P. v. Rock

Filed 6/22/06 P. v. Rock CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed.

I.

INTRODUCTION

A jury found that Dennis Robert Rock murdered his wife, Marla Rock (Marla).^[1] The jury found Rock guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189)^[2] and also found that Rock personally used a deadly weapon during the commission of the murder, within the meaning of section 12022, subdivision (b)(1). The trial court sentenced Rock to 26 years to life in prison.

On appeal, Rock claims: (1) there is insufficient evidence that he acted with premeditation and deliberation in killing Marla to support a first degree murder conviction, (2) the trial court erred in excluding evidence suggesting that another person may have killed Marla, and (3) the trial court erred in admitting evidence pertaining to Rock's actions after the killing. We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The People's evidence

1. The murder

On May 12, 2004, at approximately 6:30 a.m., San Diego County Deputy Sheriff Michael Baker responded to a 911 telephone call placed by Rock. As Deputy Baker approached the Rocks' mobile home trailer, he saw Rock sitting on the steps of a neighbor's trailer. Baker went inside the Rocks' trailer and discovered Marla's body in the kitchen. A black plastic bag covered Marla's face. The kitchen was covered in blood. Baker noticed a footprint from a shoe near Marla's body.

Police discovered a large pick axe handle lying on the kitchen floor, and a hammer covered in blood in the family room. The telephone had been disconnected from the wall. A court document ordering Rock to leave the residence was on the kitchen island. Empty jewelry boxes were scattered throughout the trailer. Rock's fingerprints were found on two of the jewelry boxes . A truck was parked in the trailer's driveway. In the rear wheel well of the truck, police found a purse containing costume jewelry. Police also located the top of the pick axe on the ground outside the trailer.

Police brought a scent dog to the scene of the murder. The dog tracked Rock's scent from the porch, where he told police he had slept on the night of May 11, to the rear wheel well of the truck, where police had discovered the purse filled with costume jewelry.

Thomas McGuire, the Rocks' neighbor, testified that he heard Marla and Rock arguing in their trailer at approximately 5:45 p.m. on May 11.

2. Rock's actions before and after the murder

On the morning Marla's body was discovered, Rock agreed to go to the police station for questioning. Rock told police that on May 10, he had been at home with Marla and her friend Vanessa. He called 911 that day because he thought he was having a heart attack. Marla did not believe Rock was having a heart attack. She and Vanessa left the trailer while paramedics were responding to Rock's call. Rock told police that Marla had apparently gone to stay with her mother after she left the trailer.

On May 11, Rock spoke with Marla by telephone just before 4:00 p.m. Marla told him that she wanted to come home to the trailer, but she did not have her keys. Rock told her he would leave the trailer unlocked. Rock claimed that shortly after their conversation, at 4:00 p.m., he walked to a local park. He stayed at the park for several hours and eventually walked back to the trailer at approximately 10:00 that evening. He said he slept on the front porch that night because he did not want to cause any further problems.

Rock said he discovered Marla's body the following morning. Rock claimed he did not enter the kitchen at the time he found Marla's body. He also said he had not taken his boots off since he went to the park the previous evening. He agreed to provide police with the clothes he was wearing and to meet with them again the following day.

On May 12, after he was interviewed by police, Rock told Robert Ulery, a former coworker, and Ulery's wife, that he had had an argument with Marla the night before, and that after the argument he had left the trailer and later slept on the front porch.

On May 13, Rock failed to appear for the scheduled interview with police. That same day, Rock sold several pieces of Marla's jewelry, including her wedding ring. Several witnesses testified that Marla nearly always wore her wedding ring.

3. Crime scene and forensic evidence

Police found blood stains on the socks and boxer shorts that Rock was wearing at the time Marla was killed. The blood on Rock's socks contained Marla's DNA and the blood on his boxer shorts contained a mixture of his and Marla's blood. The blood on the hammer contained Marla's DNA. There was also blood on the pick axe handle, but authorities were unable to obtain DNA from this blood. The shoe footprint found in the kitchen was approximately the same size as Rock's foot. An autopsy revealed that Marla had suffered numerous head wounds. The wounds were consistent with Marla having been struck by the claw portion of a hammer and a pick axe handle. Marla had been struck in the head at least 18 times.

4. Domestic violence evidence

Approximately one year before Marla's death, police arrested Rock for hitting Marla. Neighbors noticed bruises on Marla in the weeks and months prior to her death. Around the end of April 2004, Rock stayed with Ulery because Marla had obtained a restraining order against him. Sheriff's deputies attempted to serve another restraining order and a removal order on Rock several times in the days leading up to Marla's murder. On May 11, Marla telephoned the sheriff's department and asked whether the restraining and removal orders had been served. When she was informed that the orders had not yet been served, Marla began sobbing.

B. The defense

Rock testified in his own defense. He denied that he had killed Marla and claimed he had not seen her on May 11. Rock said he had spoken with Marla by telephone some time between 3:00 and 3:45 p.m. on May 11. He stated that after that conversation, he walked to a park near a lake, where he remained for approximately five hours. Rock said that he slept on the porch of the trailer that night, and that he had not entered the trailer. He went inside the trailer the next morning and found Marla's body.

C. Procedural history

In July 2004, the People filed an information charging Rock with Marla's murder (§ 187, subd. (a)). The People also alleged that Rock personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1), during the commission of the murder. In November 2004, after a jury trial, the jury found Rock guilty of first degree murder (§§ 187, subd. (a), 189). In March 2005, the trial court sentenced Rock to 26 years to life in prison. Rock timely appeals.

III.

DISCUSSION

A. There is sufficient evidence to support Rock's first degree murder conviction

Rock claims there is insufficient evidence to support his conviction for first degree murder because there is no evidence that he acted with premeditation and deliberation in killing Marla.

In determining the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)

Section 189 provides in relevant part, "All murder which is perpetrated by means of . . . willful, deliberate, and premeditated killing . . . is murder of the first degree." "In this context, 'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' [Citations.] The process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .' [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767.)

In People v. Anderson (1968) 70 Cal.2d 15 (Anderson) the California Supreme Court "'identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing. However, . . . "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]"' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1249 (Steele).)

In this case, the People presented evidence in all three categories. With regard to planning, Marla's friend, Vanessa, testified that Rock threatened to kill Marla on May 10 when Rock believed he was having a heart attack. (See People v. Rodriguez (1986) 42 Cal.3d 730, 758 [stating that evidence of appellant's threats that he would kill any police officer who attempted to arrest him constituted evidence of planning for purposes of proving first degree murder].) In addition, Rock telephoned Marla on May 11 and told her that he she could return to the trailer and that he would not be home when she returned. The jury could have inferred that Rock lured Marla back to the trailer in order to kill her. (See People v. Nicolaus (1991) 54 Cal.3d 551, 576 [concluding that evidence that defendant lured victim to murder location constituted evidence of planning for purposes of proving first degree murder].) Further, the fact that the telephone in Marla's trailer had been disabled supports the inference that Rock intended to prevent Marla from summoning help, and thus also supports the inference that he planned to kill her. (See Steele, supra, 27 Cal.4th at p. 1250 [stating that the fact that defendant said, "Put the phone down or I'll kill you," supported finding that defendant planned killing].) Finally, the fact that one of the murder weapons--the pick axe--was normally kept in the carport^[3] constitutes evidence of planning. (See People v. Wharton (1991) 53 Cal.3d 522, 547 [stating that evidence that the murder weapon, a hammer, was not normally kept near where murder occurred supported inference of planning].)

With regard to motive, the People presented considerable evidence that Rock had physically abused Marla in the past. (See People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1613 [concluding that evidence of marital discord and prior assaults supports inference that defendant intended to commit a premeditated murder].) Finally, with respect to the manner of the killing, the fact that Marla was struck with two different tools supports the inference that Rock had time to reflect upon his actions during the killing, and that he deliberately chose to murder Marla. (See People v. Perez (1992) 2 Cal.4th 1117, 1127 [stating that evidence that defendant used multiple weapons to kill the victim supported inference that defendant had time to reflect upon his actions to support finding of premeditation and deliberation].)

Accordingly we conclude that there is sufficient evidence to support Rock's conviction for first degree murder, since there is evidence that Rock acted with deliberation and premeditation.

B. The trial court did not err in excluding Rock's proffered evidence of

third party culpability

Rock claims the trial court erred in denying his request to present evidence that a third party might have murdered Marla. Rock claims the court's error in excluding this evidence violated his constitutional rights to due process and a fair trial, and his constitutional right to present a defense.

1. Standard of review

"The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence. [Citation.] This standard is particularly appropriate when . . . the trial court's determination of admissibility involved questions of

relevance . . . . [Citation.] Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra).)

2. Factual and procedural background

In their trial brief, the People stated that Rock intended to offer evidence that a third party might have killed Marla. The People requested that the court hold a pretrial hearing to determine the admissibility of any such evidence. Rock filed a trial brief in which he stated that he intended to offer evidence pertaining to potential third party suspects. Although Rock did not identify any suspects by name in his brief, he claimed that Marla was a user of crystal methamphetamine and that it was possible that another drug user or dealer may have killed her. In addition, Rock stated that Marla had had numerous sexual relationships with other men and that some of these relationships involved violence. Further, Rock asserted that some of these relationships continued after their marriage. Rock claimed that Marla could have been killed by one of these men.

During a pretrial hearing, the court requested that Rock's counsel provide an offer of proof as to the evidence of third party culpability he intended to present at trial. Rock's counsel presented an offer of proof as two potential third party suspects, Michael Beltran and William Fintzell. As to Beltran, Rock's counsel stated that he intended to present evidence that Beltran had formerly lived with Marla and that he had been arrested for perpetrating domestic violence upon Marla in an incident in which she suffered two broken ribs. Rock's counsel also stated that Beltran had had "some contact" with Marla after Rock and Marla's marriage. Further, Rock's counsel stated that Beltran had been with Marla "shortly before her death" and that he came to the scene of the homicide.

With regard to Fintzell, Rock's counsel stated that Fintzell was a neighbor of the Rocks who used crystal methamphetamine with Marla on occasion. Rock's counsel also stated that Fintzell had "a domestic violence record with another woman some years ago, who was severely injured, in the course of which he was arrested and, I think convicted of 273a, Penal Code."^[4] Rock's counsel stated that Fintzell was currently in prison.

The prosecutor also provided the court with information regarding Beltran and Fintzell. The prosecutor stated that Beltran was a former boyfriend of Marla's. Beltran had been involved in two domestic violence incidents with Marla some time prior to 1997. Beltran and Marla had remained friends even after Rock and Marla were married. Beltran admitted to having had sexual relations with Marla on one occasion while she was married to Rock. Beltran had seen Marla a week before the murder, and she told him about her marital difficulties at that time. Finally, the prosecutor stated that Beltran had come to the scene of the homicide and that he was appropriately emotional.

The prosecutor stated that Fintzell was a methamphetamine abuser who occasionally smoked crystal methamphetamine with Marla. The prosecutor stated that he had no information suggesting that Fintzell had ever been involved in an intimate relationship with Marla.

After the court heard Rock's offer of proof and the prosecutor's additional information regarding the two potential suspects, it ruled that the defense had failed to present direct or circumstantial evidence linking either third party to the killing. The court ruled that the defense would therefore be precluded from presenting any evidence or argument suggesting that either Beltran or Fintzell had killed Marla. The court informed Rock's counsel that he would be allowed to revisit the issue "if something else comes up," that might change the court's ruling.

After the trial, Rock filed a motion for a new trial in which he claimed that the trial court erred in refusing to admit his proffered evidence of third party culpability. The trial court again ruled that in his offer of proof, Rock had failed to provide direct or circumstantial evidence linking any third party to the murder. The court denied the motion for a new trial.

3. Governing law

"[T]he Constitution permits judges 'to exclude evidence that is "repetitive . . . , only marginally relevant" or poses an undue risk of "harassment, prejudice, [or] confusion of the issues."' [Citations.]" (Holmes v. South Carolina (May 1, 2006 No. 04-1327) ____U.S. ____ [126 S.Ct. 1727, 1728-1729] [stating that evidentiary rules that preclude the admission of third party culpability evidence that does not sufficiently connect the third person to the crime are "widely accepted"].)

In People v. Hall (1986) 41 Cal.3d 826, 834 (Hall), the California Supreme Court stated, "[C]ourts should . . . treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evidence Code] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evidence Code] § 352)." In describing when such third party culpability evidence is relevant, the Hall court held:

"To be admissible, the third-party evidence need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Hall, supra, 41 Cal.3d at p. 833.)

Numerous courts have applied Hall in considering the admissibility of evidence of third party culpability. For example, in People v. Gutierrez (2002) 28 Cal.4th 1083, 1134-1138, the Supreme Court considered whether a trial court erred in excluding evidence that a third party involved in the trafficking of drugs might have killed the victim. In the trial court, the defendant offered to prove that the victim dealt in marijuana and other narcotics and owed a large sum of money to a drug dealer. (Id. at p. 1135.) The defendant also proffered that the victim had asked him to provide armed protection for her during a drug transaction planned for the night before her murder, and that she had purchased ammunition for this purpose. (Ibid.) In addition, the defendant offered to prove that on the night before the murder, he and the victim met a Mexican man named Pablo for the purpose of consummating the drug deal, and that the transaction was postponed when the drugs did not arrive. (Ibid.) The Supreme Court concluded that the trial court did not err in excluding this evidence. "[T]here was no direct or circumstantial evidence to link Pablo or any other identifiable third party with [the victim] in the hours before her death, or indeed on the date of her death." (Id. at p. 1137.)

In People v. Adams (2004) 115 Cal.App.4th 243 (Adams), the court applied Hall in reaching the conclusion that the trial court had not erred in refusing to allow a defendant to present evidence of the existence of a violent relationship between a murder victim and her former boyfriend, Rick Kallerup. The court reasoned, "Kallerup's history of violence toward [the victim], without direct or circumstantial evidence linking Kallerup to the actual perpetration of the crime, was inadmissible under Evidence Code section 1101." (Adams, supra, 115 Cal.App.4th at p. 253.)

4. The trial court did not abuse its discretion in excluding the proffered evidence

because Rock failed to present any direct or circumstantial evidence linking any

third person to the murder

Rock failed to present any direct or circumstantial evidence linking either Beltran or Fintzell to Marla's murder. With respect to Beltran, the fact that he and Marla previously had an intimate relationship and that he was involved in two relatively remote domestic violence incidents with her, did not constitute admissible third party culpability evidence. (Adams, supra, 115 Cal.App.4th at p. 253.) Rock presented no evidence that Beltran was with Marla on the day of the murder, nor any other evidence, direct or circumstantial, linking him to her killing.

With respect to Fintzell, the fact that he was a former neighbor of Rock's and Marla's who occasionally used drugs with Marla, did not link him to her killing. (See People v. Gutierrez, supra, 28 Cal.4th at p. 1137 [concluding trial court did not err in excluding proffered evidence of third party culpability where murder victim dealt in narcotics and had been involved in attempted drug transaction with third party on the night before her murder].) Further, the fact that Fintzell had previously been convicted of domestic violence, involving someone other than Marla, was likely inadmissible under Evidence Code section 1101, and clearly did not constitute relevant evidence of third party culpability. (Adams, supra, 115 Cal.App.4th at p. 253.)

We conclude that the trial court did not abuse its discretion in excluding Rock's proffered evidence because Rock failed to present any direct or circumstantial evidence linking either Beltran or Fintzell to Marla's murder. In light of our conclusion that the trial court did not abuse its discretion in determining that the proffered evidence was irrelevant, it necessarily follows that the court did not violate Rock's constitutional rights by excluding the evidence. (See People v. Babbitt (1988) 45 Cal.3d 660, 685 ["because defendant's evidence failed to meet the threshold requirement of relevance, its exclusion pursuant to [Evidence Code] section 352 did not implicate any due process concerns"; accord Adams, supra, 115 Cal.App.4th at p. 254 [rejecting claim that exclusion of "totally irrelevant" third party culpability evidence violated defendant's constitutional right to due process and constitutional right to present a defense].)

C. The trial court did not abuse its discretion in admitting evidence pertaining to

Rock's actions after the murder

Rock claims the trial court erred in admitting evidence regarding various actions he took after the murder. Specifically Rock claims the trial court erred in admitting evidence that in the days immediately following Marla's murder, he failed to appear for an interview with the police, sold her jewelry, viewed pornographic materials, and possessed drugs. He claims the evidence was irrelevant, and that any probative value of the evidence was substantially outweighed by the possibility of unfair prejudice. We review the trial court's exclusion of evidence for an abuse of discretion. (Guerra, supra, 37 Cal.4th at p. 1113 [evidentiary admissibility determinations regarding relevance and undue prejudice are reviewed under the abuse of discretion standard of review].)

1. Procedural background

a. Rock's failure to attend the interview with police

Prior to trial, the People filed a trial brief stating that they intended to offer evidence pertaining to Rock's failure to attend a scheduled voluntary meeting with police detectives the day after the murder. The People argued that the evidence was relevant for several reasons, including that it suggested that Rock was not interested in finding his wife's murderer. During a pretrial hearing, Rock's counsel argued that offering such evidence would violate Rock's right to remain silent under the Fifth Amendment to the United States Constitution. The court stated that evidence was relevant in that it tended to establish Rock's consciousness of guilt and that admission of the evidence would not violate his constitutional rights.

During the trial, Detective Roy Frank testified that he interviewed Rock on the day that police found Marla's body. Detective Frank stated that Rock agreed to meet with police detectives the following day for another interview, but that Rock failed to appear for the interview.

b. Rock's sale of Marla's jewelry

During a pretrial hearing, Rock's counsel argued that the court should exclude evidence that Rock had sold various pieces of his wife's jewelry, including her wedding ring, the day after her death. Rock's counsel argued that the evidence should be excluded pursuant to Evidence Code section 352 because the evidence was not particularly probative and its admission would be highly prejudicial.

In response, the prosecutor argued that Rock had been untruthful with various people regarding his selling Marla's jewelry. The prosecutor explained that the police had questioned Rock about where he obtained the money he had in his possession at the time of his arrest, and that Rock claimed he had obtained the money from "savings," when in reality the money had come from the sale of Marla's jewelry. The prosecutor also argued that the evidence was relevant to establish Rock's state of mind. Finally, the prosecutor argued that evidence as to Rock's sale of Marla's wedding ring was relevant to establish Rock's identity as the killer. The prosecutor noted that the People intended to present evidence that Marla never took off her wedding ring, that the police found her dead without her wedding ring, and that Rock sold the ring the day after Marla died.

The trial court ruled that the evidence regarding the wedding ring could be "highly probative" to establish that Rock was the killer, based on the People's offer of proof. The court also ruled that evidence pertaining to Rock's sale of Marla's jewelry would be relevant evidence bearing on Rock's credibility, if he were to testify at trial.

During the trial, the People presented evidence that when police discovered Marla's body, she was not wearing her wedding ring. Police also observed that a number of jewelry boxes had been emptied, and that a jewelry cabinet had been turned over. Stephanie Pitsker testified that on the day after Marla's death, she and her boyfriend, Shawn Stolle, assisted Rock in selling various pieces of Marla's jewelry to a man named Glenn Wallace. Pitsker identified a diamond ring in a photograph as one of the pieces of jewelry sold to Wallace. Pitsker testified that after the sale, Rock gave Stolle $200.

Wallace testified that some time in May 2004, he purchased a diamond ring, an opal bracelet, and two oval pendants from Stolle and a friend of Stolle's. Wallace identified the diamond ring in the same photograph Pitsker had identified as the diamond ring he had purchased from Stolle and Stolle's friend. Wallace testified that he paid Stolle's friend $1,500 in fifteen $100 bills for the jewelry.

Marla's daughter, Zarina Ostrowke, identified the ring Wallace had purchased as Marla's wedding ring. Ostrowke testified that Marla always wore her wedding ring. Marla's friend Vanessa also testified that Marla always wore her wedding ring.

Rock admitted during his testimony at trial that he had sold Marla's jewelry to Wallace. However, he claimed he had not sold her wedding ring, but rather, that he had sold Wallace another ring he had intended to give Marla for their anniversary that was similar in appearance to her wedding ring.

Detective Stephen Long testified that at the time police arrested Rock, he had $623 in his possession, including six $100 bills. When police questioned Rock as to where he had obtained the money, Rock told police the money had come from "savings." He did not mention having sold Marla's jewelry.

c. Rock's viewing of pornographic materials

During the trial, the prosecutor asked Ricky Cruse, the person with whom Rock stayed immediately following Marla's murder, whether he owned any pornographic magazines. After Cruse responded affirmatively, the prosecutor asked Cruse whether he remembered Rock reading one of these pornographic magazines the night after Marla's body was discovered. Cruse responded that it was possible, but that he could not recall specifically. The prosecutor then asked whether Cruse owned any pornographic movies. Rock's counsel objected on relevance grounds.

At a sidebar conference outside the presence of the jury, Rock's counsel claimed that the evidence regarding Rock's viewing pornography was irrelevant and should be excluded pursuant to Evidence Code section 352. The trial court ruled that the evidence had some probative value in that Rock's viewing of pornographic materials occurred shortly after Marla's death, and thus demonstrated Rock's "absence of remorse or any type of sensitivity or feeling after the death of his wife." The court acknowledged that the probative value was "not huge," but also found that the prejudice from admission of the evidence was not substantial. The court ruled that the prosecutor could ask whether Cruse had seen Rock watching a pornographic video, but could not inquire as to the contents of the movie or magazine.

The prosecutor proceeded to ask Cruse whether he had seen Rock watching a pornographic movie in the early morning hours on the night after Marla's death. Cruse responded, "I don't recall." Later during the trial, Detective Ritchey Hann testified that when police interviewed Cruse, Cruse told police he had seen Rock reading a pornographic magazine and watching a pornographic movie on the night after Marla's death.

d. Rock's possession of drugs

The People stated in their trial brief that in the days following Marla's murder, Rock sold her jewelry to obtain drugs and spending money, and then went to a motel with the methamphetamine he had purchased. At trial, Pitsker testified, without objection, that on the day after Marla was found dead, she and Stolle purchased methamphetamine for Rock.

Later during the trial, Detective Frank testified that a few days after Marla's murder, the police arrested Rock in a motel room with two females, one of whom was a teenager. Outside the presence of the jury, the prosecutor requested that he be allowed to present evidence that the police found methamphetamine in the motel room where they arrested Rock. The prosecutor argued that the evidence was relevant because Rock's behavior was "inconsistent with what a person would be expected to do after their wife has been killed." The prosecutor also argued that the evidence was admissible because Rock had made inconsistent statements with respect to whether or not the drugs that were found in his motel room were his. Rock's counsel objected to the admission of the evidence, arguing that Pitsker had already testified regarding her purchase of methamphetamine for Rock, and that the People were now attempting to make Rock "look as evil as possible."

The court stated that the evidence was relevant to corroborate Pitsker's testimony regarding her having purchased methamphetamine for Rock. The court ruled that the People could introduce evidence that police had found drugs in the motel room when they arrested Rock, but that they could not introduce testimony regarding Rock's inconsistent statements as to whether or not the drugs belonged to him. The following day, Detective Long testified that as he entered the motel room in which he arrested Rock, he heard the sound of a toilet flushing and saw one of the females coming out of the bathroom. Long also testified that police found a methamphetamine pipe, marijuana, and rolling papers in the motel room.

2. Governing law

Evidence Code section 210 provides: "'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." "'The test of relevance is whether the evidence tends "'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive."' [Citation.]" (Guerra, supra, 37 Cal.4th at p. 1117.)

Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "'"The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.]" (People v. Mullens (2004) 119 Cal.App.4th 648, 658.)

3. The trial court did not abuse its discretion in admitting the challenged evidence

Rock broadly assets that there is "no conceivable reason" why any of the evidence regarding his actions following his wife's murder had any tendency to prove a material fact in the case. He also argues that the evidence was "highly prejudicial" because it showed him to be "remorseless and insensitive following his wife's death. . . ."

Evidence pertaining to Rock's failure to attend a scheduled interview with police detectives on the day after his wife's murder was relevant, as the trial court stated, to establish Rock's consciousness of guilt.^[5] (See People v. James (1976) 56 Cal.App.3d 876, 890 ["In terms of relevancy, the question is whether evidence of the conduct of defendant after the alleged commission of a crime, whether it be labeled flight, evasion of apprehension, or consists of other conduct such as attempted suicide or escape from custody [citation], can be said to constitute circumstantial evidence of guilt . . . [via] a reasonable inference of consciousness of guilt . . . ."].) Further, because the introduction of the evidence presented little or no potential for undue prejudice, we conclude that the trial court did not abuse its discretion in admitting evidence that Rock failed to appear for a voluntary scheduled meeting with the police on the day after the murder.

With respect to Rock's sale of Marla's jewelry, the evidence pertaining to the sale of her wedding ring was highly relevant to proving Rock's identity as the killer. The evidence tended to prove that Rock had taken the wedding ring off of Marla's finger after killing her. (See People v. Jennings (1991) 53 Cal.3d 334, 370 [concluding that evidence that defendant was last person seen with murder victim and possessed rings worn by victim shortly before her death supported jury's finding that defendant killed victim].)

Rock's sale of Marla's other jewelry was also relevant to establish his identity as her killer in light of the fact that at the murder scene, the police found a number of jewelry boxes that had been emptied. In addition, because Rock testified at trial, the evidence pertaining to his sale of the jewelry was relevant to his credibility, given his inconsistent statements regarding selling the jewelry and the money he received. Therefore, due to the significant probative value of the evidence and the lack of any substantial probability for undue prejudice, we conclude that the trial court did not abuse its discretion in admitting evidence that Rock sold Marla's jewelry after the murder.

Rock's viewing of pornographic materials on the night after his wife's murder was relevant to establish his lack of remorse, for purposes of determining the degree of murder. (People v. Michaels (2002) 28 Cal.4th 486, 528, ["Absence of remorse . . . may

be relevant, because it sheds light on the defendant's mental state, in determining the degree of the homicide . . . ."].) Further, because it is "inherent in human experience" that, "for most people, there are few, if any, situations that are more debilitating and distracting than the hours of grief shortly after the loss of" a close family member (People v. Beeler (1995) 9 Cal.4th 953, 1019), the evidence was relevant to establish that Rock lacked feelings of sorrow that one would ordinarily expect in a person whose wife had been brutally murdered that same day.

With respect to Rock's argument that the evidence pertaining to his viewing of pornographic materials should have been excluded pursuant to Evidence Code section 352, we acknowledge there was a possibility of some slight undue prejudice stemming from the nature of this evidence. However, we conclude that the trial court did not abuse its discretion in determining that Rock's viewing of pornographic materials on the night after his wife's murder had "some probative value" and that the prejudice stemming from the introduction of such evidence would not be substantial. In any event, assuming the trial court did err in admitting this evidence, the testimony regarding this subject was brief and its admission did not result in a manifest miscarriage of justice.

Finally, Rock's possession of drugs and drug paraphernalia in a motel room where he was found in the company of two women two days after his wife's murder was arguably relevant to establish Rock's lack of grief. This evidence also corroborated Pitsker's testimony that she and Stolle had assisted Rock in selling Marla's jewelry. Pitsker's testimony regarding the sale of Marla's jewelry was highly probative for the reasons stated above. Further, because the People had already presented evidence that Rock had sold his wife's jewelry and purchased drugs with the proceeds of the sale, any additional prejudice from the admission of evidence that Rock possessed drugs and drug paraphernalia at the time of his arrest two days later was minimal. Finally, even assuming for the sake of argument that the trial court erred in admitting the evidence, the error does not require reversal.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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^[1] We use the victim's first name for purposes of clarity.

^[2] Unless otherwise specified, all subsequent references are to the Penal Code.

^[3] Rock admitted at trial that the pick axe was kept in the carport.

^[4] It is not entirely clear to what crime counsel was referring. Section 273a prohibits child abuse.

^[5] Rock does not raise any claim on appeal premised on his Fifth Amendment right to remain silent.