P. v. Parker

















Filed 5/22/13 P. v. Parker CA4/2











NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO




>

THE PEOPLE, Plaintiff and Respondent, v. LESLIE GENE PARKER, Defendant and Appellant.

E054825 (Super.Ct.No. RIF136528) OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Helios (Joe)
Hernandez, Judge. Affirmed.

Ronda G. Norris, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Senior Assistant Attorney General, and James Dutton and Meredith S. White,
Deputy Attorneys General, for Plaintiff and Respondent.

In 1985, a team of robbers stole $265,000 from a Riverside
bank. One of the robbers got into a
shootout with a security guard. The
security guard was shot and died; the robber was shot and bleeding but managed
to flee. In 2007, DNA testing matched
the robber’s blood to defendant Leslie Gene Parker.

Defendant was charged with href="http://www.fearnotlaw.com/">murder (Pen. Code, § 187, subd.
(a)), with a robbery-murder special circumstance (Pen. Code, § 190.2,
subd. (a)(17)), a personal firearm use enhancement (Pen. Code, § 12022.5,
subd. (a)), and a prior serious felony conviction enhancement (Pen. Code,
§ 667, subd. (a)).

In the guilt phase, the jury found defendant
guilty of first degree murder (Pen.
Code, § 189) and found all the charged allegations true.

In the penalty phase, the jury
was unable to reach a verdict. The
People elected not to retry the penalty phase.
Accordingly, defendant was sentenced to an indeterminate term of life
without the possibility of parole, a determinate term of seven years, and the
usual fines and fees.

Defendant now contends:

1. The
trial court erred by admitting evidence that defendant had committed a previous
robbery.

2. The trial court violated the confrontation
clause by allowing a pathologist who was not present at the victim’s autopsy to
testify regarding the autopsy report.

We find no prejudicial error. Hence, we will affirm.

I

FACTUAL BACKGROUND

The First Interstate Bank branch at Tyler
Mall maintained an automated teller
machine (ATM) at the entrance to the mall.
There was a night drop behind the ATM, where merchants could deposit
their receipts.

Normally, Brinks Security was responsible for
picking up the deposits and transporting them to the bank, about 100 yards
away. As of December 1985, however,
Brinks employees were on strike. The
bank therefore retained an armed security guard — Fred Taylor, a retired police
officer.

On December
16, 1985, around 9:00 a.m.,
Taylor and two bank employees —
Robert Steve Parkerhref="#_ftn1" name="_ftnref1"
title="">^[1] and Donna Coffee — drove over to the ATM to
pick up the deposits and take them back to the bank.

As they got back to their cars with the deposits,
a man holding a gun approached them and yelled something. Both Taylor and the gunman started
shooting. When the shooting stopped, a
second man, holding a knife, walked up to the cars and took the money. The robbers got into a white or silver Datsun
or Toyota and drove away. They netted approximately $265,000.

According to Dr. Joseph Cohen — an expert
pathologist, who did not perform the autopsy but did review the autopsy report
— Taylor was hit by two bullets and
died as a result.

On the way to the hospital, Taylor
told paramedics that there were two robbers and that he shot one of them.

Parker described the gunmanhref="#_ftn2" name="_ftnref2" title="">^[2] as a White male in his early 20’s, about five
feet ten inches tall, slender, with dark brown hair and a moustache. The gunman was wearing a blue plaid shirt,
and he had a pock-marked face. Parker
told police that the gunman got into the driver’s side.

Parker described the second man as a White male
in his 20’s, five feet ten inches tall, and slender. He was wearing a gray hoodie. He did not appear to be injured.

Coffee described the gunman as a White male,
about 28 years old, five feet ten inches to six feet tall, with brown hair and
a moustache, wearing a blue plaid shirt.
He had “possible” pock marks, pimples, or acne on his face. She believed the gunman got into the driver’s
side.

Using an “Identi-Kit,” Coffee produced a sketch
of the gunman. The sketch has not been
transmitted to this court, but defendant concedes that it “resembled” him.

According to eyewitness Lee Ann Salmon, the
gunman’s left leg was injured; he was limping.
She described him as in his 20’s, five feet eight inches tall, with
black hair and no facial hair. He was
wearing a blue plaid flannel shirt.

Eyewitness Craig Liddicote agreed that the gunman
was shot in the leg. Liddicote described both robbers as White
males between five feet ten inches and six feet tall. One of them may have had a mustache. Also, one of them was wearing a red hoodie.

Eyewitness Theodore Willis testified that the
gunman was hit in the leg and the arm.
According to Willis, the gunman got into the passenger side of the car.

Eyewitness Terry Williams saw only the driver of
the car; she told the police that he was wearing a red hoodie.

A trail of blood drops led from the shooting
scene to the getaway car. They were Type
A. Taylor’s
blood was Type O. There were no
blood drops by the cars, where the second man took the money.

Coffee wrote down the license number of the
getaway car. What she wrote was
“975 XRW.” At the time, however,
she told police that she might be off by one letter or one number.

Sometime between 8:00
and 10:15 a.m., a silver Datsun
B210 with license number “975 XRF” was left in a parking lot two blocks
away from the mall. It had recently been
stolen. There was blood on the passenger
seat, as well as both inside and outside the passenger side door. The blood on the passenger seat was Type A.

In 1986, the case was suspended due to lack of
leads. In 2004, the case was reopened,
and the blood on the passenger seat was DNA profiled. In 2007, the DNA from the blood on the
passenger seat was found to match defendant’s DNA.

Defendant had scars on his left leg and left
arm. He told his ex-wife that he got
them when he rolled over in a forklift at work.
However, he told his girlfriend that he got them from hopping over a
barbed-wire fence. When the police
interviewed him, he told them he had injured his leg in a motorcycle
accident. X-rays showed a bullet in defendant’s
left arm and another bullet, along with metallic fragments, in his left leg.

On the date of the crime, defendant was 26 years
old. He had brown hair. He was six feet two inches tall, with a large
build.

According to a href="http://www.sandiegohealthdirectory.com/">dermatologist, defendant’s
face was not pock-marked, and he showed no signs of any cosmetic procedure to
remove pock marks.

According to an expert on eyewitness
identifications, if two eyewitnesses independently remembered a man as having a
pock-marked face, it was extremely likely that their memory was accurate. Likewise, if three witnesses independently
remembered a man wearing a red shirt, it was extremely likely that there really
was a man wearing a red shirt.

II

EVIDENCE THAT DEFENDANT HAD
COMMITTED A PRIOR ROBBERY

Defendant contends that the trial court erred by
admitting evidence that he had committed an earlier robbery in 1978 as evidence
of the intent to rob.

A. Additional Procedural
Background.

Before trial, defendant filed a motion in limine
to exclude any evidence that he had committed an armed robbery of a gas station
in 1978. He argued that the prior
robbery was not admissible to show identity.
However, he did not address whether it was admissible to show intent.

Simultaneously, the prosecution filed a motion in
limine to admit this evidence. It argued
that the evidence was relevant to intent and was more probative than
prejudicial.

At a hearing on the motions, defense counsel
argued that the evidence of intent to rob was already strong so that the prior
robbery “doesn’t really add anything . . . .” He also argued that the two robberies were
not similar, and the prior robbery would be prejudicial.

The trial court ruled, “I’m going to let it
in. I don’t think it’s cumulative.

At the end of the trial, the trial court
instructed:

“The People presented evidence that the defendant
committed another offense of robbery that was not charged in this case. You may consider this evidence only if the
People have proved by a preponderance of the evidence that the defendant, in
fact, committed the uncharged offense. . . . If the People have not met this burden, you
must disregard this evidence entirely.
If you decide that the defendant committed the uncharged offense, you may,
but are not required to[,] consider that evidence for the limited purpose of
deciding whether or not: Intent. The defendant acted with the intent to
deprive others of their property using force or fear. Do not conclude from this evidence that the
defendant has a bad character or is disposed to commit crime.

“If you conclude that the defendant committed the
uncharged offense, that conclusion is only one factor to consider along with
all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty. The People must still prove each charge or
. . . allegation[] beyond a reasonable doubt.” (CALCRIM No. 375.)

B. Additional Factual
Background.

At trial, the prosecution introduced the
following evidence regarding the 1978 robbery.

Gloria Monsen was the manager of a USA
gas station in Corona. One day in February 1978, Monsen and her son
Ed, then 11 years old, were in a room at the station that was used as an
office, counting the receipts in preparation for making a bank deposit.

When they left the office, there was a man
waiting in the next room. He pointed a
gun at them. He was wearing a ski
mask. He said, “I’m robbing you,
. . . don’t try anything.” He
was shaking and trembling so much that Ed Monsen was afraid the gun might go
off accidentally.

Gloria Monsen gave him the money, which amounted
to three days’ receipts. He then made
them go back into the office and blocked the door by “put[ting] a dip stick
inside the door handle . . . .”

Defendant told his friend, Walter Jackman, that
he had robbed the USA
station. At the time, defendant was 16
or 17 years old.href="#_ftn3" name="_ftnref3"
title="">^[3] Jackman helped defendant bury the proceeds of
the robbery.

Defendant pleaded guilty to the robbery. A cashier at the gas station who acted as
defendant’s accomplice was also convicted.

C. Analysis.

Defendant argues that, because the evidence of
intent to rob in this case was so strong, the evidence of the prior robbery
lacked probative value and was unduly prejudicial.

We may assume, without deciding, that the trial court
abused its discretion. Even so assuming,
the error is not reversible unless defendant can show “‘it is reasonably
probable that a result more favorable to [defendant] would have been reached in
the absence of the error.’” (>People v. Page (2008) 44 Cal.4th 1, 42
[brackets in original].) This he cannot
do.

There was overwhelming evidence that the victim
was killed by a robber during a robbery.
The DNA evidence provided incontrovertible proof that defendant was one
of the robbers. Indeed, in closing
argument, defense counsel conceded
that defendant was one of the robbers.
Thus, defendant was almost indisputably guilty of first degree murder on
a felony-murder theory. (Pen. Code,
§ 189.)

The key issue at trial was the robbery-murder
special circumstance. As the law stood
in 1985, when the crime was committed, a defendant could not be subject to a
robbery-murder special circumstance unless he or she acted with the intent to
kill. (People v. Rogers
(2006) 39 Cal.4th 826, 891-892.) Here,
while the robber with the gun manifestly acted with intent to kill, there was
little or no evidence that the second robber had the intent to kill. Accordingly, defense counsel argued
vehemently that the prosecution had failed to prove that defendant was the
gunman: “No intent to kill means the
special circumstance is not true. No
intent to kill in our fact pattern because Mr. Parker was not the
shooter.”

The problem with this argument is that every
single eyewitness who had any recollection of the matter testified that it was
the gunman who was injured.href="#_ftn4" name="_ftnref4" title="">^[4] This makes sense, as Taylor and the gunman
were shooting at each other. Hence, the
blood found on the passenger seat had to be from the gunman. And that blood was conclusively proven to be
defendant’s.

Admittedly, while Willis remembered that the
injured gunman got into the passenger side, Parker and Coffee remembered him as
getting into the driver’s side. The
getaway car, however, was parked on the wrong side of the street, facing the
wrong way. Thus, some confusion on this
point is understandable. It remains the
case that any blood anywhere in the car presumably was the gunman’s.

In closing argument, defense counsel argued that
there were actually three robbers — one in blue, one in gray, and one in
red. The eyewitnesses, however,
unanimously remembered two robbers (except for Williams, who saw only
one). Taylor himself said there were two
robbers, and he shot one of them. The
fact that witnesses reported three different colors of clothinghref="#_ftn5" name="_ftnref5" title="">^[5] is most likely an “innocent misrecollection”
(see former CALJIC No. 2.21), possibly due to the fact that the second robber
may have been wearing a red shirt under the gray hoodie or a red cap.

Defense counsel also laid great stress on the
fact that the gunman reportedly had a pock-marked face, but defendant did
not. Coffee, however, actually told
police that the gunman had a “possible” pock-marked face; at trial, she added
that he may have had acne or pimples.
Defendant could well have had acne or pimples in 1985, when he was in
his 20’s, yet have lacked any scars in 2010, when he was in his 50’s. He concedes that he resembled the Identi-Kit
sketch of the gunman.

It is also highly significant that the jury was
instructed to consider the prior robbery solely with respect to the intent to
rob. We must presume that the jury
followed this instruction (People v.
Homick (2012) 55 Cal.4th 816, 853), unless the evidence was so prejudicial
as to dispel the presumption. (See >People v. Fritz (2007) 153 Cal.App.4th
949, 962.) Here, the prior robbery was a
garden-variety armed robbery of a gas station.
It was committed with the willing assistance of a cashier, no one was
hurt, and at the time, defendant was quite young — indeed, according to
Jackman, he was still a minor. Nothing
about the prior robbery was so inflammatory that the jury would not have been
able to obey the limiting instruction.

Defendant claims that the prosecutor
“emphasi[zed]” the prior robbery in closing argument. Actually, she mentioned it just once in her
main closing argument, arguing, consistently with the jury instruction, that it
was evidence of defendant’s intent to rob.
Defense counsel, in his closing argument, reiterated that the prior
robbery was relevant solely to intent to rob.
Nevertheless, he went on to argue that it showed that defendant lacked
the intent to kill: “Gloria Monsen, the
manager, the mother of Eddie Monsen[,] simply turned over the money. No shots were fired. No one was injured. That’s the way a robbery should go down.
. . . It’s not your goal to go
in and start shooting people and killing people.” Thus, in her rebuttal argument the prosecutor
briefly stated, “The reason why he didn’t shoot Eddie Monsen and Gloria Monsen
was because . . . they complied.”
This did not invite the jury to use the evidence for an improper purpose
or to act out of passion or prejudice.

Defendant also notes that the jury had some
difficulty reaching a verdict. We
therefore briefly review the pertinent sequence of events.

On the second day (i.e., the first full day) of
deliberations, the jury sent out four requests for readbacks. However, it also reported that one juror was
refusing to deliberate. The next day,
the third day of deliberations, the trial court excused that juror due to bias,
selected an alternate, and instructed the jury to start its deliberations all
over again. (CALCRIM No. 3575.)

Later on the third day, the jury re-requested the
same readbacks. On the fourth day of
deliberations, it sent out two questions — one asking for clarification of the
special circumstance’s intent-to-kill requirement and one asking what would
happen if it deadlocked. The trial court
gave supplemental instructions on intent, and on the fifth day, it allowed
counsel for both sides to deliver supplemental closing arguments. Later that day, the jury reported that it was
deadlocked. The trial court, however,
gave it some brief further instructions, and roughly an hour later, it returned
its verdict.

In sum, then, the reconstituted jury deliberated
for just three days. This is hardly
excessive for the guilt phase of a death penalty case. (See People
v. Taylor (1990) 52 Cal.3d 719, 732 [“[t]he length of the jury’s
deliberations cannot be said to be unduly significant in light of the gravity
of its task”].) It spent much of this
time hearing instructions and argument to clarify intent to kill. Moreover, in deciding whether defendant had
the intent to kill, it was not likely to be influenced by the prior
robbery. Indeed, in his closing
argument, as already mentioned, and also in his supplemental closing argument,
defense counsel claimed that the prior robbery showed that defendant did >not have the intent to kill. Thus, nothing about the length or nature of
the jury’s deliberations suggests that it was prejudiced by the evidence of the
prior robbery. To the contrary, the
record suggests that it was evaluating the evidence cautiously but
conscientiously.

We therefore conclude that, even if the prior
robbery had been excluded, the jury would still have found the special
circumstance true. Accordingly, the
claimed error was harmless.

III

THE ADMISSIBILITY OF ONE
PATHOLOGIST’S TESTIMONY

BASED ON ANOTHER PATHOLOGIST’S
AUTOPSY REPORT

Defendant contends that the trial court erred by
allowing a pathologist who was not present at the autopsy of the victim to
testify, based on the autopsy report, regarding the cause of death as well as
the condition of the body.

A. Additional Factual and
Procedural Background.

The autopsy on the victim was performed by
Dr. Rene Modglin, who therefore also wrote the autopsy report. Dr. Modglin, however, had died before
trial.

Defense counsel filed a written motion in limine
to preclude a “substitute coroner” from testifying to any expert opinion based
on the report, arguing that this would violate the confrontation clause.

Simultaneously, the prosecution filed a motion in
limine to admit the testimony of Dr. Joseph Cohen, based on the autopsy
report, regarding the cause and manner of death. The prosecution specifically argued that this
evidence would not violate the confrontation clause.

After hearing argument, the trial court ruled
that the evidence was admissible.

Accordingly, at trial, Dr. Cohen testified
that, in his opinion, based on the autopsy report, the cause of death was a
gunshot wound, and the manner of death was homicide.

Dr. Cohen also testified regarding some of
the contents of the autopsy report. For
example, he testified that the victim was struck by two bullets, which caused
six distinct entrance and exit wounds
One bullet traveled through the chest from right to left, indicating
that, when it was fired, the gunman was on the victim’s right. This bullet perforated the right lung, the
liver, the spleen, and the largest vein in the body, causing massive internal
bleeding. It could have caused the
victim to fall to the ground.

The other bullet traveled downward through the
body, from the left shoulder to the left elbow.
Thus, it was most likely that, when it was fired, the victim was on the
ground, facing the gunman.

The prosecution did not introduce the autopsy
report itself as an exhibit. However, it
did introduce a copy of the victim’s death certificate.

A. Additional Factual and
Procedural Background.

While this appeal was pending, the California
Supreme Court decided People v. Dungo
(2012) 55 Cal.4th 608. >Dungo is on point and controlling here.

In Dungo,
the defendant was charged with murder.
The autopsy of the victim had been performed by Dr. Bolduc. At the time of trial, there was no indication
that Dr. Bolduc was unavailable. (>People v. Dungo, supra, 55 Cal.4th at p. 613.)
Nevertheless, the prosecution called Dr. Lawrence, who testified
that, in his opinion, based on the autopsy report and the accompanying
photographs, the victim had died as a result of strangulation. Dr. Lawrence also listed certain
conditions of the victim’s body, as set forth in the autopsy report and/or the
photographs, that supported his conclusion:
neck hemorrhages, pinpoint hemorrhages of the eyes, the purple color of
the face, bite marks on the tongue, and the absence of any signs of any other
cause of death. Finally, based on the
finding in the autopsy report that the victim’s hyoid bone was not fractured, Dr. Lawrence
opined that the strangulation lasted for at least two minutes. (Id.
at p. 614.) The autopsy report
itself was not admitted into evidence. (>Id. at p. 615.)

The Supreme Court held that the admission of this
evidence did not violate the confrontation clause because the factual information
in the autopsy report regarding the condition of the body was not
testimonial. (People v. Dungo, supra,
55 Cal.4th at pp. 619-621.) It
began by noting: “[T]he prosecution’s
use of testimonial out-of-court statements ‘ordinarily violates the defendant’s
right to confront the maker of the statements unless the declarant is
unavailable to testify and the defendant had a prior opportunity for
cross-examination.’ . . .
[T]estimonial out-of-court statements have two critical components. First, to be testimonial the statement must
be made with some degree of formality or solemnity. Second, the statement is testimonial only if
its primary purpose pertains in some fashion to a criminal prosecution.” (Id.
at p. 619.)

The court concluded that an autopsy report’s
observations about the condition of the body — as opposed to any conclusions
based on those observations — are not so formal as to be testimonial. (People
v. Dungo, supra, 55 Cal.4th at
pp. 619-620.) Rather, “[t]hey are
comparable to observations of objective fact in a report by a physician who,
after examining a patient, diagnoses a particular injury or ailment and
determines the appropriate treatment.
Such observations are not testimonial . . . . [Citation.]”
(Ibid., fn. omitted.)

The court also concluded that “criminal
investigation was not the primary
purpose for the autopsy report’s description of the condition of [the victim’s]
body; it was only one of several purposes.”
(People v. Dungo, >supra, 55 Cal.4th at p. 621.) It explained that a coroner is statutorily
required to determine the cause of certain types of death, including types that
are not related to criminal activity. (>Id. at p. 620.) It also noted, “The usefulness of autopsy
reports, including the one at issue here, is not limited to criminal
investigation and prosecution; such reports serve many other equally important
purposes. For example, the decedent’s
relatives may use an autopsy report in determining whether to file an action
for wrongful death. And an insurance
company may use an autopsy report in determining whether a particular death is
covered by one of its policies.
[Citation.] Also, in certain
cases an autopsy report may satisfy the public’s interest in knowing the cause
of death, particularly when (as here) the death was reported in the local
media. In addition, an autopsy report
may provide answers to grieving family members.” (Id.
at p. 621.)

Defendant argues that Dungo is in conflict with certain United States Supreme Court caseshref="#_ftn6" name="_ftnref6" title="">^[6] and thus wrongly decided. Even if we were to agree — and we do not — we
would be bound by the California Supreme Court’s construction of those cases,
which predated Dungo. (See People
v. Madrid (1992) 7 Cal.App.4th 1888, 1895 [“we are bound by decisions of
the United
States Supreme Court [citation] and, of course, by California Supreme Court
cases interpreting those decisions”]; see also People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6 [state Court
of Appeal has no authority to overrule decision of state Supreme Court].)

Defendant also argues that Dungo is distinguishable.
His entire argument on this point, however, is to the effect that a >death certificate is distinguishable
from an autopsy report and thus
should be deemed testimonial. Defendant
does not appear to dispute that Dungo
is controlling with regard to the autopsy report in this case and specifically
with regard to Dr. Cohen’s testimony based on the autopsy report.

Defense counsel did not object to the death
certificate based on the confrontation clause.
Hence, defendant has forfeited this particular contention. (Evid. Code, § 353, subd. (a).) Admittedly, defense counsel did object based
on People v. Holder (1964) 230
Cal.App.2d 50, which held that a death certificate is evidence of “bald factual
entries, for example, the fact of death, time and place of death, character of
the injuries and time and place of the accident or other trauma-producing
event,” but is not evidence of “conclusionary statements drawn from an
autopsy . . . .” (>Id. at p. 55.) In this appeal, defendant does not reassert >Holder.

Even if not forfeited, defendant’s contention
regarding the death certificate lacks merit.
A death certificate is required in connection with every death. (Health & Saf. Code, § 102775.) “Business and public records are generally
admissible absent confrontation . . . because — having been created
for the administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial — they are not testimonial.” (Melendez-Diaz
v. Massachusetts (2009) 557 U.S. 305, 324 [129 S.Ct. 2527, 174 L.Ed.2d
314].) Thus, a death certificate is even
less testimonial than an autopsy report.

We conclude that the trial court did not err by
admitting Dr. Cohen’s testimony and conclusions regarding the autopsy
report.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RICHLI

Acting
P. J.



We
concur:





KING

J.





MILLER

J.