People v. Rubin CA2/2 ( 2021 )

Filed 12/3/21 P. v. Rubin CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306556
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA146161)
v.
EDWARD J. RUBIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Julian C. Recana, Judge. Modified and
affirmed with directions.
Melissa Hill, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Ryan M.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Edward Jamal Rubin killed his lover, inflicting
blunt force trauma to her head and strangling and drowning her
in a bathtub. Her son heard her call for help; soon after, he and a
neighbor found appellant locked in the bathroom with the dead or
dying woman. A jury convicted appellant of willful, deliberate,
and premeditated murder. (Pen. Code, § 187, subd. (a).)1
Appellant does not deny the killing but contends that there
is no evidence of planning and deliberation. After examining the
entire record, we conclude that substantial evidence supports his
conviction for murder in the first degree. The court did not abuse
its discretion by admitting into evidence information extracted
from appellant’s phone. We affirm the judgment of conviction but
vacate the order requiring appellant to pay attorney fees.
FACTS
Louise Graham lived in Los Angeles with her husband K.O.
and sons C.O. and Ca.O., ages 10 and 13. C.O. knew his mother
had male friends who spent the night with her; it was not a
secret. Ca.O. testified that appellant spent time at the family’s
home and sometimes spent nights with Graham.
On May 27, 2018, K.O. went to church and Graham went
shopping. When she returned, appellant was with her; he and
her sons unloaded groceries from her car. That evening, C.O.
played video games in his bedroom with a friend, Alan V., with
the door ajar. C.O.’s bedroom is near his mother’s, which has its
own bathroom.
C.O. heard his mother say, “Give me back my keys,” and
appellant say, “shut up, bitch.” C.O. was certain the two cursed
each other and talked about house keys on the day she died.
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1 Undesignated statutory references are to the Penal Code.
2
Another argument between them arose two months earlier, when
his mother became angry because appellant was with a girl.
C.O. heard his mother say “help.” Though he recognized
her voice and Belizean accent, C.O. did not react because “I
thought someone was saying it on the game.” He continued to
play his game, then felt “the ground shaking” and heard “stuff
falling down.”
C.O. heard water overflowing from his mother’s bathtub.
Seeing that her bedroom door was closed, he walked outside and
saw water dripping from the second story to the yard. K.O. was
not home, so C.O. sought help from David Garbutt, who lives in a
back house on the property.
Garbutt saw water dripping from the house. He and C.O.
tried to enter the master bedroom, but the door was locked. Once
C.O. opened the lock, they found no one in the bedroom. C.O. and
Garbutt tried to enter the bathroom but the door was locked.
C.O. knocked on the bathroom door. He heard nothing
then knocked again. He and Garbutt tried to open the door.
Appellant, who was inside the bathroom, told them several times
to wait.
Appellant opened the bathroom door. C.O. recalled that
appellant was wearing jeans, a sleeveless T-shirt, and Adidas
shoes. Water darkened his jeans and chest and was dripping
from his clothing and face.
C.O. opened the glass tub enclosure and looked into the
bathtub, which was filled with water. He saw his mother laying
on her back, her face under water. She was not moving. C.O.
removed a towel blocking the drain opening, to release the water.
He saw water outside the tub, on the bathmat and around the
toilet.
3
Garbutt saw Graham curled up and unmoving in the tub.
The water was over her nose. He heard C.O. say to appellant,
“you killed my mom.” Appellant replied that she slipped and fell
in the tub. Appellant walked out of the bathroom and put some
clothing in a bag in the bedroom. Garbutt did not see appellant
again after that.
Alan V. heard C.O. knocking and saw appellant walk out of
the bathroom after the door opened. Alan noticed that
appellant’s head and upper body were wet. Alan heard C.O.
scream “mom, mom.” Appellant ran out of the house and through
the front gate, saying “shit” and “the ‘F’ word,” according to C.O.
Once appellant was outside, he made a phone call. Alan saw
appellant get picked up by someone in a car; later, Alan saw
appellant back at Graham’s home.
Garbutt and C.O. called 911. Paramedics were dispatched
at 8:22 p.m. A neighbor and Garbutt’s visitors arrived to assist.
The neighbor heard C.O. screaming, “Can you help my mom?”
and followed the boy into the house. With instructions from the
911 operator, the adults lifted the victim from the bathtub and
began CPR. Garbutt did not press on the victim’s neck. Vomit
came from her mouth. One of the rescuers said water was
overflowing from the tub and blood dripped from Graham’s nose.
Witnesses at the scene testified that appellant did not help with
resuscitation efforts. A detective recognized appellant’s voice in
the background of the 911 call, asking if Graham was breathing.
Ca.O. was in his bedroom, wearing headphones and playing
video games, when C.O. opened the door and said, “Eddie killed
[our] mom.” C.O. was frantic and scared. C.O. left and returned
with Garbutt; Ca.O. saw them open Graham’s bedroom door and
try to open the locked door to her bathroom. Ca.O. did not see
4
C.O. and Garbutt enter the bathroom. After Garbutt left to get
help, Ca.O. walked into Graham’s bathroom and saw her laying
naked in the tub, with the water draining out of it. No one else
was there.
Ca.O. testified that his mother took showers, not baths.
Moreover, her bathtub leaked outside to the front porch if it was
filled more than ankle deep.
Ca.O. saw appellant on the staircase, looking scared and
saying, “oh shit. Oh, shit. Oh, shit.” Ca.O. noticed that he had a
damp towel over his shoulder and was carrying a black bag. He
saw appellant walk out of the house.
Paramedics found Graham on the floor outside the
bathroom. She was not breathing and had no pulse. They began
chest compressions, used a bag mouth mask, and intubated her
lungs. They observed that her airway was full of fluid. Graham
did not regain a pulse or breathe while paramedics ministered to
her. She was pronounced dead at the scene.
Chest compressions may cause broken ribs and bruising to
the patient’s rib cage. No harm is caused to the neck, which is
tilted back to open the airway. It is common for a person to vomit
from pressure building in the abdomen from chest compressions;
vomiting may occur even if the person is already dead.
When a police detective first arrived at Graham’s house, he
did not see appellant. Later, appellant arrived at the house
wearing a dark sport jacket. His nose and chin were scratched
and he was perspiring.
A medical examiner from the coroner’s office autopsied
Graham. Graham’s arms had fresh bruises. Her neck and head
were “very congested. So they are more purple. That is
something we commonly see when somebody dies of neck
5
compression or strangulation.” The examiner explained that in
homicidal strangulation, blood cannot leave the head, which
becomes purple. A dissection showed hemorrhaging in the tissue
on both sides of the neck. Graham had pinpoint hemorrhages
(petechiae) on her face and eyes, consistent with forceful
strangulation.
A hemorrhage on the back of Graham’s head was caused by
blunt trauma, i.e., “the head hitting something or something
hitting the head.” She was alive when she sustained the injury.
Bubbles in her lungs showed pulmonary edema from drowning.
Her blood contained no alcohol or drugs.
The examiner stated that the victim “died of asphyxia due
to the combined effects of neck compression, drowning and blunt-
body trauma.” It was a homicide. Even if the toxicology report
had showed drugs in the victim’s system, it would not change the
cause and manner of death because drugs would not cause
compression hemorrhages from strangulation or blunt force
trauma to the head.
Appellant had a nine-year intimate relationship with
Cynthia Crawford. Crawford knew appellant referred to Graham
as his “girlfriend” and had a key to Graham’s house. Crawford
“had words” with Graham about appellant in the past. Crawford
testified that she still loves appellant.
Call logs were extracted from appellant’s phone. Crawford
testified that on May 27, 2018, she called appellant “a whole lot”
because they were supposed to go out; when he failed to answer,
she started texting. In one call, around 8:00 p.m., Crawford
heard Graham’s voice saying, “Come and get your man. I want
him out of my house.” Graham sounded angry and said, “Come
get him, Cynthia. He is a fucking liar.” Appellant did not answer
6
seven calls from Crawford between 7:57 p.m. and 8:18 p.m. At
8:21 p.m., appellant called 911. He telephoned Crawford multiple
times starting at 8:26 p.m., four minutes after the 911 dispatch.
Crawford testified that appellant asked her to pick him up near
Graham’s home.
Crawford told police that appellant said “something
happened between him and [Graham].” At trial, Crawford denied
discussing Graham’s death with appellant. However, she was
confronted with several recorded jailhouse calls in which she and
appellant discussed the circumstances of Graham’s death.2
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2 The jury heard seven clips from calls made from jail.
In clip 1, Crawford asked appellant, “Did you put your
hand on that lady?” He replied, “Nah, I ain’t do nothing. Just
like the regular shit man.” Crawford asked, “You didn’t choke
her out?” Appellant said, “Just regular shit, pushed that lady off
me, shit like that.” Crawford said, “So you pushed her off of you
and then what happened?” Appellant answered, “You know I
can’t talk about all that over the phone like that.”
In clip 2, appellant said to Crawford, “As long as the
autopsy don’t say that I killed her by choking her or some shit,
then everything else is irrelevant.”
In clip 3, appellant said, “I took my shower, I was getting
ready to go. And then you kept calling and calling. And that’s
what triggered her all.” Crawford replied, “So what? If I call, you
with me . . . You should have never went over there. I knew.”
In clip 4, Crawford voiced concern that appellant told police
about her when she approached the victim’s home.
In clip 5, appellant called Graham his “sugar mama,” to
which Crawford replied, “So what are you going to do, are you
going to fin[d] yourself another sugar mama that ain’t gonna go
nowhere?” She added, “I’m being real with you. Who you got
now? Me and your family, right? Okay. What [are] you going to
do? Dump me aside and fin[d] yourself another sugar mama?
7
Police obtained a search warrant for appellant’s cell phone.
Call logs and text messages were extracted from it with a
program called Cellebrite. The jury saw material stored in
appellant’s phone on the evening of Graham’s killing. An
unknown woman texted him from a 424 area code number,
making arrangements to pick him up. Appellant wrote that he
was getting ready to leave at 6:57 p.m. The person said she was
on her way and asked if appellant would be bothered if she is
taller than he is. At 7:53 p.m., the person asked where to pick
appellant up, to which he replies, “Hold on” at 8:02 p.m. At 8:35
p.m., the person texted appellant that she was “sitting here
waiting” in her car. A few minutes later, she indicated that she
was going to leave. Appellant replied, “Okay. Just a minute” at
8:42 p.m. At 9:20, she writes, “lol” and at 11:24 p.m. chastised
appellant for wasting her time, adding, “Sorry we were unable to
get together.”
Crawford testified that she sent text messages found on
appellant’s phone, using a telephone number she has used for
four years. On the afternoon of May 27, 2018, she texted
appellant to voice dismay that he did not love her and was with
____________________________________________________________
And then something like this might happen.” Appellant said,
“Did I ever dump you to the side? . . . Are you going to dump me
to the side?” Crawford answered, “No I’m not, I’m going to be
here till the end. I’m going to be with you all the way to the end
with this shit . . . I’m not going nowhere.”
In clip 6, appellant said, “Once we find out what the fuck
they talking about at this pretrial and preliminary hearing, and
they get the fucking autopsy then I know how to proceed.”
In clip 7, appellant said, “All I need to know is just the
cause of death, man. . . . Cause then, if they try to run a twist,
then I know how I got to work it then man. You know?”
8
Graham; she threatened to end their relationship. At 8:00 p.m.,
Crawford texted that she “heard a b**** in the background,”
prompting her to text, “leave me the f*** alone.” Crawford
explained at trial that it was Graham’s voice she heard in the
background. At 8:20 p.m. she texted appellant in anger about his
other relationships. By 9:12 p.m., Crawford was near the victim’s
home, at appellant’s request, and texted him to come and get his
belongings, which were in her car. At 10:45 p.m., she texted
furiously that she had been waiting for him at length and
wondered if he went to the hospital “with her,” which Crawford
explained at trial referred to Graham.
PROCEDURAL HISTORY
Appellant was charged with and convicted of first degree
murder. (§ 187, subd. (a).) He waived his right to a jury trial on
his prior “strikes.” The court found true that appellant has prior
serious or violent felony convictions for lewd conduct with a child
and residential burglary. (§§ 288, subd. (b)(1), 459, 1170.12,
subd. (b).) It sentenced appellant to prison for 50 years to life.
DISCUSSION
1. Jury’s First Degree Murder Finding
Appellant contends that the evidence does not support a
premeditated murder finding. In a challenge to the sufficiency of
the evidence, we review the entire record in the light most
favorable to the judgment, which must be upheld if there is
substantial evidence from which a reasonable trier of fact could
find the essential elements of the crime beyond a reasonable
doubt. We presume the existence of every fact the trier could
reasonably deduce from the evidence. (People v. Dalton (2019) 7
Cal.5th 166, 243–244.)
9
First degree murder is willful, deliberate, and
premeditated. (§ 189, subd. (a).) “[I]t is not necessary to prove
the defendant maturely and meaningfully reflected upon the
gravity of [his or her] act.” (§ 189, subd. (d).) The killing must be
the result of thought and reflection, rather than an unconsidered
or rash impulse. (People v. Morales (2020) 10 Cal.5th 76, 88;
People v. Pearson (2013) 56 Cal.4th 393, 443.) “Deliberate” refers
to a careful weighing of considerations in forming a course of
action; “premeditated” means considered beforehand. The
“ ‘ “process of premeditation and deliberation does not require
any extended period of time.” ’ ” (People v. Salazar (2016) 63
Cal.4th 214, 245.) “ ‘The true test is not the duration of time as
much as it is the extent of the reflection. Thoughts may follow
each other with great rapidity and cold, calculated judgment may
be arrived at quickly.’ ” (People v. Potts (2019) 6 Cal.5th 1012,
1027.)
“ ‘Three categories of evidence are helpful to sustain a
finding of premeditation and deliberation in a murder case:
(1) planning activity; (2) motive; and (3) manner of killing.’
[Citation]. These factors are simply a ‘framework to assist
reviewing courts in assessing whether the evidence supports an
inference that the killing resulted from preexisting reflection and
weighing of considerations.’ ” (People v. Dalton, supra, 7 Cal.5th
at p. 248; People v. Anderson (1968) 70 Cal.2d 15, 26–27.)
There was evidence of motive. Appellant called Graham
his “sugar mama,” suggesting he was financially reliant upon
her.3 He became angry when she chastised him, called him a
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3 “Sugar mama refers to a woman, often one who is
married, who gives financial support to a typically younger
lover.” (Merriam-Webster Online Dict. (2021)
10
“liar” while he was on the phone with Crawford, and told him to
leave her home. C.O. testified that he heard Graham demand the
return of her house keys and appellant curse her in response.
“ ‘Anger at the way the victim talked to him may be
sufficient’ ” to support a first degree murder conviction. (People v.
Miranda (1987) 44 Cal.3d 57, 87, disapproved on another point in
People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) In Miranda,
the defendant was angered by the victims’ refusal to sell beer to
him. “The conversation between defendant and his victims
suggests that defendant acted with conscious motive and had
time to reflect upon his plan to shoot the victims. ‘[The] law does
not require that a first degree murderer have a “rational” motive
for killing.’ ” (Miranda, at p. 87; People v. Jackson (1989) 49
Cal.3d 1170, 1200 [evidence that defendant became angry when
approached by officer demonstrated motive].)
Appellant points to a lack of planning activity, observing
that he and the victim engaged in mundane activities such as
unloading groceries earlier that day. But a plan may be rapidly
and coldly formed (People v. Mendoza (2011) 52 Cal.4th 1056,
1070), and “planning activity occurring over a short period of
time is sufficient to find premeditation.” (People v. Sanchez
(1995) 12 Cal.4th 1, 34, disapproved on another ground by People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Brady
(2010) 50 Cal.4th 547, 563–564 [defendant killed officer during
the course of a traffic stop lasting only a few minutes; jury could
find he rapidly and coldly formed the idea to kill and acted after
reflection rather than on an unconsidered impulse]; People v.
____________________________________________________________
[as of Nov. 22, 2021], archived at
.)
11
San Nicolas (2004) 34 Cal.4th 614, 658 [“brief period” between
seeing the victim’s reflection in the bathroom mirror and turning
around to stab her was “adequate for defendant to have reached
the deliberate and premeditated decision to kill” her].)
Planning could be inferred from appellant’s false claim that
Graham fell in the tub. His plan to make the killing look like an
accident was thwarted. C.O. heard Graham cry “help” and felt
“the ground shaking” and “stuff falling” during her struggle with
appellant, who had scratches on his face. Appellant locked doors
to the bedroom and bathroom to prevent Graham’s husband or
sons from coming in and disrupting his plan to kill her.4
In jailhouse conversations with Crawford, appellant said he
felt he was safe “so long as the autopsy don’t say that I killed her
by choking her.” Of course, the autopsy showed hemorrhages on
the victim’s neck, face and eyes, and her neck and head were
purple, all signs of strangulation. Appellant was dripping wet
when he opened the bathroom door to C.O.’s knocking. He left
the bathroom and began packing his clothing, making no effort to
resuscitate his lover after she “fell” and needed help. Appellant
was seen by several witnesses departing the house. He changed
into dry clothing then returned.
Appellant developed a cold-hearted plan to kill Graham,
hoping to escape liability for the killing by claiming she died
accidentally. (See People v. Pettigrew (2021) 62 Cal.App.5th 477,
492–493 [first degree murder conviction upheld where evidence
and reasonable inferences drawn from it showed defendant
argued with the victim, struck her, strangled her, left her to
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4 Appellant argues that the People did not prove he locked
the doors. The jury could infer that appellant did so because the
victim wanted him to leave, not keep him there.
12
drown in a swimming pool, then removed his wet clothing before
police arrived; a jury could reasonably conclude the killing was
not “the result of a rash, impulsive act”].)
The manner of killing supported a finding of premeditation
and deliberation. When the manner of killing is particular and
exacting, it allows an inference that the defendant acted
according to a preconceived design and supports a conviction for
first degree murder. (People v. Sandoval (2015) 62 Cal.4th 394,
425.) If the manner of killing is “prolonged” it supports a finding
of premeditation and deliberation. (Ibid.) For example, if the
defendant strangles the victim instead of quickly dispatching her,
it does “not suggest an unreflecting explosion of violence, but
rather a preconceived design to kill the victim by the particular
means chosen, and to prolong her agony in the process.” (People
v. Proctor (1992) 4 Cal.4th 499, 529–530.)
Appellant killed the victim in a particular and exacting
manner. The jury could find that he wrestled with the victim to
incapacitate her before killing her. She had bruises on her arms
and sustained blunt force trauma, from which the jury could infer
that appellant bashed her head so she would be too dazed to
fight. He stuffed a towel into the tub drain, filled it with water
and pushed her under water—to muffle her voice and make it
appear as if she had drowned accidentally—while compressing
her throat.5 The prolonged and cruel manner of killing Graham
____________________________________________________________
5 Appellant theorizes that the jury should have inferred
that Graham was already taking a bath, so he did not have to fill
the tub to drown her. This is an unlikely inference. Ca.O.
testified that his mother took showers, not baths, and the tub
leaked to the outside of the house when it was filled more than
ankle deep. If Graham was bathing, and appellant merely
13
supports appellant’s conviction. He had time to reflect yet
continued what he was doing.
Appellant’s behavior while neighbors and paramedics tried
to revive Graham supports the jury’s finding. He texted at
8:42 p.m., before Graham was pronounced dead by paramedics,
asking a woman to wait for him in her car “just a minute” so they
could party that night. He also called Crawford to come and pick
him up. “The jury could reasonably infer . . . that defendant had
in fact intended to kill the victim in cold blood, because a person
who had acted under the influence of a passionate impulse would
not have behaved in so cavalier a fashion so recently after
committing such a violent and transgressive act.” (People v. Mills
(2010) 48 Cal.4th 158, 193–194 [after brutally killing a woman,
the defendant went snowboarding and to San Francisco].)
Appellant effectively asks us to reweigh the evidence and
substitute our judgment for the jury’s. “The jury could have
reasonably found that the victim’s injuries reflected an
emotional, berserk attack. . . . But it was permitted to find
otherwise.” (People v. Williams (2018) 23 Cal.App.5th 396, 410.)
Though the evidence might have been reconciled with a contrary
finding, this does not warrant reversal. (People v. Vargas (2020)
9 Cal.5th 793, 820.)
2. Admissibility of Cell Phone Data
The prosecutor presented text messages through Detective
Romero, who obtained information extracted from appellant’s cell
phone using the Cellebrite program. Some messages were from
an unknown woman, some were from Crawford, and some are
appellant’s replies. Appellant objected that Romero’s testimony
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pushed her under water, C.O. would not have felt walls shaking
or heard things falling.
14
lacked foundation. The court overruled the objection. Appellant
conceded the admissibility of “messages or words that are
actually attributed to [him],” but objected to the content of texts
from others. The court overruled the objection, finding that the
messages are records extracted by a computer program from a
phone in appellant’s possession, subject to cross-examination for
accuracy; they are relevant and their probative value is not
outweighed by risk of prejudice to appellant or confusion on the
issues.
Appellant contends that the court abused its discretion and
denied him a fair trial by admitting insufficiently authenticated,
inflammatory and irrelevant excerpts of text messages before and
after Graham’s death. A trial court’s admissibility ruling cannot
be disturbed “ ‘except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.’ ” (People v.
Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) We conclude
that there was no abuse of discretion or unfairness.
a. Authentication
Writings must be authenticated. (Evid. Code, § 1401.) The
court determines whether there is a sufficient showing to allow
the jury to find that the writing is authentic. (Evid. Code, § 1400;
People v. Valdez (2011) 201 Cal.App.4th 1429, 1434–1435.) For
example, if the prosecution makes a sufficient prima facie
showing of authenticity by demonstrating that messages came
from the defendant’s Facebook account, the jury reasonably could
conclude that the messages were from him. (People v. Cruz
(2020) 46 Cal.App.5th 715, 730–731.) A defendant may try to
persuade jurors that the evidence is inauthentic.
15
Detective Romero testified that a trained expert extracted
information from appellant’s phone. Appellant does not dispute
that it was his phone from which the material was taken;
however, he argues that the technician had to authenticate the
extracted material. He is mistaken. In Goldsmith, supra, 59
Cal.4th 258, a police investigator authenticated photographs from
a traffic camera. The court wrote, “We disagree that the
testimony of a [camera] technician or other witness with special
expertise in the operation and maintenance of the ATES
computers was required as a prerequisite for authentication of
the ATES evidence.” (Id. at pp. 271–272.) Appellant did not
argue that Cellebrite gives false reports. A technician was not
required to explain how the program works.
b. Cell Phone Call Logs
Phone call logs extracted from appellant’s phone using the
Cellebrite program are not hearsay. The hearsay rule forbids use
of an out-of-court statement for the truth of the matter asserted.
(Evid. Code, § 1200.) A “statement” is a verbal expression or
nonverbal conduct intended by “a person” as a substitute for
verbal expression. (Evid. Code, §§ 175, 225.) Call logs
automatically stored by computer are not “statements” of a
“person” because “ ‘[t]he Evidence Code does not contemplate that
a machine can make a statement.’ ” (Goldsmith, supra, 59
Cal.4th at p. 274.)
The court did not abuse its discretion when it found that
the cell phone logs—which recorded the telephone number
corresponding to every incoming and outgoing text message or
call, and the exact time of each text message or call—are
admissible to show the timing of events. Appellant stopped
texting and answering calls between 8:00 and 8:21 p.m. He
called 911 after he was confronted by Garbutt and C.O., who
16
accused him of killing Graham. The jury could infer that
appellant planned to escape undetected after the killing, then felt
obliged to call 911 once witnesses found him in the bathroom
with Graham. After calling 911, appellant called Crawford and
(according to her testimony) asked her to pick him up near
Graham’s home. He changed into dry clothing and returned,
planning to claim he stumbled on Graham after she fell and
drowned. This explains why he voiced concern to Crawford (from
jail) about evidence of strangulation in the autopsy report.
The call logs reflect what occurred before and after the
murder. Without them, Crawford could deny calling or speaking
to appellant, just as she falsely denied discussing Graham’s death
with appellant until she was confronted with recorded jailhouse
conversations. Crawford’s incessant calls, every few minutes,
along with Graham’s apparent discovery that appellant was
making plans to meet another woman that night, sparked an
argument. Angered that Graham exposed him to Crawford as a
liar and upset about losing his “sugar mama,” appellant locked
two doors, filled the tub, and strangled and drowned Graham.
c. Text Messages from Crawford
At trial, Crawford’s own testimony authenticated her text
messages to appellant. She admitted to authoring the texts and
making the phone calls listed on the call log. (Evid. Code, § 1413
[writing may be authenticated by the person who made it]; People
v. Perez (2017) 18 Cal.App.5th 598, 621.) Crawford explained to
the jury why she sent the messages and telephoned. Her
testimony was subject to cross-examination. Appellant told
Crawford in a jailhouse conversation that her repeated calls to
his phone “triggered” the victim.
17
d. Text Messages from an Unknown Woman
The prosecutor argued at trial that text messages from an
unknown woman gave context to appellant’s written replies,
which are admissions of a party. The court allowed them on the
grounds that the messages came from a phone in appellant’s
possession; the process for extracting messages from the phone
was properly documented; and appellant could cross-examine on
the accuracy of the extracted material.
Appellant contends that the texts were unauthenticated.
As noted above, the text messages from the unknown person—
like those of Crawford and appellant himself—were
authenticated by virtue of the mechanical process by which they
were recorded and then extracted from appellant’s cell phone.
Appellant argues that the messages from the unknown
person are hearsay. Respondent asserts that they showed
appellant’s state of mind and reasons for killing Graham. We
need not decide if the messages are hearsay or whether they are
admissible under a hearsay exception because their admission
was harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 24.)
Ample evidence supported a finding of first degree murder,
as discussed in part 1, ante. C.O. heard an argument between
appellant and Graham, the sounds of a physical struggle, and his
mother’s cry for help. He saw water leaking downstairs from her
bathroom and found appellant dripping with water in a locked
bathroom with the newly drowned victim. Garbutt was there
when appellant opened the bathroom door. Appellant does not
contest that he killed Graham. The evidence shows motive
(anger at the victim’s insults), planning (his plan to make the
killing look like a slip-and-fall accident), and a particular and
exact method (incapacitating her with a blow to the head,
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strangulation, and drowning). Admission of the text messages
did not affect the outcome of this case.
e. Evidence Code Section 352
Appellant contends that the prejudicial effect of the cell
phone evidence substantially outweighed its probative value. He
argues that it had “the potential to invoke an emotional bias
against [him] due to his polyamorous lifestyle and seemingly
exploitive relationships with women.” The court found that “the
probative value is not outweighed by any prejudice or confusing
of the issues [under] 352.”
The “undue prejudice” referred to in Evidence Code section
352 is “evidence that uniquely tends to evoke an emotional bias
against a party as an individual, while having only slight
probative value with regard to the issues.” (People v. Crittenden
(1994) 9 Cal.4th 83, 134; People v. Samuels (2005) 36 Cal.4th 96,
124 [graphic victim photographs in murder cases are not unduly
shocking or inflammatory under Evidence Code section 352].)
Evidence of appellant’s busy social life may have showed
him in a poor light, but that does not make it prejudicial “to the
point of distracting the jury from its proper function.” (People v.
Stitely (2005) 35 Cal.4th 514, 545.) The cell phone automatically
recorded appellant’s activity (or silence) at the time of the
murder. It is highly probative. His consensual relationships
with women are unlikely to inflame a jury any more than autopsy
evidence showing that the victim was held under water while
being strangled. The trial court did not abuse its discretion in
admitting the cell phone records.
3. Attorney Fees
The court ordered appellant to pay attorney fees of $10,551.
Appellant argues—and respondent concedes—that the court
erred by not holding a hearing to determine his ability to pay.
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(Former § 987.8, subd. (b) [court may “after notice and a hearing,
make a determination of the present ability of the defendant to
pay all or a portion of the cost” of his representation]; former
§ 987.81, subd. (a) [ability to pay cost of legal assistance].)
Former section 987.8 was repealed effective July 1, 2021.
(Stats. 2020, ch. 92, §§ 2, 37(j).) We do not remand the case for a
hearing because the ameliorative changes to the law regarding
court-imposed costs apply to pending cases. (People v. Clark
(2021) 67 Cal.App.5th 248, 259–260; People v. Greeley (2021) 70
Cal.App.5th 609, 625–627.) The order imposing attorney fees
must be vacated. (§ 1465.9, subd. (a).)
DISPOSITION
The judgment of conviction is affirmed. The order
requiring appellant to pay attorney fees is vacated. The clerk of
the superior court is directed to amend the abstract of judgment
to reflect this modification.
NOT TO BE PUBLISHED.
LUI, P.J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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