P. v. White

Filed 10/4/06 P. v. White CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Michael R. Cummins, Judge.

Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

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Alfred Ray White was convicted of second degree murder (Pen. Code, § 187)^[1] in the shooting death of his wife, Teresa White. White admitted he shot Teresa, but claimed he acted out of a heat of passion or in self-defense. He argues the trial court erred in admitting certain items of evidence and improperly instructing the jury. We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Richard Lee Turnquist, White’s brother-in-law, was living with White at the time of the shooting. Teresa^[2] called White numerous times on the day of the shooting. Shortly before the shooting, someone called the house and Turnquist heard White tell the caller to come over and he would give them $200.

Turnquist was lying on the couch in the living room when Teresa arrived. Teresa went into White’s bedroom to talk with White. A short while later he heard Teresa say, “Alfred, no.” There were two gunshots and then Turnquist heard Teresa yell, “Help me.” Teresa crawled out of White’s bedroom on her hands and knees. White was right behind her and shot her in the back. White then looked at Turnquist and said, “Yes, I shot her, I’m going to jail. Call the cops.” White looked calm, not agitated.

Sandra Sue Turnquist, Turnquist’s wife, is White’s half-sister. On the day of the shooting she had been at her daughter’s house with her son. She came home shortly before 8:00 p.m. and the house was dark. She and her son went into the kitchen to put away the groceries they brought home with them. They did not hear any noises until they heard Teresa say, “No, Alfred.” She then heard two shots. Sandra and her son were headed towards the door when Teresa came staggering towards them and said White shot her and she was going to die.

Curtis is White and Teresa’s son. He heard White threaten to kill Teresa in the two years before her death. Curtis specifically recalled White saying he was going to kill Teresa on at least one occasion in the two weeks before her death.

Curtis was home on the night of the shooting. He was in his room when he heard his mom enter the house. He next heard a bang and left his room to investigate. When he entered the living room he saw Teresa exiting White’s bedroom. She said White had shot her. White came out of the bedroom behind Teresa. Curtis told him not to do it, but White shot Teresa in the back. White told Curtis to call the police because he was going to jail.

Salina is White and Teresa’s daughter. Her parents separated in early 2002. Salina heard White threaten to kill Teresa after they separated.

Dennis Odell Odom is married to Salina. He heard White threaten Teresa on numerous occasions. The last occasion was in approximately April 2003, approximately nine months before the shooting, when he and Salina moved away from White.

White was married to Teresa for 23 years, although for approximately three years they did not live together. He denied threatening to harm Teresa at any time. White was afraid of Teresa because she claimed she could have anyone attacked if she wanted to do so.

White slept with a pistol under his pillow because of problems he had in the neighborhood with people stealing things.

On the night of the shooting, White had received numerous phone calls from Teresa. She was trying to borrow money from him and would not believe him when he said he did not have any funds. As he was preparing to go to bed, he heard Teresa enter the house. Teresa entered his bedroom and again asked him to give her some money. White told her he did not have any money to give her.

Teresa got mad and punched at White. White ducked and the punch missed. Teresa fell onto White’s pillow when he ducked. When she did so, White’s pistol was revealed. Teresa grabbed at the pistol. White also reached for the pistol. The pistol fired as they fought over it. Teresa exclaimed that she had been shot. At this point White claims to have blacked out and did not remember shooting Teresa again.

Despite claiming to have blacked out, White remembered his son Curtis opening the door, Teresa pushing White to the side, and walking, not crawling, out the door. He also remembered Curtis yelling, “Dad,” and throwing the gun onto the bed because he did not want Curtis to touch it. White claimed he did not intend to shoot Teresa.

White was charged with first degree murder. (§ 187.) The information also charged two firearm enhancements, one for personally discharging a firearm (§ 12022.5, subd. (a)), and one for personally discharging a firearm causing great bodily injury or death to another (§ 12022.53, subd. (d)). The jury found White guilty of second degree murder and found White personally discharged a firearm, causing Teresa’s death. White was sentenced to the statutory term of 15 years to life for second degree murder, enhanced by 25 years to life for using a firearm to murder Teresa.

DISCUSSION

I. Admission of Evidence of Prior Threats

White argues the trial court erred in admitting the testimony of Salina that she heard White threaten Teresa numerous times in the two years before the murder. He argues the evidence was too remote and no longer relevant based on his relationship with Teresa prior to her murder.

At trial White objected to the testimony of Salina and Odom on Evidence Code section 352 grounds only, arguing the testimony was more prejudicial than probative because the threats were made two years before the murder. White did not object to Curtis’s testimony.

We review a trial court’s ruling on objections made on evidentiary issues, including Evidence Code section 352 objections, for an abuse of discretion. (People v. San Nicolas (2004) 34 Cal.4th 614, 664; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

We begin with White’s argument that the evidence was irrelevant. First, White did not object on this ground in the trial court. He has, therefore, waived the objection. (People v. Marks (2003) 31 Cal.4th 197, 228.) Second, the evidence was relevant. “Relevant evidence“ is defined as “evidence “¦ having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) White was charged with committing premeditated murder. The only issue was his mental state at the time of the murder, that is, was the killing premeditated? His threatening to kill Teresa many times over a two-year period has a tendency in reason to prove the shooting was premeditated. It is, therefore, directly relevant to a disputed fact that was at issue in the case.

White’s second argument is the same one he relied on in the trial court -- that the probative value of the evidence was outweighed by its prejudicial effect because of the age of the statements.

Contrary to White’s argument, the testimony established the statements were made over the entire period, not over a short period of time two years ago. While it would have been ideal from the prosecution’s standpoint for someone to testify that White threatened to kill Teresa the morning of the murder, the timeframe in this case was not so attenuated as to cause the evidence to lose its probative value. While the trial court was entitled to give some weight to the remoteness issue in the weighing process, it was reasonable to assign this factor very little weight. Since the evidence directly related to the only issue in the trial, the probative value of the evidence was great. The trial court did not abuse its discretion in concluding the probative value of the evidence exceeded its prejudicial effect.

Even if we were to conclude the trial court abused its discretion, we would not reverse the judgment. We review evidentiary errors to determine whether there was a reasonable probability that the defendant would have obtained a more favorable result had the evidence not been admitted. (People v. Marks, supra, 31 Cal.4th at pp. 226-227; People v. Watson (1956) 46 Cal.2d 818, 836.)

The jury apparently gave little weight to this evidence because it rejected the prosecution’s argument that White acted with premeditation when it found White guilty of second degree murder. Moreover, Salina was not the only witness to testify to the threats made by White. Odom and Curtis also testified that threats were made. The jury would have had this testimony to consider, even if Salina’s testimony had been excluded. We do not think a different result would have been reached if two witnesses had testified to the threats instead of three. We conclude there is no possibility that excluding Salina’s testimony would have permitted White to obtain a more favorable result.^[3]

White argues extensively that the prior threat testimony should have been excluded because it does not fit within the prior crime exception found in Evidence Code section 1101, subdivision (b). That is not the point here. The evidence was introduced to attempt to establish the murder was premeditated. The prior threats related directly to this issue. This testimony did not involve prior crimes or civil wrongs subject to an Evidence Code section 1101 analysis. Nor was the testimony admitted to prove White’s conduct. The conduct was admitted by White. The only question was his motivation. Evidence Code section 1101 is not relevant to this issue.^[4]

II. Failure to Instruct with CALJIC No. 2.71.7

The trial court instructed the jury with CALJIC No. 2.71. This instruction defines an admission for the jury and informs the jury it is to determine if the defendant made an admission, whether the statement was true, and that an oral admission not made in court should be viewed with caution.

The jury was not instructed with CALJIC No. 2.71.7. This instruction informs the jury that there was evidence that a defendant made an oral statement of intent, plan, motive, or design, and the jury is to determine if the statement was made. The instruction also informs the jury to view such statements with caution.

The last portion of each instruction is referred to as a cautionary instruction. The purpose of a cautionary instruction is “‘to assist the jury in determining if the statement was in fact made.’ [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 393.) The trial court must give a cautionary instruction sua sponte whenever the evidence warrants. (Id. at p. 392.)

White recognizes that CALJIC No. 2.71 was given, but argues this was inadequate because it specifically referred to admissions, and the prior threat testimony does not fit the definition of an admission. According to White, the jury never was instructed to view with caution his threats to harm Teresa.

The premise of White’s argument, that the prior threats do not fit the definition of an admission, is arguable. CALJIC No. 2.71 defines an admission as “a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence.” The prior threats could be considered admissions when applying this definition. The prior threats do not acknowledge guilt for the murder of Teresa, but tend to prove premeditation when considered with the other evidence of first degree murder.

While the law draws a distinction between a statement of intent and an admission, it seems unlikely the jury would do the same. Since the jury also was instructed on how to evaluate a witness’s testimony (CALJIC No. 2.20), it had adequate tools with which to evaluate the testimony of Salina, Odom, and Curtis.

Even if error occurred, reversal would not be required. We review instructional error that involves state law under the test of People v. Watson, supra, 46 Cal.2d 818. (People v. Epps (2001) 25 Cal.4th 19, 29.) Under the Watson test, we will affirm the jury’s verdict unless, after a review of the entire record, it is reasonably probable that a result more favorable to the defendant would have been reached absent the error. (Epps, at p. 29.)

It is not reasonably probable the jury would have reached a different result had it been instructed with CALJIC No. 2.71.7. First, as stated above, it is unlikely the jury drew the distinction between admissions and statements of intent that White asks us to draw. Second, the jury was provided with adequate tools to evaluate the credibility of all the witnesses. Third, the jury rejected the prosecution’s premeditation theory, which was the primary theory at which the prior threats evidence was directed. Therefore, it is unlikely the jury gave much weight, if any, to the evidence.^[5] Under these circumstances, any error was harmless.

III. Admission of Teresa’s Statement to the Police

White was interviewed by the police shortly after the shooting. The tape of the interview was introduced into evidence and played for the jury. Approximately two-thirds of the way through the interview, the detective interviewing White referred to a report Teresa made to the police claiming that White threatened to kill her. White denied the allegation and offered to take a lie detector test to prove the report false.^[6]

White did not object to this portion of the tape before it was played. Instead, after the evidence was closed, but before closing argument, White moved to have stricken from the record the interviewing detective’s reference to Teresa’s reports to the police of White’s threats. White claimed the statements were hearsay and lacked foundation. The trial court denied the request as untimely.

We need not decide if the motion should have been granted because, even if we assume, arguendo, that the trial court erred, there is no reasonable probability White would have obtained a more favorable result had the evidence been stricken from the record. (People v. Marks, supra, 31 Cal.4th at pp. 226-227.)

The statements to which White objected were a small part of an interview that lasted approximately one hour. The jury heard the statements. Had the motion been granted and the jury told to disregard the evidence, it would have served to emphasize the remarks that probably were of no moment when first heard. Neither the prosecutor nor White’s counsel referred to the statements at any time during the trial or closing arguments. In addition, Curtis, Salina, and Odom all testified to threats White made to harm Teresa. These few remarks certainly added nothing to the evidence already before the jury. There is no possibility that striking these remarks from the record after evidence had been closed would have resulted in a more favorable result for White.

DISPOSITION

The judgment is affirmed.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

VARTABEDIAN, Acting P.J.

_____________________

DAWSON, J.

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

^[2] We refer to Teresa, Sandra, Curtis, and Salina by their first names in order to avoid confusion, not out of disrespect.

^[3] We read White’s brief to assert that admission of only Salina’s testimony was erroneous. If White intended to assert that Odom’s testimony also should have been excluded, we would reach the same result. White did not object to Curtis’s testimony in the trial court and may not do so for the first time on appeal. (People v. Gurule (2002) 28 Cal.4th 557, 626.)

^[4] White did not object on this ground in the trial court and thus has waived the issue. (People v. Gurule, supra, 28 Cal.4th at p. 626.)

^[5] We recognize that the jury could have considered the prior threats evidence in deciding whether the shooting was committed with malice aforethought (second degree murder), or occurred in a heat of passion (voluntary manslaughter). There was ample evidence in addition to the prior threats to establish malice aforethought (shooting Teresa in the back while she was on her knees, the lack of an argument before the shooting, etc.), while the only evidence of premeditation was the prior threats.

^[6] “[DETECTIVE]: Okay I looked over a couple of reports that have been made through the police department “¦ and it looks that she reported that you threatened to kill her.

“WHITE: No I’ve never that’s what she said, but I’ve never reported never said that. Now I’d take a lie detector test on that.

“[DETECTIVE]: Okay. Yeah this is back in “¦ 6-14-03 and she says that she was reporting that you threatened to kill her and that you drive a primer black truck.

“WHITE: “¦ [W]hat?

“[DETECTIVE]: A primer black truck. Was she talking about you?

“WHITE: That was probably the truck I had back then, but I never threatened to kill her. I never even wouldn’t go around her that’s why now she couldn’t come around me.

“[DETECTIVE]: Right.

“WHITE: I so I wouldn’t even go around her. In fact I never did even see her back then. That’s when she lived in Turlock and I never did even go to Turlock around her house and she was living over there and her boyfriend.”