P. v. Orange

Filed 4/21/06 P. v. Orange 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Runston G. Maino, Judge. Affirmed.

I.

INTRODUCTION

Defendant Eugene Orange^[1] appeals from his convictions for first degree murder (Pen. Code^[2], § 187, subd, (a)) and acquiring a credit card with intent to defraud (§ 484e, subd. (c)). Orange contends: (1) the admission of evidence of his prior acts of domestic violence under Evidence Code sections 1101, subdivision (b), 1109, and 1250 violated his federal and state constitutional rights to due process and equal protection; (2) the court's instructions to the jury that the preponderance of the evidence standard applied to the evidence of Orange's prior acts of domestic violence violated his federal and state constitutional rights; (3) the admission of two notes written by the murder victim violated his constitutional right to confront witnesses; (4) the court erred in giving CALJIC No. 2.52, an instruction on flight, over his objection; (5) the court erred in denying his motion to suppress evidence ─ including the victim's body ─ found in his apartment when officers entered the unit without a warrant; and (6) the cumulative effect of the errors deprived him of a fair trial.

We conclude that the trial court did not err with regard to contention numbers 1, 2, 4, and 5. We further conclude that we need not determine whether the court's admission of two notes written by the victim was error because even assuming it was error to admit the notes in evidence, any error was harmless beyond a reasonable doubt. Because we find no error and no prejudice, we also reject Orange's claim of cumulative error. We therefore affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural background

In an information filed October 1, 2003, Orange was charged with murder (§ 187, subd, (a) (count 1)), acquiring a credit card with the intent to defraud (§ 484e, subd. (c) (count 2), and with a prior conviction within the meaning of section 666. With regard to count 1, the information alleged that Orange personally used a deadly weapon, i.e., a knife, within the meaning of section 12022, subdivision (b)(1). It also alleged that Orange had previously sustained one prior prison term felony conviction (§ 667.5, subd. (b)), and two prior serious felony convictions (§§ 667, subd. (a)(1), 1192.7, subd. (c)), which also constituted strike priors (§§ 667, subds. (b)-(i), 1170.12, 668).

A jury convicted Orange of first degree murder and of acquiring an access card with intent to defraud, and found true the allegation that Orange had used a deadly weapon in the commission of the murder. The prosecution dismissed the prior prison term felony conviction. At a bench trial, the court found true the allegations of the two serious felony priors and two strike priors.

Orange moved for a new trial and filed Romero^[3] motions, all of which the court denied. The court sentenced Orange to a total of 111 years to life in state prison. In reaching this sentence, the court tripled the mandatory term of 25 years to life on count 1, as a result of Orange's two strike priors, added one year for the use of a deadly weapon and five years for each of the two serious felony priors, and imposed a consecutive 25-years-to-life term for count 2.

Orange filed a timely notice of appeal on February 10, 2005.

B. Factual background

Orange and Zeda Barnett married in 2001 after dating for only a few months. Orange moved into an apartment at the Glenbrook Terrace apartment complex in Escondido with Zeda and her three sons from prior relationships.

Zeda worked in the admissions department at Palomar College. Her desk was near the desks of her coworkers. Orange usually called Zeda at work several times a day. Zeda's coworkers were able to overhear Zeda's side of her conversations with Orange, and occasionally they could hear what Orange was saying to Zeda. Zeda was visibly uncomfortable during these calls. Her coworkers sometimes heard Orange shouting at Zeda over the telephone. The conversations were often about money, and Zeda would sometimes be in tears when the calls ended. Zeda told a campus police officer that if Orange heard male voices in the background while she was on the telephone with him at work, he would question her.

Zeda's coworkers witnessed a number of tense exchanges between Zeda and Orange when he would come to her workplace to take her to lunch, to borrow her ATM card,^[4] or to pick her up after work. Orange was often angry and demanding, particularly when Zeda refused to give him money or her ATM card. On one occasion, Zeda's coworkers convinced her to go to lunch with them despite her attempt to back out of their plans at the last minute because she was concerned that Orange was already upset with her and might come to the college. Orange came to the restaurant and proceeded to argue with Zeda just outside the restaurant. Her coworkers witnessed the exchange and could tell that during the altercation, "[Zeda was] being yelled at pretty loudly."

Orange became angry with Zeda when he arrived at the college one day and found Zeda helping a male student. After saying something to Zeda over the counter, Orange sat in the lobby and "glared" at her as she continued helping the student. Sometimes when Zeda would not give Orange money or her ATM card, Orange would sit where Zeda and her coworkers could see him, waiting for her.

Orange maintained control of the family's two vehicles, including Zeda's Nissan Sentra, and kept the keys in his possession. He dropped Zeda off at work in the morning, picked her up for lunch, and picked her up again at the end of the day. Orange insisted on doing all of the driving. According to the testimony of Zeda's friends and family, Orange drove aggressively and carelessly, as if he had "road rage."

Orange was mean to Zeda's children. He would yell at the boys, calling the oldest boy a "punk," and saying that one of her sons was "going to be a little fag." Zeda's sister testified that the boys "were always acting as if they were scared."

Zeda attempted to leave Orange at least twice prior to July 2003. On one occasion, Zeda left to stay with her mother, and on another, she went to Los Angeles for two weeks. While Zeda was in Los Angeles, Orange called one of Zeda's friends repeatedly because he believed Zeda was staying at the friend's home. He told the friend that he would kill himself if Zeda left him.

In April 2003, Zeda obtained a restraining order against Orange. A campus police officer was instructed to complete extra patrols of the admissions area after he was informed by his superior officers that Zeda had filed for a restraining order against her husband, and that the other employees were afraid. While patrolling the area on the day Zeda filed for the restraining order, the officer noticed Zeda drive into the parking lot with one of her sons in the car, and he called to her. Teary-eyed, Zeda told the officer that Orange would kill her. Zeda apparently did not serve the restraining order on Orange, and later reconciled with him.

In early July 2003, Zeda and Orange found a house to rent together and made tentative arrangements to move into the house on August 1. At the time, Zeda and Orange had been living in their Glenbrook Terrace apartment on a month-to-month basis for about a year because their original lease had expired in September 2002. The landlord had not renewed the lease because of complaints of smells of marijuana coming from their apartment and reports that the apartment was being poorly maintained. The landlord allowed Zeda and Orange to stay in the apartment until they found another place to live, but after almost 11 months of waiting, he finally told them that they would have to move out or he would commence eviction proceedings. Zeda and Orange agreed to move out of Glenwood Terrace by the end of July 2003.

By late July, however, Zeda had again decided to leave Orange. Zeda looked for an apartment nearby, and visited one particular apartment complex three times before renting an apartment there. Zeda brought Orange along on one of those visits, but she told the manager that Orange was not going to be living in the apartment, and that they were "going through a divorce." Zeda and her sons started moving their belongings into the new apartment on July 25.

On July 25, Zeda called the police and requested that they meet her at the old apartment. She told them that she was worried that Orange would arrive while she was there, and she wanted an officer to serve him with a restraining order. Orange arrived before Zeda had an opportunity to retrieve the restraining order for the officer. He began yelling at the officer and appeared to be angry. When Orange started to approach the officer, the officer ordered him to stop, drew his taser, and told Orange that he would deploy the taser if Orange did not back up and sit down. Other officers arrived at the scene and handcuffed Orange. The original responding officer then served Orange with a copy of the restraining order. After serving the restraining order, the police officers helped Zeda load some of her belongings into a car and stayed until she left the complex.

On July 28, Zeda called her good friend Lisa Galbreath because Zeda had a flat tire and had left her purse at Galbreath's home. Galbreath called the Automobile Association of America to tow Zeda's car. Zeda apparently also called Orange, despite the restraining order, to ask him to give her a ride to Galbreath's house. While discussing the flat tire incident with another friend, Zeda explained that she called Orange that day because "she didn't have a choice." She said that Orange was going to "get help" and go to counseling.

An employee of the Glenbrook Terrace apartments saw Orange moving belongings out of his apartment on July 29, 2003. That night, Zeda put her children to bed in their new apartment, drew water for a bath, and then went outside to move her car. Zeda did not return to the apartment. The next day, Zeda's sons waited for her to return. When she did not return by mid-to-late afternoon, they called Zeda's mother. Zeda's mother asked the boys to walk to her house. After giving them something to eat, Zeda's mother called the police to report her daughter missing.

In response to Zeda's mother's call, an Escondido police officer went to the Glenbrook Terrace apartment. The apartment was on the ground floor, but the officer could not see inside the apartment because all of the lights were turned off and the windows and blinds were closed. The officer knocked on the front door. After receiving no response, he checked to see if the door was locked, which it was. The officer then went to Zeda's mother's house and took a missing person report.

On July 31, police learned that three ATM withdrawals had been made in quick succession from Zeda's individual bank account with Washington Mutual Bank just after 7:00 a.m. on July 30. Bank surveillance tapes for all three transactions showed Orange alone in a car that might have been Zeda's Nissan Sentra. No one other than Zeda was authorized to use the ATM card on her account.

Shortly after noon on July 31, 2003, a team of detectives went to the Glenbrook Terrace apartment to conduct surveillance. A van registered to Orange was parked at the apartment complex, but the officers did not see Zeda's Nissan Sentra. The detectives asked the apartment manager when the apartment's residents were last seen there. They obtained Orange's telephone number at the apartment, and a pass key, from the manager.

When the detectives returned to Orange's apartment, the unit was still locked and the window shades were drawn. The detectives saw no sign of forced entry into the apartment. Telephone calls to the apartment were picked up by an answering machine. The detectives decided to enter the apartment out of concern that Zeda might be inside the apartment and in need of assistance. At approximately 2:30 p.m., after announcing their presence, police officers entered the unit using the pass key. The apartment was dark and warm, and appeared cluttered. In one of the bedrooms, police found Zeda's nude body on the bed under a comforter. No one else was in the apartment.

Police officers then obtained a search warrant and searched the unit. They found a butcher's knife in the kitchen and sent it for testing. Officers also found a glass pipe with what turned out to be methamphetamine on it in the bedroom where Zeda's body was found. When police pressed the redial button on the telephone in the apartment, it dialed Washington Mutual Bank.

Police remained at the scene through the early morning hours of August 1. An assistant medical examiner who was called to the scene just after midnight on August 1, estimated that Zeda had been killed 24 to 72 hours earlier. An autopsy revealed that Zeda died as a result of 11 stab wounds to her head and neck. One wound penetrated her right check and broke a molar, which was found, along with blood, in her stomach, indicating that she was alive at the time that wound was inflicted. She also had defensive stab wounds to her hands and a blunt-force injury to her head.

A criminalist determined from the blood at the scene that the entire struggle had occurred while Zeda was on the bed, and that the blanket was placed over her body after the stab wounds were inflicted. There was no evidence of forcible rape, no drugs or alcohol in her system, and no track marks or other signs of drug use on her body. Orange's DNA was found on swabs taken from Zeda's vagina and anus.

Police were unable to locate Orange for several days. On August 5, 2003, a person using an identity card belonging to Kwame Jackson, Zeda's youngest son, sought and received clothing, a blanket, and a backpack from Brother Benno's Foundation shelter in Oceanside. An employee at Brother Benno's Foundation recalled that either that day or the day before, Orange, identifying himself as "Kidd," appeared at the Foundation's drug and alcohol program. Orange ate breakfast and said he wanted to join the program. He was put to work, but a program coordinator for the drug and alcohol program asked him to leave after about a half-hour because his behavior was "too bizarre."

On August 5, 2003, Orange contacted Charles Simons, a property owner for whom Orange had performed handyman work in the past. Orange apparently asked to borrow some money from Simons. After agreeing to meet Orange in Oceanside, Simons contacted police detectives with this information. Officers arrested Orange at the agreed-upon location for the meeting. While Orange was on the ground being handcuffed, an officer noticed a wadded up and wet social security card near Orange's head. The card was in the name of Kwame Jackson. Testing revealed Orange's DNA on the card.

Police located Zeda's red Nissan Sentra near where Orange was arrested. Orange had in his possession a set of keys to that car at the time of his arrest.

III.

DISCUSSION

A. The admission of evidence of Orange's prior acts of domestic violence did not violate his federal or state constitutional rights to due process, a fair trial, or equal protection

Orange contends that the court erred in admitting evidence of his prior acts of domestic violence under Evidence Code section 1109. Specifically, Orange claims that evidence of his prior threats and acts of domestic violence, and evidence of domestic discord between Orange and Zeda, should not have been allowed. He asserts that "allowing the admission of other acts evidence to show a defendant's criminal propensity to commit the currently-charged offenses" violated his state and federal constitutional rights to due process. According to Orange, "[a]dmitting propensity evidence violates a fundamental principle of American jurisprudence and common law" that "people be convicted for what they have done and not who they are." He also contends that allowing evidence of his prior bad acts of domestic violence as "propensity" evidence violated equal protection principles because he was treated differently from those who have committed other crimes. Neither argument is availing.

Evidence Code section 1109 provides in pertinent part: "(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352. [¶] . . . [¶] (e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice."^[5] The provision thus overrides the general rule prohibiting the admission of so-called "propensity" evidence when the charged offense involves domestic violence.

The California Supreme Court has held that a parallel provision of the Evidence Code that allows for the admission of evidence regarding prior sex offenses (Evid. Code, § 1108) does not violate due process. (People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta).) The same reasoning the Supreme Court applied in upholding Evidence Code section 1108 against a due process challenge in Falsetta has been applied to Evidence Codes section 1109, as the two sections are virtually identical, except that one addresses the admissibility of evidence of prior sexual offenses while the other addresses evidence of prior domestic violence. (People v. Johnson (2000) 77 Cal.App.4th 410, 417; see also People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. Price (2004) 120 Cal.App.4th 224, 240 [rejecting due process challenge to Evidence Code section 1109].)

Although courts have previously resolved this issue against him, Orange contends that despite the Supreme Court's reliance on Evidence Code section 352 in upholding Evidence Code section 1108, section 352 does not in fact provide sufficient due process protections. In Falsetta, the Supreme Court upheld Evidence Code section 1108 against a due process challenge in part because it expressly allows the trial court to exclude evidence under Evidence Code section 352. (Falsetta, supra, 21 Cal.4th at p. 916.) Evidence Code section 1108 allows the trial court to preclude inefficient mini-trials of prior acts, and provides a safeguard against undue prejudice. (Ibid.) According to the Supreme Court, the trial court's discretion to exclude evidence of prior acts under Evidence Code section 352 saves Evidence Code section 1108 from a due process challenge. (Ibid.) Evidence Code section 1109 similarly allows the trial court to exclude evidence under Evidence Code section 352, and thus meets the requirements of due process.

Orange contends, however, that by making this particular propensity evidence presumptively admissible, the statute effectively "moves the focus of the section 352 analysis away from the prejudice caused by admission of propensity evidence" in favor of admitting the evidence. This, he contends, results in trial courts being "more likely to admit the evidence than not." However, there is no reason to believe that trial courts will not complete a careful and rigorous weighing of the probative value of evidence of prior domestic violence relative to its potential prejudice to the defendant. The statute merely prevents the outright exclusion of such evidence without consideration of its potential prejudice and probative weight. This evidentiary shift does not mean that trial courts will no longer give due consideration to the requirements of Evidence Code section 352.

Orange also appears to argue that the trial court abused its discretion under Evidence Code section 352 by failing to exclude evidence of his prior acts of domestic violence. According to Orange, that evidence was so prejudicial andm at the same time, so tangential to the charged offenses that it should have been excluded. "'Evidence is substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." [Citation.]' [Citation.]" (People v. Jablonski (2006) 37 Cal.4th 774, 805.) It does not appear that the evidence of Orange's prior domestic violence was so prejudicial as to pose an intolerable risk to the fairness of his trial. This prior act evidence included testimony pertaining to the contentious relationship between Orange and Zeda, including testimony regarding his controlling and threatening behavior toward her while she was at work, his aggressive and careless driving, threats Orange made to Zeda, and testimony pertaining to what Zeda had told other people about Orange as their relationship deteriorated. We conclude that the trial court did not abuse its discretion by admitting evidence of Orange's prior acts of domestic violence, since this evidence was not substantially more prejudicial than probative.

Defendant also contends that admission of evidence of his prior acts of domestic violence under Evidence Code section 1109 violated federal and state constitutional guarantees of equal protection because he was treated differently from those accused of other crimes. However, Evidence Code section 1109 does not discriminate against any group on the basis of a suspect or quasi-suspect class; those who commit offenses of domestic violence are not a suspect class. Orange contends that strict scrutiny applies because the statute infringes on his fundamental constitutional rights. As discussed above, we reject this contention. As long as there is a rational basis for treating defendants accused of domestic violence differently from those accused of other crimes, constitutional guarantees of equal protection are met. (See Estelle v. Dorrough (1975) 420 U.S. 534, 537-538.) The Legislature has determined that the nature of domestic violence justifies the admission of evidence of prior similar bad acts.^[6] This provides a sufficient rational basis for treating those accused of domestic violence differently from other defendants. (Cf. People v. Fitch (1997) 55 Cal.App.4th 172, 184 [Evidence Code section 1108 satisfies rational basis inquiry].)

B. The court's instruction regarding the preponderance of the evidence standard pertaining to Orange's other acts of domestic violence did not violate Orange's constitutional rights

Orange contends that Evidence Code section 1109 and the corresponding CALJIC instructions^[7] allowed the jury to convict by a preponderance of the evidence rather than by proof beyond a reasonable doubt. He asserts that it was error to instruct the jury that prior acts of domestic violence or threats had to be proven by only a preponderance of the evidence.

The California Supreme Court approved the 1999 version of CALJIC 2.50.01, an instruction similar to CALJIC 2.50.02, which addresses admission of evidence of a defendant's prior uncharged sexual offenses, in People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016. In Reliford, the Supreme Court determined that CALJIC 2.50.01 does not "authorize a guilty verdict based solely on proof of uncharged conduct" and thus does not allow the jury to convict based only upon prior bad acts proven by a preponderance of the evidence. (Id. at p. 1013.) According to the Supreme Court, the instruction also did not mislead the jury with regard to the burden of proof, even when read in conjunction with CALJIC No. 2.50.2, which defines preponderance of the evidence. (Ibid.)

Other courts have similarly concluded that CALJIC No. 2.50.02 is not reasonably likely to mislead the jury into believing that they can convict a defendant of the charged offenses based on a finding made by a preponderance of the evidence. (See People v. Pescador (2004) 119 Cal.App.4th 252, 261 ["For the purposes of evaluating the constitutional validity of the instructions, there is no material difference between CALJIC No. 2.50.01 and CALJIC No. 2.50.02."]; People v. Brown (2000) 77 Cal.App.4th 1324, 1335-1337.) Those courts have also applied the Supreme Court's reasoning in Reliford to reject challenges to CALJIC Nos. 2.50.1 and 2.50.2, based on the same grounds Orange advances. (See People v. Pescador, supra, 119 Cal.App.4th at pp. 261-262; Brown, supra, 77 Cal.App.4th at pp. 1335-1337.) We agree with the reasoning and conclusions in Pescador and Brown, and conclude that the trial court did not err in instructing the jury with CALJIC Nos. 2.50.02, 2.50.1, and 2.50.2.^[8]

C. The admission of two notes written by Zeda was not reversible error

Orange contends that the trial court committed reversible error by admitting in evidence two notes written by Zeda. One of the notes includes instructions from Zeda to her close friend, Lisa Galbreath, regarding what to do with her estate in the event she did not return from a planned meeting with Orange. The other note contains a message from Zeda to her sons.^[9] The trial court found that the notes were more probative than prejudicial under section 352 and ruled that they should be admitted in evidence. The trial court later reiterated its ruling regarding the notes, and also indicated that it was relying on Evidence Code section 1370 in admitting them.^[10]

Orange argues that the rule announced in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), compels the conclusion that admitting Zeda's notes in evidence violated Orange's Sixth Amendment right to confront witnesses against him. In Crawford, the United States Supreme Court concluded that the admission at trial of testimonial evidence from a witness who does not testify at the trial violates the defendant's constitutional right to confrontation, unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 60-62.) Orange contends that Zeda's notes should have been excluded because her statements were testimonial in nature and he had no opportunity to cross-examine her.^[11]

In Crawford, the Court failed to offer a precise definition of what evidence should be considered testimonial, choosing instead to recount "[v]arious formulations" of how "testimonial" might be defined. (Crawford, supra, 541 U.S. at pp. 51-52.) The formulations cited in Crawford include (1) "'ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;'" (2) "'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;'" and (3) "'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" (Ibid.)^[12]

The statements at issue here were not contained in an affidavit, deposition, confession, prior testimony, or other "formalized testimonial material," but rather, were contained in personal notes that do not appear to have been written in anticipation of any legal proceeding. However, it is arguable that Zeda might have believed the statements she made to Galbreath and her sons would be made available for later use at a trial in the event she was harmed. We need not determine whether or not Zeda's notes were testimonial or whether admitting them was error, however, because we conclude that even if Zeda's statements in the notes were testimonial and the court erred in admitting the statements at trial, any such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)^[13]

In view of the strength of the prosecution's case against Orange, the significance of these two notes is negligible. Orange had a history of becoming angry with Zeda. Zeda had sought restraining orders against Orange due to her concern about what he might do to her. Zeda's body was found in the bed in a locked apartment she had shared with Orange. After Zeda's mother reported her missing, Orange was captured on video using Zeda's ATM card to withdraw money from her account, and sitting alone in Zeda's car, which she had taken with her to her new apartment. Orange fled his apartment and attempted to conceal his identity by using the social security card belonging to one of Zeda's sons.

Additionally, Galbreath testified--without objection--that Zeda had informed her about a week before the murder that she had taken out insurance policies on her own life, and told Galbreath where they were located. Zeda told Galbreath that "she was going to go out fighting," and asked Galbreath to "be strong" when Galbreath indicated that she did not want to hear Zeda "talk[ing] like that." The contents of Zeda's notes were thus merely cumulative to other evidence presented at trial.

In light of all of the evidence of Orange's controlling and angry behavior toward Zeda, and the prosecution's strong circumstantial case against Orange, we conclude that the admission of these two notes was harmless beyond a reasonable doubt. There is no reasonable possibility that appellant would have received a more favorable verdict if the challenged notes had not been admitted in evidence.

D. The court did not err in instructing the jury with CALJIC No. 2.52

Orange contends that the trial court erred in instructing the jury on flight, pursuant to CALJIC No. 2.52.^[14] Orange first asserts that the instruction should not have been given over his objection because the instruction is intended for his benefit, and he thus should have been allowed to waive the instruction. Orange next contends that the instruction "constitutes an improper comment on the evidence" because it implicitly gave the evidence of flight too much weight. Finally, Orange argues that the instruction lessened the prosecution's burden, in violation of his constitutional rights. We disagree with all three contentions.

Orange's contention that this instruction impermissibly lowered the prosecution's burden has been previously rejected by the Supreme Court. (See People v. Mendoza (2000) 24 Cal.4th 130, 181 ["[D]efendant contends the [flight] instruction unconstitutionally lessens the prosecution's burden of proof. It does not."].) Additionally, the instruction does not overly emphasize the significance of the defendant's flight, but instead, informs the jury that it may give the fact of flight whatever weight it deems appropriate. (See id. at p. 180 ["We also reject defendant's argument that the flight instruction is an improper pinpoint instruction. The instruction informs the jury that it may consider flight in connection with all other proven facts, giving the fact of flight the weight the jury deems appropriate. [Citation.]"].)

As for Orange's assertion that he should have been allowed to waive the flight instruction because the instruction exists for his benefit, we disagree. Although Orange focuses on cases in which courts have noted that one purpose of the flight instruction is to protect a defendant from the jury "simply assuming guilt from the fact of flight," he acknowledges that CALJIC 2.52 "serves the dual purpose" of permitting an inference of guilt while at the same time providing the defendant with some level of protection against the misuse of such evidence. Thus, as Orange concedes, the instruction is not intended solely for the benefit of the defendant. The statute authorizes a broader use of the flight instruction than was previously allowed under common law (People v. Pensinger (1991) 52 Cal.3d 1210, 1244), in order to allow the prosecution greater reliance on a defendant's flight to establish guilt. Because the flight instruction is not intended simply for the benefit of a defendant, there is no basis for allowing a defendant to waive the instruction.

Additionally, pursuant to the language of the statute, the trial court has a sua sponte duty to give an instruction on flight. (People v. Henderson (2003) 110 Cal.App.4th 737, 742 (Henderson) ["That duty arises from section 1127c, which provides: 'In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows . . . .' [Citation.]"].) Allowing a defendant to waive the instruction even when the evidence warrants a flight instruction would necessarily conflict with the court's sua sponte duty to instruct when appropriate.

As long as there was sufficient evidence to support the prosecution's request for a flight instruction under section 1127c, the trial court's giving the instruction was proper. Orange does not challenge the sufficiency of the evidence to support giving the instruction. We conclude the trial court did not err in giving the instruction.

E. The trial court did not err in denying Orange's motion to suppress evidence obtained during the warrantless search of the Glenbrook Terrace apartment

Orange contends that the trial court erred in denying his motion to suppress all of the evidence found by police in the Glenbrook Terrace apartment. By written motion in the trial court, Orange challenged the admissibility of this evidence on the basis that the police failed to obtain a warrant prior to their initial entry into, and search of, the apartment.^[15] The prosecution did not argue that probable cause existed for the initial search, but instead argued that the warrantless entry and search were justified by exigent circumstances. The trial court concluded that exigent circumstances existed and were sufficient to cause officers to believe that Zeda may have been at risk or in danger inside the apartment when the police entered the Glenbrook Terrace unit. Orange contends that there were no exigent circumstances to justify the initial entry and search of the apartment.

We need not address the merits of Orange's contentions relating to the existence or absence of exigent circumstances because we conclude that the doctrine of inevitable discovery justifies the trial court's ruling. "Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means." (People v. Robles (2000) 23 Cal.4th 789, 800 (Robles).) The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained even in the absence of police misconduct. (Ibid., citing Nix v. Williams (1984) 467 U.S. 431, 443, fn. 4.) "As the United States Supreme Court has explained, the doctrine 'is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.' [Citation.]" (Robles, supra, 23 Cal.4th at p. 800, italics omitted.) "The burden of establishing that illegally seized evidence is admissible under the rule rests upon the government." (Id. at pp. 800-801.)^[16]

The police entered and searched Orange's apartment without a warrant on July 31, 2003. Zeda and Orange had been told that they had to vacate their apartment as of July 31, 2003, and they had agreed to move out by the end of July. Orange did not return to the apartment on July 31 after police discovered Zeda's body in the apartment, nor did he return to the apartment thereafter. The record thus establishes that Orange intended to and did in fact relinquish possession of the Glenbrook Terrace apartment, at least as of August 1, 2003. Consequently, even if police had not entered the apartment on July 31, Zeda's body would inevitably have been found by the management of the Glenbrook Terrace apartment complex some time after July 31, when management would have entered the unit to prepare it for new renters. At that point in time, management would have called police who would have searched the vacated apartment and found Zeda's body and all of the other evidence at issue.

Because police were at the apartment from the time the body was discovered on July 31 until after midnight, when possession and control of the unit reverted to the landlord, and Orange did not arrive at the apartment at any time while the police officers were there, there is no possibility that Orange might have returned to the apartment and disposed of the body (and other evidence) before it would inevitably have been discovered. Once possession of the apartment transferred from Orange back to the property owner, Orange no longer had a legitimate expectation of privacy in the unit. (See United States v. Salvucci (1980) 448 U.S. 83, 92-93 [whether defendant has a legitimate expectation of privacy in the place invaded involves consideration of whether he has a property or possessory interest in the place searched; whether he has the right to exclude others from that place; whether he has exhibited an expectation that the place would remain free from governmental invasion; whether he took normal precautions to maintain his privacy; and whether he was legitimately on the premises].) Therefore a search of the apartment at any time after midnight on July 31 would not have implicated Orange's constitutional rights. (Cf. Abel v. United States (1960) 362 U.S. 217, 241 [after defendant vacated hotel room, the hotel had the exclusive right to possession of the room and hotel management gave consent to a search].)

Because of the particular circumstances in this case, we can say with certainty that Zeda's body and the other evidence found in Orange's apartment would have been discovered sometime after July 31 if police had not found it when they entered the apartment without a warrant on that date. After July 31, police would have been able to lawfully enter the apartment and obtain the evidence at issue.^[17]

F. The cumulative effect

Orange asserts that even if no single error requires reversal, the cumulative effect of the errors was prejudicial and requires reversal of the judgment. We have identified only one possible error that occurred at trial--the admission of Zeda's notes to her friend and sons. However, as we have discussed, even assuming the admission of the notes was error, the notes did not prejudice Orange. We conclude that Orange received a fundamentally fair trial.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HALLER, P. J.

McINTYRE, J.

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^[1] Appellant is also known as Eugene Kidd.

^[2] Further statutory references are to the Penal Code unless otherwise noted.

^[3] People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

^[4] Apparently Orange frequently borrowed Zeda's ATM card when he visited her workplace.

^[5] Evidence Code section 1101 provides: "(a) Except as provided in this section and in [Evidence Code] Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."

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."

^[6] The legislative history of Evidence Code section 1109 offers insight as to why the Legislature singled out domestic violence offenses for disparate evidentiary treatment: "'The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner. Since criminal prosecution is one of the few factors which may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.'" (People v. Johnson, supra, 77 Cal.App.4th at p. 419, citing Assem. Com. Rep. on Public Safety (June 25, 1996) pp. 3-4.)

^[7] Orange challenges CALJIC Nos. 2.50.02, 2.50.1, and 2.50.2.

CALJIC No. 2.50.02 provides in pertinent part: [¶] "If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit [another] [other] offense[s] involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] [she] was likely to commit and did commit the crime [or crimes] of which [he] [she] is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged offense[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime."

CALJIC No. 2.50.1 provides: "Within the meaning of the preceding instruction[s], the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed [a] [crime[s]] [or] [sexual offense[s]] other than [that] [those] for which [he] [she] is on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that [a] [the] defendant committed the other [crime[s]] [or] [sexual offense[s]]. [¶] [If you find other crime[s] were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged [or any included crime] in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.]"

CALJIC No. 2.50.2 provides: [¶] "'Preponderance of the evidence' means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it. [¶] You should consider all of the evidence bearing upon every issue regardless of who produced it."

^[8] Orange himself acknowledges that the Supreme Court's opinion in Reliford is binding on this court and that it may dispose of his argument regarding the jury instructions for use of evidence of prior domestic violence to infer guilt.

^[9] In the first challenged note, dated June 3, 2003, Zeda apparently told Galbreath that she was going with Orange to rent a truck, and that if her sons had given Galbreath the note, this meant that Zeda had failed to return. Zeda also requested that Galbreath be the executor of her estate and ensure that her sons received the proceeds from her life insurance policies. The second challenged note, also dated June 3, 2003, directed Zeda's sons to give the other note to Galbreath if Zeda failed to return.

^[10] Evidence Code section 1370 provides in pertinent part: "(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met: [¶] (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant. [¶] (2) The declarant is unavailable as a witness pursuant to Section 240. [¶] (3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section. [¶] (4) The statement was made under circumstances that would indicate its trustworthiness. [¶] (5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official. [¶] (b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following: [¶] (1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested. [¶] (2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive. [¶] (3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section."

^[11] In Crawford, the United States Supreme Court noted that the equitable doctrine of forfeiture by wrongdoing is an exception to the requirement that a defendant in a criminal case be afforded the opportunity to confront the witnesses whose statements are offered by the prosecution. The doctrine provides that a defendant who has rendered a witness unavailable for cross-examination through the commission of a criminal act may not object to the introduction of hearsay statements by the witness on the ground that allowing the statements in evidence violates the defendant's confrontation rights. (See U.S. v. Carlson (8th Cir. 1976) 547 F.2d 1346, 1359.) The Crawford court observed that, "[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability." (Crawford, supra, 541 U.S. at p. 62.)

At least two California appellate courts have applied the doctrine of forfeiture by wrongdoing when the unavailable witness is the victim of one of the criminal charges and that charge is the reason the victim is not available to testify. (People v. Giles, review granted December 22, 2004, S129852; People v. Jiles, review granted December 22, 2004, S128638.) We believe it would be inappropriate to apply the doctrine under the circumstances of this case. A requirement for the application of forfeiture by wrongdoing is that the defendant be the cause of the witness's non-attendance at trial. Whether or not Orange was the cause of Zeda's non-attendance at trial (i.e., whether he killed her, thus rendering her unavailable) was the primary issue to be decided at trial. It would seem fundamentally unfair to presume, at the time of the trial, that Orange was the cause of Zeda's non-attendance for purposes of application of the doctrine of forfeiture by wrongdoing in order to allow her statements in evidence. (See Comparet-Cassani, Crawford and the Forfeiture by Wrongdoing Exception (2005) 42 San Diego L.Rev. 1185, 1190 ["[I]n order for the doctrine to apply, there must be an intentional act that is committed by the defendant that is other than the underlying criminal charge . . . ."], italics added.)

^[12] The Supreme Court did not have to provide a more precise definition of "testimonial" in Crawford because the statements at issue in that case (i.e., "[s]tatements taken by police officers in the course of interrogations ") were clearly testimonial under any of the proffered formulations. (Crawford, supra, 541 U.S. at p. 52.) The Court stated: "[W]e leave for another day any effort to spell out a comprehensive definition of 'testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Id. at p. 68.)

^[13] Because the alleged error raises federal Confrontation Clause issues, we assess the prejudice resulting from the claimed error pursuant to the standards set forth in Chapman v. California, supra, 386 U.S. 18, under which reversal is required unless the court can say beyond a reasonable doubt that the result would not have been more favorable in the absence of the error.

^[14] The court instructed the jury: "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.

^[15] The prosecution stipulated that the police had no warrant to search the Glenbrook Terrace unit when they first entered the apartment on July 31, 2003.

^[16] Although the prosecution did not present the inevitable discovery doctrine to the trial court below, "it may be applied on appeal [for the first time] if the factual basis for the theory is fully set forth in the record." (People v. Robles, supra, 23 Cal.4th at p. 801, fn. 7; see also People v. Clark (1993) 5 Cal.4th 950, 993, fn. 19.) The record in this case presents a sufficient factual basis to support the inevitable discovery theory.

^[17] Although we need not determine whether exigent circumstances justified the warrantless entry into the apartment, we note that the detectives did not behave in a manner consistent with a belief that exigent circumstances existed, and the facts supporting the existence of an exigency are extremely weak. There is no evidence that anyone saw or heard anything that would indicate that Zeda might be inside Orange's apartment, or that if she were inside the apartment, she was in danger. There is little in this record that would explain why officers faced with these circumstances failed to take the steps necessary to obtain a search warrant prior to entering the apartment. It is simply a fortuity that the police conducted the warrantless search of Orange's apartment on the day on which he was to vacate the apartment, thereby relinquishing any reasonable expectation of privacy in the apartment.