P. v. Davis

Filed 10/13/06 P. v. Davis CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mark Ashton Cope, Judge. Affirmed with directions.

Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Meagan J. Beale, Supervising Attorney General, and Kyle Niki Shaffer, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of first degree murder (Pen. Code, § 187, subd.(a)), by poisoning (Pen. Code, § 190.2, subd. (a)(19)), one count of felony elder abuse (Pen. Code, § 368, subd. (b)(1)), during which he caused the victim’s death (Pen. Code, § 368, subd. (b)(3)(a)) and inflicted great bodily injury on the elderly victim (Pen. Code, § 12022.7, subd. (c)), and five counts of misdemeanor elder abuse (Pen. Code, § 368, subd. (c)). He was sentenced to prison for life without the possibility of parole and appeals claiming evidence was improperly admitted and the prosecutor committed misconduct. We reject his contentions and affirm, while directing the trial court to correct errors in the indeterminate abstract of judgment and complete a determinate abstract of judgment.

Facts

After verbally and physically abusing his elderly wife, who was suffering from Alzheimer’s disease, defendant fatally poisoned her with antifreeze. Other facts will be discussed as they are relevant to the issues raised.

Issues and Discussion

1. Admission of Evidence

a. Statements by the Victim

Neighbors of the victim and defendant, the Ellsworths, testified over defense objection that the victim came to their home on February 3, 2000, with her glasses broken and her lip bleeding slightly. The victim told them defendant had hit her. On August 9, 2000, the victim again appeared at their door, with a bloody lip, saying defendant had hit her. As defendant correctly notes, these occurrences formed the bases for counts 6 and 7 and, as such, were introduced to prove, inter alia, the truth of the matters asserted therein.

Other neighbors of the victim and defendant, the Chastains, testified over defense objection that the victim came to their home several times, asking to use their phone to call the police, saying, at times, that defendant was after her.

Another neighbor, Ms. Mikesell, testified over defense objection that the victim came to her home several times upset, sometimes crying and saying that defendant was being mean to her.

Another neighbor, Ms. Lake, testified over defense objection that the victim came to her home crying, saying she was afraid of defendant and asking Lake to hide her. Lake had the victim call the police from her house.

An employee at the clubhouse office of the trailer park where the victim and defendant lived testified over defense objection that between 1999 and 2002, the victim came to the clubhouse about six times crying and asking for help and to hide, saying defendant was assaulting her.

Defendant here takes issue with the trial court’s rulings that these statements were spontaneous utterances. As defendant states, we apply an abuse of discretion standard in determining if the trial court erred in ruling that the People had carried their burden of establishing that the statements were spontaneous. (People v. Pirwani (2004) 119 Cal.App.4th 770, 787.) Defendant here asserts that because the victim’s short-term memory was “so impaired by Alzheimer’s disease, it is not possible to know whether she was reporting what she had perceived”; therefore, the People did not meet their burden. The only thing defendant said below on this matter in his written motion was the following: “Based on the proffered discovery, [the victim] had been diagnosed with Alzheimer’s disease. Based on the opinion of the prosecutor’s expert witness, . . . [the victim] was in the stage of the disease which caused the greatest tendencies toward hallucination.” In a similar vein, at the hearing on the motion, defense counsel said, “The . . . [statements] are not trustworthy because we’re dealing with a woman who in . . . 1995 showed the first sign of Alzheimers. The prosecution’s expert in his report says that she’s at the beginning stage of Alzheimer’s . . . , and this is the most delusional state.”^[1] The defendant made the assertion that the statements were not trustworthy only in the context of his argument that they were testimonial, and, as such, Crawford v. Washington (2004) 541 U.S. 36 required them to be trustworthy. The trial court concluded that the statements were not testimonial and Crawford did not apply. Even if the statements were testimonial, the court added, the doctrine of forfeiture by wrongdoing, i.e., the defendant killing the victim, would render them admissible regardless of their reliability. Never below did the defendant press the matter he asserts here, i.e., that the statements should not have been admitted as spontaneous declarations because the declarant lacked the mental capacity to report what was going on. Therefore, he waived the matter. (Evid. Code, § 353.)^[2]

Moreover, the incidents involving the Ellsworths occurred in 2000, at a time when the victim would not have been in the initial stages of Alzheimer’s. The time frame for the other statements was never specified in the parties’ moving papers or during the hearing on the motion, except that defense counsel said at the hearing that they occurred “over the past five years,”^[3] and the prosecutor said those made to the clubhouse office employee occurred between 1999 and 2002 and those to the Chastains on February 18th or 19th, 2002. There was no offer of proof or even assertion by defendant at the time of the hearing as to what the victim’s mental facilities would have been during this period. Therefore, the defendant cannot even prevail on his fall-back argument that his trial attorney was incompetent for failing to assert that the statements should not be admitted as spontaneous declarations because the declarant lacked the ability to report what had happened to her.

Having concluded that the trial court did not abuse its discretion in admitting these statements under the spontaneous utterance exception on the basis argued by defendant here, we need not address his additional assertion that these statements did not meet the requirements for the hearsay exception for evidence of the victim’s mental state.

Defendant also asserts that admission of the statements violated his right to confrontation. Curiously, he cites no authority for this proposition, not even Crawford, on which he relied below. As such, his contention is without merit.

Finally, defendant asserts that the trial court abused its discretion in determining that the probative value of the victim’s statements outweighed their prejudicial impact. We disagree. As we have already noted, the Ellsworths’ testimony served as the basis for two of the counts. The Chastains’ testimony supported count 3. The trial court noted that the Ellsworths’ testimony was the only evidence the People anticipated offering that it was defendant who committed the offenses alleged in counts 6 and 7. Therefore, beyond question, the probative value of this evidence outweighed its prejudicial impact.

b. Other Acts of Abuse

Below, defendant argued that evidence of uncharged acts of abuse by him perpetrated on the victim should be excluded under sections 1101 and 352.^[4] Defendant does not here set forth the testimony concerning other acts, apart from that related to the victim’s statements discussed above, which was admitted at trial over his objection. In any event, the People, in their moving papers, contended that evidence of other acts was admissible under section 1109.^[5] Not once did defendant make the assertion he does here, i.e., that section 1109 is unconstitutional either in general or as applies to him, specifically.^[6] Therefore, he has waived the issue. (§ 353; People v. Catlin, supra, 26 Cal.4th 81, 122.)

As a fallback position, defendant contends that his trial counsel was ineffective for failing to make his constitutional claims below. To prevail in this regard, he must show a reasonable probability that had his attorney objected to the evidence on this basis below, he would have succeeded in keeping it out and defendant would have enjoyed a better outcome. (Strickland v. Washington (1984) 466 U.S. 668.) Because we reject his position that section 1109 is unconstitutional both in general and as applied to him, we necessarily reject his incompetency of counsel contention.

As to his attack generally on the constitutionality of section 1109, we agree with the other appellate courts in People v. Escobar (2000) 82 Cal.App.4th 1085, 1095, People v. James (2000) 81 Cal.App.4th 1343, 1353, People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028 and People v. Johnson (2000) 77 Cal.App.4th 410, 417-420 that section 1109, like section 1108^[7] (People v. Falsetta (1999) 21 Cal.4th 903) does not violate due process.

Defendant argues that section 1109 is unconstitutional because it is overbroad in that it could be utilized even when the only thing defendant did was “yell . . . at his wife or not giv[e] her a house key because she might lose it.” In so doing, he takes his argument to an absurd point. Welfare and Institutions Code section 15610.07 requires elder abuse to be “physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.”

The mental suffering required for this provision must be “fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress[.]” (Welf. & Inst. Code, § 15610.53, italics added.) Thus, the normal yelling that goes on in many marriages would not qualify, nor would a husband not giving his mentally limited wife a house key because she might lose it. Contrary to defendant’s assertion, the definition of abuse is not so broad as to violate due process.

Defendant may disagree with the holding of People v. Falsetta, supra, 21 Cal.4th 903, that section 352 adequately protects a defendant from the prejudicial impact of admitting propensity evidence under section 1108 for sexual offenses, but we are bound by this holding (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450) and feel it is persuasive in concluding that section1109 is similarly not unconstitutional.

Defendant argues that section 1109 is unconstitutional as applied to him because his physical abuse of his wife can be excused on the basis of his frustration with her condition. While we recognize the difficulties of dealing with a loved one afflicted with Alzheimer’s, the same level of frustration, or worse, can be experienced by any caretaker dealing with a loved one who has any physical or mental illness. We are aware of no defense to crimes existing for frustration, whatever its source. We note that instead of enlisting the victim’s daughter to assist in her care, and thus relieve some of his frustration, defendant did everything he could to isolate the victim from her daughter and even refused the daughter’s offer of help. Defendant asserts that the frustration that motivated his abuse of the victim before the murder was not the same as his motive for the murder; therefore, evidence of the former did not show his propensity to commit the latter. We disagree. It is apparent that defendant’s negative feelings towards the victim, whatever their source(s), caused him to embark on a campaign of terror, isolation and physical abuse that finally culminated in the victim’s death.

2. Prosecutorial Misconduct

During cross-examination by the prosecutor, defendant said that although his wife’s suspected ingestion of antifreeze might be “a critical emergency[,]” when he went to the hospital the day after and saw that her eyes were closed and she was not moving or talking, he did not approach her and he left soon thereafter to play pool. The following colloquy then occurred:

“Q [THE PROSECUTOR]: . . .You know she’s in critical condition, and you thought it would be a good idea to go play pool, right?

“ [DEFENSE COUNSEL]: That misstates the evidence, and it is argumentative.

“ THE COURT: Overruled.

“A [DEFENDANT]: I thought she was critical, but I didn’t know what -- what I could do about it, you know.

“Q [THE PROSECUTOR]: So pool’s the next -- the next best thing to go do?

“ [DEFENSE COUNSEL]: Argumentative, your Honor.

“ THE COURT: Sustained.

“ [DEFENDANT]: It wasn’t best.

“ THE COURT: It has been sustained.

“ [DEFENDANT]: It was --

“ THE COURT: Mr. Davis? Mr. Davis?

“ [DEFENDANT]: It was no better or worse.

“ THE COURT: The objection is sustained. I will ask you not to answer it.

Contrary to defendant’s assertion,^[8] there was nothing improper in the prosecutor asking defendant about his thinking when leaving his wife in the hospital to play pool. Beyond that, the prosecutor’s follow-up question was successfully objected to by defense counsel.

Defendant admitted that it bothered him that the victim complained about him to neighbors. When the prosecutor asked defendant if he knew things were getting worse, not better, he said he was going to help her get better and intended to “do

things” to restore her health. The following colloquy then occurred:

“Q [THE PROSECUTOR]: You started thinking about killing your wife?

“ [DEFENSE COUNSEL]: That’s argumentative.

“ THE COURT: Overruled.

“ [DEFENDANT]: Of course I didn’t think that.

“Q [THE PROSECUTOR]: And on March 28th, she left that pool hall, and that upset you?

“A No, it didn’t upset me. She had done that before, and -- and I --

“Q [THE PROSECUTOR]: All right. She had done it before, and that was the last straw?

“A No, no, no.

“Q [THE PROSECUTOR]: She wasn’t controllable anymore, and you were going to get rid of her.

“ [DEFENSE COUNSEL]: Argumentative.

“ THE COURT: Sustained.

“Q [THE PROSECUTOR]: So you went home, and you fixed her dinner.

“A I did.

“Q [THE PROSECUTOR]: But when you did that, you got that antifreeze bottle out, and you poured antifreeze in this Crystal Geyser bottle, true?

“A What do you mean “true”? True what?

“Q [THE PROSECUTOR]: “Yes” or “no”? Is that true?

“A That’s a false. Nothing but a lie.

“Q [THE PROSECUTOR]: You did that for a couple reasons, didn’t you? You wanted to check the potency of the antifreeze because you knew you mixed water in it previously?

“A That was after she died, not before.

“Q [THE PROSECUTOR]: And you knew you could get this into the kitchen without raising her suspicion?

“ [DEFENSE COUNSEL]: Argumentative.

“ THE COURT: Sustained.

“Q [THE PROSECUTOR]: You poured that into her milk mix, right?

“ [DEFENSE COUNSEL]: Argumentative.

“ THE COURT: Sustained.

“Q [THE PROSECUTOR]: Did you pour that into her milk mix that day?

“A No, I didn’t.

“Q [THE PROSECUTOR]: You fed her two glasses of milk, though --

“A No.

“Q [THE PROSECUTOR]: -- at dinner?

“A One.

“Q [THE PROSECUTOR]: You did your mix -- your milk, soy and --

“A I mixed --

“Q [THE PROSECUTOR]: --chocolate?

“A -- them together in one container.

“Q [THE PROSECUTOR]: Milk soy and chocolate?

“A Soy, chocolate -- the chocolate was in the soy, probably, and I poured in the milk.

“Q [THE PROSECUTOR]: And you knew when she started having those symptoms, she had been poisoned with antifreeze?

“ [DEFENSE COUNSEL]: Objection.

“ THE COURT: Overruled.

“A [DEFENDANT]: What?

“ THE COURT: Ask a question on it.

“ [THE PROSECUTOR]: Didn’t you know that when she had those symptoms, she looked like she was drunk, she became unconscious, and had been poisoned with antifreeze?

“A Of course not.

“Q [THE PROSECUTOR]: And you waited because you wanted the antifreeze -- you waited to call 9-1-1 because you wanted the antifreeze to take effect?

“ [DEFENSE COUNSEL]: Argumentative.

“ THE COURT: Overruled.

“ [DEFENDANT]: Is that a question?

“Q [THE PROSECUTOR]: “Yes” or “no”? Didn’t you wait to call 9-1-1 because you were waiting for this antifreeze to take effect in your wife?

“A Of course not.

“Q [THE PROSECUTOR]: And that’s why you didn’t render her any aid?

“ [DEFENSE COUNSEL]: Argumentative.

“ THE COURT: Sustained. Your questions as phrased are argumentative. I’m willing to continue to keep sustaining his objections.

“Q [THE PROSECUTOR]: Isn’t it true that you waited, even though you saw her grow increasingly sick, because you were waiting for this antifreeze --

“A Of course not.

“Q [THE PROSECUTOR]: And in the morning, you looked at her, and you knew that she was almost dead; isn’t that right?

“ [DEFENSE COUNSEL]: Argumentative.

“ [DEFENDANT]: I didn’t know any such thing.

“ THE COURT: Overruled. Overruled.

“Q [THE PROSECUTOR]: And that’s when you called 9-1-1 because you knew? You knew that she was a goner by then; isn’t that right?

“ [DEFENSE COUNSEL]: It’s argumentative.

“ THE COURT: Sustained.

“ [DEFENDANT]: No.

“Q [THE PROSECUTOR]: You called 9-1-1 because you tried to cover your tracks; isn’t that right?

“ [DEFENSE COUNSEL]: Argumentative.

“ THE COURT: Sustained.

“Q [THE PROSECUTOR]: Did you make up that story about the antifreeze -- the lipstick on the antifreeze bottle?

“ [DEFENSE COUNSEL]: It’s argumentative, your Honor.

“ THE COURT: Overruled.

“ [DEFENDANT]: Of course not.

“Q [THE PROSECUTOR]: Weren’t you relieved because you knew your wife was dying in that hospital?

“ [DEFENSE COUNSEL]: Argumentative, your Honor.

“ THE COURT: Overruled.

“ [DEFENDANT]: Of course not.

“Q [THE PROSECUTOR]: As a matter of fact, this was kind of the first day of the rest of your life without her, wasn’t it?

“A No.

“Q [THE PROSECUTOR]: And so, you celebrated by going to the pool hall before she was dead?

“ [DEFENSE COUNSEL]: That’s argumentative.

“ THE COURT: Sustained.

Q [THE PROSECUTOR] Mr. Davis, isn’t it true you killed your wife in cold blood?

“ [DEFENSE COUNSEL]: Argumentative.

“ THE COURT: Overruled.

“Q [THE PROSECUTOR]: Isn’t it true that you sat there for hours and watched her die?

“A You know good and well I didn’t, so why are you asking those questions? Defendant’s assertion to the contrary, we see nothing improper in the questions the prosecutor asked him. Even some of those deemed argumentative by the trial court were not.

Disposition

The trial court is directed to complete a determinate abstract of judgment, showing defendant’s convictions for felony elder abuse, and its attendant true findings, and five counts of misdemeanor elder abuse and the terms designated for the former by the sentencing court. The trial court is further directed to omit from the indeterminate abstract reference to the felony elder abuse conviction, and its attendant findings, and to list on that abstract defendant’s conviction for first degree murder and its attendant special circumstance. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

RICHLI

J.

MILLER

J.

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^[1] Defendant here recounts in detail the trial testimony concerning the victim’s mental abilities; however, none of this evidence was disclosed to the trial court at the time it made its rulings.

^[2] All further stautory references are to the Evidence Code, unless otherwise specified.

^[3] We assume she meant five years before the murder, which occurred on March 29, 2003.

^[4] Defendant made this motion in connection with the testimony of the Chastains and the Ellsworths about incidents that formed the basis for three counts, noted in the text of this opinion. Therefore, this evidence was not of “other acts.” Defendant objected also to the admission of evidence concerning other acts which were not charged, including the victim’s statements concerning those acts.

^[5] Except as provided in section 1109, subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by section 1101 if the evidence is not inadmissible pursuant to section 352.

^[6] A comparative reading of defendant’s pretrial motions and the hearing on them, with a reading of the arguments he advances in his opening brief concerning the unconstitutionality of section 1109, reveals the falsity of his insistence that he did not waive the latter point below. The fact that defendant made two references to section 1109 in his moving papers does not persuade us otherwise. The first reference was as follows: “[Defendant] . . . submits the following memorandum . . . in opposition to the [p]rosecution’s proposed introduction of defendant’s alleged commission of prior offenses pursuant to section 1109 . . . .” The second was in the context of his argument that the evidence was not admissible under section 1101. After mentioning the holding in People v.Falsetta (1999) 21 Cal.4th 903 as to section 1108, defendant added that the Legislature added a provision similar to that in section 1108 for domestic violence, which is section 1109. Thereafter, defendant argued at length that the evidence here did not qualify for admission under section 1101. Not once did he address the constitutionality of section 1109, or even mention the section again. These references are not what section 353 and People v Catlin (2001) 26 Cal.4th 81 envisioned as necessary to preserve such a claim for appeal. In fact, upon reading defendant’s moving papers and his argument at the hearing, one would be led to believe that he was either unaware of section 1109’s applicability to this case or did not care to concede its applicability. Defendant’s contention on appeal is to the contrary. The fact that the prosecutor discussed the applicability and constitutionality of section 1109 in his moving papers also does not mean defendant preserved the issue for appeal.

^[7] Section 1108 is a provision similar to section 1109, but it deals with sex offenses.

^[8] For purposes of these arguments, we will ignore any waiver that may have occurred by virtue of defense counsel’s inaction below.