PEOPLE v. FARLEY
Filed 7/2/09 (reposted same date to correct participating concurring justices)
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendant and Appellant. ) Super. Ct. No. 123146
__________________________________ )
STORY CONTINUE FROM PART IV.
Defendant contends the affidavit in support of the warrants did not set forth facts adequate to establish probable cause to believe relevant evidence might be found at ESL and Covalent. We disagree. As noted, the facts enumerated in the affidavit indicated that on February 16 defendant killed seven individuals and shot Black at ESL because he was a disgruntled former employee and a rejected suitor of Black, he was subject to a recent temporary restraining order to stay away from Black, and he had driven a motor home filled with gallons of inflammable liquid, ammunition, and a pistol to ESL on the day of the shooting. In view of the nature of the crimes and the items sought, a magistrate reasonably could conclude defendants employment files and work area were logical places to search for incriminating items. (Gonzalez, supra, 51 Cal.3d at p. 1206.)
Defendant further contends the warrants lacked sufficient particularity, because they sought [a]ny and all documents and correspondence relating to [defendant]. Again, we disagree. [I]n a complex case resting upon the piecing together of many bits of evidence, the warrant properly may be more generalized than would be the case in a more simplified case resting upon more direct evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1291.) In any event, defendant has not identified any item seized pursuant to these warrants that was admitted at trial. Accordingly, even if we were to assume these warrants were overbroad, defendant has not shown that any evidence should have been suppressed. (Carpenter, supra, 21 Cal.4th at pp. 1043-1044.) Defendant speculates that evidence found during the search, even if not admitted at trial, may have been used to obtain evidence to counter the defense case in mitigation, but he fails to demonstrate any factual basis for this claim.
d. School and medical records search
Defendant contends warrants to obtain his school and medical records from the high school and several colleges he attended were overbroad. As he notes, however, no medical records were produced in response to the warrants, and the school transcripts that were produced were not introduced by the prosecution at trial. Hence there was no evidence admitted that should have been suppressed. (Carpenter, supra, 21 Cal.4th at pp. 1043-1044.) Defendant speculates that evidence found during the search, even if not admitted at trial, may have been used to obtain evidence to counter the defense case in mitigation, but he fails to demonstrate any factual basis for this claim.
2. Evidentiary rulings
Defendant claims that certain evidentiary rulings were erroneous and violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
a. Letters to Laura Black
Defendant wrote Black approximately 150 to 200 letters. During the prosecutions direct examination of Black, 20 of these letters were admitted into evidence. The letters included the threatening comments noted above, and also showed defendant importuning Black to socialize with him, his obsessive need to know her whereabouts, his desire to buy a house with her, and information regarding his relationship with Mei Chang, his college classes, his work at Covalent and another company, his roommate, the foreclosure on his house, and his obligation to pay $30,000 to the IRS. The letters also included statements such as that defendant cared for Black and tried never to really threaten you, I wouldnt hurt you and I think you realized that, and Jean, presumably Jean Tuffley, should have sent us both to a marriage counselor to find out why we fight like an[] old married couple.
During defendants cross-examination of Black, he sought to question her concerning 13 other letters he wrote to her. He asserted those letters were admissible under Evidence Code section 356,[1]because they were necessary to understand other documents admitted into evidence. The trial court admitted two of the 13 letters and excluded the remaining 11 letters as hearsay, stating that, although the latter letters pertained to the same general subjects as the letters proffered by the prosecution, they were separate and distinct statements from the letters proffered by the prosecution.
During defendants testimony on direct examination, he again sought admission of the 11 letters, arguing they were necessary to understand defendants state of mind and corroborated his testimony regarding his state of mind. He also argued they were admissible under Evidence Code section 356 to show the evolution and context of the letters. The trial court sustained the prosecutors objection, ruling the letters were hearsay.
Near the conclusion of defendants testimony on direct examination, defendant sought to introduce six additional letters. The court admitted two of these letters. The two letters, and the two previously proffered by defendant and admitted by the court, noted that over the prior period of nearly three years, defendant had never hurt you or your property, referred to Black as the love of my life, profusely apologized for past behavior, and asked Black to buy a house with him, enumerating 16 discussion points (such as what would happen if one person missed a monthly payment) for working out an agreement that both of us can live by.
Defendant contends that all of the letters were admissible under Evidence Code section 356 during his testimony, because the letters presented the true tenor of the correspondence by showing not only [defendants] obsessive need for Black, but also his attempts to understand her, his concern with how she was feeling, and his attempts to control his behavior. He asserts, [I]f it is unreasonable to introduce . . . all 150 letters then at least a representative portion should be shown to the jury.
The trial court did not abuse its discretion in concluding that the proffered letters were not necessary to the jurys understanding of the letters introduced by the prosecution. (Evid. Code, 356.) Rather, the letters proffered by the prosecution were independently comprehensible on the relevant topics of defendants premeditation and intent to kill. (Peoplev. Barrick (1982) 33 Cal.3d 115, 131, fn. 4 [postarrest statement not necessary to understand prearrest statement].)[2] Therefore Evidence Code section 356 did not provide a basis for the admission of these letters.
Defendant also contends the letters were admissible to establish his state of mind. (See Peoplev. Green (1980) 27 Cal.3d 1, 23, fn. 9, disapproved on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239, and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [victims out-of-court statement was not hearsay when offered as circumstantial evidence of the victims state of mind rather than to prove the truth of the statement]; Evid. Code, 1250, subd. (a)(1) [evidence of a statement of the declarants then-existing state of mind is not made inadmissible by the hearsay rule when offered to prove the declarants state of mind].) Defendant testified, describing his various states of mind not only during the years he pursued Black and sent her numerous letters, but also when he received the TRO, as he thereafter prepared to confront Black, and as he undertook his assault upon the ESL facility. Moreover, the letters that were admitted established the facts he claims would have been adduced by the excluded letters, that is, defendants purported love and concern for Black, his obsessive need for and delusion regarding her, and his attempts to control his behavior. Therefore, to the extent the letters he proffered establish the depth of his delusion, and thereby suggest the destruction of the psychic reality [he] had constructed and maintained in his mind for four years and explain his state of mind during his rampage, their exclusion was harmless. It is not reasonably probable a result more favorable to defendant would have been reached had the letters been admitted to establish his state of mind. (See People v. Watson (1956) 46 Cal.2d 818, 836.) Although defendant makes no persuasive argument supporting his contention that the exclusion of the letters constitutes a violation of his right to present a defense, we observe that, in light of the extensive evidence presented relating to defendants state of mind, exclusion of the proffered letters also was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.)[3]
b. Impeachment of Gerald Hirst
As noted above, Gerald Hirst testified that when he, Lawrence Kane, and defendant met approximately two months prior to defendants commission of the crimes, they discussed how to get through ESLs security doors and fantasized about shooting ESLs equipment. During their conversation, defendant learned where Blacks and Hirsts offices were located. (See ante, pp. 6-7.)
The trial court ruled in limine that defendant would not be allowed to impeach Hirst with evidence establishing that in 1986, Hirst had suffered a misdemeanor conviction for child molestation, or with the conduct underlying that conviction. The court did not state the basis for its ruling.
Even assuming the trial court erred in precluding impeachment of Hirst with evidence of his act of child molestation, defendant fails to demonstrate, as he must, that the cross-examination would have produced a significantly different impression of [the witnesss] credibility. (Peoplev. Frye (1998) 18 Cal.4th 894, 946 (Frye), disapproved on other grounds in Doolin,supra, 45 Cal.4th at p. 421, fn. 22.) The accuracy and veracity of Hirsts testimony was undermined by other evidence: he was completely deaf in one ear; he was depressed and in therapy at the time of the conversation with defendant; he refused to allow the police to record interviews with him; and his earlier statements to the police that his conversation with defendant occurred at the time Hirst left ESL in January 1988, and that he knew Black, were inconsistent with his trial testimony that the conversation occurred in December 1987, and that he did not know Black.
Moreover, and contrary to defendants contention, Hirsts testimony was not the single most important evidence of premeditation offered by the prosecution. Rather, aside from this testimony, there was overwhelming evidence of premeditation with respect to all of the killings, including the murder of Lawrence Kane. During the two years preceding commission of the crimes, defendant told several individuals at ESL that he possessed guns and either knew how or was not afraid to use them. Although he discussed shooting ESL equipment with Hirst, during that same time period he mentioned the shooting massacre at the San Ysidro McDonalds to a different witness, Burch, and wondered what ESL would do if he committed such a massacre there. Days before the shooting spree, defendant sold his truck for much less than it was worth, rented a storage locker, purchased a new Benelli shotgun by tendering a bad check, purchased large amounts of ammunition, practiced shooting man-shaped targets, rented a motor home that allowed him to prepare for his assault without observation, and changed his life insurance beneficiary. His will was left on top of his computer terminal. Finally, on February 16, 1988, defendant entered ESL during work hours, heavily armed.
c. Evidence of defendants interest in flame guns
During the direct testimony of Mei Chang, defense counsel sought to preclude reference to an incident that occurred the weekend preceding commission of the crimes, when defendant expressed interest in a flame gun. The court overruled the objection, finding the evidence relevant and not unduly prejudicial under Evidence Code section 352.
Chang testified that on the night of Valentines Day, she and defendant watched the movie Rambo. The prosecutor inquired whether defendant told Chang to pay any special attention to some parts of the movie? Chang identified [t]he firing, and explained, in the movie lots of fire guns, fires. The prosecutor asked, Did he say anything about any particular kind of gun? Chang responded, I think thats the one he was using, the one with a lot of fire out. A fire gun.
We reject defendants contention that the evidence was irrelevant and inflammatory. The evidence was relevant because it demonstrated defendants continuing interest in firearms during a period immediately preceding defendants charged criminal conduct. When contrasted with defendants murderous assault two days later, the evidence cannot be characterized as unduly inflammatory. The trial court did not abuse its discretion in admitting this evidence. (Peoplev. Barnett (1998) 17 Cal.4th 1044, 1118 (Barnett) [applying abuse of discretion standard of review].) Nor did its admission violate defendants right to a fundamentally fair trial.
d. Conversation between Dennis Elliott and defendant
As noted above, Dennis Elliott, who previously had supervised defendant at ESL, described at trial a conversation he had with defendant in March or April 1986. Elliott had reported to defendant what Elliott had heard concerning defendants conduct toward some girl, and had urged defendant to stop harassing her at work. Defendant had responded by expressing anger and defiance.
Prior to Elliotts testimony regarding his conversation with defendant, defendant objected that neither what Elliott had heard from other persons, nor his conversation with defendant years before the charged crimes, was relevant to defendants state of mind on February 16, 1988, and that the testimony was unduly prejudicial under Evidence Code section 352. The trial court overruled this objection, stating that testimony concerning what Elliott had heard about defendant chasing some girl was being offered solely to explain why Elliott spoke to defendant. Although the record is somewhat ambiguous, it appears the court also ruled that the testimony of the conversation between defendant and Elliott was relevant and not unduly prejudicial or time consuming under section 352.
Defendant contends that what Elliott heard from others about defendant chasing some girl was hearsay. He also contends that Elliotts conversation with defendant was irrelevant because it occurred two years before the murders and did not imply any threat to kill anyone or to damage ESL property. Defendant did not make a hearsay objection below, nor did he argue that the conversation was irrelevant because it did not threaten violence or damage. Therefore, these claims are forfeited and, moreover, are without merit, as are his remaining relevance claims. As the trial court observed, testimony regarding what Elliott heard was not hearsay because it was not offered for its truth. It was relevant to explain why Elliott had a conversation with defendant. Defendants defiant response to Elliotts advice that he just do his job and avoid hassling a female coworker was relevant to defendants state of mind, and to the prosecutors theory that defendant acted on February 16 in retaliation for perceived wrongs by ESL and Laura Black. In addition, the prosecution properly was permitted to demonstrate the circumstances that led over time to defendants termination, and ultimately to his attack on ESL.
e. Jean Tuffleys testimony
Before trial, and again shortly before Tuffley testified, defendant moved to exclude evidence of the February 1986 conversation between Tuffley and defendant in which, according to Tuffley, defendant said, if we terminated him, that his life would be over, hed have nothing to live for, and that he had guns and he wasnt afraid to use them, and that if we terminated him, it would be over for him and hed take people with him. Tuffley asked, Rich, are you saying that you would kill me? According to Tuffley, defendant said, Yes, but I would take others, too. Defendant asserted that the conversation was so remote in time that it was irrelevant and immaterial, that it was improper character evidence under Evidence Code section 1101, and that under Evidence Code section 352 its minimal probative value was outweighed by its prejudicial impact. Defendant also objected to Tuffleys testimony that defendants comments put her in fear, and led to ESLs assigning a different human resources person to deal with defendant, on the ground Tuffleys state of mind was irrelevant. The trial court denied the defense motions and overruled the objection.
Defendant claims that his mental state at the time of this conversation with Tuffley was irrelevant because he did not kill or attempt to kill Tuffley, and did not kill anyone when he was terminated. Although defendant did not kill Tuffley, who was not present at M-5 on the afternoon of February 16, 1988, his threats to her anticipate the scenario ultimately played out in the crimes that later were committed. Hence the statements were powerful evidence of long-standing motive and intent. They demonstrated that defendants 1988 assault on ESL was not a spontaneous occurrence, but a planned attack and the culmination of a grudge he nursed for at least two years.
Defendant also claims Tuffleys testimony that defendants comment made her fearful and led to ESLs transferring responsibility over defendant from Tuffley to her superior, Allen, should have been excluded because Tuffleys state of mind was not at issue and the balance of the testimony is hearsay. We disagree. Tuffleys fear demonstrated she perceived the threat as serious. Likewise, the circumstance that the personnel matter was transferred to someone else dispelled any inference that Tuffley did nothing about the problem and thus apparently did not believe defendants threat was genuine. Finally, contrary to defendants contention, testimony that someone else assumed responsibility for defendants personnel matters was not an out-of-court statement and hence was not hearsay. We conclude the trial court did not abuse its discretion in admitting Tuffleys testimony. (See Barnett, supra, 17 Cal.4th at p. 1118.) We therefore reject defendants contention that its admission violated his rights to due process and a reliable verdict.
f. Evor Vattuones testimony
Before Evor Vattuone testified, defendant sought to exclude reference to Vattuones conversation with defendant in late February or March 1986, in which defendant told Vattuone that if defendant were to be served with a restraining order, he would be very upset and did not know how he would respond, and that he had guns and he wasnt afraid to use them. Defendant contended the conversation was irrelevant because it occurred almost two years before defendant was served with the TRO, constituted improper character evidence under Evidence Code section 1101, and was unduly prejudicial Evidence Code section 352. The trial court found the evidence was relevant and was not character evidence, and that its probative value outweighed any prejudicial effect.
Defendant contends this testimony should have been excluded because in his conversation with Vattuone defendant did not threaten to kill anyone; rather he said he did not know how he would respond. Defendant also contends his state of mind in 1986, and particularly his uncertainty concerning how he would respond to a restraining order, was irrelevant. Defendant did not, however, state only that he did not know how he would react; he said he had guns and was not afraid to use them. This statement reasonably may be construed as a threat. Moreover, according to Vattuone, when defendant said he did not know what he would do, he did not seem perplexed, but serious and deliberate. Defendants statements to both Tuffley and Vattuone indicate he planned to shoot individuals at ESL if his access to Black was limited. Far from irrelevant, his statements constituted evidence establishing that he already was contemplating his eventual assault two years prior to the ultimate event. We find no abuse of discretion and no infringement upon defendants right to due process and a reliable verdict.
g. Lieutenant Dows testimony that Black felt threatened
Sunnyvale Department of Public Safety Lieutenant Chris Dow, called by the defense, testified that he interviewed Black twice in March 1988 following the shootings. Black told Dow that she decided not to seek a restraining order after she was told ESL would not pay for it. On June 1, 1988, after reviewing a copy of Dows report, Black amended this statement to say that an additional reason she did not obtain a restraining order was that she did not have the time to do so. Defense counsel asked Dow, Did she tell you . . . on June 1st . . . that the reason she didnt get a restraining order was because she was afraid of [defendant]? Dow answered, No. Defense counsel asked, Did she tell you on June 1st . . . that the reason[] she didnt get the restraining order was because she was concerned with what [defendant] might do? Dow answered, No.
On cross-examination, the prosecutor inquired whether Black told Dow, during either of the taped conversations about the restraining order, that she also didnt get a restraining order because she figured it wasnt against the law for the Defendant to be on a public street? Dow responded, Yes. The prosecutor asked, Did you ever ask her specifically whether she didnt get a TRO or restraining order because she was afraid of the Defendant? Dow responded, No. The prosecutor then asked, Did Miss Black, in the course of those conversations, tell you that the Defendant had threatened her? Defendant objected that the question was beyond the scope of the direct examination, which, he claimed, was limited to Dows conversation with Black on June 1. The objection was overruled, and Dow answered, Yes.
Defendant contends his objection should have been sustained under Evidence Code section 773, because the direct examination was limited to the concerns that influenced Blacks initial decision not to get a restraining order. They did not open up the content of all of her conversations with Dow. Cross-examination . . . may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given . . . on direct examination. [Citation.] The cross-examination is not confined to a mere categorical review of the matters, dates or times mentioned in the direct examination. (People v. McClellan (1969) 71 Cal.2d 793, 811.) Defendants questioning of Dow may have left the jury with the impression that Black was not frightened by defendant. The prosecutor properly was allowed to question Dow concerning other statements made by Black that tended to establish she was frightened by defendant. (See People v. Farnam (2002) 28 Cal.4th 107, 187-188 [the prosecutor was entitled to ask the defendant questions on cross-examination to rebut impressions left by the defendants testimony].) Thus, the trial court did not abuse its discretion in allowing cross-examination of Dow concerning Blacks statements to Dow regarding threats made by defendant against Black. (See People v. Lancaster (2007) 41 Cal.4th 50, 102 [ It is settled that the trial court is given wide discretion in controlling the scope of relevant cross-examination ].)
h. Alleged pattern of inconsistent determinations
Defendant contends the trial courts evidentiary rulings reveal a pattern of inconsistent determinations that compromised the fairness of the trial and unfairly favored the prosecution. This essentially is a claim of judicial bias, which defendant forfeited by failing to assert it below. (Peoplev. Samuels (2005) 36 Cal.4th 96, 114; see Peoplev. Chatman (2006) 38 Cal.4th 344, 362-363.) It also is without merit. We have rejected all of defendants claims of evidentiary error except for assumed error in the exclusion of evidence of Hirsts prior misdemeanor conviction, and in the exclusion of defendants letters as evidence of his state of mind. Although defendant summarily cites many additional examples in his supplemental opening brief which, he claims, illustrate that the trial court made erroneous and inconsistent rulings, he provides no analysis to establish that the trial court abused its discretion in connection with any of these rulings. [A] trial courts numerous rulings against a party even when erroneous do not establish a charge of judicial bias, especially when they are subject to review. (Peoplev. Guerra (2006) 37 Cal.4th 1067, 1112.) Defendant fails to demonstrate any judicial misconduct or bias, let alone misconduct or bias that was so prejudicial that it deprived defendant of a fair, as opposed to a perfect, trial. (Ibid.)
i. Cumulative error
Defendant contends the trial courts errors on the evidentiary rulings were individually and cumulatively prejudicial because they deprived him of his right to present probative evidence or exclude prejudicial evidence, and constituted an invidious and pervasive pattern of biased rulings. As noted, we have assumed error only in the exclusion of evidence related to Hirsts prior misdemeanor conviction, and in the exclusion of defendants letters as evidence of his state of mind. Hirst was impeached through other testimony, and the issues to which Hirsts testimony and the excluded letters were relevant were established by other overwhelming evidence. Defendant was not prejudiced under any standard by these two evidentiary rulings. Nor, once again, has any bias been demonstrated.
3. Alleged instructional error
a. Felony-murder and felony-murder special-circumstance instructions based upon burglary allegations
The prosecution proceeded on two theories of first degree murder: (1) all of the homicides were willful, deliberate, and premeditated, and (2) the homicides perpetrated within the M-5 building were committed in the course of a burglary. ( 189.)[4] The trial court instructed the jury on two theories of burglary: Every person who enters any building with a specific intent to commit assault with a firearm upon the person of Laura Black in violation of Penal Code Section 245(a)(2) or with the specific intent to commit malicious damage of property of a value in excess of five thousand dollars in violation of [former] Penal Code Section 594(b)(1), each a felony, is guilty of the crime of burglary in violation of Penal Code section 459. (Italics added; see also 459 [any person who enters a defined structure with the intent to commit any felony is guilty of burglary].) The court also gave an instruction based upon the felony-murder rule: The unlawful killing of a human being . . . which occurs during the commission or attempted commission . . . of the crime of burglary is murder of the first degree when the perpetrator had the specific intent to commit such crime. The court further explained that [a] homicide is committed in the perpetration of a burglary if the killing and the burglary are parts of one continuous transaction, but [t]here is no requirement that the homicide occur while committing or while engaged in the burglary or that the killing be a part of the burglary other than that the two acts be part of one continuous transaction. Finally, the court instructed the jurors that they could find true the special circumstance allegation that defendant committed a murder while engaged in the commission or attempted commission of a burglary if defendant committed a murder while committing or attempting to commit a burglary, and did so to carry out or advance the commission of the burglary or to facilitate his escape or avoid detection. The courts instructions made clear that the special circumstance allegation was not established if the burglary or attempted burglary was merely incidental to the commission of the murder.[5]
Defendant claims that neither burglary theory supports a finding that the homicides committed within building M-5 constituted felony murder. First, defendant asserts, the charge of burglary with the intent to commit property damage in excess of $5,000 could be either a felony or a misdemeanor under former section 594, subdivision (b)(1), depending upon the sentence imposed by the court. Therefore, defendant contends, he could not have entered ESLs facility with the intent to commit a felony, and thus could not be found guilty of burglary. Second, defendant asserts, the burglary premised upon entry with intent to assault Black would have merged with the death of Black, had she been killed, and would not have constituted a felony independent of the killing itself upon which to base a theory of felony murder. (People v. Wilson (1969) 1 Cal.3d 431 (Wilson).) Therefore, he contends, his entry with the intent to assault Black cannot serve as the basis for the felony murder of six other victims who were killed inside the ESL facility, nor can it support a special circumstance finding that the murders occurred while defendant was engaged in committing a burglary. Defendant claims the giving of the foregoing instructions violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Defendants first challenge to the felony-murder instruction is that a violation of former section 594, subdivision (b)(1) is not a felony but a wobbler, whose ultimate classification will depend on the judges sentence.[6] Consequently, he contends, a burglary count based upon an entry with intent to violate former section 594, subdivision (b)(1) is not a felony burglary. A felony, however, is defined as a crime which is punishable with death or by imprisonment in the state prison. ( 17, subd. (a), italics added.) Former section 594, subdivision (b)(1) provided that [i]f the amount of defacement, damage or destruction is five thousand dollars ($5,000) or more, vandalism is punishable in the state prison . . . . That a judge ultimately may impose a sentence other than state prison, making the crime a misdemeanor, does not remove former section 594, subdivision (b)(1) from the class of crimes that may form the basis for a burglary conviction. (See 17, subd. (b)(1); see also Peoplev. Rathert (2000) 24 Cal.4th 200, 202, 208 [the defendant was convicted of burglary predicated upon felony false personation, which crime is a wobbler].) The instructions required the jury, in order to find defendant guilty of burglary, to find that he entered with the intent to cause property damage in excess of $5,000. Such conduct is punishable by imprisonment in state prison. That is sufficient to establish the commission of a felony supporting the giving of the burglary instruction.[7]
TO BE CONTINUED AS PART VI.
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[1] Evidence Code section 356 provides: Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.
[2] The cases upon which defendant relies are distinguishable. In Hinton v. Welch (1918) 179 Cal. 463, 466, numerous letters written by the plaintiff were introduced against her. In contrast, defendant here sought to introduce his own out-of-court statements during his direct testimony. (See Evid. Code, 1220.) Likewise, admission of the reply to one of the plaintiffs letters asserting a property interest falls within the language of Evidence Code section 356. (Hinton, at pp. 465-466.) In People v. Snyder (1958) 50 Cal.2d 190, 192, we held that in defending a charge that the defendant had committed perjury in his testimony before the grand jury, the defendant was permitted to introduce portions of the grand jury testimony that tended to explain the testimony upon which the prosecutor relied in proving the perjury charge, and to demonstrate that the defendant had not testified falsely. (Id. at pp. 193-195.) Hence Snyder is not authority for the admission of letters different from those upon which the prosecution relied.
[3] Defendant further asserts the letters would have personalized him at the penalty phase. This purpose was irrelevant at the guilt phase, and defendant did not seek admission of the letters at the penalty phase.
[4] Section 189 provides in relevant part: All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.
Although section 189 refers to [a]ll murder that is committed in the perpetration of, or attempt to perpetrate certain felonies, this language has long been broadly interpreted to mean any killing in the perpetration of or attempt to perpetrate an enumerated crime. (Peoplev. Coefield (1951) 37 Cal.2d 865, 868; People v. Denman (1918) 179 Cal. 497, 498-499 [one who kills another in the perpetration or attempt to perpetrate the crimes enumerated in section 189 is guilty of first degree murder under the provisions of that statute, regardless of any question whether the killing was intentional or unintentional].)
[5] As to Lawrence Kane, who was killed before defendant entered the building, the prosecution proceeded solely on a theory of willful, deliberate, and premeditated murder.
[6] At the time of defendants crimes, section 594 provided in relevant part:
(a) Every person who maliciously (1) defaces with paint or any other liquid, (2) damages, or (3) destroys any real or personal property not his own, in cases otherwise than those specified by state law, is guilty of vandalism.
(b)(1) If the amount of defacement, damage or destruction is five thousand dollars ($5,000) or more, vandalism is punishable by imprisonment in the state prison, or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000), or by both that fine and imprisonment. (Stats. 1985, ch. 781, 1, p. 2520.)
[7] We also reject defendants further contention that the courts instructions concerning vandalism as a predicate crime for burglary were erroneous because the relevant criminal intent under section 594 is not intent to cause property damage of at least $5,000, but only to deface, damage, or destroy property. If, by requiring the jury to find an intent to cause property damage in excess of $5,000, the instruction required more than the statute, this inured to defendants benefit.
