Filed 9/21/17 P. v. Green CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Raymond Cota, Judge. Affirmed.

Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Neil Evan Green of the first degree murder of his father, Melvin.[1] (Pen. Code, § 187, subd. (a).) The trial court sentenced Green to 25 years to life in prison. Green appeals, contending his conviction must be reversed because the trial court improperly admitted: (1) character evidence of his past acts of violence during the prosecutor's case-in-chief, (2) irrelevant evidence regarding Melvin's peaceful character, and (3) three hearsay statements by Melvin. We affirm.

FACTUAL BACKGROUND

When Green was young, he and his sister, Aprel Remkus, lived with Melvin after Melvin divorced. Melvin worked as a manager for the circulation department of the Brawley newspaper and later moved into security work where he became a security guard at "ICE" (U.S. Immigration and Customs Enforcement). Remkus obtained a bachelor's degree, a teaching credential and a master's degree in school psychology. In 2008 she started her own family. Green went to high school but did not graduate. Green did not have a job and had always lived with Melvin. Melvin provided Green's food, clothing, and shelter.

Green complained to Remkus about Melvin, telling her that Melvin would not give him things he wanted, told him what to do around the house, and urged him to get a job, go to school, or do something responsible with his life. Green did not pick up after himself or help clean the house even though he was home all day. Remkus noted that Green did not seem grateful for what he had or acknowledge what Melvin provided for him. Remkus described Green's attitude toward Melvin as "[a]ngry, defiant, just ungrateful." Green would get mad at Melvin and make holes in the walls.

In July 2012 Green called 911 asking for the police because he and Melvin had "got into a serious altercation," and he believed Melvin was dead. Green reported that Melvin had gotten him into a headlock. He then bit Melvin, which caused Melvin to hit him. Green ran away, but Melvin came after him. Green grabbed a baseball bat that he kept by his bed and hit Melvin because Melvin "kept coming after" him. Green claimed he was scared "because [Melvin's] done this shit before." Green could not remember how many times he hit Melvin with the bat. Green was 29 years old at the time of the murder. The prosecutor played the 911 call for the jury.

A first responder to the scene observed that Melvin's face had sustained blunt force trauma, leaving lacerations and obvious deformities. Melvin also had abrasions and lacerations to his lower legs. The first responder noticed that Melvin was cold to the touch and showed signs of lividity (pooling of the blood inside the body after death) in his neck, the back of his shoulder, and the lower portions of his ears. Lividity usually occurs approximately one to two hours after death. An officer testified that upon entering the residence, he saw holes in the walls and that the house was "filthy dirty." Walls throughout the house had holes, making it difficult to count them all.

A forensic examination of Melvin's body revealed six severe wounds that the forensic pathologist believed had been inflicted by separate blows. The pathologist opined that one wound to the back of Melvin's head could have been inflicted while Melvin was seated and "very possibl[y]" rendered Melvin unconscious. Melvin also had a "massive" injury to the central portion of his face, measuring four inches by two inches in diameter. The injury included nasal bone fractures, depressed fractures of Melvin's cheekbones, a crushed nose and broken teeth. Melvin had an injury that appeared to be a bite mark on his right forearm and what appeared to be an incomplete bite mark on his left forearm. Melvin's blood alcohol content was 0.22, almost three times the legal limit. Melvin died from blunt force trauma to his head.

DISCUSSION

I. CHARACTER EVIDENCE

A. General Legal Principles

While Evidence Code[2] section 1101, subdivision (a) prohibits admission of "evidence of a person's character . . . to prove his or her conduct on a specified occasion," "[n]othing in [section 1101] prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident . . . ) other than his or her disposition to commit such an act." (§ 1101, subd. (b).) Additionally, "[n]othing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness." (§ 1101, subd. (c).)

Section 1102 creates an exception to the rule prohibiting character evidence in criminal cases allowing "evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation" when "(a) [o]ffered by the defendant to prove his conduct in conformity with such character or trait of character" or "(b) [o]ffered by the prosecution to rebut evidence adduced by the defendant . . . ." (§ 1102.)

Section 1103, subdivision (a) provides another exception to the rule prohibiting character evidence in criminal cases. "In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. [¶] (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1)." (§ 1103, subd. (a).) Additionally, evidence of the defendant's character for violence "is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a)." (§ 1103, subd. (b).)

B. Order of Character Evidence

1. Additional background

Green moved in limine to exclude evidence of Melvin's good character in the prosecution's case-in-chief, arguing sections 1101 and 1103 precluded such evidence until the defendant first offers character evidence of his own. At the hearing on the motion, the prosecutor argued that he had an obligation to negate self-defense and prove there was no justification for the murder. Defense counsel acknowledged that Green would be presenting a self-defense case and indicated that, if the court admitted the character evidence, she was willing to discuss an "informal[]" arrangement allowing the prosecution to present character evidence in their case-in-chief so that "it would go smoother."

A few days later, the court again addressed in limine motions, noting that there had been informal discussions. The trial court summarized the informal discussions, first indicating he told the prosecutor that opinion and reputation is inadmissible character evidence that is normally not admitted in the prosecution's case-in-chief. The trial court also indicated that it would not allow admission of Green's self-serving statements during the 911 call for the truth of the matter asserted which could allow the prosecutor to argue that the defense had opened the door to character evidence and thus allow the People to present character evidence in its case-in-chief. The trial court continued:

"[THE COURT] So in short both the defense and the People were faced with the possibility of perhaps stipulating, period, that this tape would come in for the defense for the truth of the matter asserted by the defendant and as opening the door to the People to present character evidence.

"Because part of what the defendant allegedly said on the 9-1-1 tape was exculpatory evidence having to do with the issue of self-defense. And that I think, then, if admitted into evidence, then, that would present a clear field then for the People to introduce character evidence of their own. [¶] So do we have a stipulation as to the admissibility of the 9-1-1 tape, then? Ms. Cremeans?

"MS. CREMEANS: Yes, your Honor.

"THE COURT: Mr. Nunez?

"MR. NUNEZ: So stipulated.

"THE COURT: Very well. Then the record will so show. And so, then, the entirety of the 9-1-1 tape will come in for the defense for the truth of the matter asserted by the defendant. It will come in for any and all impeachment purposes for the defense for admissions, and also, as a result of that, for character evidence to rebut the defense character evidence that they will have admitted, then, through the use of the tape. [¶] And the People can go ahead and introduce character evidence, then, both of defendant—bad character, alleged bad character and to the victim's alleged good character in the form of opinion and reputation evidence. And so that will be reflected in the record."

Thereafter, defense counsel indicated that some of the evidence was cumulative, with the trial court indicating it would address that issue "at that time."

Remkus and five of Melvin's former coworkers then testified to Green's character for peacefulness and described specific occasions when he had exercised restraint. Remkus also described Green's aggressive character.

2. Analysis

Green contends the trial court prejudicially violated the Evidence Code by allowing the prosecution, as part of its case-in-chief, to call five of Green's coworkers and Remkus to testify about Melvin's purportedly nonviolent nature. Green argues such evidence was only admissible as rebuttal evidence after he introduced evidence of Melvin's "bad" character (§ 1103, subd. (a)(2)) and that defense counsel's stipulation regarding admission of the 911 call does not change the analysis. Green claims the error shifted the jurors' focus from determining whether the elements of the charge had been proved, to a morality play of the evil son killing his peaceful parent. Green concedes the prosecution is entitled to pursue such a theory of the case, "but must play by the rules in doing so." Green asserts the question is one of law because the trial court incorrectly applied the Evidence Code.

"Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error." (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.) We conclude that Green forfeited the alleged error by agreeing to change the order of the admission of character evidence. (People v. Pijal (1973) 33 Cal.App.3d 682, 697 [defendant is bound by stipulation of counsel]; People v. Seaton (2001) 26 Cal.4th 598, 639 [defendant invited any error in excusing a juror where his trial counsel stipulated to the excusal].) The trial court noted that the parties informally discussed the admissibility of the 911 call because portions of the call constituted self-serving inadmissible hearsay, could be admissible as admissions, or become fodder for impeachment. The trial court stated, and the parties agreed, that they stipulated to the admissibility of the 911 call to allow the defense to use Green's statements for the truth of the matter asserted and as exculpatory evidence regarding Green's claim of self-defense. In turn, the admission of this evidence "open[ed] the door" to the People to present character evidence.

Green vehemently argues that the People engaged in bootstrapping because they sought introduction of the 911 tape, not the defense, which then opened the door to introduction of inadmissible character evidence in the prosecution's case-in-chief. Green's argument ignores that defense counsel expressly agreed to this procedure. This is not a situation where defense counsel acquiesced to a ruling of the trial court. When the trial court again raised the 911 call stipulation near the end of the hearing defense counsel presented no objection that the stipulated to procedure prejudiced Green or impacted how she would present Green's defense.

In any event, Green made no showing that the order of proof affected the outcome of the trial. As the People note, Green did not contest the admissibility of the character evidence, he simply contested the order of proof. If the statutory procedures had been followed the prosecution would have presented the same evidence in rebuttal. Accordingly, if there was error, it would be harmless error as it is not reasonably probable that there would have been a different result if the statutory order of proof had been followed.[3] (People v. Watson (1956) 46 Cal.2d 818, 836.)

The record does not support Green's argument that, had the trial court excluded the 911 call and declined to change the order of proof, he would not have stipulated to the procedure used or presented character evidence of the victim. The trial court recognized that character evidence of the victim is not normally allowed in the prosecution's case-in-chief and indicated that the 911 recording did not open the door to the admission of character evidence. Had defense counsel argued that she would not be presenting character evidence of the victim or had not yet made a decision on this issue, the trial court would not have allowed the evidence and could have instructed the jury that the statements on the 911 recording were not to be considered for the truth of the matter asserted, but rather to explain the circumstances by which the law enforcement authorities got involved. Knowing that she needed to present character evidence of the victim to argue self-defense, defense counsel stipulated to allowing the character evidence out of order so that the trial would go "smoother." This was a reasonable tactical decision by defense counsel. Nothing in the record supports Green's argument that changing the order of proof prejudiced him.

C. Alleged Irrelevant Evidence

1. Additional background

When asked to describe Melvin's "character for peacefulness," Remkus stated, "He was very peaceful. He was happy. He was caring. He was very responsible, very loving." At trial, five of Melvin's former coworkers testified regarding Melvin's character. Luis Casillas, testified regarding Melvin's "demeanor" as "an all-around good person," that he was "very nice, very composed." "He was always cool, calm, and collected, generally happy person." He related that his nickname for Melvin was "old Irish bastard" or just "bastard." Melvin interpreted the names as a joke and did not get angry.

Victor Salgado testified regarding Melvin's demeanor during a riot as "He was calm and very professional. I always have a lot of respect for [Melvin] because [Melvin] was very fair with everybody." Salgado described Melvin's physical demeanor as "always clean-cut, clean in his person and professional." Robert Hernandez described Melvin's physical appearance as "[c]lean uniform, clean, good to go." Finally, Brandi Julia Ledora Haley, a human relations assistant during the time she worked with Melvin, testified that there were never any disciplinary problems with Melvin and that he had not been the subject of any complaints.

2. Analysis

Green asserts that the above described character traits (clean uniform, happy, caring, very loving and very responsible, no human resources complaints) were irrelevant. He claims the inadmissible evidence prejudiced him because it conveyed the witnesses' affection for Melvin, invoked the sympathy of the jurors for Melvin and animosity toward him. Because the evidence was irrelevant as a matter of law, he argues the trial court had no discretion to admit it. He also asserts that Remkus's testimony included inadmissible propensity evidence as she testified to a "a litany of unfavorable character traits" regarding his character.

Green concedes defense counsel did not object below to the evidence he now complains about. He claims that the quantity and nature of the inadmissible character evidence rose to the level of a denial of due process that he can properly raise for the first time on appeal. Alternatively, he asserts defense counsel was ineffective for her failure to object because she had no valid tactical reason for not objecting.

Generally, "questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal." (People v. Rogers (1978) 21 Cal.3d 542, 548.) This rule of forfeiture applies equally to constitutional claims. (People v. Redd (2010) 48 Cal.4th 691, 730, fn. 19.) Green forfeited his claim by failing to object to the allegedly irrelevant testimony below.[4] (People v. Doolin (2009) 45 Cal.4th 390, 434.) Nonetheless, we examine his argument because he makes an alternative claim that he received ineffective assistance of counsel.

To establish ineffective assistance of counsel a defendant must show, by a preponderance of the evidence, that counsel's representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694.)

In determining whether counsel's performance was deficient, we exercise deferential scrutiny and "assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act." (Ledesma, supra, 43 Cal.3d at p. 216.) We presume that counsel's conduct fell within the wide range of reasonable professional assistance and tactical errors are generally not deemed reversible. (People v. Maury (2003) 30 Cal.4th 342, 389.) Our review is limited to the record on appeal and we must reject a claim of ineffective assistance "if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation." (People v. Burgener (2003) 29 Cal.4th 833, 880.)

Our Supreme Court has stated that "[t]he decision whether to object to the admission of evidence is 'inherently tactical,' and a failure to object will rarely reflect deficient performance by counsel." (People v. Castaneda (2011) 51 Cal.4th 1292, 1335.) Here, the record does not indicate why defense counsel failed to object to the admission of the challenged evidence. Further, the record fails to indicate that a request was made of counsel for an explanation of why the objections were not made, and the evidence challenged does not appear to be such that no satisfactory explanation could be given. Defense counsel could have believed that objecting to the descriptive adjectives used by the witnesses would have highlighted the testimony for the jurors or caused the witnesses to use further descriptive adjective in response to the prosecutor's questions. Hence, we reject Green's claim of ineffective assistance of counsel as he failed to show that defense counsel's actions were deficient.

In any event, Green must also show he was prejudiced by counsel's alleged deficient performance. We see no reasonable probability that the outcome of the case would have been different had defense counsel objected to the challenged evidence. (Ledesma, supra, 43 Cal.3d at pp. 217-218.) " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (Id. at p. 218.) Our confidence in the outcome has not been undermined.

Green admitted that he killed Melvin. The primary question before the jury was whether Green acted in self-defense. Green does not dispute that the trial court properly instructed the jury on self-defense, including the concept that he used no more force than was reasonably necessary to defend against the danger and that the right to use force continues only as long as the danger exists or reasonably appears to exist. (CALCRIM Nos. 505, 3474.) The trial court told the jury about the presumption of innocence and the prosecutor's burden of proof. (CALCRIM Nos. 103, 220.) The trial court also instructed the jury to not let bias, sympathy, prejudice, or public opinion influence its decision. (CALCRIM Nos. 101, 200.)

According to Green's own testimony, after arguing with Melvin, Melvin put him in a headlock. Green escaped and then picked up the baseball bat from the living room. As Green moved toward Melvin, Melvin walked backward towards his bedroom. Green followed Melvin into the bedroom. Melvin then lunged at Green as Green tried to close the bedroom door. Green swung the bat at Melvin "many times" until he stopped. Although Green testified that Melvin was standing when he hit Melvin with the bat, the pathologist testified that the wound to the back of Melvin's head could have been inflicted while Melvin was seated and "very possibl[y]" rendered Melvin unconscious. Additionally, Melvin suffered six severe and separately inflicted wounds, including a "massive" injury to his face.

On this record, there is no reasonable probability defense counsel's failure to object to certain adjectives used by prosecution witnesses in describing Melvin's character impacted the outcome of the case. (People v. Sapp (2003) 31 Cal.4th 240, 280 [ineffective assistance claim failed where there was overwhelming evidence of guilt]; People v. Williams (1997) 16 Cal.4th 153, 215 [it is not sufficient to show the alleged errors may have had some conceivable effect on the trial's outcome; the defendant must demonstrate a "reasonable probability" that absent the errors the result would have been different].)

II. ALLEGED IMPROPER HEARSAY EVIDENCE

A. Additional Background

At a section 402 hearing regarding Remkus's testimony the court declined to rule on whether Melvin's hearsay statements to Remkus were admissible for a nonhearsay purpose, stating it would address the matter when "it becomes an issue in the case."

At trial, Remkus testified that she last saw Melvin alive on Father's Day 2012, shortly before the killing. She explained that she stayed at the Marriott Hotel for the visit because "at this point [Melvin] just felt it was a lot safer for us to meet there with my son." The trial court denied defense counsel's motion to strike based on relevance and section 352.

During cross-examination, defense counsel asked Remkus whether Melvin had told her about a time that he "knocked out" Green. Remkus responded, "[Melvin] said that he had to knock out – that [Green] was coming after him and was getting worse and worse." After further questioning regarding to Melvin's statements, Remkus testified that the morning after Father's Day, Melvin told her, "I hate to say it, but I had to knock [Green] out."

On redirect, the prosecutor followed up on what Remkus testified to on cross-examination, asking her about the conversation that took place between her and Melvin the morning after Father's Day. At a sidebar conference where defense counsel objected to this line of questioning, the trial court noted that she had "opened up the door for this fight or this knock-out. Now, I think that entire conversation can come in that involved that. That's my ruling."

The prosecutor continued his questioning about this particular conversation. Remkus testified that she told Melvin that she did not understand how he could continue to live with Green. She explained to Melvin that Green looked at her in a manner that was "so evil" and that Melvin was "just sitting there" in the suite at the Marriott and evidently did not believe he could intervene. She testified that Melvin told her he could not intervene "because if he did he would get it whenever he got home."

B. General Legal Principles

" 'Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (§ 1200, subd. (a).) Hearsay evidence is inadmissible "[e]xcept as provided by law." (Id., subd. (b).)

Section 1250 codifies the "state of mind" exception to the hearsay rule, which provides in part: "Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind . . . is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind . . . at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant." (§ 1250, subd. (a).)

Under section 1250, a victim's out-of-court statements expressing fear of a defendant are relevant when the victim's conduct in conformity with that fear is in dispute. (People v. Riccardi (2012) 54 Cal.4th 758, 816 (Riccardi), overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Evidence of a victim's fearful state of mind is admissible when relevant to an element of an offense or to rebut a claim that the victim's death was accidental or provoked. (Riccardi, at p. 816.) State of mind evidence "is also admissible when the defendant claims that the victim has behaved in a manner inconsistent with that fear." (People v. Kovacich (2011) 201 Cal.App.4th 863, 884-885.)

C. Analysis

Green complains about the following three hearsay statements by Melvin related by Remkus: (1) he felt it was "a lot safer" for them to meet at the Marriott than at his home; (2) he "had to knock [Green] out"; and (3) he could not intervene at the Marriott "because if he did he would get it whenever he got home." Green argues that no hearsay exception applied, the testimony was not relevant to any nonhearsay purpose, and admission of this evidence violated his rights to confrontation and cross-examination.[5]

Because he failed to object to the challenged testimony at trial, Green forfeited his claim on appeal that the testimony constituted inadmissible hearsay. (People v. Alexander (2010) 49 Cal.4th 846, 908.) Anticipating this conclusion, Green also contends defense counsel was ineffective for failing to object on hearsay grounds to this evidence. We turn to that issue.

"[C]ounsel's decision to forgo implausible arguments or objections does not constitute deficient performance." (People v. Prieto (2003) 30 Cal.4th 226, 261.) Here, defense counsel's performance was not deficient in failing to object to the first statement that Melvin felt it was "a lot safer" for them to meet at the Marriott than at his home. This statement amounted to circumstantial evidence of Melvin's statement of mind; i.e., that he feared Green. Green's claim that Melvin was the aggressor during the incident placed Melvin's state of mind at issue. The statement refutes Green's claim that Melvin acted in a manner inconsistent with that fear by attacking Green. (Riccardi, supra, 54 Cal.4th at p. 816 [victim's out-of-court statements expressing fear of a defendant are relevant when the victim's conduct in conformity with that fear is in dispute].)

Similarly, defense counsel's performance was not deficient in failing to object to the second statement because defense counsel elicited the statement that Melvin "had to knock [Green] out" during her cross-examination. Defense counsel had a tactical reason for eliciting this statement as it impeached Remkus's claim that Melvin had never been physically violent with Green. After defense counsel opened this door, the trial court properly allowed the prosecutor to elicit from Remkus remaining portions of this particular conversation, including the third challenged statement that Melvin could not intervene at the Marriott "because if he did he would get it whenever he got home." This statement was circumstantial evidence of Melvin's fear of Green. (See also § 356 [Where part of [a] . . . conversation . . . is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . when a detached . . . conversation . . . is given in evidence, any other . . . conversation . . . which is necessary to make it understood may also be given in evidence."].)

In any event, assuming without deciding that defense counsel's performance was deficient for failing to object on hearsay grounds to the three hearsay statements, we conclude there is no reasonable probability the outcome of the trial would have been different. (Ante, pt. I.C.2.)

DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.