P. v. Osborg

Filed 3/9/07 P. v. Osborg 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

A jury convicted defendant Wayne Robert Osborg, Jr. of the first degree murders of Joseph Phillips, who was over the age of 60, and Phillipss grandson, Joseph Daugherty. The jury also found defendant guilty of first degree residential burglary and possession of a controlled substance. The jury found true special circumstance allegations of felony-murder (burglary) and multiple murder convictions. The jury also found defendant had personally used a deadly or dangerous weapon in the commission of the offenses.

The trial court sentenced defendant to an aggregate sentence of 10 years plus life without the possibility of parole. The trial court also ordered defendant to pay a $10,000 restitution fine and suspended a second $10,000 parole revocation restitution fine pursuant to Penal Code section 1202.45.^[1]

Defendant claims the felony-murder special circumstance must be stricken because there was insufficient evidence the killings were in the commission of a burglary. He also claims there was insufficient evidence to convict him of burglary. He claims the trial court erred in allowing inadmissible hearsay statements of one of the victims. He claims the imposition of a six year sentence for burglary violated double jeopardy and section 654. Finally, he claims the imposition of a parole revocation fine was unauthorized. We agree that the parole revocation fine must be stricken, but shall otherwise affirm the judgment and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

Eighty-nine-year-old Joe Phillips was a walnut farmer who lived in Stockton, California. At the time of his murder he was legally blind and walking slowly because of a knee replacement. His grandson, 36-year-old Joe Daugherty, lived in Alexandria, Virginia. Daugherty came to California to visit his family over the Christmas holidays in December 2003. Daugherty was staying with his grandfather.

Daugherty and Phillips attended a family gathering on Christmas Day, where each of the family members received a $100 bill from Phillips as a Christmas gift. Phillips kept one of the $100 bills, which he put in his wallet when one family member was not present for the gift-giving. A few friends and family members spoke by telephone to Daugherty and Phillips on December 26. The last call ended around 11:00 p.m. Although several people tried to reach Phillips and Daugherty by telephone the next day, December 27, neither of them ever answered the phone.

Around 2:00 a.m. on December 27, Stockton police officers responded to a report of a suspicious subject in the area of 1320 North Commerce in Stockton. Defendant was the suspicious person. He was searched, and officers found a steak knife in his jacket pocket. Defendant was wearing a black jacket and black jeans, but no shirt. The officers glanced into the back of defendants pickup, but nothing caught their attention. The officers had no evidence that a crime had occurred, so they released defendant. After they released him, he drove off heading north in the direction of his house. On our own motion we take notice of the fact that the driving distance between 1320 North Commerce and Phillipss house is approximately four-tenths of a mile. (Evid. Code, 452, subd. (h), 459.)

Later that morning, at approximately 7:30 a.m., Brian Muller, an acquaintance of defendants, was roused out of bed by a loud knocking on his door. When Muller opened the door, defendant came in and was mumbling and acting very nervous. Defendant was complaining about being harassed by the police. Muller eventually walked outside to go to his mothers house. As he walked past defendants pickup he noticed a three foot-long piece of pipe, approximately three-quarters to one inch in diameter, in the back of the pickup. The pipe appeared to have dried blood on the end of it.

Around 7:15 a.m. on December 28, Daughertys brother, John, and Brandi Hudson arrived at Phillipss house to take Daugherty on a previously planned ski trip. John Daugherty went inside and discovered Joe Daugherty in the upstairs bedroom, lying partly on the bed with his shirt on and no pants. Daugherty had blood all over his face and there was blood all over his pillow. Realizing Daugherty was dead, John Daugherty ran downstairs to check on his grandfather. He saw that there was blood all over his grandfathers pillow, and he ran outside and told Hudson to call 911.

Phillipss body was on its side, with the blankets pulled up to his chin. It appeared as though the blanket had been pulled up after Phillips had been murdered. In Phillipss room there was blood spatter everywhere. There was a line of blood spatter that went up the ceiling and across to the wall opposite the bed. Phillipss wallet was on the floor, but it had no money in it. Inside the bedroom closet there were shotgun shells, but no shotgun. Phillips had kept a shotgun in the closet, and had not reported it missing to his family before his death.

Daughertys body was in a semi-seated position on the bed. He was crossways in the bed, and his back was flat on the bed with his feet flat on the floor. He had a shirt on, but was naked from the waist down except for his socks. Daughertys wallet was found in his bedroom. Like Phillipss wallet, it had no money in it.

An autopsy on Phillipss body revealed he received blunt force injuries to his head. He was hit at least four times, two of the blows fracturing his skull and bruising his brain. Phillips would have been rendered unconscious immediately from the blows. He had no defensive wounds, and no wounds on any other part of his body. The injuries could have been caused by a heavy metal pipe.

Daughertys wounds were similar in appearance to those of his grandfather. The wounds on both men were consistent with having been made by the same weapon. Daugherty received four blows to the head, all potentially lethal. He would have been rendered unconscious immediately. Daugherty could not have received all of the blows in the position in which his body was found. Therefore, he was moved after he was struck.

Phillipss residence was dusted for fingerprints. Two thumbprints belonging to defendant were found on the stairwell railing. The orientation of the prints indicated one was made when defendant went up the stairs, and one when he came back down.

Defendant lived in the home directly behind Phillips for about five years during the mid 1990s. Defendants father helped him purchase the home, but when defendant was unable to keep up with the payments, his father took over the house. Defendant and Phillips did not get along because defendant kept two pit bull dogs, because he created dust and noise problems when he used heavy equipment on the property, and because someone from defendants residence had once driven a vehicle through the fence separating their property, destroying Phillipss barbeque. Phillips had complained to others that he was afraid of defendant and that defendant had verbally threatened him. Even though defendant had moved out of the house behind Phillipss, he was back at the house often during December 2003.

The results of a penile swab performed on Daughertys body showed DNA from two sources. The sperm fraction of the penile swab matched the DNA profile of Daugherty. The non-sperm fraction of the swab contained a mixture of DNA from two males. One matched Daughertys and one matched defendants DNA. A further amylase test, which is an enzyme found in high concentrations in saliva, indicated the DNA came from defendants saliva.

A search warrant was issued for defendants home. Inside a closet, officers discovered a shotgun. There were two shells inside the shotgun, and those shells matched shotgun shells found in Phillipss closet. Also in defendants closet was a full box of shells. The receipt indicated the box of shells was purchased on December 29, 2003.

When defendant was arrested on December 30 he was found to have in his possession a small plastic container containing methamphetamine and a Timex watch with a white face and black numbers. The watch was identified by Phillipss daughter as one she bought for him. It was distinctive because it was designed for the visually impaired.

When one of Phillipss daughters was cleaning out his desk after the murders, she discovered a card in Phillipss handwriting. On the card Phillips had written the serial number and brand name of the shotgun discovered in the search of defendants home.

DISCUSSION

I

Sufficiency of the Evidence

Defendant argues there was insufficient evidence the killings were in the commission of a burglary for purposes of the felony murder special circumstance. He claims there was no evidence the intent to steal was formed before the murders. We decline to consider this argument because we find any error in the application of the felony-murder special circumstance harmless.

The effect of section 190.2 is to impose the death penalty or life in prison without the possibility of parole where the defendant has been found guilty of first degree murder and one or more of the special circumstances set forth in the statute apply. In this case the jury found two special circumstances were applicable -- murder in the commission of a burglary

( 190.2, subd. (a)(17)) and multiple murders. ( 190.2, subd. (a)(3).) Thus, defendant would have been sentenced to life without the possibility of parole on the multiple murder circumstance alone.

A defendant has the burden to show not only that the trial court erred but also that the error was prejudicial. Paterno v. State of California (1999) 74 Cal.App.4th 68, 105.) If the evidence was insufficient to prove the felony-murder special circumstance, a determination we do not make, defendant nevertheless would have been sentenced to life in prison without parole. Therefore, any error was harmless.

In a supplemental brief, defendant also argues there was insufficient evidence of the crime of burglary. We disagree.

A burglary is committed if the defendant enters a residence or other structure with the intent to commit grand or petit larceny or any felony. ( 459.) In this case there was evidence that defendant entered Phillipss residence, murdered Phillips and Daugherty, and stole Phillipss gun, watch, and money. The presence of defendants fingerprints in the house, his DNA on Daughertys body, and his possession of some of the stolen items, indicated defendant was the person who committed the murders and the burglary. Defendants intent may be inferred from all the facts and circumstances disclosed by the evidence. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) There was sufficient evidence for the jury to reasonably infer that defendant entered with the intent either of committing murder or of committing theft. The intent to commit either crime satisfied the intent element of burglary, and the evidence sufficiently supported either finding.

II

Phillipss Hearsay Statements

The prosecution made an in limine motion to allow the statements Phillips made to friends and neighbors regarding his dislike and fear of defendant. The prosecutor argued the evidence was admissible to refute any inference defendant could have left his fingerprints inside Phillipss house during some earlier, consensual visit. The trial court allowed the statements to be introduced over defendants objections that the statements were inadmissible hearsay, and that they were unduly prejudicial under Evidence Code section 352. Defendant renews his hearsay argument on appeal, and claims for the first time that the admission of Phillipss statements violated his Sixth Amendment right to confront the witnesses against him.

Defendant has forfeited his confrontation clause argument by failing to raise it below. (People v. Alvarez (1996) 14 Cal.4th 155, 186.) However, since he also claims ineffective assistance of trial counsel based upon his counsels failure to raise the constitutional argument, we shall consider the merits of the argument.

On appeal defendant objects only to the testimony of Frank Ruhstaller, who was a friend of Phillips. Specifically, defendant objects to the following statements: (1) that Phillips said he was afraid of defendant and felt threatened by him; (2) that Phillips said he had some trouble in the past with defendant concerning damage to Phillipss property, and that there were ongoing altercations; (3) that Phillips said defendant had threatened him; and (4) that Phillips said defendant told him, Shut up old man or Ill take you out. Of these statements, only the first is hearsay. The other statements are not hearsay because they are not offered for the truth of the matter asserted (i.e., that there were altercations or that defendant made threats to Phillips), but as circumstantial evidence that Phillips was afraid of defendant, thus would not have invited defendant into his home. (People v. Green (1980) 27 Cal.3d 1, 23, superseded by statute on other grounds.) In Crawford v. Washington (2004) 541 U.S. 36, 59, footnote 9 [158 L.Ed.2d 177, 197] (Crawford), the Supreme Court held that the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Therefore, we need not consider whether these statements violated defendants confrontation rights.

Phillipss hearsay statement that he was afraid of defendant was admissible hearsay because it was introduced for the purpose of showing Phillipss state of mind. (Evid. Code,

1250.) Phillipss fear of defendant was important because it indicated defendant would not have been invited into Phillipss home, negating any inference that defendant may have left his fingerprints in Phillipss home on a prior, consensual visit.

Furthermore, we conclude the admission of Phillipss statement did not violate defendants right to confront the witnesses against him because it was not a testimonial statement. Crawford involved the admission of a victims out-of-court statement to the sheriff. Before Crawford, the Supreme Court had held that extrajudicial statements did not violate the confrontation requirement of the Sixth Amendment if the statements bore an adequate indicia of reliability. (Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 608].) Crawford rejected this view, holding that testimonial statements may not be admitted unless the witness is unavailable and the defendant had an opportunity to cross-examine the witness whose statements are to be introduced. (Crawford, supra, 541 U.S. at pp. 61, 68 [158 L.Ed.2d at pp. 198, 203].) Crawford did not define testimonial, but held that at a minimum, it includes testimony at a preliminary hearing, testimony before a grand jury, testimony at a former trial, and police interrogations. (Crawford, supra, 541 U.S. at p. 68 [at p. 203].)

Defendant argues Phillipss statement was testimonial because it was given under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. In making this argument, defendant relies on People v. Cervantes (2004) 118 Cal.App.4th 162. In that case, the statement in question was made by the defendant to a friend from whom he sought medical care. (Id. at pp. 166-167.) Before concluding that the statement was not testimonial, the court opined that the defendants statement was testimonial, if at all, only under the definition quoted [by the Crawford court] from the amici curiae brief filed by the National Association of Criminal Defense Lawyers et al., which asserted testimonial statements include those made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. . . . [Citation.] (Id. at pp. 173-174.) The court found that even under this definition of testimonial, the statement had not been made with any reasonable expectation it would be used at a later trial. (Id. at p. 174.)

In People v. Taulton (2005) 129 Cal.App.4th 1218, 1224, the court disagreed with People v. Cervantes, supra, to the extent that case held the testimonial nature of a statement depends on the foreseeability that it will be used in a later trial. People v. Taulton, supra, held that the test of a statements testimonial nature is whether it was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue. (Id. at p. 1224.)

Whichever test for determining whether a statement is testimonial is used, we conclude the statement here was not testimonial. Phillips does not appear to have foreseen that his statement would be used in a later trial. He was complaining to a friend and city council member who he thought might be able to help him with his problem neighbor. However, there is no indication Phillips contemplated any legal action against defendant, and he certainly did not contemplate his own murder trial. Since the statement was not testimonial, there was no Sixth Amendment violation.^[2]

III

Multiple Punishment

Defendant was sentenced to a six year prison term for the burglary conviction, to run consecutively to the two life terms without the possibility of parole. The life terms were based on defendants convictions for first degree murder. The trial court instructed, and the prosecutor argued first degree murder under both theories of felony murder (burglary) and premeditated and deliberate murder. The record does not reflect which theory the jury selected in convicting defendant. Defendant claims that the court erred under state law ( 654) and violated the United States Constitution, Fifth Amendment's double jeopardy clause in failing to stay the burglary term.
The People respond that the court did not necessarily punish defendant for first degree felony-murder because the murder convictions could have been based on felony-murder or premeditation and deliberation.

Section 654 prohibits punishment for a single act or omission under more than one provision of law. Section 654 applies not only to a single act in the ordinary sense, but to a course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If, however, the course of conduct is divisible, it gives rise to more than one act within the meaning of section 654. Whether a course of conduct is divisible depends on the intent and objective of the defendant. If all of the offenses were incident to one objective, there is but one act for which the defendant may be punished only once. (Ibid.) Likewise, the double jeopardy clause not only protects against subsequent prosecutions for the same offense, but also against multiple punishments for the same offense. (Grady v. Corbin (1990) 495 U.S. 508, 516 [109 L.Ed.2d 548, 561], overruled on other grounds by United States v. Dixon (1993) 509 U.S. 688, 704 [125 L.Ed.2d 556, 573].)

The determination of whether there was more than one objective is a factual determination that must be affirmed on appeal unless the determination is not supported by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438, cited with approval in People v. Osband (1996) 13 Cal.4th 622, 730.) In this case, the trial court implicitly found defendant had more than one intent and objective when it sentenced defendant on the murder and burglary counts. (See People v. Osband, supra, at p. 730.) That finding was supported by substantial evidence. There was evidence defendant entered the premises with the weapon (a steel pipe) he used to murder the victims. As the trial court stated, this shows premeditation and an intent to injure or kill someone. The manner in which the murders were committed also demonstrated an intent to kill. Defendant killed both victims by inflicting multiple blows to the head while the victims slept. Defendant had an opportunity to deliberate and reflect between each blow, and the multiple strikes to the head indicated the blows were intended to result in death. The fact that the victims were in bed and the absence of defensive wounds indicate the killings were not provoked.

Separately, defendants intent to commit burglary was shown by the fact that defendant stole money, a gun, and a watch. The trial courts implicit finding that defendant had the separate intents and objectives of murder and burglary were supported by substantial evidence, and the consecutive burglary sentence was properly imposed.

IV

Parole Revocation Fine

Defendant argues his $10,000 parole revocation restitution fine was an unauthorized sentence. The Attorney General agrees. Section 1202.45 authorizes a restitution fine for conviction of a crime whose sentence includes a period of parole . . . . Defendant was sentenced to two life terms without the possibility of parole. No parole revocation fine may be imposed on him. (People v. Petznick (2003) 114 Cal.App.4th 663, 687.)

DISPOSITION

The parole revocation fine is stricken. In all other respects the judgment is affirmed.

BLEASE , Acting P. J.

We concur:

MORRISON , J.

BUTZ , J.

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^[1] References to an unspecified section are to the Penal Code.

^[2] Defendants brief includes an argument that the forfeiture by wrongdoing exception was not applicable here. Crawford recognized that the rule of forfeiture by wrongdoing extinguishes confrontation claims on essentially equitable grounds[.] (Crawford, supra, 541 U.S. at p. 62 [158 L.Ed.2d at p. 199].) Forfeiture by wrongdoing prevents a defendant from objecting to the admission of a witnesss hearsay statement where the defendant caused the witnesss unavailability by a wrongful act undertaken with the intention of preventing the witness from testifying. (U.S. v. Houlihan (1996) 92 F.3d 1271, 1280.) We recognize that there is some disagreement as to whether the exception applies when the wrongful act was not taken with the intention of preventing the potential witness from testifying at a future trial. (See People v. Pantoja (2004) 122 Cal.App.4th 1, 10, fn. 2 and cases cited therein.) Because we have determined the statement was not testimonial, we need not decide whether defendant forfeited his Sixth Amendment right to confront the witnesses against him by his own wrongful act.