P. v. Schimmel
Filed 6/20/13 P. v. Schimmel CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
JAYSON MATHEAW SCHIMMEL,
Defendant and
Appellant.
2d Crim. No.
B235142
(Super. Ct. No.
2009008575)
(Ventura
County)
ORDER MODIFYING
OPINION AND DENYING REHEARING
[NO CHANGE IN
JUDGMENT]
THE COURT:
IT
IS ORDERED that the opinion filed herein on June 4, 2013, be modified
as follows:
1. On page 2, first paragraph, first sentence,
delete the words "his stepmother" and in its place insert the words
"a family friend." On the same
page, same paragraph, second sentence, change "Each time" to "On
each occasion" and after the word "knee" add the words
"when speaking with the police, he added that the impact was" so that
the sentences read:
Within days of Steven's death,
Schimmel admitted to a family friend and to police that he had "killed
[his] own kid." On each occasion,
Schimmel explained that he had thrown Steven against his knee; when speaking
with the police, he added that the impact was hard enough to hear the baby's
head "pop."
2. On page 4, first full paragraph, last
sentence, after the words "Schimmel had" add the words "made
statements regarding his knowledge and," and delete the words
"indicated his" so that the sentence reads:
Those
portions asked jurors whether they could return a verdict of not guilty if they
felt guilt was not proven beyond a reasonable doubt, and invited their thoughts
and opinions on the facts, including the fact that Schimmel had made statements
regarding his knowledge and involvement in the killing.
3. On page 8, first full paragraph, third
sentence, after the word "trustworthiness" add the following text:
(Cf.
1055, 1064-1069 [third-party testimony that defendant faced credible threats
from third parties was relevant to self-defense and admissible under section
352].)
4. On page 8, first full paragraph, at the end
of the "People v. Hernandez"
cite, add the following text:
We further reject
Schimmel's contention that he is entitled to reversal because the trial court
did not specifically rule on his due process-based request to admit his
statements that we conclude was meritless.
5. On page 9, second paragraph, last sentence,
delete the word "stepmother" and replace it with the words "family
friend" so the sentence reads:
Any error in excluding
Hill's statements was harmless in any event because the notion that Schimmel
confessed falsely at Hill's prompting is severely undermined by his nearly
identical confession to his family friend the day before the pretext calls with Hill.
6. On page 15, first full paragraph, last
sentence, delete the words "evidentiary rulings" and replace them
with the word "ruling" so the sentence reads:
Accordingly,
there was no misconduct and no basis for a mistrial or to revisit the court's
earlier ruling excluding Schimmel's prior recantations.
There
is no change in the judgment.
Appellant's
petition for rehearing is denied.
>
Filed
6/4/13 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
JAYSON MATHEAW SCHIMMEL,
Defendant and
Appellant.
2d Crim. No. B235142
(Super. Ct. No.
2009008575)
(Ventura
County)
Jayson Matheaw Schimmel
(Schimmel) was charged and convicted of physically abusing and ultimately
killing his 10-week-old son. He now
challenges his convictions and his prison sentence of 37 years to life. We affirm his conviction and sentence.
FACTS
AND PROCEDURAL HISTORY
I.
The Crimes
Steven Schimmel (Steven)
was 10 weeks old when he suffered a "head trauma" that fractured his
skull, caused bleeding on the brain and ultimately killed him. At the time of his death, Steven had 33
injuries to his ribs, 30 bruises, and over a dozen skin abrasions. Steven was a victim of "battered child
syndrome."
Within days of Steven's
death, Schimmel admitted to his stepmother and to police that he had
"killed [his] own kid." Each
time, Schimmel explained that he had thrown Steven against his knee hard enough
to hear the baby's head "pop."
Schimmel's account was consistent with the forensic evidence of Steven's
injuries.
II.
The Prosecution
The grand jury indicted
Schimmel for (1) assault on a child causing death (Pen. Code,
§ 273ab); (2) murder (Pen. Code, § 187; and (3) corporal
injury to a child (Pen. Code, § 273d, subd. (a)). As to the corporal injury count, the
indictment also alleged that Schimmel inflicted great bodily injury (Pen. Code,
§ 12022.7, subd. (d)). After a
four-week trial, the jury returned guilty verdicts on all three charges and
found the great bodily injury allegation true.
The court imposed a sentence of 25 years to life on the assault count;
imposed but stayed under Penal Code section 654 a sentence of 15 years to life
on the murder count; and imposed a consecutive term of 12 years on the corporal
injury count (comprised of 6 years on the underlying count and 6 years on the
enhancement).
DISCUSSION
I.
Challenge to Voir Dire
Schimmel argues that the
trial court erred in excluding from the jury questionnaire two questions
he proposed: (1) "Do you
believe it is possible that a parent would, or could, falsely confess to engaging
in violent physical conduct that resulted in the death of his or her infant
child?"; and (2) "Are you open to the possibility the person
might confess to a crime that he/she did not commit?" The trial court rejected the first question
as "argumentative" and aimed at "preconditioning" the
jury. The court rejected the second as
argumentative because it "basically ask[s] the jury what do you think of
this evidence." Because a trial
court has "'great latitude in deciding what questions should be asked on
voir dire'" (People v. Earp
(1999) 20 Cal.4th 826, 852, quoting Mu'Min
v. Virginia (1991) 500 U.S. 415, 424), we will affirm unless the court
abused its discretion (People v. Burgener
(2003) 29 Cal.4th 833, 865).
A criminal defendant has
the right to ferret out juror bias through questioning. (People
v. Coffman & Marlow (2004) 34 Cal.4th 1, 47.) This right has limits: Questions may neither be "so
abstract" that they fail to root out bias (ibid.), nor "'"so specific' that they expose jurors to
the facts of the case"'" (People
v. Carasi (2008) 44 Cal.4th 1263, 1286) and thereby "'. . .
indoctrinat[e] the jury on a particular view of the facts . . .'" (
539). Because Schimmel's proposed
questions are couched in terms of the jury's willingness to consider evidence
that his confession was false, the trial court did not abuse its discretion in
concluding that they were too specific and ran the risk of indoctrination.
Schimmel offers three
reasons why his proposed questions were proper.
First, he argues that trial courts must admit evidence bearing on a
confession's reliability. (
689-690 (Crane).) This is true, but the admissibility of
evidence is a different matter and subject to different standards than voir
dire questioning.
Second, Schimmel
contends that he is constitutionally entitled to ask jurors about their
willingness to consider potential legal defenses. (United
States v. Allsup (9th Cir. 1977) 566 F.2d 68, 70 [questioning regarding
insanity defense].) This is also true,
but Schimmel's proposed questions asked about evidence—not a legal defense.
Third, Schimmel asserts
that he may ask questions aimed at assessing whether jurors will give any one
fact controlling weight. The cases he
cites do not support this broad proposition; to the contrary, they entitle a
defendant to ask whether a jury will give controlling weight to a single
aggravating factor during capital sentencing (see People v. Cash (2002) 28 Cal.4th 703, 720-721; People v. Tate (2010) 49 Cal.4th 635, 657-658), or to
characteristics of the defendant (Aldridge
v. United States (1931) 283 U.S. 308, 310-313 [race]; People v. Chapman (1993) 15 Cal.App.4th 136, 141 [criminal
history]).
Even if we read these
cases more broadly, Schimmel's proposed questions do not ask whether jurors
would give controlling weight to a defendant's confession. Instead, they attempt to measure a juror's
willingness to consider proffered defense evidence; in so doing, they run a
risk of indoctrination not present in the cases Schimmel cites. The danger that jurors might give a
confession controlling weight was in any event likely to be revealed by other
portions of the jury questionnaire.
Those portions asked jurors whether they could return a verdict of not
guilty if they felt guilt was not proven beyond a reasonable doubt, and invited
their thoughts and opinions on the facts, including the fact that Schimmel had
indicated his involvement in the killing.
II.
Evidentiary Challenges
A. Admissibility
of Schimmel's prior exculpatory statements
At trial, Schimmel
testified that Steven's death was due to injuries suffered when his mother,
Elizabeth Hill (Hill), accidentally fell while holding him. To bolster this testimony, Schimmel sought to
introduce: (1) his statement to
Detective William Hollowell, made on the day of Steven's death, that Schimmel
"didn't want [Hill] to . . . trip and fall or whatevers to-to do
any . . . anything else to the little guy" (Hollowell statement); (2) his
statements to Hill, made during calls while Hill was working with police to
elicit a confession from him the day after Steven's death, that Hill already
knew what happened to Steven because she was present in the kitchen and that
both of them "knew what was going on" (pretext calls); (3) his
statements, made in letters to his mother a month after Steven's death and to
another person a year after the death, that attribute Steven's death to Hill's
accidental fall (letters); and (4) his statement, made to police a year after
Steven's death, that recanted his prior confession (recantation). We review the trial court's exclusion of
these statements for an abuse of discretion.
(People v. Jablonski (2006) 37
Cal.4th 774, 805 (Jablonski).)
1. Excited
utterances
Schimmel first argues
that the Hollowell statement and the pretext calls qualify as excited
utterances under Evidence Code section 1240.
occurrence (namely, Steven's death) and pertain to that occurrence, the sole
issue is whether Schimmel's statements were a product of "'. . .
the nervous excitement . . .'" caused by Steven's death and made "'.
. . before there [was] time to contrive and misrepresent . . . .'" (People
v. Poggi (1988) 45 Cal.3d 306, 318.)
The trial court's discretion is "' . . . at its broadest . .
.'" in deciding this issue. (
752, abrogated on other grounds in People
v. McKinnon (2011) 52 Cal.4th 610, 637-638.)
Schimmel argues that
that Hollowell statement qualifies under this exception because Schimmel said
he was "exhausted" when he spoke with Hollowell and because the
statement was made within 24 hours of Steven's death. Exhaustion is not excitement, and the timing
is not enough by itself to convert Schimmel's statement into an excited
utterance. Schimmel contends that the
pretext calls qualify because (1) he was agitated during the calls;
(2) they were within 48 hours of Steven's death; and (3) they were surreptitiously
recorded. Schimmel's agitation during the
calls was due to Hill's insinuation and questioning—not Steven's death. The timing is insufficient by itself. We also reject the notion that surreptitious
recording bears on Schimmel's state of mind because Schimmel was unaware the
calls were being recorded.
2. State
of mind exception
Schimmel argues that his
statements during the pretext calls alternatively qualify as statements of his
then-existing state of mind under section 1250.
The trial court rejected this argument.
A declarant's out-of-court
statement regarding his "then-existing state of mind" (§ 1250,
subd. (a)) is not barred by the hearsay rule if, in pertinent part: (1) "the declarant's state of mind
. . . is itself an issue in the action" (id., subd. (a)(1)); and (2) "the statement was made under
circumstances such as to indicate its . . . trustworthiness" (§
1252). Schimmel's statements do not meet
these requirements. Most of Schimmel's
statements on the calls pertain to what happened on the night of Steven's
death; as such, they are not statements of his then-existing state of
mind. Moreover, Schimmel's statements
are not trustworthy because they are self-serving. (Cf. § 1230 [declarations
admissible].) They are not made more
trustworthy, as Schimmel contends, because they were elicited at police
direction because Schimmel was oblivious to police involvement.
3. Use as
impeachment evidence
Schimmel further
contends that the trial court erred in not admitting all of his prior statements to impeach his inculpatory confession
under section 1202. The trial court
excluded the prior statements under section 352. Because these statements would have been
admitted solely for impeachment, the court reasoned that they had "limited
probative value" that was outweighed by the significant danger that the
jury would consider them for their truth despite any limiting instruction,
which would have been prejudicial because they lacked trustworthiness.
Once a hearsay
declarant's statement is admitted into evidence, section 1202 authorizes a
court to admit any other inconsistent statements of that declarant as
impeachment evidence. Section 1202 does
not divest the court of its authority to exclude evidence under section 352. (People
v. Baldwin (2010) 189 Cal.App.4th 991, 1005 (Baldwin).)
Schimmel attacks the
court's section 352 analysis. He asserts
that the court was wrong to say that his prior statements had limited probative
value, to be concerned that jurors might not follow a limiting instruction, and
to rely on the untrustworthiness of his prior exculpatory statements. The law is to the contrary. Statements admitted solely for impeachment
have "limited probative value . . . ." (Baldwin,
Although jurors are usually presumed able to follow limiting
instructions (Thomas v. Hubbard (9th
Cir. 2002) 273 F.3d 1164, 1172-1173, overruled on other grounds in
346 F.3d 1204), courts may consider the danger that jurors might not do so when
considering the admissibility of evidence (O'Gan
v. King City Joint Union High Sch. Dist. (1970) 3 Cal.App.3d 641, 645 (
evidence admitted for impeachment might be considered for its truth]). And although a statement's trustworthiness is
of no moment when it is admitted solely to impeach (People v. Corella (2004) 122 Cal.App.4th 461, 472), it remains
relevant for the purpose of assessing any prejudice that would arise if the
impeachment evidence were erroneously considered for its truth.
Because they do not
affect the trial court's otherwise proper section 352 analysis, we need not
consider Schimmel's additional arguments that the trial court erroneously
equated section 1202 with the exception for prior inconsistent statements, and
also improperly narrowed its evidentiary rulings as the trial proceeded.
4. Constitutional
overrides
Schimmel alternatively
argues that he has a federal constitutional right under due process to
introduce all of his prior statements, and that this right overrides the rules
of evidence. As a general matter, a
defendant has no constitutional right to present all relevant evidence in his
favor. (People v. Babbitt (1988) 45 Cal.3d 660, 684 (Babbitt).) Put differently,
the rules of evidence usually "'. . . do not impermissibly
infringe on the accused's right to present a
defense. . . .'" (
305, quoting People v. Hall (1986) 41
Cal.3d 826, 834.) Consequently, courts
may ordinarily exclude evidence after weighing its probative value against any
unfair prejudicial effect. (E.g.,
319, 326-327; Babbitt,
However, there are
instances in which due process and other constitutional guarantees trump the
rules of evidence. States may not bar
entire categories of evidence. (See
Chambers v. Mississippi (1973) 410
U.S. 284, 300-301 (Chambers) [due
process overrides state rule precluding cross-examination of codefendants];
55-56 [due process overrides state rule precluding all hypnotically refreshed
testimony]; see also Washington v. Texas
(1967) 388 U.S. 14, 23 [Sixth Amendment right of compulsory process overrides
state rule precluding testimony by accomplices].) Nor may states apply their rules of evidence
in a particular case to exclude evidence that has "significant probative
value" (Babbitt,
trustworthiness" (Chambers,
v. Reeder (1978) 82 Cal.App.3d 543, 552-553 (Reeder); People v. Anderson (2012)
208 Cal.App.4th 851, 880; see Georgia v.
Green (1979) 442 U.S. 95, 96-97 [denial of due process to exclude as
hearsay a codefendant's statement taking all responsibility for charged
crime].)
The trial court's
exclusion of Schimmel's prior exculpatory statements did not violate the
Constitution. The trial court did not
rely on any categorical bar. The court's
application of the hearsay rule and section 352 also did not result in the
exclusion of evidence of significant relevance or assured trustworthiness. Evidence admitted solely for impeachment is,
as noted above, of marginal probative value.
Even if admitted for their truth, Schimmel's self-serving statements
laying the blame for Steven's death on others lacks the "persuasive
assurances of trustworthiness" necessary to override the rules of
evidence. (See People v. Lightsey (2012) 54 Cal.4th 668, 716 [no due process right
to introduce defendant's prior exculpatory statements]; cf.
271, 279 [evidentiary error to preclude questioning of witnesses who provided
entirely innocent explanation of defendant's otherwise suspicious conduct].)
B. Admissibility
of Hill's statements during pretext calls
Schimmel asserts that
the trial court erred in excluding Hill's statements during the pretext calls
for the nonhearsay purpose of explaining why Schimmel falsely confessed to the
police the next day. An out-of-court
statement admitted to prove that a person heard that statement, believed it and
acted on it, is not admitted for its truth and is not hearsay. (Holland
v. Union Pacific R. Co. (2007) 154 Cal.App.4th 940, 947;
429, 431; People v. Duran (1976) 16
Cal.3d 282, 295 & fn. 14.) To be
admitted, however, such statements must be relevant. (§ 350.)
Schimmel argues that he
believed Hill's statements on the calls, and acted on those statements by
falsely confessing to protect her. This
argument is not supported by the record.
The transcript of those calls indicates that Hill implored Schimmel to
tell her the truth about what happened with Steven so they could "get
[their] stories straight" when questioned by police. Her statements do not have any tendency in
reason to prove that Schimmel, on the basis of Hill's statements, would then
confess falsely. (§ 210.)
The disconnect between Hill's statements and Schimmel's subsequent
confession is confirmed by Schimmel's reaction to Hill's entreaties during the
pretext calls: He refused to tell Hill
anything and was palpably hostile to her requests. The trial court accordingly did not abuse its
discretion or otherwise violate Schimmel's constitutional rights in excluding
Hill's statements. Any error in
excluding Hill's statements was harmless in any event because the notion that
Schimmel confessed falsely at Hill's prompting is severely undermined by his
nearly identical confession to his stepmother the day before the pretext calls with Hill.
C. Admissibility
of Schimmel's prior acts of domestic violence
Schimmel challenges the
trial court's ruling admitting evidence of his prior acts of domestic
violence against Hill and Steven as (1) evidence of his disposition to
engage in such acts, under section 1109; and (2) evidence of his intent,
motive, lack of mistake or accident, and knowledge that his acts were dangerous
to human life, under section 1101, subdivision (b). In particular, Schimmel argues that the trial
court violated the Constitution and otherwise abused its discretion in
admitting evidence that he:
(1) endangered Hill by driving erratically while angry with
Hill—once by driving at excessive speed and another time by driving away while a
then-pregnant Hill was still getting into the car and then braking so hard that
her abdomen hit the dashboard; (2) angrily kicked in the door of his home
while Hill was inside; (3) called Hill a "whore" and told her he
would rather have the as-yet-unborn baby dead than have Hill as its mother;
(4) "played" with Steven by squeezing his kneecaps and stomach
until the baby cried; (5) told Hill not to call 9-1-1 when Steven went
limp after gagging while in Schimmel's sole custody; and (6) throwing DVD
containers at Steven when Steven's crying angered him. (Jablonski,
discretion review].)
The constitutional
validity of section 1109 is long settled.
(E.g., People v. Brown (2011)
192 Cal.App.4th 1202, 1233, fn. 14 (Brown).) Schimmel gives us no reason to revisit the
issue.
The trial court also did
not abuse its discretion in admitting these prior acts under either
sections 1109 or 1101, subdivision (b).
Schimmel does not dispute that these acts qualify as acts of
"domestic violence" under section 1109 or are otherwise valid
"other act[s]" under section 1101.
Instead, he challenges the trial court's assessment—under both
sections—that the probative value of the prior acts was not substantially
outweighed by likelihood that admission of this evidence would necessitate an
undue consumption of time, or create a substantial danger of undue prejudice,
of confusing the issues or of misleading the jury. (§§ 352, 1109, subd. (a)(1) [admissibility
turns on § 352 analysis]; People v.
Foster (2010) 50 Cal.4th 1301, 1328-1329 [admissibility under § 1101,
subd. (b), turns in part on § 352 analysis].)
None of Schimmel's
section 352-based challenges has merit.
He argues that other acts evidence "mislead" the jury into
believing that Steven's death was not accidental and thereby put him in a
"bad light." Evidence contrary
to a defendant's theory is not, for that reason alone, "misleading"
or "und[uly] prejudicial." (
1129, 1138 ["'In applying section 352, 'prejudicial' is not synonymous
with 'damaging'"], quoting People v.
Karis (1988) 46 Cal.3d 612, 638.)
Schimmel also contends that the other acts were more inflammatory than
the charged crimes because Steven's quick death caused Steven less suffering
than the other, longer-term abuse Schimmel inflicted. We do not agree that Schimmel's other
acts—which ranged from erratic and dangerous driving to throwing DVDs to
squeezing Steven's body—are more inflammatory than the act of breaking Steven's
shoulder or throwing his head hard enough against a kneecap to crack his skull
and kill him. Schimmel lastly argues
that the trial court erred in failing to recognize how time consuming it would
be to introduce these other acts. The
testimony took little time, however. For
these reasons, the trial court did not act in an "arbitrary, capricious,
or in a patently absurd" manner in conducting its section 352
analysis. (Brown, supra, 192
Cal.App.4th at p. 1233.)
D.
Schimmel contends that
the trial court abused its discretion and violated his due process and
confrontation rights by not allowing him to cross-examine Hill on six different
topics. Invoking section 352, the trial
court prohibited cross-examination of Hill regarding: (1) Hill's allegedly false complaint to
Child Protective Services that her parents had abused her (because the agency's
files were confidential, because the agency's conclusion that the complaint was
"unfounded" did not mean it was false, and because the complaint had
limited probative value); (2) Hill's allegedly false statement, when
requesting relocation fees, that her mother and brother had threatened her
(because it would unduly consume time); (3) Hill's conviction of theft
from her former employer, the details of that theft, and that she falsely told
the police she had quit (because a judgment of conviction for an infraction is
hearsay and because it was duplicative of questions Schimmel would be allowed
to ask Hill about the theft); (4) Hill's alleged drinking and dancing soon
after Steven's death (because it was "improper opinion" and
excludable under section 352); (5) Hill's discussion of putting Steven up
for adoption (because Schimmel also wanted to do so, rendering the statement
more prejudicial to Schimmel than probative of Hill's motives); and
(6) Hill's allegedly false testimony to the grand jury that she only got
car rides from Schimmel (because proof that Hill occasionally got rides from
others did not "do anything to impeach her credibility" and would
unduly consume time).
Schimmel challenges the
trial court's exercise of discretion in excluding these areas of inquiry. Citing Andrews
v. City & County of San Francisco (1988) 205 Cal.App.3d 938, he argues
that the trial court's concern about undue consumption of time to prove the
falsity of various areas was misplaced.
"'mini trials'" did not justify the total preclusion of cross-examination on the subject of an alleged
assault victim's other assaultive conduct.
(Id., at p. 947.) Because, as discussed below, the trial court
allowed Hill to be impeached on a variety of topics, including prior false
statements, Andrews is not
controlling. Schimmel also argues that
the trial court did not appropriately assess the probative value of the
excluded areas of impeachment. But the
trial court explained why the Child Protective Services report, discussions
about adoption, and the car rides did not demonstrate falsity or were otherwise
far removed from the charged crimes.
Indeed, Schimmel acknowledges that these topics were "somewhat
collateral." Impeachment on
collateral matters "reduces its probative value and increases the
possibility that it may prejudice or confuse the jury." (People
v. Lavergne (1971) 4 Cal.3d 735, 742.)
Schimmel also claims
that the trial court's restrictions on cross-examination violated his
constitutional rights. A defendant's
Sixth Amendment right of confrontation encompasses the right to impeach a
witness through cross-examination. (
315-316.) However, "not every
restriction on a defendant's desired method of cross examination is a
constitutional violation." (
946 (Frye), overruled on other
grounds in People v. Doolin (2009) 45
Cal.4th 390.) Trial courts retain a
"'wide latitude'" to restrict defense cross-examination under section
352. (People v. Quartermain (1997) 16 Cal.4th 600, 623;
174, 207.) Limitations on
cross-examination accordingly violate the confrontation clause only if they
"would have produced 'a significantly different impression of [the
witness's] credibility.'
[Citation.]" (
supra, at p. 946, quoting Delaware v.
Van Arsdall (1986) 475 U.S. 673, 680.)
Schimmel raises
essentially two arguments. First, he
argues that he is entitled to the "maximum opportunity" to impeach
Hill. For support, he cites
1981) 668 F.2d 1064, 1070, and United
States v. Frankenthal (7th Cir. 1978) 582 F.2d 1102, 1106. These cases are distinguishable on their
facts, and do not purport to pronounce the absolute rule Schimmel asserts. We will not read them to be inconsistent with
United States Supreme Court and California precedent.
Second, Schimmel
contends that the prohibited areas of impeachment would have altered the jury's
perception of Hill's credibility. We
disagree. The trial court recognized
Schimmel's basic right to impeach Hill with evidence relevant to her character
for truthfulness. On that basis, the
court allowed cross-examination regarding (1) Hill's prior fall while
holding Steven, including her failure to mention it to the police until
specifically asked; (2) Hill's accidental injury of Steven's knee;
(3) Hill's normal bath routine for Steven, which could be viewed as inconsistent
with her account to police of what happened the night of Steven's death;
(4) Hill's assertion that she fed Steven before his death although the
autopsy revealed that his stomach was empty; (5) Hill's false statements
to police that Steven had received pre- and post-natal medical care;
(6) Hill's statement that she felt she may have hurt Steven;
(7) Hill's assertion that she "dislocated" her hip during
Steven's birth, which medical evidence did not support; (8) Hill's complaints
about the baby and how his care consumed her life; (9) Hill's theft from
her prior employer; and (10) Hill's unsent letter to Schimmel urging him
to deny playing roughly with Steven so Schimmel could be released from custody
and back home with her. Given the
breadth of this cross-examination, the trial court's limitations did not cast
Hill in a "significantly different" light. For the same reasons, the trial court's
rulings did not violate due process by unduly restricting Schimmel's right to
present a defense. (Cf.
pp. 552-553.)
III. Prosecutorial
Misconduct Challenges
A.
Schimmel argues that the
prosecutor engaged in misconduct that warranted either a mistrial or the
reopening of evidence. Schimmel notes that
the prosecutor argued, in closing, that Schimmel's recantation on the witness
stand was a "new story."
Schimmel contends that this argument is misconduct because the
prosecutor was suggesting that Schimmel had never previously recanted while
knowing full well that Schimmel had.
Schimmel asserts that the prosecutor was unfairly taking advantage of
the trial court's exclusion of those earlier recantations. The trial court agreed with Schimmel that it
would have been misconduct for the prosecutor to expressly or implicitly argue
that Schimmel's trial testimony was the first time he had professed innocence,
but found that the prosecutor did not so argue.
Schimmel claims this ruling is an abuse of discretion under state law
and a violation of due process. (
283-284 (Ayala).)
Regardless of subjective
intent, a prosecutor commits misconduct under state law if he or she uses
"deceptive or reprehensible methods to attempt to persuade either the
court or the jury. [Citation.]" (People
v. Strickland (1974) 11 Cal.3d 946, 955; People v. McKinzie (2012) 54 Cal.4th 1302, 1326.) When attacking a prosecutor's remarks to a
jury, a defendant must show a "'. . . reasonable likelihood the jury
understood or applied the complained-of comments in an improper or erroneous
manner. . . .'
[Citation.]" (
657, quoting Frye,
the most damaging meaning. (
A prosecutor violates federal due process only if his comments are
"'". . . 'so egregious that [they] infect[] the trial with such
unfairness as to make the conviction a denial of due process.'"' (Ayala,
The trial court did not
abuse its discretion or otherwise err in rejecting Schimmel's claim of
misconduct. Even though the prosecutor
referred to Schimmel's testimony as a "new story," the prosecutor argued
it was "new" vis-Ã -vis the testimony recounting Schimmel's
confessions—not "new" because it was the first time Schimmel had ever
proffered innocence. Nor is there a
reasonable likelihood that the jury misconstrued his argument. Accordingly, there was no misconduct and no
basis for a mistrial or to revisit the court's earlier evidentiary rulings
excluding Schimmel's prior recantations.
B.
Schimmel also argues
that the prosecutor unconstitutionally withheld material impeachment
information regarding Hill. (See
83, 87 (Brady); Giglio v. United States (1972) 405 U.S. 150, 153-154.) In a post-judgment motion for a new trial,
Schimmel asserted that Hill had perjured herself when, prior to trial, she had
applied to the Victim Compensation Board (Board) for relocation expenses. Specifically, Schimmel notes that her sworn
application to the Board lists the first month's rent and security deposit as
totaling $1,629, while the documentation from the apartment complex totaled
$910 (reflecting a pro-rated rent due to a mid-month move-in date and a credit
for her rental application deposit).
Among other things, the trial court rejected Schimmel's claim that any
discrepancy was impeachment material. We
review this ruling de novo, but give great weight to any trial court findings
of fact supported by substantial evidence.
(People v. Letner & Tobin
(2010) 50 Cal.4th 99, 176.)
A prosecutor violates
federal due process if he suppresses exculpatory evidence, including evidence
used to impeach a government witness if that evidence has a reasonable
probability of altering the outcome of the proceeding. (Brady,
433.) We agree with the trial court that
the two forms do not reflect duplicity and are therefore not impeachment
material. The application form required
an estimate of the first month's rent and the security deposit; the different
total on the apartment complex's form reflects nothing more than a pro-rating
of the first month's rent due to a mid-month move-in date. Schimmel argues that the apartment gave Hill
a $1,000 credit (presumably rendering a $629 balance due); although the
apartment complex's form contains such a notation, that notation is struck out
and the form's total of $910 confirms that the $1,000 credit was never
applied. Schimmel also argues that the
trial court improperly ruled that it would have excluded this impeachment
evidence under section 352. (Cf.
919-920 [impeachment material admissible at joint trial must be disclosed to
all defendants], overruled on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 641.) However, the trial court's comment in this
respect is irrelevant because it does not affect the propriety of its ruling
that this information is not impeachment material.
IV.
Instructional Challenges
A. Pinpoint
Instructions
In appropriate
circumstances, a trial court is required to give a requested jury instruction
that "'. . . pinpoints the defense theory of the case
. . .'" unless that instruction "'. . . incorrectly states
the law, is argumentative, duplicative [of other instructions], or potentially
confusing [citation], or if it is not supported by substantial evidence [citation].'" (People
v. Moon (2005) 37 Cal.4th 1, 30.) We
independently review jury instructions.
(People v. Posey (2004) 32
Cal.4th 193, 218 (Posey).)
1. False
confession instruction
Schimmel challenges the
trial court's refusal to give the following portion of his proposed pinpoint
instruction on false confessions:
"As with any other part of the prosecution's case, a confession of
the defendant may be shown to be insufficiently corroborated or otherwise unworthy
of belief. You are at liberty to disregard
any confession that is insufficiently corroborated or which you deem
unbelievable or unreliable. [¶] In determining the believability or
unreliability of the defendant's confession, consider any evidence of the
circumstances surrounding the defendant's interrogation, together with any
factors that may have influenced defendant in making such statements. [¶] If
you determine that the confession of a given act is false, you cannot consider
the confession as tending to prove commission of the acts." The trial court ruled that this language
impermissibly embodied "the thrust of [the defense] argument," but
noted that Schimmel remained free to argue these points using the other
instructions.
Schimmel raises two
challenges to this ruling. First, he contends
that his proposed instruction is a proper pinpoint instruction. He argues that it correctly reflects the
holding of Crane, supra, 476 U.S. 683.
evidence bearing on the reliability of a confession; it says nothing about jury
instructions.
Schimmel also disputes
the trial court's conclusion that his proposed instruction is duplicative and
argumentative. The instruction is
duplicative because jurors were elsewhere instructed that they are "the
exclusive judges as to whether the defendant made a confession or admission,
and if so, whether the statement is true in whole or in part," and that
they may not convict Schimmel based on his out-of-court statements alone
without some corroboration. The proposed
instruction is also argumentative. An
instruction is argumentative if it "recites facts drawn from the evidence
in such a manner as to constitute argument to the jury in the guise of a
statement of law . . . [or] invite[s] the jury to draw inferences favorable to
one of the parties from specified items of evidence. . . .' [Citation.]" (People
v. Campos (2007) 156 Cal.App.4th 1228, 1244, quoting People v. Lewis (2001) 26 Cal.4th 334, 380.) The proffered instruction calls the jurors'
attention to particular items of evidence—namely, evidence offered by Schimmel
to show why he confessed and the circumstances of his confession. What is more, it does so in a lopsided manner
that tells the jury it may discredit
his confession on that basis, but does not inform them that they may
Second, Schimmel argues
that he has a constitutional right to insist that the jury be instructed on his
theory of the defense. (
558 (Bolden).) But a false confession is not itself a theory
of defense; instead, it is evidence supporting a defense of mistaken
identity. Schimmel's instruction
accordingly falls outside of this constitutional imperative. (Cf. People
v. Wilson (1967) 66 Cal.2d 749, 762 [instruction on legal defense of
unconsciousness required]; People v.
Adrian (1982) 135 Cal.App.3d 335, 340-341 [instruction on legal defense of
self-defense required]; United States v.
Garner (6th Cir. 1976) 529 F.2d 962, 969-970 [instruction on legal defense
of coercion required]; People v. Sedeno
(1974) 10 Cal.3d 703, 715-716, overruled on other grounds in
82, 89; People v. Breverman (1998) 19
Cal.4th 142, 163, fn. 10, 165; People v.
Flannel (1979) 25 Cal.3d 668, 684-684, fn. 12 [instruction on legal
defenses of unconsciousness and diminished capacity required], superseded on
other grounds by Penal Code § 28; Bradley
v. Duncan (9th Cir. 2002) 315 F.3d 1091, 1097-1098 [instruction on legal
defense of entrapment required]; e.g., Conde
v. Henry (9th Cir. 2000) 198 F.3d 736, 739-740 [instruction on
lesser-included offenses required].)
Schimmel's proposed instruction also does not relate reasonable doubt to
any element of the three charged crimes.
(Bolden, supra, at p. 558.)
The trial court's
refusal to give Schimmel's instruction is in any event harmless because he
was not precluded from arguing the falsity of his confession. (People
v. Gutierrez (2002) 28 Cal.4th 1083, 1144-1145.) Schimmel contends that the right to argue is
not enough, but the cases he cites deal with instructions on
"'. . . basic constitutional principles that govern the
administration of criminal justice . . .'" or other principles
on which a trial court is obligated to instruct sua sponte. (Carter
v. Kentucky (1981) 450 U.S. 228, 303-304 [no adverse inference from
defendant's decision not to testify]; People
v. Vann (1974) 12 Cal.3d 220, 226-227 & fn. 6 [beyond a reasonable
doubt and presumption of innocence]; People
v. Newton (1970) 8 Cal.App.3d 359, 377-378 [defense of unconsciousness;
duty to instruct sua sponte]; United
States v. Bernard (9th Cir. 1980) 625 F.2d 854, 857-858 [accomplice
testimony; duty to instruct sua sponte].)
Pinpoint instructions fall outside this rule.
B.
of guilt
Schimmel asserts that
that the trial court erred in declining to instruct the jury that false
statements and suppression of evidence by Hill may show her "consciousness of guilt," which could raise a
reasonable doubt regarding Schimmel's guilt.
The trial court rejected Schimmel's proffered instructions as
argumentative and duplicative.
The trial court's ruling
was correct for two reasons. First, a
witness's consciousness of guilt is not relevant, and instructions similar to
Schimmel's have been rejected. (
500-501.) Schimmel cites
596-600, disapproved on other grounds in People
v. Martinez (2000) 22 Cal.4th 750, 762, and People v. Boyette (2005) 29 Cal.4th 381, 438-439, but those cases
involve the defendant's consciousness of guilt.
Second, Schimmel's proposed instructions are duplicative of the general
witness credibility instructions. The
credibility instruction already informs jurors that they may reject a witness's
testimony, and that they should consider whether that testimony is
"influenced by a factor such as bias or prejudice," whether the
witness has made prior inconsistent statements, and whether the witness has
"engaged in other conduct that reflects on . . . her
believability." As the trial court
noted, this instruction covered all of Schimmel's attacks on Hill's credibility
due to her alleged false statements and suppression of evidence. For these same reasons, any instructional
error is harmless.
C. Accomplice
instruction
For the first time on
appeal, Schimmel argues that the trial court erred in not instructing the jury
that it must determine whether Hill was an accomplice to his crimes, and if she
is, that her testimony must be rejected unless corroborated. A trial court is obligated to give such an
instruction on its own if substantial evidence supports a finding that a
witness could be held liable as perpetrating or aiding and abetting any of the
charged crimes. (Pen. Code, § 1111;
260, 263, 268-269 (Felton);
331.) We review this claim de novo. (People
v. Alvarez (1996) 14 Cal.4th 155, 218.)
Schimmel contends that
Hill is liable as an accomplice for corporal injury to Steven and for his death
because she did not stop his abuse. A
witness's refusal to act can make her an accomplice if (1) the crime
itself may be committed through negligence (Felton,
for child endangerment crime when witness did nothing to stop serious and
long-standing abuse]); or (2) the witness knows of the defendant's
criminal purpose and takes no action with the intent or purpose of facilitating
the defendant's crimes (see People v.
Swanson-Birabent (2003) 114 Cal.App.4th 733, 742-745 [defendant liable as
an aider and abettor for watching while defendant molested her daughter];
1206, 1219 [defendant, with the requisite knowledge and intent, liable as an
aider and abettor for not removing her child from an abusive
perpetrator]). Absent the requisite
mental states, however, inaction is not enough.
(People v. Lewis (2004) 120
Cal.App.4th 837, 850 [spouse who did not prevent abuse not an
accomplice].) There is no evidence—let
alone substantial evidence—that Hill, while knowing of Schimmel's intent to
physically injure Steven, idly stood by with the intent of facilitating that
abuse. Hill saw Schimmel yell at, poke
and squeeze Steven, and inferred that Schimmel threw DVD containers at Steven;
her decision not to take action in response to these acts does not imply that
she knew of Schimmel's more serious physical abuse or acted with the intent to
facilitate Schimmel's infliction of the more serious injury and death charged
in this case.
Even if the trial court
should have given this instruction, its omission was harmless because there was
sufficient evidence to corroborate Hill's testimony. (Felton,
Here, the forensic medical evidence and Schimmel's multiple confessions
far surpassed the "slight" degree of corroboration required. (Ibid.)
D.
Schimmel argues that the
trial court erred in giving the following instruction: "If the defendant fled,
observation, immediately after the crime was committed, that conduct may
show that he was aware of his guilt. If
you conclude that defendant fled or acted
with the purpose of avoiding observation, it is up to you to decide the
meaning and importance of that conduct.
However, that conduct cannot prove guilt by itself." (Italics added.) We review the propriety of this instruction
de novo. (Posey, supra, 32 Cal.4th
at p. 218.)
Schimmel contends that
this instruction is erroneous for two reasons.
First, he argues that the italicized portions depart from the standard
flight instruction in Penal Code section 1127c.
But departing from the verbatim statutory language is not error by
itself. (E.g., People v. Hill (1967) 67 Cal.2d 105, 120.)
Second, Schimmel asserts
that the instruction is not supported by substantial evidence. (People
v. Pensinger (1991) 52 Cal.3d 1210, 1245.)
A flight instruction is appropriate only if (1) the defendant has departed
from the crime scene or from the police (People
v. Sanchez (1939) 35 Cal.App.2d 231, 237; People v. Kessler (1968) 257 Cal.App.2d 812, 814, fn. 2); (2) under
circumstances indicating the movement was motivated by a consciousness of guilt
(People v. Bradford (1997) 14 Cal.4th
1005, 1055 (Bradford)). Schimmel argues that his movement from the
main house where paramedics and police were treating Steven on the night of
Steven's death to the guest house where he lived did not constitute
"flight" because Schimmel was moving to the crime scene and did not leave in a manner that evinced a
consciousness of guilt.
The propriety of a
flight instruction in this case is a close question. Schimmel's movement to the crime scene was
also a movement away from the police.
However, retreat to one's home is usually not flight unless the
circumstances of the retreat support an inference of consciousness of
guilt. (Bradford, supra, 14
Cal.4th at p. 1055.) The People argued
that Schimmel left the main house to avoid questions, but Schimmel testified
that he left the main house because it was crowded and the evidence indicates
that Schimmel cooperated with police later that night. We need not resolve the propriety of the
instruction, however. The instruction
was "manifestly harmless" because it left it entirely to the jury to
decide if the evidence showed a consciousness of guilt. (People
v. Crandell (1988) 46 Cal.3d 833, 870, overruled on other grounds in
364-365; People v. Watson (1977) 75
Cal.App.3d 384, 403.)
Third, Schimmel cites
314-325, for the proposition that that the instruction violates due
process. Francis deals with an instruction creating a mandatory rebuttable
presumption; the flight instruction here did no such thing.
V. Cumulative
Error
Schimmel argues that the
case against him was a credibility contest between himself and Hill, and that
the trial court's many erroneous rulings collectively tipped the balance in the
People's favor. Because we conclude that
the trial court committed no prejudicial error, there is no error to
cumulate. (People v. Carpenter (1999) 21 Cal.4th 1016, 1064.)
VI. Sentencing
Challenges
A.
Schimmel argues that the
trial court was required under Penal Code section 654 to stay the corporal
injury count (count 3) because that crime was part of the same "'course of
conduct deemed to be indivisible in time . . .'" as the assault causing
death and murder counts (counts 1 and 2).
(People v. Ramirez (2006) 39
Cal.4th 398, 478; Neal v. State of Cal.
(1960) 55 Cal.2d 11, 19, overruled on other grounds in People v. Sanders (2012) 55 Cal.4th 731 (Neal).)
Abuse against a victim
that stops when the victim dies does not always constitute part of the same
course of conduct as the act causing death.
What matters is whether the offense were "incident to one
objective" (Neal,
and proven. (E.g., People v. Evers (1992) 10 Cal.App.4th 558, 602-604 [child
endangerment count based on conduct two months prior to murder not part of same
"course of conduct"]; People v.
Northrop (1982) 132 Cal.App.3d 1027, 1044, disapproved on other grounds in
[child abuse and felony murder based on separate acts not part of same
"course of conduct"]; People v.
Assad (2010) 189 Cal.App.4th 187, 200 [torture and aggravated mayhem
against same victim but based on different acts not part of same "course
of conduct"].)
In this case, the People
pled the corporal injury count as ending the day before Steven's death, and at
trial confined the corporal injury count to the injury that Schimmel inflected
on Steven's left shoulder one to four weeks before Steven's death. The jury was required to agree unanimously on
which act constituted the corporal injury.
injury count and the resulting unanimous verdict, the trial court properly
found that the injury to Steven underlying the corporal injury count was
distinct from the injury causing death.
B.
Schimmel argues that the
trial court erred in awarding restitution to the Board for Hill's relocation
expenses of $1,629. We review this claim
for an abuse of discretion. (
644, 663.)
There was no abuse
here. The amount paid by the Board is
presumed to be correct, and Schimmel has not rebutted that presumption. (Pen. Code, § 1202.4, subd. (f)(4).) Schimmel contends that Hill only incurred
expenses of $910—not $1,629. There was
no overpayment. The Board provided one
month's rent and Hill received that amount.
The fact that first day of Hill's rental started in the middle of a
month, and thus resulted in a lesser, pro-rated rent amount for that first
month, does not mean that Hill was paid for more than 30 days of rent.
DISPOSITION
The judgment is
affirmed.
NOT TO BE PUBLISHED.
HOFFSTADT,
J.
We concur:
YEGAN, A. P. J.
PERREN, J.
Patricia M. Murphy,
Judge
Superior Court County
of Ventura
______________________________
Sylvia
Whatley Beckham, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney
General, for Plaintiff and Respondent.
name="_ftn1" title=""> [1] All
statutory references are to the Evidence Code unless otherwise stated.
name="_ftn2" title=""> [2] In passing, Schimmel challenges the unanimity
instruction, but it was not erroneous.
Moreover, this instruction is what rendered the trial court's Penal Code
section 654 ruling valid.
