the bar behind the backseat, and began yelling and cursing. Bishop went inside to call the sheriffs office; when he went back outside, defendant and the truck were gone.

Defense Case

Wilma Klein, defendants grandmother, testified that in 1985 Hylton worked for her. Klein agreed to let Hylton stay at her home, since Hylton was having problems with her husband. Klein believed Hylton was afraid to go home.

Kelly Shirey, a long-time friend of defendant, testified that defendant was very mannerly and a gentleman. Shirey had corresponded with defendant since his incarceration.

Another long-time friend, Christina Jones, testified that on or about the night of the murder she attended a party. Defendant and Dahl were at the party at around 9:30 p.m. Jones was going to sleep at defendants house, but instead left with her boyfriend.

Jones never saw defendant hit Dahl. Instead, Jones observed Dahl hitting defendant. Dahl also tried to hit Jones. Defendant treated Jones with kindness and respect. He never hit Jones. Although Jones said she did not have a dating relationship with defendant, she admitted being intimate with him on one occasion.

Josephine Harner, defendants former girlfriend in 1996, testified he never hit her. Long-time friend Deanna Collins also testified that defendant never hit women and was very protective.

Frank Dougherty, a forensic psychologist and attorney, testified regarding victims of abuse or trauma. A trauma is an event that overwhelms ones mechanisms to protect oneself. Repression as a response to trauma is atypical. When an individual represses, the person will become anxious when the topic is discussed, will change the subject, and will fidget. Dougherty would not expect someone who had repressed a memory to be able to discuss the topic or to have specific memories of the repressed event. Repression usually occurs when a person has been subjected to trauma over a long period.

Dougherty described eidetic dreams as vivid, fantasy dreams. Trauma victims often have eidetic dreams.

If someone is frightened into telling a story, Dougherty testified, that is not programming. With programming, the person comes to believe the story, a process requiring months or years. A professional can accomplish this in a few weeks. Although it would be possible to program someone in 12 hours, Dougherty believed it could only be done through an induced hypnotic state.

Wayne Zucco testified that he was a friend of defendant in 1985. Zucco denied ever using methamphetamine in 1985. He also denied defendant and Dahl ever visited him in the company of a young girl. Zucco never saw defendant hit a woman.

Defendants Testimony

Defendant admitted prior convictions for bank robbery, possession for sale of methamphetamine, receiving stolen property, grand theft auto, and forgery. At the time of trial he was in federal custody on the bank robbery charge.

Defendant testified he did not kill Hylton. He also denied hitting Dahl and testified that he never abused a woman in his life. Defendant denied telling Messer that he killed Hylton.

At the time of the murder, defendant was 18 years old. He [p]artied a lot and used marijuana. Dahl told him she had been in therapy for years, and defendant said Dahl had spent time in mental institutions.

On the afternoon of the murder, defendant worked on his car and got ready for a party in Shingle Springs, behind PJs. He and Dahl left for the party around 10:00 p.m., stopping to pick up Sundsted, Halk, and Myer. Defendant later took Halk home and then Myer, but went back to the party with Myer because she had forgotten something.

Defendant testified that he and Dahl arrived home around 3:00 a.m. Before they could go into the house, Angela walked up to them. Defendant offered to walk her into the house because she feared her mother was angry with her.

Defendant and Dahl walked Angela to her bedroom. They then saw blood on the hallway wall. Defendant called out to Hylton, opened the master bedroom door, and turned on the light. The light revealed Hylton lying on the bed and a broken lamp on the floor. Defendant told Dahl and Angela to lock themselves in the bathroom while he called 911.

Defendant testified he took a shower that night. However, in 1985 defendant told detectives he had not showered. Defendant had been clowning when detectives arrived because he was scared to death and because the deputies behaved like Keystone cops. Defendant said he might have cut his foot a couple of days before the murder.

Defendant also testified that Hylton feared her husband and was planning to leave him before she was killed. According to defendant, after the murder he told Dahl to call the police to let them know about the bloody towels she found in the house.

Defendant admitted approaching his neighbor Bishop with a metal bar, but only because Bishop threatened to shoot his dog. He also threatened to blow up Bishops house. Defendant admitted making disparaging comments about Bishops wife, but denied the comments about Bishops daughter.

Defendant testified that he told Messer hed like her to talk to Dahl. He also wrote Dahl letters because she accused him of a horrible crime.

Defendant admitted calling various detectives involved in the case a series of lewd or vituperative names. He was going to put the detectives on a list and told one detective he wouldnt be surprised if somebody shot him in the face. He told a friend he would laugh if he read in the newspaper that Detective Fitzgeralds family had been killed.

Defendant denied having a bad temper. He testified that a lot of things were missing from the discovery, including favorable witness statements.

The Aftermath of the Trial

The jury found defendant guilty of second degree murder and found he committed the murder with a knife. The trial court sentenced defendant to 16 years to life in prison. Defendant filed a timely notice of appeal.

DISCUSSION

I. Exclusion of Evidence That Hyltons Husband Murdered Her

Defendant argues the trial court erred in excluding evidence that Hyltons husband, Archie Hylton, murdered her. According to defendant, the evidence revealed that Archie Hylton possessed the motive, means, and opportunity to kill Hylton. Therefore, the trial courts exclusion of this evidence, defendant contends, violated his federal and state constitutional rights.

Background

The defense filed a motion in limine to admit third party culpability evidence. During the hearing on the motion, defense counsel outlined the evidence that pointed to Archie Hylton as Hyltons assailant.

Hylton moved into the house just before the murder. She told her boss she was having problems with her husband. Hyltons friend, Catherine Morgan, received a letter from her bearing the heading To who it may concern, stating that if anything happens to me, it is Archie, or words to that effect. Hylton told Morgan that she and Archie fought over the use of one of his cars. Archie, upset, tore the coil out of the car.

In addition, Mark Kempster, an employee of Archie, lived a few houses from the murder scene. Archie occasionally dropped Kempster off at home after work.

Archie, who is now deceased, told police after the murder that he was in the vicinity the night of the murder. A witness, Rob Brown, placed Archie on the street where the house is located the day of the murder. Morgan, Hyltons friend, stated that Archie would park down the street when Hylton visited her, watching them and stalking them.

The trial court stated the third party evidence presented by the defense might establish motive and opportunity, but that was an inadequate basis for admissibility. The court found the evidence inadmissible.

Following a mistrial, the court adopted its previous evidentiary rulings, subject to a new and different showing. Defense counsel presented new evidence in the form of a statement by an employee of Archie Hylton, Shawn Treece. Treece stated Archie Hylton told him about the murder the next day at work. According to defense counsel, Treece was an independent witness who would state Archie Hylton had been in the vicinity at the time of the murder.

Defense counsel also cited Archie Hyltons police statement, in which Hylton stated he had been on defendants street the day of the murder from 3:30 p.m. to 4:00 p.m. His wife asked him to follow her there. Defense counsel argued that since Hylton parked her car in front of defendants residence, Archie Hylton could have known where his wife was staying.

The court again found the evidence of third party culpability insufficient to link Archie Hylton to the murder. The court determined a victims fear of a third party is insufficient to link the third party to a crime. In addition, the court cited authority holding that evidence of a third partys mere presence in the area of a crime does not render such evidence admissible.

Discussion

Defendant contends the trial court erred in excluding the evidence of Archie Hyltons possible culpability, since defense counsel could have established that Hylton had the motive, means, and opportunity to commit the murder. The People reject this contention but argue that even if the court erred, such error was not prejudicial.

A criminal defendant possesses the right to present evidence of third party culpability if the evidence is capable of raising a reasonable doubt about his own guilt. This rule does not require that any evidence, however remote, must be admitted to show a third partys possible culpability. 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 defendants guilt. Instead, there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (People v. Sandoval (1992) 4 Cal.4th 155, 176; People v. Hall (1986) 41 Cal.3d 826, 833.)

In assessing such evidence, the court must decide whether the evidence could raise a reasonable doubt as to a defendants guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) Courts have determined that mere fear of a third party is insufficient to link someone other than the defendant to a murder. (Ibid.) Nor is the presence of a third party near the crime scene enough to make such evidence admissible. (People v. Alcala (1992) 4 Cal.4th 742, 792.)

Defendant argues that the evidence of Archie Hyltons involvement transcends these limitations. According to defendant, Archie Hylton possessed the motive, means, and opportunity to murder his wife. Therefore, such evidence should have been admitted.

The trial court was not persuaded, nor are we. Defense counsel set forth evidence that Hylton was estranged from her husband and feared him. In addition, Archie Hylton was seen in the vicinity of the murder earlier in the day. Such evidence reveals Archie Hylton had both a motive and the opportunity to murder his wife.

However, defense counsel offered no evidence, either direct or circumstantial, linking Archie Hylton to the murder itself. There is no evidence, either physical or testimonial, that Archie Hylton ever entered defendants residence. There is no evidence, either physical or testimonial, that Archie Hylton had any special knowledge about the murder or the murder scene. There is no evidence, either physical or testimonial, that Archie Hylton possessed the murder weapon or ever threatened to murder his wife.

This dearth of evidence, either direct or circumstantial, that Archie Hylton murdered his wife dooms defendants contention on appeal. Archie Hylton may have been fighting with his wife and may have driven down the street where she was staying, but such evidence does not raise a reasonable doubt as to defendants guilt. The trial court did not err in excluding the evidence.

II. Admission of Threats Against Bishop

Defendant challenges the trial courts admission of the threats defendant made against Bishop in 1983 as improper evidence of his predisposition toward violence.

Background

The prosecution filed a motion under Evidence Code section 1101, subdivision (b) to admit evidence of defendants confrontation with Bishop over defendants dog. The motion argued the incident was relevant to establish motive, intent, and a common scheme or plan on defendants part.

The defense opposed the motion, arguing the Bishop incident showed only that defendant might have had an anger control issue. The defense also contended the evidence was inadmissible as character and predisposition evidence.

The court determined the prior Bishop incident admissible under Evidence Code section 1101, subdivision (b) to establish motive, intent, and common scheme or plan. According to the court: In each instance the defendant, when confronted during a minor disagreement, flew into a rage, armed himself, and lashed out violently. [In t]he prior incident defendant stated his intent and willingness to kill over a minor incident, armed himself with a weapon, and rushed towards Mr. Bishop. [] In the present case, defendant again flew into a rage during a minor argument, assaulted and killed with a weapon, stabbing her 29 times. [] The prior incident is relevant to show the defendants motive and intent when assaulting the victim in the instant case. The defendant [sic] is also demonstrative of common scheme or plan when confronted during an argument. In each incident the defendants action is a decision to be very violent and resorts to violence to resolve the dispute. And I think that is very pivotal. And the jury will be asking: Would someone kill someone else when they get into an argument over whether a teenaged-girl should be allowed to go to a party. [] And the prior incident shows, yes, Mr. Davis got himself in a dispute over a dog, his barking dog, and arms himself with some sort of pole or pipe and goes swinging at the neighbor and approaches very close to him swinging this lethal weapon.

The court also instructed the jury pursuant to CALJIC No. 2.50: Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. The instruction relates to the evidence regarding the neighbor Bishop and the incidents that happened in that neighborhood that were testified to. [] This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. [] It may be considered by you only for the limited purpose of determining if it tends to show: [] The existence of the intent which is a necessary element of the crime charged; [] And a motive for the commission of the crime charged; [] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in this case. You are not permitted to consider such evidence for any other purpose.

Discussion

The People concede the admission of the Bishop incident was error: It appears that the admission of Bishops testimony merely tended to prove appellants tendency to be violent. We accept the concession.

Evidence of a persons character is inadmissible to prove the persons conduct on a specified occasion. (Evid. Code,  1101, subd. (a).) However, evidence that a person committed an act, when the evidence is relevant to prove some fact other than his disposition to commit such an act, is not prohibited by section 1101, subdivision (a). (Evid. Code, 1101, subd. (b).) Such evidence is admissible to prove some fact such as motive, opportunity, intent, preparation, plan, knowledge, or identity.

The admissibility of prior act evidence hinges on three considerations: (1) the materiality of the fact sought to be proved, (2) the tendency of the prior conduct to prove or disprove the material fact, and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. (People v. Bigelow (1984) 37 Cal.3d 731, 747.) To satisfy the materiality factor, the fact sought to be proved may either be an ultimate fact in the proceeding or an intermediate fact from which the ultimate fact may be presumed or inferred. (People v. Thompson (1980) 27 Cal.3d 303, 315.)

Evidence Code section 1101, subdivision (b) renders admissible evidence of prior acts in three general categories: identity, common design, and intent. The least degree of similarity between the uncharged act and the charged offense is required to prove intent. The greatest degree of similarity is required to prove identity. Somewhere in between falls evidence of a common design or plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)

Here, the trial court found defendants prior altercation with Bishop relevant to show motive and intent in the murder of Hylton. Under the courts analysis, the prior incident in which defendant threatened to kill and physically assault Bishop during an altercation over defendants dog demonstrates defendants tendency to react to a minor incident with unreasonable and violent rage. According to the court, the previous incident would answer the jurys inevitable question about why a man would stab a relative stranger over 20 times merely because that person refused to let him drive her teenage daughter to a party.

However, the courts description of the question that the evidence would help the jury resolve reveals the true import of the evidence: it paints defendant as a violent person who is provoked to deadly rage by even petty disputes. This is not evidence of motive or intent; it is evidence of propensity. Its only value is in suggesting that defendant, who threatened a neighbor and his family with death during an argument over a dog, would kill during an argument over a parenting decision. Nothing else connects the two incidents. The Bishop incident offers no insight into his motive, beyond simple rage. If defendant committed the acts attributed to him by Dahl, his intent was clear; the Bishop incident shed no additional light on it.

The People argue that the trial courts erroneous admission of the evidence was harmless beyond a reasonable doubt.

We agree, though not for all the same reasons as the People. The People assert that the evidence would have been admissible to counter defendants good character defense. Perhaps so. However, the evidence was not offered in response to evidence of defendants good character. Rather, defendants evidence of good character is properly viewed as a response to the Bishop testimony. The prosecution is not permitted to anticipate evidence of good character and introduce evidence of bad character in advance.

Nonetheless, there was ample evidence of defendants prior violence, admitted without objection, besides the Bishop testimony. Dahl testified defendant physically abused her both before and after the murder. While her fear of defendants violence explained her acquiescence in covering up the murder, it also spotlighted defendants temper and willingness to lash out physically. Defendant argues the testimony was admitted only to explain Dahls conduct. However, the testimony was not restricted to that purpose.

In addition, a neighbor testified she saw defendant screaming and dragging a woman up the driveway by her hair. The prosecution also introduced evidence that defendant had previously been convicted of numerous crimes, including robbery. As the People point out, defendant established his potential for violence during his own testimony in stating that he would shoot someone accused of killing his mother.

All of this evidence, properly admitted, underscored that defendant had anger control issues. Thus, while the court erred in admitting the Bishop incident, the jury had before it other evidence of prior violent acts that would permit the same inferences as the Bishop testimony. To the extent defendants violent proclivities may have factored into the jurys decision making, there was substantial evidence of these tendencies even if the Bishop testimony is taken out of the equation.

Defendant argues that the prosecutions closing argument compounded the prejudicial impact of the Bishop incident. However, the prosecution did not make extensive use of the incident in its closing argument, and the court instructed that closing argument was not evidence to be considered by the jury.^[6] While the courts admonishment that the jury should not consider the evidence to prove defendant was a bad person or had a disposition to commit crimes did not cure the error, it tended to mitigate any harm caused by the erroneous admission.

Most importantly, the verdict in this matter hinged largely on the credibility of Dahl and not on whether defendant threatened his neighbor over a dog. If the jury believed Dahl, then the evidence of guilt was overwhelming. We are not persuaded that the testimony regarding the Bishop incident made the jury any more or less likely to believe Dahl than other evidence providing direct corroboration of her testimony or the other testimony of defendants violent acts. The error was harmless beyond a reasonable doubt.

III. Courts Questioning of Hold-Out Juror

Defendant contends the trial courts intrusive inquiry regarding a hold-out juror, coupled with the courts dynamite instruction to the jury, violated his right to an impartial jury and a fair trial. The courts questioning, defendant argues, sent a clear message that the jurors in the majority were to hold their position and persuade the single hold-out juror to join in a unanimous verdict, and the hold-out juror was to cooperate in the movement toward unanimity.

Background

At the close of the five-week trial, the jury deliberated for one and a half days. The jury indicated it had reached an impasse and requested guidance from the court. The court inquired as to whether reading the instructions would be helpful. A juror replied that a reading would help, and that the latest vote was 11 to one.

The court instructed the jury that its goal as jurors should be to reach a fair and impartial verdict, if you are able to do so, based solely on the evidence presented and without regard for the consequence of your verdict or regardless of how long it takes to do so. In addition, the court directed the jury to carefully consider, weigh, and evaluate all the evidence presented, to discuss their views, and to consider the views of fellow jurors. The court also instructed that each juror should not hesitate to reexamine his or her views and to discuss the evidence and instructions for the purpose of reaching a verdict.

The jury resumed deliberations and within minutes sent the court a note. The note stated: There is one juror that will not deliberate any longer. The court decided to question each juror individually.

The court questioned the foreperson and then the juror who would no longer deliberate. The court reassured the juror that she was entitled to her opinion and that nobody is trying to intrude into that. The court asked whether the juror had an opportunity to try to discuss the case from a different point of view. The juror replied in the negative. The trial court also asked if further deliberations would make a difference. Again the juror replied in the negative. The juror explained that she didnt think the case was handled properly by the jurors and she didnt want to get beat up anymore. The court expressed its understanding of the difficulty of the process and the fact that it was emotionally draining and tough to hang in there when you were the only one.

After the juror left, the court and counsel discussed the proper approach to continuing deliberations. The court adjourned for the day, telling the jurors he knew they had made a sincere effort to try to reach a decision and had given the case careful thought.

The court also told the jury: From my experience . . . and in other cases we have come to a point where the jurors havent received a unanimous decision, and I have tried various things to try to see if a conclusion can be reached. [] Of course it is all your individual choice, and we respect your right to have an individual opinion. Thats your duty as a juror. [] . . . [] What I have found sometimes, you know, you have been at it all day . . . . This is two-day deliberations on a five-week trial. It is not unduly long, given other cases I have sat on. [] And sometimes Ive found that if you kind of take a break for this process and sleep on it, get away from dealing with all of the issues in this case and give it some careful thought on your own, that that sometimes helps. [] So what I am going to ask you to do is recess for now, come back tomorrow, resume your deliberations. [] If youre still stuck, then well deal with it at that time. [] Maybe this will help, maybe it wont. [] I want to give you all a break from this process and see if that is of assistance at all. Okay. [] Try not to be too mad at me. Okay? [] . . . [] [J]ust rest on it, folks. And then resume deliberations tomorrow and let me know where you are.

The jury resumed deliberations the next morning. Late that afternoon, at 4:52, the jury announced it had reached a verdict.

Discussion

A trial court possesses the discretion to determine whether or not there is a reasonable probability the jury will be able to agree on a verdict. (People v. Rodriguez (1986) 42 Cal.3d 730, 775.) Defendant asserts the trial court in this case abused its discretion. We disagree.

Defendant reads the trial courts examination of the juror and subsequent comments as coercion aimed at getting the hold-out juror to change her verdict to conform to the majoritys verdict. Our review of the record reflects no such coercion.

Instead, the trial court carefully, and most courteously, acknowledged that each juror was entitled to his or her opinion and noted the difficulty of the decision they were making. The court noted other juries experienced similar difficulties and outlined an approach that had worked in the past to overcome a deadlock. The court asked the jury to go home, decompress, and try again the following morning. In doing so, the court noted the brevity of deliberations thus far, particularly given the length of the trial.

Nothing in these comments singled out or pressured the hold-out juror to change her vote. We find no coercion in the trial courts approach and therefore no abuse of discretion.^[7]

IV. Defendants Absence During Courts Questioning of Jurors

The courts questioning of jurors regarding a jurors purported refusal to deliberate raises a second issue. Defendant contends that conducting the questioning during his absence from the courtroom violated his right to be present at trial under the federal and state Constitutions and Penal Code sections 977 and 1043. He argues the trial courts examination of deliberating jurors regarding an alleged refusal to deliberate is a stage of the criminal proceeding critical to its outcome. Because the hold-out juror favored acquittal, defendants presence would have contributed to the fairness of the procedure by reinforcing in the holdout juror . . . whose [fate] was being decided by the deliberations. Without conceding that defendant had a right to be present, the People argue that defendant waived any right he might have had. We conclude that any error was harmless beyond a reasonable doubt.

A criminal defendants right to be present at trial is guaranteed by the Sixth Amendment confrontation clause and the Fourteenth Amendment due process clause of the United States Constitution as well as section 15 of article I of the California Constitution and Penal Code sections 977 and 1043. But as the court noted in People v. Davis (2005) 36 Cal.4th 510, 530 (Davis), A defendant, however, does not have a right to be present at every hearing held in the course of a trial. [Citation.] A defendants presence is required if it bears a reasonable and substantial relation to his full opportunity to defend against the charges. [Citation.] [Citations.] The standard under sections 977 and 1043 is similar. [T]he accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him . . . . [Citation.] [Citation.]

Here, after the trial court received a note indicating one of the jurors refused to continue deliberations, the court stated its intent to question individual jurors. Defense counsel stated he was waiving defendants appearance as it was in his clients best interest. Assuming defendant had a right to be present during the courts questioning, it is doubtful that counsels waiver was effective. While a defendant may waive the right to be personally present during criminal proceedings (People v. Pride (1992) 3 Cal.4th 195, 251), [a]t a minimum, there must be some evidence that the defendant understood the right he was waiving and the consequences of doing so. [Citation.] (Davis, supra, 36 Cal.4th at p. 532.) No such evidence appears in the present record.

Nonetheless, there is no indication that defendant was prejudiced by his absence. Defendant speculates that his presence might have reinforced the resolve of the hold-out juror. However, such transcendent effects cannot be measured and defendant points to no other possible prejudice. The facts of the cases cited by defendant in support of his argument do not assist him. In Kentucky v. Stincer (1987) 482 U.S. 730 [96 L.Ed.2d 631], United States v. Gagnon (1985) 470 U.S. 522 [84 L.Ed.2d 486], and People v. Ochoa (2001) 26 Cal.4th 398, the court determined the exclusions were not error. The two examples of error cited by defendant, Cohen v. Senkowski (2d Cir. 2002) 290 F.3d 485 (Cohen) and Campbell v. Wood (9th Cir. 1994) 18 F.3d 662 (Campbell), involve the right of a defendant to be present during the conduct of voir dire. The court in Cohen alluded to a defendants power, if present, to give advice or suggestion or even supersede his lawyers altogether at voir dire. (Cohen, supra, 290 F.3d at p. 489.) Unlike the situations in