P. v. Diaz

Filed 1/30/07 P. v. Diaz CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Norman J. Shapiro, Judge. Affirmed.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Gerardo Diaz was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The jury found true the allegation that appellant personally used a deadly or dangerous weapon in the commission of the offense within the meaning of section 12022, subdivision (b)(1). The trial court sentenced appellant to a total term of 26 years to life in state prison.

Appellant appeals from the judgment of conviction, contending that his conviction violates double jeopardy. He further contends that the trial court erred with respect to expert testimony. We affirm the judgment of conviction.

Facts

On December 25, 2003, at about 11:00 a.m., Jacqueline Saenz and her boyfriend arrived at Toby's Automotive in Montebello to visit appellant and his girlfriend Linda Zuniga. Appellant and Zuniga lived "off and on" at Toby's. At about 3:00 p.m., appellant asked Saenz to leave because he wanted to be alone with Zuniga. He had never made such a request before.

Between 3:00 p.m. and 4:00 p.m., appellant's mother, Guadalupe Diaz-Figueroa, received a telephone call from appellant. He told her: "I just called to say good-bye. I killed Linda, and I'm dying." He then hung up. Diaz-Figueroa tried to locate appellant, but could not. She called the Montebello Police Department and told them about appellant's telephone call.

Between 4:00 p.m. and 4:30 p.m., police arrived at Toby's Automotive. They heard a female voice call: "Help. I am in here." Police forced open the door and entered the garage. Inside, they saw two vehicles, one of which was running. The garage was filled with vehicle exhaust. Appellant and Zuniga were lying on the floor in fetal positions. Both were bleeding and had numerous wounds. Appellant had deep cuts on his arms. Zuniga had three cuts to her neck and two to her face. She also had lacerations and bruises around her right eye. Appellant and Zuniga were taken to a hospital.

Police recovered two razor blades from the shop. One was found on the floor, another inside a trash bag. Both were covered with blood. No drugs were found.

Zuniga died. A day or two later, appellant's mother and brother Gabriel visited him in the hospital. Appellant said: "I killed her. I killed her. I finally killed her." Appellant privately told his brother: "I killed the bitch."

Dr. David Whiteman performed an autopsy on Zuniga. He determined that her death was caused by the cumulative effect of the multiple wounds. He opined that the manner of death was homicide, not suicide. Dr. Whiteman did not believe that Zuniga's wounds were self-inflicted. A small amount of methamphetamine was found in Zuniga's blood. A small amount of carbon dioxide, less than 10 percent, was detected in her blood. In Dr. Whiteman's opinion, blood levels of 40 percent to 50 percent are fatal.

Appellant's cousin Ricardo Romero and his friend Hugo Gutierrez testified that Zuniga had used methamphetamine frequently in their presence, and was anti-social and paranoid while using the drug. Romer also testified that he spoke with Zuniga on the telephone on December 24 and she said that she thought there were people outside the shop and that she was scared and needed help.

Appellant presented the testimony of four expert witnesses. Dr. Mace Beckson, a medical doctor and psychiatrist, testified that frequent methamphetamine use damages the brain. Users tend to become very agitated and depressed as the drug wears off, and sometimes become suicidal. Chronic users loose their sense of judgment and do detrimental things before thinking them through. The loss of a relationship can also lead to suicide, especially if it happens during the holiday season, when people are already depressed.

Dr. Steven Buress, a plastic surgeon, opined that Zuniga's wounds were superficial and would not have caused her to bleed to death. He also opined that the wounds would not in any way have obstructed her breathing.

Dr. Robert Anthony, a forensic pathologist, opined that all of Zuniga's wounds were consistent with being self-inflicted. He also opined that the cause of her death was inhalation of vehicle exhaust which caused a lack of oxygen to her brain. The manner of her death was either suicide or undetermined.

Dr. John Treufing, a toxicologist, opined that the blood tests done on Zuniga as part of her autopsy did not accurately reflect the level of carbon monoxide in her system at the time of her death.

Procedural History

At appellant's first trial, the jury deliberated for five days. During this time, the jury sent a number of notes to the court asking about heat of passion. Then, on the fifth day, the jury sent two notes to the court. One note stated: "We can not come to a unanimous decision." The other note stated: "Hung Jury." The court asked the foreperson if there was any reasonable probability that the jury would reach a verdict if deliberations continued, and the foreperson replied "No." The court polled all the jurors, and all jurors agreed that that was the situation.

The trial court announced its intention to declare a mistrial, and appellant's counsel asked to approach. During the brief ensuing sidebar, counsel stated: "I don't object to [the mistrial]. I would like to know what they are deadlocked on." The court stated that it would not ask the jurors this question and suggested that appellant's counsel ask the jurors in the hall.

The trial court then stated in open court: "I will discharge the jury. [] Sir, now that I have declared a mistrial, let me ask you of the eleven to one, what was in favor of conviction or acquittal." The foreperson replied: "11 for second degree."

The court asked the jurors if there was anything else the jurors wanted to ask. Juror No. 8 asked: "Is there a difference between not guilty and degree of guilt?" The court replied: "You had a choice of finding him guilty of first degree murder, second degree murder, or manslaughter, or not guilty of any one of these three. You hung, which means no decision, and we will start all over again and try this."

Appellant's trial counsel asked the court: "Can you poll the jury and see if everyone voted not guilty as to first degree." The court then asked the jury foreperson: "What is your breakdown as to the balloting?" The foreperson replied: "No one agreed to first degree." The court asked: "You came down from first to second?" Appellant's counsel interjected: "Your Honor, I ask they be polled." The court replied: "That is not an appropriate request. They have indicated that it was eleven to one for second degree murder and there was no votes for first degree murder, but further polling other than agreeing on not all of them are unanimous that he is guilty of any offense, I want to let them go."

Prior to his second trial, appellant moved to dismiss the charge of first degree murder on double jeopardy grounds. The court denied the motion, ruling: "So I do think the finding that the jury was hopelessly deadlocked was correct. I don't think there is anything to support the contention that they had reached a verdict on the charged offense of first degree murder. Again, I think that the record and the instructions invited them to approach their task from either direction considering the lesser included first, then they would have simply X'd the charged offense as acquittal. I don't know what was discussed. I do know that each and every juror affirmatively said that further deliberations, further instructions, further assistance by the court would have been unavailing on ability to reach any verdict on any of the offenses."

Discussion

1. Double jeopardy

Appellant contends that the jury foreman's statement in his first trial that no one agreed to first degree murder constituted an effective acquittal of the first-degree murder charge. In the alternative, he contends that the trial court failed to properly poll the jury in that trial and permit them to return a partial verdict of not guilty of first degree murder, thereby causing appellant's jury to be dismissed without legal necessity. In either case, appellant contends that double jeopardy barred his retrial on the first degree murder charge. We do not agree.

"[A] trial court is constitutionally obligated to afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked on only an uncharged lesser included offense" and the failure to provide the jury with an opportunity to do so causes "a subsequently declared mistrial to be without legal necessity." (Stone v. Superior Court (1982) 31 Cal.3d 503, 519-520.)

The Court in Stone suggested two alternative procedures for a trial court to afford the jury the opportunity to render a partial verdict. A trial court can instruct the jury on the charged and uncharged lesser offenses and provide verdict forms of guilty and not guilty on each offense. (Stone v. Superior Court, supra, 31 Cal.3d at p. 519.) "Alternatively, the court may decide to wait and see whether the jury is unable to reach a verdict; if it is, the court should then inquire whether the jury has been able to eliminate any offense. If the jury declares itself hopelessly deadlocked on the lesser offense yet unanimous for acquittal on the greater offense, and the court is satisfied that the jury is not merely expressing a tentative vote but has completed its deliberations, the court must formally accept a partial verdict on the greater offense. It is within the discretion of the court to order further deliberations if it perceives a reasonable probability that a verdict will be reached that will dispose of the entire proceeding." (Id. at pp. 519-520.)

Here, the trial court properly followed the first procedure and thus provided the jury with the required opportunity to render a partial verdict. The jury was thoroughly instructed with CALJIC Nos. 8.70, 8.71, 8.73, 8.74, and 8.75 on how to reach verdicts on the various offenses. Thus, the jury was instructed what to do if their only agreement was that appellant did not commit one or more of the crimes. The jury was instructed: "If you find a defendant not guilty of murder in the first degree as to Counts 1 but cannot reach a unanimous agreement as to murder of the second degree, your foreperson should sign and date the not guilty of murder in the first degree form, and should report your disagreement to the court. Do not sign any other verdict forms." (CALJIC No. 8.75.) The jurors were also instructed that if they unanimously found appellant not guilty of murder in the first degree and not guilty of murder in the second degree but were unable to agree as to the crime of voluntary manslaughter, the foreperson should sign and date the not guilty forms for first and second degree murder and report their disagreement to the court.

Appellant contends that the trial court had an obligation to also follow the second alternative procedure in Stone and conduct an inquiry of the jury because the court was "put on notice" that the jury was confused and that the jury was unanimously in favor of acquittal on the first degree murder charge.

A trial court may have a duty to inquire under Stone if there is "evidence indicating some confusion on the part of the jury as to its duties." (People v. McDougal (2003) 109 Cal.App.4th 571, 579-580.)

We do not agree that the court was put on notice that the jury was confused about its duties. The jury's questions to the court during deliberations involved heat of passion and thus suggested that they were struggling with deciding between murder and manslaughter. This shows the jury's understanding of its duties, not confusion. Further, the jury was instructed that it had "discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it." (CALJIC No. 8.75.) Deciding first between murder and manslaughter and then between the degrees of murder would be a natural and logical progression, although not a required one. Thus, nothing in the jury's struggle to understand heat of passion and to decide between murder and manslaughter suggested that they had already considered the offense of first degree murder and unanimously agreed that appellant was not guilty of first degree murder.

Further, the jury foreperson did not give the court a not guilty form for first degree murder when he told the court that the jury was deadlocked. Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Since the jurors in this case were clearly instructed to complete the not guilty form for first degree murder if they unanimously agreed that appellant was not guilty of first degree murder but could not agree on any other offense, the jurors' failure to return a not guilty form before informing the court of their deadlock indicated that the jury had not acquitted appellant of first degree murder. (People v. McDougal, supra, 109 Cal.App.4th at pp. 579-580.)

Appellant points out that, after Stone, the Supreme Court stated: "Absent some indication of deadlock only on an uncharged lesser included offense, the suggested procedures in Stone do not come into play. If the jury, in announcing apparent deadlock, gives such an indication, or if counsel so requests, the trial court, under Stone, should inquire further and determine whether any offenses can be eliminated." (People v. Marshall (1996) 13 Cal.4th 799, 826.) He contends that his counsel did request further inquiry. We do not agree with appellant's factual or legal contentions.

First, appellant's counsel made only one request of the court before the court declared a mistrial and discharged the jury. He told the court that he "would like to know what [the jurors] are deadlocked on." This does not amount to a request to inquire to determine whether any offenses can be eliminated.

Assuming for the sake of argument that counsel's statement did amount to such a request, the trial court was not required to grant it. We agree with our colleagues in the First District Court of Appeal who have found that the above-quoted language in Marshall does not require an inquiry upon request by counsel. As the Court explained: "In context, however, the Supreme Court was addressing the court's duties only when the second Stone alternative was at issue . . . and its explanation of the trial court's responsibilities necessarily was directed at that alternative." (People v. MacDougal, supra, 109 Cal.App.4th at p. 579.) Under the second Stone alternative, the court does not give the jury guilty and not guilty verdict forms and does not instruct them on partial verdicts before deliberations, but waits to see if the jury announces an apparent deadlock. "When the court in Marshall referred to Stone's 'suggested procedures,' it was referring to procedures that come into play after the jury announces an apparent deadlock, the second alternative discussed in Stone. Where, as here, the jury has been given verdict forms on the greater and lesser included offenses, and they have been instructed that they must return a verdict of acquittal on a greater offense if they unanimously find the defendant not guilty of the greater offense before they decide whether the defendant is guilty of the lesser included offense, the jury's failure to return any verdict form establishes that the jury did not acquit the defendant of the greater offense. To require the court nonetheless to question the jury further would be pointless, at least in the absence of evidence indicating some confusion on the part of the jury as to its duties." (People v. MacDougal, supra, 109 Cal.App.4th at 579-580.)

We recognize that the jury did express some confusion after the court declared a mistrial and discharged the jury. At that point, one juror asked if there was a difference between not guilty and the degree of guilt. Also at that point, the jury foreperson told the court and counsel: "No one agreed to first degree." Generally, a jury verdict will not be upset by assailing the subjective mental processes of the jurors during deliberations. (People v. Elkins (1981) 123 Cal.App.3d 632-637.) That is what appellant asks us to do. We decline.

Further, the jury had been instructed that: "You may find it productive to consider and reach tentative conclusions on all charged and lesser crimes before reaching any final verdicts." (CALJIC 8.75.) Thus, the jury may have tentatively agreed initially that first degree murder was not an appropriate place to begin discussions without ultimately agreeing unanimously that appellant was not guilty of that crime.

2. Expert testimony

Appellant contends that the trial court erred when it allowed Dr. Whiteman to testify that other forensic pathologists agreed with his opinion that Zuniga's wounds were not self-inflicted. He further contends that the erroneous admission of this evidence violated the Confrontation Clause of the United States Constitution. We agree that the trial court erred, but see no violation of the Confrontation Clause. We find the error harmless.

The law is clear in California that a doctor may not testify that other doctors agree with his opinion. (Whitfield v. Roth (1974) 10 Cal.3d 874, 893.) Respondent's contention to the contrary is not well taken. To the extent that respondent contends that the reasoning of People v. Catlin (2001) 26 Cal.4th 81 permits an expert to testify to the bare fact that other experts agree with him as long as no other details are provided, respondent is mistaken.

The Court in Catlin stated only that "it generally is not appropriate for the testifying expert to recount the details of the other physician's report or expression of opinion; see [citations]." (People v. Catlin (2001) 26 Cal.4th 81, 137, citing, inter alia, People v. Campos (1995) 32 Cal.App.4th 304, 308.) In Campos, the court made it clear that a trial court errs when it allows a doctor to reveal the content of other doctor's reports on direct examination "by testifying that each prior medical evaluation agreed with her own opinion." (People v. Campos, supra, 32 Cal.App.4th at p. 308.)

Appellant contends the statements by the non-testifying pathologists violated not merely California law but the Confrontation Clause as set forth in Crawford v. Washington (2004) 541 U.S. 36.

In Crawford, the U.S. Supreme Court held that the Confrontation Clause prohibits the use of "testimonial" statements made out of court to prove the guilt of an accused unless he is given the opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at p. 57.) The Court in Crawford declined to give a comprehensive definition of "testimonial," but indicated that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with the closest kinship to the abuses at which the Confrontation Clause was directed." (Id. at p. 66.)

Appellant focuses on the Crawford Court's references to "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." In context, the Court stated: "Various formulations of this core class of 'testimonial' statements exist: [including, inter alia] 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,' Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3. These formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it." (Crawford v. Washington, supra, 541 U.S. at pp. 51-52.) We do not view this acknowledgement of a formulation as an acceptance or endorsement of that formulation.

Further, we doubt that under the circumstances present here, an objective expert medical witness would have reasonably believed his statement to a colleague that he agreed with the colleague would be available for use at a later trial, since the law is clear that such statements are not admissible, at least on direct examination.

Assuming for the sake of argument that the statements were testimonial hearsay, we see no reasonable possibility that appellant would have achieved a more favorable result absent the admission of those statements. (Chapman v. California (1967) 386 U.S. 18.) Dr. Whiteman could properly testify that he consulted with other pathologists. Dr. Whiteman worked for the Medical Examiner's Officer and the pathologists he consulted with all worked for that Office and all were senior to him. One was his supervisor and one was the Chief Medical Examiner. Under the circumstances present here, the reasonable inference would be that those pathologists agreed with him. Dr. Whiteman's improper testimony that they did agree with him thus added very little weight to his permissible testimony about consultation.

Appellant's counsel conducted a very thorough and effective cross-examination of Dr. Whiteman. On recross-examination, appellant's counsel elicited testimony from Dr. Whiteman that he did not consult with other pathologists on every autopsy he did and that he did consult with them on autopsies where he was having some trouble in determining the cause or manner of death. Thus, the fact of the consultations undermined the authority of Dr. Whiteman's testimony. Further the number of pathologists that he consulted also suggests that determining the cause of death was difficult for even very experienced and senior pathologists.

Appellant was able to present the testimony of three medical experts to contest the testimony of Dr. Whiteman. In addition to a pathologist, a plastic surgeon specializing in facial surgery and a toxicologist testified on appellant's behalf. Appellant offered a very effective challenge to Dr. Whiteman (and the Medical Examiner's Office).

The non-medical evidence that appellant had inflicted wounds on Zuniga and had caused her to stay in the carbon-monoxide filled garage was very strong. Appellant called his mother from the garage and told her "I killed Linda and I'm dying." Later, in the hospital, appellant told his mother and his brother that he had killed Zuniga. His words to his brother were "I killed the bitch."

Given the strength of the non-medical evidence, the very effective challenge to Dr. Whiteman on both cross-examination and through defense experts, and the relatively low probative value of Dr. Whiteman's testimony about other pathologists in the Medical Examiner's Office, we see no reasonable possibility that appellant would have received a more favorable outcome in the absence of the impermissible testimony.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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