P. v. Webb

Filed 9/29/06 P. v. Webb CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Thomas D. Glasser, Judge. Affirmed.

Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant appeals from his conviction of first degree murder. His sole contention on appeal is that the trial court erred in refusing to correct errors in the probation report. We find no error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

Because the only issue on appeal is a challenge to the trial court’s refusal to correct errors in the probation report, the underlying facts will be set forth in summary fashion.

On July 10, 2003, defendant was driving from Las Vegas to California with his girlfriend, Sarah Betts. Believing that Betts’s eyes were cameras, that bugs or “spawns” were coming out of her body, that she was “not human,” and that she was about to kill him, defendant stabbed her 30 to 40 times and left her body by a deserted road. Several hours later, defendant’s blood tested positive for amphetamine and methamphetamine. The medical examiner opined that Betts’s injuries were consistent with having been inflicted by a Leatherman multipurpose tool found at the scene.

Defendant suffered from delusions and paranoia, and one defense expert testified defendant’s symptoms were classic schizophrenia.

Following trial, the jury found defendant guilty of first degree murder (Pen. Code,^[1] § 187, subd. (a)) and found true the special allegation that he personally used a deadly and dangerous weapon -- a knife (§ 12022, subd. (b)(1).) The jury, however, rejected defendant’s insanity defense.

Other facts are set forth in the discussion of defendant’s contention on appeal.

III. DISCUSSION

Defendant contends the trial court erred in refusing to correct errors in the probation report despite defense counsel’s request at the sentencing hearing.

A. Injury to the Victim’s Ribs

The probation report stated, in describing Betts’s injuries, “Four of her ribs had been sawed through and she sustained sharp force penetrations to the left chest, her heart, and both lungs.” Defense counsel objected to that statement on the ground that the trial testimony showed that the victim’s ribs had been cut or sliced, not sawn. The trial court stated that it agreed with defense counsel’s statement, but the trial court further stated it was “not inclined to change anything on the report.”

Dr. Steven Trenkle, the forensic pathologist who performed the autopsy on Betts’s body, testified at trial there were vertical incisions or cutting wounds to her chest. In describing a wound denominated as wound No. 5, Dr. Trenkle testified, “This, I think, is a combination of cutting or incisional injuries because these superficial incisional wounds come right out of wound No. 5. So there was some vertical -- when I say vertical, that’s assuming the person is standing up, it’s vertically oriented incisional or cutting wounds. And then there are deeper stab wounds because they go through the bones and particularly on the right side it cut right through several ribs, the cartilage, softer portion of several ribs on the right side.” Dr. Trenkle testified that wound No. 5 was seven inches vertically, three inches horizontally, and two to three inches deep. He further testified, “Most of the incisional cutting [was] just through the ribs, the cartilage of the ribs themselves.”

In his testimony, Dr. Trenkle discussed a photograph of wound No. 5:

“Q. Now, in this photograph, can you see the ribs that were cut through?

“A. You can see these white sort of a void things here on the edge, those are the edge of the ribs. . . . [Y]ou can see these cut surfaces where the ribs on the right side were cut through the cartilage.” A total of five ribs were cut through. Dr. Trenkle clarified that the ribs had been cut through the cartilaginous parts of the ribs rather than the bony parts.

He described the mechanism by which the huge wound no. 5 had been created: “Well, I think it was the result probably of multiple wounds, multiple slicing and cutting injury that together gave it this gaping of a wound.”

Finally, in describing the Leatherman tool that was believed to have been used, Dr. Trenkle testified, “Well, of the other [blade], I was told was a -- sort of had a saw edge to it. The lower part, particularly of wound label No. 5 the lower part of it was a lot more jagged. It would be a lot more consistent with an instrument with the saw edge.”

At the sentencing hearing, the defendant has the opportunity “to present rebuttal evidence and challenge any statements in the probation report.” (People v. Monreal (1997) 52 Cal.App.4th 670, 678-679; People v. Garcia (1989) 216 Cal.App.3d 233, 237.) Here, defense counsel argued that the probation report was in error, although he did not proffer any evidence to support that argument, but relied on his recollection of the evidence at trial. In our view, however, the probation report was indeed consistent with Dr. Trenkle’s testimony about the injury to the victim’s ribs, the manner in which it was inflicted, and the weapon that was used, except that the probation report refers to only four ribs instead of five. We conclude that defendant’s contention that the probation report was erroneous is meritless.

B. Defendant’s Remorse

The probation report stated, with respect to defendant’s remorse, “the only statement that he wished to make toward the victim’s family is ‘I’m sorry, I made a mistake.” Defense counsel argued that defendant had “always had been remorseful” for Betts’s death, and his remarks to the probation officer were “consistent with his position at trial . . . [that] if in fact it had been as it appeared to him [i.e., that he was killing an alien] . . . there would be nothing to apologize for.” The court responded, “I understood him in that sense.” Defense counsel contended that he “hope[d] it is clear to the Court and certainly [defendant’s] position that he is actually very remorseful for, you know, having caused Sarah Betts’[] death. It’s just that he didn’t know it at the time.” The court responded, “Okay.”

Defense counsel did not ask the court to take any specific remedial action and did not even contend that the statement in the probation report was inaccurate. Rather, defense counsel merely proffered “another explanation of the defendant’s statement.” We conclude defendant has not identified any error in the probation report in connection with his remorse.

C. Previous Threats Against the Victim

Defense counsel disputed the accuracy of statements in the probation report that “defendant made statements to others indicating he had previously threatened the victim, and indicated his motives for following through.” Defense counsel stated, “It’s perhaps a smaller distinction that what I think the testimony at trial was that he was upset with his ex, mother of his child, and that had expressed animosity towards her and then the leap was well, Sarah Betts looked like her and that was the one thing he didn’t like about her.”

At trial, Jeffrey Manning, an acquaintance of both defendant and Betts, testified that about two months before the murder, defendant had said he despised Betts because she reminded him of his ex-girlfriend. Defendant also said he wanted to kill his ex-girlfriend. Defendant talked about his Marine Corps combat training and showed Manning a knife that defendant said would be the perfect weapon with which to kill his ex-girlfriend. Defendant made derogatory remarks about both Betts and the ex-girlfriend. Another witness, Cassandra Clark, testified that defendant had said Betts disgusted him because she reminded him of his ex-girlfriend.

The prosecutor conceded at the sentencing hearing that there had been no direct threat but stated that a threat had been implied. The trial court stated that the sentence in the probation report about prior threats might be confusing or misleading, but the statement comported with the trial testimony. The trial court observed that defendant’s statements to Manning and Clark constituted indirect threats. We agree with the trial court that the trier of fact could reasonably infer that defendant’s statements to Manning and Clark were indirect threats against the victim.

Moreover, even if the statement in the probation report about threats was incorrect, defendant has not shown, and in our view could not possibly show, any prejudice. Defendant committed an extraordinarily violent murder of a defenseless woman. During the murder, defendant inflicted 30 to 40 separate wounds, including stab wounds to her eyes, face, and chest, and defensive wounds to her hands. The statement in the probation report to which defendant now objects pales to insignificance when considered in the context of the overall circumstances of the murder. In light of the nature of the crime, we cannot conceive of any possibility that the challenged statements could negatively influence any future decision concerning defendant.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

RICHLI

J.

KING

J.

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^[1] All further statutory references are to the Penal Code.