PEOPLE v. GARCIA










Filed 2/25/09; Certified for Partial Pub. 3/11/09 (order attached)








IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----

THE PEOPLE, Plaintiff and Respondent, v. MARIO FLAVIO GARCIA, Defendant and Appellant.

C054729 (Super. Ct. No. 62055517)

STORY CONTINUE FROM PART II….
Proceedings in the Trial Court
Before trial, the People filed a trial brief on the admissibility of various statements by defendant. The People sought to introduce defendant’s statements to McDonald on October 9, except his request for an attorney. The People claimed there was no issue under Miranda because defendant was not under arrest; the only significant issue was his request for counsel. The defense initially responded that the interrogation was involuntary because it was coerced by McDonald’s threat to seize all of defendant’s cars. Further, defendant had asserted his Fifth Amendment right to remain silent and his Sixth Amendment right to counsel.
At the hearing on the admissibility of defendant’s statements, the defense argued admitting evidence of defendant’s refusal to be photographed “flies in the face” of his rights to leave, retain counsel and remain silent. The People argued taking a picture was nontestimonial and did not implicate Miranda rights. The defense argued defendant’s actions in ending the interview must be considered together; his refusal was tied to his request for an attorney and the right to remain silent. Both the Fifth and Sixth Amendments were implicated. The defense urged that defendant’s assertion of the right to counsel and to remain silent was an assertion of constitutional rights, not evidence of a consciousness of guilt. The trial court ruled evidence of defendant’s refusal to be photographed was admissible.
Analysis
We agree with trial counsel that when defendant ended the interview, he was asserting various constitutional rights: to not be detained, to not incriminate himself, and to have the assistance of counsel. In requesting a photograph, McDonald was attempting to obtain physical evidence from defendant. “[T]he obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels -- the ‘seizure’ of the ‘person’ necessary to bring him into contact with government agents, [citation], and the subsequent search for and seizure of the evidence.” (United States v. Dionisio (1973) 410 U.S. 1, 8 [35 L.Ed.2d 67, 76].) Here the second level is not a Fourth Amendment violation because taking a picture of someone is not a search. (United States v. Emmett (7th Cir. 2003) 321 F.3d 669, 672.) “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” (Katz v. United States, supra, 389 U.S. 347, 351 [19 L.Ed.2d 576, 582].) Defendant was not seized and brought into contact with the police; he voluntarily accompanied them to the interview. When he ended the interview, however, he withdrew his consent to the voluntary detention; at that point he asserted his Fourth Amendment rights.^[1] The invocation of Fourth Amendment rights cannot be used to show guilt. (People v. Wood (2002) 103 Cal.App.4th 803, 809; People v. Keener (1983) 148 Cal.App.3d 73, 78-79.)
Whether a defendant has invoked his right to remain silent is to be determined from the facts and circumstances. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.) Here defendant stopped the interview once the questioning turned to “the most important part of everything.” McDonald was asking defendant about his actions in leaving the casino with Wilson; as defendant was already under suspicion, his answers could be incriminating. Defendant understood this as he told Little the questions were getting “too deep” and he needed a criminal attorney. These circumstances “‘lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment.’” (People v. Riel (2000) 22 Cal.4th 1153, 1189 [silence may not be used as adoptive admission if reliance on Fifth Amendment].)
The United States Supreme Court has not considered whether prearrest silence is protected by the Fifth Amendment. (Jenkins v. Anderson (1980) 447 U.S. 231, 236, fn. 2 [65 L.Ed.2d 86, 93].) There is a split of authority among the circuit courts. Focusing on the fact that defendant is not in custody, the Fifth, Ninth and Eleventh Circuits have held it is permissible to comment on defendant’s prearrest silence. (United States v. Zanabria (5th Cir. 1996) 74 F.3d 590, 593; United States v. Oplinger (9th Cir. 1998) 150 F.3d 1061, 1066-1067; United States v. Rivera (11th Cir. 1991) 944 F.2d 1563, 1567-1568.) The Attorney General urges us to follow these cases. Defendant contends the decisions of circuit courts that have held the use of prearrest silence as substantive evidence of defendant’s guilt violates the Fifth Amendment are better reasoned. (Combs v. Coyle (6th Cir. 2000) 205 F.3d 269, 283; United States v. Burson (10th Cir. 1991) 952 F.2d 1196, 1201; Coppola v. Powell (1st Cir. 1989) 878 F.2d 1562, 1568; United States ex rel. Savory v. Lane (7th Cir. 1987) 832 F.2d 1011, 1017.) These cases rely on three Fifth Amendment principles: (1) the invocation of the privilege must be given a broad and liberal construction; (2) the invocation of the privilege requires no special words; and (3) the privilege can be asserted by a suspect during an investigation. (United States v. Burson, supra, at p. 1200.) “In a prearrest setting as well as in a post-arrest setting, it is clear that a potential defendant’s comments could provide damaging evidence that might be used in a criminal prosecution; the privilege should thus apply.” (Combs v. Coyle, supra, at p. 283.) We find the reasoning of these cases more persuasive. Because defendant was exercising his Fourth and Fifth Amendment rights in terminating the interview, the trial court erred in admitting into evidence that defendant ended the interview and left.
Under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710], a violation of a criminal defendant’s federal constitutional rights requires reversal of the judgment unless the reviewing court determines “beyond a reasonable doubt that the error complained of did not contribute to the verdict.” Applying that standard, we find the error in admitting evidence of defendant’s refusal to be photographed and termination of the interview was harmless beyond a reasonable doubt.
Certainly evidence that defendant stopped cooperating with the police once the questioning turned to the critical area that could incriminate him was powerful evidence of consciousness of guilt and evidence of consciousness of guilt was especially important in a circumstantial evidence case. In this case, however, there was overwhelming evidence of defendant’s consciousness of guilt; almost all of his actions after Wilson’s disappearance showed a consciousness of guilt. Defendant had suspicious injuries for which he offered differing explanations. He was growing a beard, perhaps to hide his injuries. His attendance at work was erratic despite the critical stage of his important project. He was extremely nervous when McDonald first contacted him. He took an alternate route home from the casino, but failed to tell the police about it. He was reluctant to point out the car he drove that night. When asked about the clothes he wore that night, he immediately said they were at the cleaners. He made a series of Google searches relating to forensics, date rape drugs and privileges. This evidence, combined with the medical evidence contradicting defendant’s explanations of his injuries, and the forensic evidence that placed Wilson in the back seat and trunk of his car and indicated a violent struggle, was considerable evidence of defendant’s guilt. The addition of his refusal to be photographed and to continue the interview added little to the prosecution’s case.
III.

The Trial Court Did Not Err in Admitting Evidence of Defendant’s Bad Character at Work
Defendant contends the trial court erred, or trial counsel was ineffective, in admitting evidence of defendant’s irascibility and violence at work.
Defendant’s supervisor, Janet Wilde, testified at length about his erratic work schedule the days after Wilson’s disappearance. Defendant was late for an important meeting, left early, failed to check in with his supervisor and telecommuted without prior approval. The prosecution used this evidence as consciousness of guilt; defendant failed to show up at work for an important project because something else concerned him more.
To rebut the idea that defendant had to be at work those days, on cross-examination the defense elicited testimony that defendant was one of the best program managers, had won an award, was a valued employee and would not be let go for failing to show up. The prosecution then asked Wilde about areas where defendant needed improvement. The defense objected, but the court overruled the objection, finding the defense opened the door to evidence of defendant’s character at work. Wilde testified defendant did not always adhere to policies, such as timely submittal of expense reports and time sheets. Further, defendant admitted he was a hothead and had been given coaching on how to approach people; he was warned that bodily contact was not always welcome. A female coworker had expressed concern that there could be violence due to defendant’s demeanor. The complaint was investigated and was unsubstantiated.
Later, outside the presence of the jury, defense counsel raised the issue of character evidence, explaining he had been very careful not to introduce character evidence and that he sought only to show that defendant’s attendance at work on October 5 was not required. The defense asked that Wilde’s testimony of defendant’s character at work be stricken. The court denied the motion, finding impeachment of defendant’s character as to his employee status was proper. Counsel stated that if he had erred in not objecting to the prosecution’s questioning on redirect, “then the ineffective assistance of counsel is on my shoulders.”
Defendant contends evidence that he was a valued employee was not character evidence and did not open the door to evidence of his temper and the concerns of a female employee. He contends he has not forfeited the contention; any failure to object properly was excused by futility. Finally, he contends if a proper and timely objection was required, he was denied effective assistance of counsel. We need not address the issues of forfeiture and ineffective assistance of counsel because we find the prosecution’s character evidence was properly admitted under Evidence Code section 1102, subdivision (b).
Generally, evidence of a person’s character is not admissible to show conduct on a specified occasion. (See Evid. Code, § 1101, subd. (a).) Evidence Code section 1102 provides an exception: “In a criminal action, evidence of the defendant’s character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).”
“When a criminal defendant presents opinion or reputation evidence on his own behalf the prosecutor may present like evidence to rebut the defendant’s evidence and show a likelihood of guilt. (Evid. Code, § 1102, subd. (b).)” (People v. Hempstead (1983) 148 Cal.App.3d 949, 953.) The defense offered evidence of defendant’s reputation as a valued employee to show he was not required to be at work October 5 and his absence from work would not have adverse consequences. This evidence of his good character was offered to prove his conduct (absence from work) in conformity with such character. (Evid. Code, § 1101, subd. (a).) Thus, the prosecution was able to offer character evidence to rebut defendant’s offer of good character. (Evid. Code, § 1102, subd. (b).) The trial court did not err in admitting the evidence.
IV.

The Trial Court Did Not Err in Admitting Expert Testimony on Date Rape Drugs
Defendant contends the trial court erred in admitting, over defense objection, the expert testimony of Detective Murchison on date rape drugs. Defendant contends the expert opinion evidence was irrelevant because it had only a speculative connection to the facts of the case.
Murchison testified, over a relevancy objection, to his training and experience in the area of date rape drugs. He had undercover experience on the use and distribution of such drugs, experience in cleaning up methamphetamine labs and specific training on rave and date rape drugs. Over another relevancy objection, Murchison testified Wilson’s symptoms the night she disappeared, as testified to by witnesses at the casino, and as he viewed on the casino tape, were consistent with the consumption of a date rape drug. He testified such drugs are often put in fruity drinks, like wine, to mask their taste.
“The trial court is vested with wide discretion in determining the relevance of evidence. [Citation.] The court, however, has no discretion to admit irrelevant evidence. [Citation.] ‘Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose.’ [Citations.]” (People v. Babbitt (1988) 45 Cal.3d 660, 681.)
Defendant contends this expert testimony is speculative. There was no direct evidence that Wilson was given a date rape drug; Murchison testified the videotape did not show anyone put anything in her drink. Wilson’s symptoms that night, her stomach ache and diarrhea, her mood change, and her clumsy handling of chips, are explained by other causes, including her alcohol consumption and evidence she was a poor loser when gambling. Defendant asserts the prosecution admitted, in closing argument, the speculative nature of the evidence when it admitted it did not know if defendant slipped Wilson something.
While Wilson’s ambiguous symptoms might be a slight foundation for Murchison’s expert testimony, they are not the sole basis. A week after Wilson’s disappearance, and days after defendant was investigated by McDonald, he visited web sites relating to toxicology. He spent 23 seconds on a web site relating to rave or date rape drugs. From this evidence the jury could reasonably infer he was concerned about forensic discovery of date rape drugs if Wilson’s body was found. Since Murchison’s expert testimony on date rape drugs had a “tendency in reason to prove or disprove any disputed [material] fact,” it was relevant. (Evid. Code, § 210.) The relative strength or weakness of such evidence was a determination for the jury. (People v. Cordova (1979) 97 Cal.App.3d 665, 669.) The trial court did not err in admitting this evidence.
V.
The Trial Court Did Not Err in Admitting McDonald’s Testimony
Defendant contends the trial court erred in permitting, over defense objection, McDonald to testify as to his investigation of the case and to give his opinions and conclusions as to what the evidence established. Defendant contends the actual steps of McDonald’s investigation were irrelevant. McDonald’s opinions, coming from a detective with 30 years’ experience, carried “‘an aura of special reliability and trustworthiness.’ [Citation.]” (People v. Bledsoe (1984) 36 Cal.3d 236, 251.) The result, defendant contends, was the jury did not weigh the evidence as carefully as it should have.
The trial court sustained numerous defense objections when the prosecutor asked McDonald about investigatory steps in general or his opinion about the evidence. The court only permitted questions about what McDonald actually did in this case. Defendant argues this distinction sets the wrong parameters; the investigation itself was irrelevant. Defendant relies on People v. Johnson (2006) 139 Cal.App.4th 1135, in which the court held a database search for a “cold hit” on DNA was not subject to the standard of admissibility set forth in People v. Kelly (1976) 17 Cal.3d 24. (People v. Johnson, supra, at p. 1141.) The court stated: “[T]he means by which a particular person comes to be suspected of a crime--the reason law enforcement’s investigation focuses on him--is irrelevant to the issue to be decided at trial, i.e., that person’s guilt or innocence, except insofar as it provides independent evidence of guilt or innocence.” (Id. at p. 1150, original italics.)
We disagree that all evidence of McDonald’s investigation was irrelevant and inadmissible. While the investigation may have been irrelevant to whether defendant was guilty of murder (except as it provided independent evidence of guilt), it was relevant to another facet of the case, to establish the corpus delecti. “In a homicide case, ‘proof of death caused by a criminal agency’ constitutes the corpus delicti. [Citation.]” (People v. Malfavon (2002) 102 Cal.App.4th 727, 734.) Since Wilson’s body was never recovered, the People had to establish that she was dead and had been killed. The actual steps of the investigation served to offer proof of that. Having rejected defendant’s global contention, we turn to his specific claims of error.
Testimony No One Confirmed Defendant’s Story
McDonald testified defendant originally claimed he got home at 1:00 a.m., but changed his story when told the videotape showed him leaving the casino at 1:13 a.m. Defendant said he got home around 2:00. The prosecutor asked if he attempted to confirm this with anyone defendant lived with and McDonald said yes. Asked if he was successful, McDonald said no. Defendant contends his relevancy objection should have been sustained because McDonald’s statement that he was unsuccessful in confirming defendant’s return time home was an opinion. We disagree. McDonald did not testify no one could confirm defendant’s story, only that he was unable to do so. To the extent it was an opinion, it was an admissible lay opinion rationally based on his experience and perception and helpful to a clear understanding of his testimony. (Evid. Code, § 800.)
Testimony about Methodology and Experience
McDonald testified to his methodology in collecting evidence and his training and experience in “no body” homicides. Defendant contends his relevancy objection to this testimony should have been sustained. The Attorney General responds this testimony merely laid the foundation for the thoroughness of the investigation, which was relevant to establishing that Wilson was dead. Evidence of the thoroughness of the investigation was also relevant to refute the defense assertion that the prosecution of defendant was a rush to judgment. (See Kyles v. Whitley (1995) 514 U.S. 419, 446, fn. 15 [131 L.Ed.2d 490, 513] [conscientious police work will enhance the probative force of the People’s evidence, while slovenly work will diminish it].)
Testimony about Specific Categories of Evidence
McDonald testified as to the specific categories of evidence he explored or directed others to explore; these included speaking with Wilson’s family and friends and checking electronic databases. When McDonald began to explain the importance of Wilson’s state of mind, her upcoming job interview and her failure to take treasured possessions, such as her cat, the court sustained a defense objection.
Defendant objects this testimony was a commentary, not evidence. Since there was direct testimony from Wilson’s family and friends as to Wilson’s personality, her employment experience, anticipated new job, and evidence about the databases that were checked, we fail to perceive any prejudice from McDonald’s testimony that these things occurred. As to the question about Wilson’s state of mind, the objection was sustained and defendant did not move to strike McDonald’s answer.

Testimony of No Evidence of Suicide, Voluntary Disappearance or Third Party Abduction
When the prosecutor asked McDonald about general steps of an investigation of a missing person, defense relevancy objections were sustained. The court also sustained objections to questions asking for McDonald’s opinion. McDonald was permitted to testify, over objection that these were questions for the jury, that he found no evidence suggesting suicide, that Wilson started a new life, or that a third party abducted her and he had investigated those possibilities. Defendant contends this testimony was improper opinion testimony as the investigation was wide-ranging and not limited to finite physical evidence. He further contends it was irrelevant and argumentatively cumulative of the other testimony and physical evidence. The Attorney General contends McDonald’s testimony was proper expert opinion.
We disagree that this testimony was improper opinion testimony. Defendant contends the questions were similar to one found improper in People v. One 1941 Chevrolet Coupe (1952) 113 Cal.App.2d 578. That case was a forfeiture case where the issue was whether the vendor of the automobile made an adequate investigation into the buyer’s moral responsibility. The trial court sustained an objection to a question that asked: “‘And what did you find as a result . . . of that investigation‌’” The appellate court held the ruling was correct; the question asked for an irrelevant conclusion. (Id. at p. 582.) Here the questions were different. When the prosecutor tried to elicit McDonald’s conclusion or opinion, the court sustained the objection. McDonald was allowed to testify only as to what he actually found or did not find, not as to the conclusion he drew. Moreover, McDonald’s actual findings regarding any alternate reasons for Wilson’s disappearance were relevant to the prosecution’s burden of proof on the threshold issue of whether a crime occurred.
Testimony about Incapacitating Someone and Boot Camp
Defendant objects to McDonald’s testimony that served to bolster the prosecution case that defendant violently subdued Wilson in the parking lot.^[2] McDonald testified he had seen hair embedded in objects as a result of violent force. He further testified that while in boot camp in 1971, he became familiar with techniques to incapacitate someone quickly and that defendant served in the army and went through boot camp around the same time. Defendant contends expert opinion was not required in these areas and McDonald’s testimony implied an ultimate opinion about defendant’s guilt.
At trial, defendant objected to the testimony about embedded hair only on the basis of foundation. Since he did not object on the basis argued on appeal, that contention is forfeited. (Evid. Code, § 353, subd. (a).)
Defendant did initially object to the testimony about incapacitation and boot camp on the basis of relevancy, as well as that the question was leading. The testimony came in afterwards without objection. This testimony was not opinion evidence; it was based on McDonald’s perceptions, both in boot camp and his investigation of defendant’s military record.^[3] It was relevant to establishing that defendant had the means to commit the crime.
The trial court did not prejudicially err in admitting the testimony of McDonald.
VI.
Admission of Exhibit 288 Was Within the Court’s Discretion
Defendant contends the trial court abused its discretion in permitting the prosecutor to create and then admit into evidence exhibit 288. Exhibit 288 consists of a large poster board showing in calendar form two weeks of October 2005, the 2d through the 15th. As witnesses testified, the prosecutor would place a small summary of their testimony on the appropriate date. The summaries were placed on three transparent overlays according to the person or entity whose activities were described. Exhibit 288A summarized Wilson’s activities; exhibit 288B was for law enforcement and exhibit 288C for defendant. The net effect was a timeline showing the activities of the major players in the case over the critical time period.
In the course of trial many charts were used and the defense complained, “we’re engaged in a trial by charts here essentially, and we’re being overwhelmed by charts here that are being used as a substitute for the real evidence in this case.” The defense lodged a specific objection to exhibit 288 and a continuing objection as summaries were placed upon it. When the People offered exhibit 288 A, B and C into evidence, defendant objected it was argumentative, misleading, irrelevant, inflammatory, in violation of Evidence Code section 352, and it excluded exculpatory evidence. The court overruled the objection, finding the witnesses had verified the accuracy of the exhibit.
“It is hard to imagine an issue on which a trial judge enjoys more discretion than as to whether summary exhibits will be helpful. Nothing precludes their use with respect to oral testimony.” (Fraser v. Major League Soccer, L.L.C. (1st. Cir. 2002) 284 F.3d 47, 67, fn. omitted.) To be sure, summary exhibits can pose a danger of prejudice. (See United States v. Gaskell (11th Cir. 1993) 985 F.2d 1056, 1061 & fn. 2 [noting that “[s]everal circuits have recognized that demonstrative exhibits tend to leave a particularly potent image in the jurors’ minds”].) Defendant cites no authority that an exhibit like exhibit 288 is inadmissible. In Barnes v. State (Tex. App. 1990) 797 S.W.2d 353, 357, the court rejected a contention that allowing the use of charts to summarize testimony was error. “If the evidence which the charts summarize is admissible, the admission of summary charts into evidence, and their use before the jury, is within the discretion of the trial court. [Citation.] That a chart serves to emphasize testimony does not render it inadmissible. [Citation.]” (Ibid.)


TO BE CONTINUED AS PART IV….
Publication courtesy of California pro bono lawyer directory.
Analysis and review provided by Chula Vista Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---