People v. Scott CA4/1 ( 2022 )

Filed 10/5/22 P. v. Scott CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078986
Plaintiff and Respondent,
v. (Super. Ct. No. FVI18002863)
TERRENCE MARZET SCOTT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Michael A. Camber, Judge. Affirmed and remanded with directions.
C. Matthew Missakian, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Melissa Mandel,
Assistant Attorneys General and Teresa Torreblanca, Deputy Attorney
General for Plaintiff and Respondent.
A jury convicted Terrence Marzet Scott of first degree murder (Pen.
Code,1 § 187, subd. (a)) and found true allegations that he personally used,
and personally and intentionally discharged, a firearm causing death
(§ 12022.53, subds. (b), (c), & (d)). It found true allegations that Scott had
served two prior prison terms. (§ 667.5, subd. (b).)
The trial court sentenced Scott to 50 years to life: 25 years to life for the
murder plus 25 years to life for personally discharging a firearm causing
death. (§ 12022.53, subd. (d).)
Scott contends the court erroneously: (1) denied his motion to quash
the warrant to search his home; (2) admitted testimony that an unidentified
analyst had “conducted the same comparison” and “verified” a criminalist’s
analysis of the murder weapon; and (3) admitted police officers’ testimony
ruling out as the perpetrators other individuals they investigated. He further
contends: (4) insufficient evidence of premeditation and deliberation
supported his first degree murder conviction; (5) the prosecutor committed
misconduct during closing arguments to which defense counsel failed to
object, constituting ineffective assistance; and (6) the court imposed a $10,000
restitution fine because it was mistaken about its discretion.
The People concede that the restitution claim is meritorious. We agree,
affirm the convictions, and remand with directions.
1 Undesignated statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
The Victim’s Death
The victim, Shirley Stewart, was 77 years old and needed help caring
for herself. On February 8, 2016, at approximately 9:00 a.m., her hired
certified home health aide (the aide) went to Stewart’s apartment to help her.
When the aide left the apartment at approximately 10:00 a.m., Stewart was
connected to an oxygen tank. Stewart told the aide to leave the front door
unlocked because a nurse was scheduled to visit Stewart shortly.
The nurse arrived at Stewart’s apartment at approximately 12:50 p.m.,
and found Stewart on the floor and her oxygen turned off. He could not
detect a pulse, a heartbeat or respiration and called 911.
San Bernardino County Sheriff’s deputies arrived at the scene and
concluded Stewart had been shot four times. They detected no gunshot
residue or stippling nearby, indicating the gun was fired from at least two
feet away. They found four cartridge cases in the living room close to
Stewart’s body and a bullet inside her apartment wall. An additional bullet
was later located in the apartment. The pathologist recovered two bullets
during the autopsy.
The day after the murder, a sheriff’s deputy contacted Scott. Gunshot
residue was found on the top of Scott’s sandals, indicating he was possibly
around a firearm discharge or had contact with gunshot residue.
Pursuant to a search warrant, police searched the home where Scott
lived with his parents and sister and found a Ruger nine-millimeter firearm
belonging to Scott’s father in the master bedroom under a mattress. A
mixture of DNA from three people, including Scott, was found on the firearm.
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The magazine could hold 10 cartridges, but only contained six. Police
determined that the four expended cartridges found in Stewart’s apartment,
as well as the four bullets collected from Stewart’s body and her apartment,
were fired from that Ruger firearm.
Scott’s girlfriend visited Scott’s residence around 10:30 or 11:00 a.m. on
the day of the murder, but she did not find him at home. Scott’s home was
located 1.1 miles from Stewart’s apartment.
Scott’s Earlier Actions
In November 2014, a San Bernardino County Sheriff’s deputy
responded to a call that Scott was in the vicinity of Stewart’s apartment. A
deputy testified he observed Scott, who appeared very angry, pacing outside
Stewart’s apartment and clenching his fist. Scott told the deputy that he had
been kicked out of Stewart’s apartment and his belongings were still inside.
The deputy knocked on the door, and Stewart was shaking. She explained
she had allowed Scott to live with her, but now wanted him to take his
belongings and leave. The deputy escorted Scott into the apartment for that
purpose, and afterwards escorted him out.
M.M. testified that in December 2015, while she was collecting cans in
a dumpster area in Stewart’s apartment complex, Scott told her, “I’m going to
kill this bitch.” M.M. asked, “Who? What happened?” Scott, pointing in the
direction of Stewart’s apartment, responded, “I’m going to kill this bitch right
here. She’s a fucking witch.” Scott always referred to Stewart as a witch,
and M.M. knew Scott and Stewart were always arguing with each other.
Stewart’s aide testified that about a year before Stewart’s death, Scott
appeared at Stewart’s apartment and Stewart asked the aide to make him
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leave. About six months later, when Scott returned to Stewart’s apartment,
Stewart told the aide not to let him in, and to tell him not to come around
anymore. The aide informed the apartment manager’s office, and at some
point was advised to call the police if Scott returned.
Defense Case
Scott testified he first knew Stewart in 2013 or 2014, and they had a
good relationship. He once told Stewart he loved her. He agreed Stewart
was kind and generous. Scott stayed on Stewart’s couch on the night before
his grandmother’s funeral. The next day, Stewart gave him the cab fare to go
to that funeral.
Scott testified that when he started “venting” and said, “I can’t stand
this bitch,” he was referring not to Stewart, but to his girlfriend, whose
actions bothered him. Scott denied threatening to kill anyone.
Scott testified that on a couple of occasions he went shooting at a range
and used his father’s gun. Also, he occasionally carried the gun around the
house “like a dumb ass in front of [his] friends.”
Scott testified that on the day of the shooting, he was at home sleeping
until his mother returned from work and woke him up at approximately 1:00
p.m.
Scott denied having anything to do with Stewart’s death. He admitted
he was previously convicted for possession for sale of cocaine base and
possession of a stolen vehicle.
Scott’s father testified he owned the gun used in the crime and kept it
under his mattress or in a lounge chair. Scott, his father, and his brother all
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testified that, at some unspecified time earlier, Scott had gone to the shooting
range and fired the gun.
Rebuttal Evidence
On rebuttal, a sergeant testified that on the day of the murder, Scott’s
father claimed not to have fired the murder weapon “for years,” and also said
that the “ammunition was over 10 years old and the magazine was fully
loaded.”
DISCUSSION
I. Search Warrant
Scott contends the trial court erroneously declined to quash and
traverse the search warrant and suppress the firearm seized during the
search of his residence. He specifically argues the sergeant’s “purported
probable cause in support of the warrant was entirely circumstantial.” Scott
adds: “Nobody had seen [him] on the day of the shooting and there was no
forensic evidence connecting him to the crime. [He] was a suspect merely
because he had been identified as a nuisance who had annoyed and perhaps
frightened Stewart. [¶] Assuming the affidavit made a showing of probable
cause, that showing was weak. Had the affidavit disclosed facts related to
the credibility of [the aide], who provided almost all the basis for suspecting
[him], and had it been truthful about the staleness of the reports about [his]
interactions with Stewart, probable cause could not have been found.”
Scott further contends that the aide’s “credibility was obviously
crucial, yet [the sergeant] did not allow the magistrate to consider [that the
aide] had agreed to lie about how she recorded her time card to her employer.
And, critically, [the sergeant] did not disclose that a neighbor who was
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familiar with [the aide] thought he saw her car parked after hearing gun
shots [near Stewart’s apartment].” Scott contends, “These disclosures could
justifiably have led the magistrate to discount [the aide’s] claims entirely.”
A. Background
1. The Sergeant’s Statement of Probable Cause in the Search Warrant
The Sergeant stated in the search warrant that on February 8, 2016,
Stewart was unattended from 10:00 a.m. when the aide left Stewart’s
apartment until 1:00 p.m. when the nurse arrived and found her
unresponsive. The nurse told police at the scene that the aide had not
disclosed anything unusual about Stewart or her health. Police saw “no
obvious signs of trauma to [her] body in the position that she lay in the
apartment.” They found four fired cartridges near her body. The apartment
did not appear to be ransacked, and there were no signs of a struggle or
property missing.
The sergeant wrote: “A deputy spoke to a nearby neighbor, who
reported hearing loud banging noise coming from the apartment. The
neighbor stated it could have been gunshots he heard after he learned that
someone was shot. [¶] During neighborhood contacts it was learned that a
black male adult had been seen around Stewart’s apartment on multiple
occasions. [A detective] contacted [K.L., a maintenance employee] at the
apartment complex, [who] said [Scott was] a nuisance around the complex,
had harassed the employees in the office, and had been told to stay away
from Stewart’s apartment and out of the complex. [K.L.] had seen Scott
outside Stewart’s apartment within the last thirty days.”
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The sergeant wrote what the aide told police about Stewart’s dealings
with Scott: “Stewart met Scott as Scott was sitting on the stairs outside of
Stewart’s apartment. Scott would come by Stewart’s apartment and Stewart
would provide food and conversation. Stewart became increasingly nervous
about Scott’s behavior. [The aide] (a self-admitted recovering drug addict)
believed Scott was using drugs due to his mannerisms and associations to
other subjects in the complex whom [the aide] believed were selling and using
drugs. At one point, Scott came to Stewart’s apartment and she let him
inside. Scott began to say strange things such as Stewart was ‘not going to
need her oxygen’ and if Stewart locked Scott out, he ‘would break the door
down.’ Stewart was eventually able to get Scott outside the apartment and
Scott left the location.’ [¶] On the morning of [ ] February 8, 2016, Stewart
told [the aide that] Scott tried to knock on Stewart’s front door around [12:30
a.m.] Stewart did not answer the door, but saw Scott through the peephole,
walking away from Stewart’s apartment.” The sergeant wrote that Stewart’s
criminal history included multiple charges related to narcotics, property
crimes, and probation violations.
2. Scott’s Motion to Quash the Search Warrant
Before trial, Scott moved under section 1538.5 to traverse and quash
the search warrant that led to the search of his home and seizure of the gun
from his residence. Scott argued the detective’s search warrant’s affidavit
included such false or misleading information as: (1) That “the victim was left
unattended from around [10:00 p.m.] and [1:00 a.m.]”; (2) A deputy “spoke to
a neighbor who reported hearing loud banging noise coming from the
apartment. The neighbor stated it could have been gun shots he heard after
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her [sic] learned that someone was shot”; (3) “During neighborhood contacts it
was learned that a black male [Scott] had been seen around Stewart’s
apartment on multiple occasions”; (4) “[K.L.] had been seen Scott [sic] outside
Stewart’s apartment within the last 30 days”; and (5) “At one point, Scott
came to Stewart’s apartment and she let him inside. Scott began to say
strange things such as Stewart was ‘not going to need her oxygen’ and if
Stewart locked Scott out, he would ‘break the door down.’ ” (Italics omitted.)
Scott also claimed the sergeant omitted matters from the affidavit,
including that “[the nurse and the aide] lied to deputies regarding the timing
of when they attended to the victim on the incident date as well as the
circumstances regarding the victim allegedly being left unattended” (some
capitalization omitted); and, “Scott’s mother . . . advised on the incident date
when she left her residence the defendant was asleep inside his bedroom and
when she returned several hours later he was still asleep in his bedroom.”
In opposition, the People argued: “[Scott] has provided no offer of proof,
nor any additional evidence or discovery to make a preliminary showing that
any of the statements made by [the sergeant] in his declaration of probable
cause were false or misleading. While [Scott] points to five specific
statements and makes a conclusory declaration that the statements were
false or patently misleading, [he] has not provided any corroboration to
justify such a declaration. These statements were all derived from witness
interviews conducted by homicide detectives and deputies during their initial
investigation, and there has been no evidence provided by [Scott] that such
statements were fabricated or inaccurate.” (Some capitalization omitted.)
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The People further argued: “[Scott] has also failed to meet [his] burden
of proving by a preponderance of the evidence that the ‘omissions’ . . . [were]
made knowingly or intentionally, or with reckless disregard for the truth, and
that these ‘omissions’ were material facts that would have affected a showing
of probable cause for the search warrant. Regarding [his mother’s] statement
that [Scott] was home prior to her leaving for work and was also at home
when she returned several hours later, this fact is irrelevant because the
hours when she was not at home were the hours when the murder occurred,
and this fact is immaterial as to the probable cause analysis. While [Scott]
points to omissions of facts pertaining to [the aide] in order to suggest that
[the aide] should have also been considered a suspect, this omission does not
affect the probable cause analysis regarding [Scott] or preclude him as a
suspect. Based on their training and experience, and their investigation of
the case, the detectives determined [the aide] was not a suspect in the
murder of Ms. Stewart; however, even if the information regarding [the aide]
WERE included in [the sergeant’s] declaration of probable cause, there would
still be a sufficient showing based on a totality of the circumstances set forth
in the Declaration.” (Some capitalization omitted.)
3. Sergeant’s Testimony at the Hearing on the Motion to Quash
The sergeant testified the aide told him that although a supervising
nurse was supposed to be at Stewart’s apartment to observe the aide take
care of Stewart, he did not arrive on time. Nevertheless, they agreed to
report in their work logs that they were at Stewart’s apartment at the same
time. The sergeant knew about the aide’s lie before he prepared the warrant.
10
However, he did not mention it in the affidavit, explaining that the aide had
lied to her employer, but not to him.
The sergeant learned that the aide and Stewart had agreed that
Stewart would give the aide money to buy groceries for Stewart, which was
outside the scope of her duties.
The sergeant testified that he had no reason to believe the aide had lied
to him about the information he included in the affidavit regarding Scott.
The sergeant knew when he wrote the warrant that a neighbor
reported hearing loud bangs, looked out his window, and saw what he
believed to be the aide’s car, but he omitted it from the search warrant
because the neighbor was vague “about how he was in the shower, and he
went out to talk to his girl. He heard the gunshots. He was a little back and
forth about those things.”
The sergeant explained that according to Scott’s mother, Scott’s
whereabouts were unaccounted for during a three-hour window between
10:00 a.m., when she left the house while Scott was asleep, and 1:00 p.m.
when she returned.
4. The Court’s Ruling on the Motion
The court denied Scott’s motion to quash: “[I]t seems clear to the court
that although [the aide] did prove to be disingenuous with the timeline, it
was strictly to cover [the aide] and [the nurse’s] bases with respect to liability
regarding their caretaker responsibilities. So it wasn’t so much to be
disingenuous to the sergeant. [¶] So by that rationale, the court finds no
impropriety with respect to the probable cause declaration. Not to mention
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this, there are other corroborating factors leading the sergeant to place in the
probable cause declaration the justification to search the home of Mr. Scott.”
B. Applicable Law
“ ‘In reviewing a search conducted pursuant to a warrant, an appellate
court inquires “whether the magistrate had a substantial basis for concluding
a fair probability existed that a search would uncover wrongdoing.”
[Citations.] “The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set forth in the
affidavit before him [or her], including the ‘veracity’ and ‘basis of knowledge’
of persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.”
[Citation.] The magistrate’s determination of probable cause is entitled to
deferential review. [Citations.]’ [Citation.] Probable cause sufficient for
issuance of a warrant requires a showing in the supporting affidavit that
makes it substantially probable that there is specific property lawfully
subject to seizure presently located in the particular place for which the
warrant is sought.” (People v. Scott (2011) 52 Cal.4th 452, 483.)
“A defendant has a limited right to challenge the veracity of statements
contained in an affidavit of probable cause made in support of the issuance of
a search warrant. The trial court must conduct an evidentiary hearing only if
a defendant makes a substantial showing that (1) the affidavit contains
statements that are deliberately false or were made in reckless disregard of
the truth, and (2) the affidavit’s remaining contents, after the false
statements are excised, are insufficient to support a finding of probable
cause. Innocent or negligent misrepresentations will not support a motion to
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traverse. [Citations.] A defendant who challenges a search warrant based on
omissions in the affidavit bears the burden of showing an intentional or
reckless omission of material information that, when added to the affidavit,
renders it insufficient to support a finding of probable cause. [Citations.] In
either setting, the defendant must make his showing by a preponderance of
the evidence, and the affidavit is presumed valid.” (Scott, supra, 52 Cal.4th
at p. 484.)
On appeal, “[w]e defer to the trial court’s express and implied factual
findings if supported by substantial evidence, but we independently
determine the legality of the search under the Fourth Amendment.” (People
v. Eubanks (2011) 53 Cal.4th 110, 133.)
C. Analysis
Applying the above principles, we conclude the sergeant’s affidavit
supporting the search warrant contained sufficient information for the
magistrate to conclude it was substantially probable that evidence of
Stewart’s murder would be found in Scott’s residence. Specifically, as
explained in sworn testimony regarding the information used to support the
application for the search warrant, the police found Stewart dead and her
oxygen turned off. The Sergeant learned that Scott had been seen around
Stewart’s apartment complex within the previous thirty days. Scott had
threatened to break down the door to Stewart’s apartment if she locked him
out. Scott also said strange things like she was not going to need her oxygen.
Moreover, the Sergeant knew that as recently as predawn of the morning
when Stewart died, Scott went to Stewart’s apartment.
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We reject Scott’s contention about the sergeant’s asserted omissions of
reasons to doubt the aide’s credibility, namely her lie to her employer on the
day of the murder, and the neighbor’s observations that day. The trial court
concluded these omitted facts would not have affected the issuance of the
warrant because “there are other corroborating factors leading the sergeant
to place in the probable cause declaration the justification to search [Scott’s]
home.” We agree with the trial court that the omitted facts were not material
because there is no “substantial possibility they would have altered a
reasonable magistrate’s probable cause determination,” and their omission
did not “make the affidavit[s] substantially misleading.” (People v. Kurland
(1980) 28 Cal.3d 376, 385.) Here, as in People v. Bradford (1997) 15 Cal.4th
1229, the magistrate “did not err in finding that, considered as amended to
include the above described information, the affidavit[s] established probable
cause.” (Id. at p. 1299; see also People v. Huston (1989) 210 Cal.App.3d 192,
219–220.) Specifically, even assuming the magistrate was informed of the lie
concocted by the aide and nurse regarding their time sheets, as the court
stated, other aspects of the affidavit still supported a finding of probable
cause.
Likewise, we agree with the People’s argument regarding the
sergeant’s omission of the date regarding Scott’s threats to Stewart, which
Scott contends occurred in 2014: “Although the affidavit in this case was
vague about when the threat took place, it established that [Scott] remained
a threat to [Stewart] up until the day she died. [¶] Again, [Scott] had been
told to stay away from [Stewart’s] apartment and the apartment complex as a
whole, but he had been seen outside [Stewart’s] apartment within the thirty
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days before her death. Moreover, according to [the aide, Stewart] had become
increasingly nervous about [Scott’s] behavior. And [Scott] had knocked on
[Stewart’s] front door just after midnight on the date of the murder.”
Finally, even if the sergeant’s omission of the neighbor’s purportedly
seeing the aide’s car after he heard the loud bang were included in the
affidavit, doing so would not undermine the other evidence that provided
probable cause to search Scott’s home. “An affidavit need not disclose every
imaginable fact however irrelevant. It need only furnish the magistrate with
information, favorable and adverse, sufficient to permit a reasonable,
common sense determination whether circumstances which justify a search
are probably present.” (People v. Sandoval (2015) 62 Cal.4th 394, 410.)
We also agree with the People’s assessment of the sergeant’s testimony at the
motion hearing: “Although less than eloquent, it appears that the point [the
sergeant] was trying to make at the hearing on the matter was that he did
not have much confidence in the neighbor’s claim because it was vague and
inconsistent. . . . At most, [the sergeant’s] omission of this information was
negligent, which does not entitle [Scott] to any relief.” We conclude the trial
court properly denied Scott’s motion to quash the warrant and suppress the
items located during the search authorized by it.
II. The Criminalist’s Testimony
Scott contends the trial court improperly admitted testimony that an
unidentified analyst had verified the findings of a criminalist, Christi Bonar,
that the four cartridges and bullets collected in this case came from the gun
found in Scott’s home. Scott argues the testimony was hearsay, lacked
foundation, and violated state law and the confrontation and due process
15
clauses of the federal and state Constitutions. He contends Bonar “made the
specific claim that in this particular case, some other ‘qualified analyst’
verified that her conclusions were correct, both as to the cartridges and fired
bullets. This was inadmissible hearsay under [People v. Sanchez (2016) 63
Cal.4th 665, 684 (Sanchez)].”
The People counter that there was no error, or alternatively, any error
was harmless beyond a reasonable doubt: “Bonar personally performed the
comparative analysis, testified extensively regarding that comparison, and
was cross-examined about the basis for her opinion that the four cartridges
and the four bullets collected in this case were fired from the firearm found in
appellant’s home. . . . [¶] Neither Bonar’s testimony nor the prosecutor in
closing argument disclosed the results of the second expert’s testing (if such
testing in fact occurred), only that the verification process had been
conducted in accordance with lab policy. . . . There is thus no reason to
assume that the jury’s evaluation of Bonar’s testimony was based on the
passing reference to verification.”
A. Background
Bonar testified she worked for the San Bernardino County Sheriff’s
Department in the Scientific Investigations Division, and among other
things, performed comparative analyses of bullets and cartridge casings. She
testified in detail about her analysis of the four cartridge cases, the four
bullets, the firearm, and the ammunition magazine. She concluded with 100
percent certainty that the four cartridges and the four bullets collected in this
case were fired from the Ruger pistol found at Scott’s home.
16
The prosecutor asked Bonar if another analyst had verified her
analysis, and she answered yes. The prosecutor followed up, “Why do you do
that and how does it happen?” Bonar replied, “It’s our policy when an analyst
comes to a conclusion of identification or an elimination on the individual
characteristics, a second qualified analyst has to verify the work.” The
prosecutor asked, “And in this case, your work was verified to be correct?”
Defense counsel objected on grounds the question called for “multiple layers
of hearsay” and lacked foundation. The court overruled that objection, and
Bonar responded, “Yes. Another analyst did verify both the comparisons of
the fired bullet and the fired cartridge cases.”
In closing argument, the prosecutor stated Bonar was “100 percent
positive” and “100 percent sure” that the bullets that killed Stewart had been
fired by the gun found in Scott’s home.
B. Applicable Law
The erroneous admission of testimonial hearsay is reviewed for
prejudice under the standard described in Chapman v. California (1967) 386
U.S. 18, 24 (Chapman). The People must show, beyond a reasonable doubt,
that the error did not contribute to the jury's verdict. (Sanchez, supra, 63
Cal.4th at p. 698.)
In Sanchez, supra, 63 Cal.4th 665, the California Supreme Court held
that “[w]hen any expert relates to the jury case-specific out-of-court
statements, and treats the content of those statements as true and accurate
to support the expert’s opinion, the statements are hearsay.” (Id. at p. 686.)
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C. Analysis
We agree with the People that Bonar’s testimony regarding the second
analyst’s work was not error within the meaning of Sanchez; she did not rely
on case-specific hearsay to support her own results and findings. (See
Sanchez, supra, 63 Cal.4th at p. 686.) But we disagree there is no
constitutional problem here.
After testifying she concluded the bullets recovered from the victim’s
body were fired by Scott’s gun, Bonar was asked if “in this case, [her] work
was verified to be correct” by a second analyst. (Italics added.) Over defense
counsel’s objection, Bonar was permitted to answer the question and testified,
“Another analyst did verify both the comparisons of the fired bullet and the
fired cartridge cases.” Immediately after that answer, in response to the
prosecutor’s question, “so is there a level of certainty” in your conclusion that
the gun fired the expended bullets and casings, Bonar testified, “Yes, I am
100 percent certain.” The inference to be drawn is obvious: A second expert
had opined the gun fired the recovered bullets and casings.
We conclude the evidence was “testimonial hearsay” admitted against a
criminal defendant without any showing of the declarant’s unavailability and
without any opportunity of cross-examination. This is Sixth Amendment
error under Crawford. (See Crawford v. Washington (2004) 541 U.S. 36, 68
[“Where testimonial evidence is at issue, . . . the Sixth Amendment demands
what the common law required: unavailability and a prior opportunity for
cross-examination”].) Here, the prosecution was essentially permitted to
introduce evidence of a second analyst’s opinion without cross-examination.
Scott had no opportunity to question the second analyst on his or her work,
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including on his or her expert qualifications, any failure to follow proper
procedures, what was the methodology employed, was chain of custody
maintained, and so on.
However, analyzing the error under Chapman, supra, 386 U.S. 18, as
we must, we conclude the error was harmless. As we have discussed, the
evidence of Scott’s guilt was overwhelming. Specifically, the evidence pointed
to a long relationship between Scott and Stewart, and Scott being on the
apartment complex’s premises in the previous 30 days despite the
management’s warning that he stay away. Scott threatened to break down
Stewart’s door if she did not let him in. He called Stewart a witch, and also
threatened to kill her. There was gunshot residue on Scott’s sandals when he
was arrested. The murder weapon was located at his residence. Police
obtained and had analyzed the same number of bullets missing from the
Ruger were found in this incident and the bullets fired were identified as
matching those found in the gun, which had Scott’s DNA on it. Scott’s
whereabouts during the three-hour window when the murder occurred were
put in doubt by his ex-girlfriend who visited him during that time but did not
find him at home.
III. Testimony Ruling Out Certain Suspects
Scott contends the trial court prejudicially erred in admitting various
police officers’ testimony that they had investigated and ruled out certain
individuals as murder suspects.
A. Background
Before trial, defense counsel stated he would rely on third party
culpability defense, and pointed to the aide as a possible suspect in the crime.
19
He planned to ask law enforcement witnesses if they investigated other
individuals besides Scott. During trial, defense counsel suggested others who
should have been investigated for killing Stewart, including the aide; the
nurse; Scott’s uncle; Scott’s ex-girlfriend; Stewart’s former roommate; and an
individual named Andrew B.
On direct examination, the prosecutor asked San Bernardino County
Sheriff’s Sergeant Claus Hartleben whether the nurse had been investigated
as a possible suspect:
“[PROSECUTOR]: And, now, based on your interview with [the nurse]
and also your investigation in this case, did you have any reason to believe,
after your investigation, that he may have been responsible for Ms. Stewart’s
death?
“[DEFENSE COUNSEL]: Objection. Relevance.
“THE COURT: He is the investigator. Overruled.
“[SGT. HARTLEBEN]: Well, we didn’t rule anyone out until we
conducted our entire investigation. So there was a point during the
investigation where we did rule him out after we took some investigative
steps.”
The prosecutor also asked Sergeant Hartleben whether Andrew B. had
been investigated. The sergeant explained that they had investigated
Andrew B. because he was in possession of a 1998 pocket calendar that
belonged to Stewart. The following colloquy then took place:
“[PROSECUTOR]: Okay. And so did you or other detectives follow up
on that?
“[SGT. HARTLEBEN]: Yes, ma’am.
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“[PROSECUTOR]: And did you or other detectives later make a
determination as to whether or not Andrew [B.] was involved?
“[DEFENSE COUNSEL]: Objection. Multiple layers of hearsay.
“THE COURT: Sustained—it’s not there yet. You can ask that
question. . . . .
“[PROSECUTOR]: And so as part of your investigation, did you take
steps to make a determination as to whether or not Andrew [B.] was involved
in the murder of Stewart?
“[SGT. HARTLEBEN]: Well, we took steps to rule people out.
“[PROSECUTOR]: Did you do that with—
“[SGT. HARTLEBEN]: With Andrew [B.], yes.
“[PROSECUTOR]: And you said you also did that with [the nurse]?
“[SGT. HARTLEBEN]: Yes.”
The prosecutor asked San Bernardino County Sheriff’s Sergeant Gary
Hart, “And during your investigation—well, as part of your investigation, did
you, after interviewing and looking at other evidence, make a determination
as to whether or not Andrew [B.] was involved in the murder of Ms. Stewart?”
Defense counsel objected on the ground that the question lacked foundation,
called for speculation, and contained multiple layers of hearsay. The court
sustained the objection.
The prosecutor continued:
“[PROSECUTOR]: Based on your investigation, did you make a
determination as to whether Andrew [B.] was involved in this murder?
21
“[SGT. HART]: Based on the evidence at hand, we had no reason to
believe that Andrew [B.] was a primary subject of investigation for the
homicide.”
The prosecutor asked Sergeant Jonathon Cahow if he ruled the aide out
as a suspect during his initial investigation. The sergeant said he had not,
and he considered the aide a person of interest. The prosecutor then asked,
“And so during the course of your investigation, did you make a
determination as to whether or not [the aide] was involved in Ms. Stewart’s
death?” He responded, “I did not believe her to be involved in Ms. Stewart’s
death.”
Finally, the prosecutor asked San Bernardino County Sheriff’s
Sergeant Charles Phillips if he ruled out Stewart’s former roommate as a
suspect. The sergeant responded, “Yeah, everyone is a suspect at first until
you find evidence to prove that someone else is involved in the murder.”
B. Analysis
As a general matter, “ ‘a witness cannot express an opinion concerning
the guilt or innocence of the defendant.’ ” (People v. Torres (1995) 33
Cal.App.4th 37, 46, italics added.) Although Scott admits he has found no
published authority extending this rule to the guilt or innocence of a third
party, he argues the rule should so extend and would prohibit the testimony
of the law enforcement officers challenged here. We need not decide the point
to resolve this appeal. After Scott indicated he was going to defend on the
ground that the officers had too narrowly focused their investigation on him
and failed to consider other potential suspects, the prosecutor was allowed to
put on evidence to rebut that anticipated defense. Hence, the witnesses were
22
properly allowed to testify that they had interviewed and gathered evidence
on other potential suspects before focusing on Scott. (See People v. Dryden
(2021) 60 Cal.App.5th 1007, 1027 [“A law enforcement officer’s testimony
regarding the focus of a criminal investigation is not considered inadmissible
lay opinion”].) Although we are concerned the additional testimony that the
witnesses had “ruled out” the other suspects may have impermissibly implied
the other suspects were not guilty and therefore, by process of elimination,
Scott was guilty, we are satisfied any error in allowing that additional
testimony was harmless. As we explained earlier, the other evidence of
Scott’s guilt was overwhelming.
IV. Premeditation and Deliberation
Scott argues the evidence is insufficient to support his first degree
murder conviction: “Other than what could be extrapolated from forensic
evidence, almost nothing was known about the actual shooting. Assuming,
arguendo, [Scott] shot Stewart, nothing was known about why he went to her
apartment that day, why he brought the gun, what triggered the shooting,
how much time passed between the four gunshots, what if anything was said
between Stewart and [him] prior to the shooting, etc. Even viewing the
evidence in the light most favorable to the judgment and accepting that there
had been tension between [him] and Stewart and that [he] had once said he
wanted to kill her, those incidents were too ambiguous and distant to
constitute substantial evidence that the shooting in February of 2016 was
premeditated and deliberated.”
23
A. Applicable Law
When sufficiency of the evidence is challenged on appeal, we determine
whether the record discloses substantial evidence from which, considered as a
whole, a reasonable trier of fact could conclude that the crime was committed
as charged. (See People v. Truong (2017) 10 Cal.App.5th 551, 555-556;
accord, People v. Maciel (2013) 57 Cal.4th 482, 514-515.) We view the
evidence in the light most favorable to the judgment and presume every fact
in support of the judgment that the jury could have reasonably deduced from
the evidence. (See Truong, at p. 556.) Substantial evidence is “evidence that
is reasonable, credible and of solid value.” (People v. Kraft (2000) 23 Cal.4th
978, 1053.) The same standard applies to our review of circumstantial
evidence. (See People v. Ceja (1993) 4 Cal.4th 1134, 1138.) “The focus of the
substantial evidence test is on the whole record of evidence presented to the
trier of fact, rather than on ‘ “isolated bits of evidence.” ’ ” (People v. Cuevas
(1995) 12 Cal.4th 252, 261.) The testimony of a single witness, if believed by
the finder of fact, can constitute sufficient evidence. (People v. Rincon-Pineda
(1975) 14 Cal.3d 864, 885; accord, Truong, at p. 556.) When two or more
inferences can reasonably be deduced from the facts, we do not substitute our
deductions for those of the trier of fact. (People v. Garcia (2020) 46
Cal.App.5th 123, 144-145 [“We do not reweigh the evidence or resolve
conflicts in the testimony when determining its legal sufficiency”]; accord,
People v. Ceja, at p. 1139.)
“Murder is the unlawful killing of a human being with malice
aforethought. [Citation.] Malice may be either express or implied. Express
malice exists when there is a deliberate intention unlawfully to take away
24
the life of a fellow creature. [Citation.] It is implied when no considerable
provocation appears or when the circumstances attending the killing show an
abandoned and malignant heart.” (People v. Boatman (2013) 221 Cal.App.4th
1253, 1263.)
In order for a killing with malice aforethought to be first rather than
second degree murder, the intent to kill must be formed on a preexisting
reflection and must have been the subject of actual deliberation or
forethought. (People v. Anderson (1968) 70 Cal.2d 15, 26 (Anderson).) A
verdict of first degree murder on a theory of willful, deliberate and
premeditated killing is proper only if the defendant killed “ ‘ “as a result of
careful thought and weighing of considerations; as a deliberate judgment or
plan, carried on coolly and steadily, [especially] according to a preconceived
design.” ’ ” (Ibid.) “ ‘Deliberation’ refers to careful weighing of considerations
in forming a course of action; ‘premeditation’ means thought over in advance.
[Citations.] ‘The process of premeditation and deliberation does not require
any extended period of time. “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. Koontz (2002) 27 Cal.4th 1041, 1080.)
“Whether a defendant possessed the requisite intent to kill is, of course,
a question for the trier of fact. While reasonable minds may differ on the
resolution of that issue, our sole function is to determine if any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.” (People v. Lashley (1991) 1 Cal.App.4th 938, 946.)
25
“ ‘ “Generally, there are three categories of evidence that are sufficient
to sustain a premeditated and deliberate murder: evidence of planning,
motive, and method. [Citations.] When evidence of all three categories is not
present, ‘we require either very strong evidence of planning, or some evidence
of motive in conjunction with planning or a deliberate manner of killing.’
[Citation.] But these categories of evidence, borrowed from [Anderson, supra,
70 Cal.2d at pp. 26-27], ‘are descriptive, not normative.’ [Citation.] They are
simply an ‘aid [for] reviewing courts in assessing whether the evidence is
supportive of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere unconsidered or
rash impulse.’ ” ’ ” (People v. Prince (2007) 40 Cal.4th 1179, 1253.) If the
Anderson factors are not present, a finding of premeditation and deliberation
can still be upheld based on substantial evidence from which rational jurors
could have found that the killing was the result of preexisting thought and
the careful weighing of considerations. (People v. Boatman, supra, 221
Cal.App.4th at p. 1270.)
Even if the evidence regarding some of the Anderson factors (Anderson,
supra, 70 Cal.2d 15) is weak, “[i]n reviewing sufficiency of evidence claims,
each case of necessity must turn on its own particular facts.” (People v.
Smith (2005) 37 Cal.4th 733, 745.) Further, “[e]vidence of all three elements
is not essential . . . to sustain a conviction.” (People v. Edwards (1991) 54
Cal.3d 787, 813.) Rather, “[t]hese three categories are merely a framework
for appellate review; they need not be present in some special combination or
afforded special weight, nor are they exhaustive.” (People v. Booker (2011) 51
Cal.4th 141, 173.)
26
B. Analysis
The prosecution presented overwhelming evidence from which the jury
could find that Scott acted with the intent necessary to sustain the first
degree murder charge. Specifically, M.M. testified that approximately three
months before the murder, Scott had said he would kill Stewart. Further,
although Scott had been warned not to return to the apartment, the jury
could infer from the evidence he went there to carry out the murder. That is,
that he first retrieved the gun from his father’s bedroom, brought it to
Stewart’s apartment, and fired four shots, killing her. (See People v. Romero
(2008) 44 Cal.4th 386, 401 [bringing a weapon to location of shooting
demonstrated planning activity]; People v. Villegas (2001) 92 Cal.App.4th
1217, 1224 [evidence of planning activity included the defendant “carrying a
loaded gun with him at the time of the incident”].) After the murder, the gun
was hidden under the mattress in the master bedroom, evincing
consciousness of guilt.
Scott concedes the manner of killing in this case “supports finding of
intent to kill.” We agree. Scott shot Stewart, who was elderly, defenseless,
and sitting on her couch connected to an oxygen machine, in vulnerable parts
of her body, i.e., her head, side chest, and twice in her back. (People v. Silva
(2001) 25 Cal.4th 345, 369 [“The manner of killing—multiple shotgun wounds
inflicted on an unarmed and defenseless victim who posed no threat to
defendant—is entirely consistent with premeditated and deliberate
murder”].) Moreover, Scott fired from a close range, i.e., at least one shot was
fired from just inside the front door while Stewart was sitting on the couch in
the living room. (People v. Halvorsen (2007) 42 Cal.4th 379, 422 [victims
27
“were shot in the head or neck from within a few feet, a method of killing
sufficiently ‘ “particular and exacting” ’ to permit an inference that defendant
was “acting according to a preconceived design”].) Based on this evidence, a
reasonable jury could conclude that Scott killed Stewart with premeditation
and deliberation.
V. Prosecutorial Misconduct Claim
Scott contends that during closing argument, the prosecutor committed
misconduct by arguing: “So before we took a break for lunch, I explained to
all of you how the facts of this case can be applied to the law to prove the
defendant is guilty of the crime of murder. [¶] Now, of course, all of that is
premised on the fact that the defendant is the one that [shot] the Ruger pistol
and killed Stewart. That is essentially what you are here for and what is in
dispute in this case. [¶] So because if you find that the evidence in case [sic]
proved beyond a reasonable doubt the defendant is the shooter who shot the
Ruger pistol and that Ruger pistol was, in fact, the weapon that the bullet
killed [sic] [Ms. Stewart], then he would be guilty of first degree murder and
the allegation would be true.” (Italics added.)
It is necessary to place the alleged misconduct in the context of the full
argument to establish that no misconduct occurred. Prior to a lunch break
the prosecutor argued: “Now, we know in this case the gun didn’t walk by
itself to Ms. Stewart’s apartment. Somebody had to take that gun over to Ms.
Stewart’s apartment. And that somebody was [Scott]. Now, not only did he
have to take the gun to Ms. Stewart’s apartment, he first had to get it from
his parent’s bedroom. [¶] You heard [Scott’s father] testify that he always
keeps the gun underneath his mattress. So at some point, [Scott] had to go to
28
his parents’ room and to lift the mattress, and to take this gun, and to hide it
on him, and we heard that [Scott] didn’t have a car. So he had to walk either
walk or he skateboarded to Ms. Stewart’s apartment with this loaded firearm
that’s a one-mile distance that we talked about. And now he went to Shirley
Stewart’s apartment armed. [¶] Why would he need to go to the apartment
of the 77-year-old woman who was disabled armed? Because he already had
the intent. He already decided he was going to kill her. And then, now,
remember [the aide] was there at 10:00, 10:30, and [the nurse] was there at
1:00 o’clock. So he had to make sure that the coast was clear. And he had to
make sure nobody was there and he had to wait for Shirley Stewart to be
alone in order to carry out this murder. [¶] Specifically, now, [the aide] says
she left the door closed and unlocked. So [Scott] in this case would have to
open the door, and this is some deliberation and he would have to think about
what he was doing at the time. And in this case, when [Scott] shot Ms.
Stewart, he chose to use that gun. He chose to bring that gun to her house.
He chose to take that gun. He chose to aim it at her and point it at her and
he chose to shoot her from at least two feet away, aiming at her head. He hit
her once in the head. And he pulled that trigger four times. [¶] Every single
time he pulled that trigger, that was a moment of deliberation that he
intended to kill her, and it was a moment of premeditation because he knew
and he weighed the consequences of that action.”
Read together, it is clear the challenged statement has been taken out
of context. Defense counsel made no objection to the prosecutor’s argument
because there was nothing objectionable about it when considered in context.
29
Second, Scott maintains the prosecutor prejudicially misquoted M.M.
as saying Scott threatened to kill “that bitch one day,” when in fact M.M. did
not include those last two words. The People concede “the prosecutor
technically misquoted [M.M.],” but claim “the prosecutor did not
mischaracterize the spirit of what Scott said to [M.M.]. It was reasonable for
the prosecutor to infer that Scott meant “one day,” in the sense that he did
not indicate he was going to kill Stewart immediately.” We conclude that this
slight misquote was certainly no more prejudicial than the actual quote.
In order to preserve a claim of prosecutorial misconduct for appeal, a
defendant must make a timely and specific objection in the trial court and
request that the court admonish the jury to disregard the alleged
impropriety. (People v. Powell (2018) 6 Cal.5th 136, 171.) A defendant is
excused from the necessity of objecting and requesting an admonition if such
an objection would have been futile. (People v. Farnam (2002) 28 Cal.4th
107, 167.)
Scott concedes his trial counsel failed to object to the prosecutor’s
remarks at trial. Accordingly, he forfeited this claim on appeal.
We also point out the trial court instructed the jury with the legal
definitions of premeditation and deliberation, and that if an attorney’s
statements regarding the law conflicted with the court’s instructions, the jury
was to follow the court’s instructions. In the absence of contrary evidence, we
presume the jury followed the court’s instructions. (People v. Krebs (2019) 8
Cal.5th 265, 335.) We point out the defense counsel’s theory of the case, and
arguments to the jury, did not focus on a lack of premeditation and
30
deliberation. Rather, he argued that someone other than Scott killed
Stewart.
Accordingly, even if the statement at issue could be construed as error,
it was not “ ‘ “so egregious [as to] infect[ ] the trial with such unfairness as to
make the conviction a denial of due process” ’ ” (People v. Smithey (1999) 20
Cal.4th 936, 960), nor is there a reasonable likelihood that the jury
misconstrued the prosecutor’s argument as suggesting it could convict Scott
of first degree murder without finding the murder was premeditated and
deliberate. (People v. Wang (2020) 46 Cal.App.5th 1055, 1085.)
Scott alternatively argues his trial counsel rendered ineffective
assistance by failing to object to the prosecutor’s arguments.
To prove counsel provided ineffective assistance, a defendant must
show both that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms, and the deficient
performance prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668,
687.) “Judicial scrutiny of counsel’s performance must be highly deferential.
It is all too tempting for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that
a particular act or omission of counsel was unreasonable. [Citation.] A fair
assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct
31
falls within the wide range of reasonable professional assistance.” (Id. at p.
689.) We accord great deference to counsel’s tactical decisions. (People v.
Hinton (2006) 37 Cal.4th 839, 877, as mod., rehg. den. Apr. 12, 2006.)
“Defendant must also show that if counsel’s performance fell below
acceptable standards in some respect, a reasonable probability exists that a
more favorable outcome would have been reached absent the deficient
performance. [Citation.] That probability must be one sufficient to
undermine confidence in the outcome of the trial.” (People v. Karis (1988) 46
Cal.3d 612, 656.) In considering a claim of ineffective assistance of counsel, it
is not necessary to determine “ ‘whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, which we expect will often be so,
that course should be followed.’ ” (In re Fields (1990) 51 Cal.3d 1063, 1079,
quoting Strickland v. Washington, supra, 466 U.S. at p. 697.)
Because the prosecutor made no improper arguments, defense counsel
had no professional obligation to object. (People v. Anderson (2001) 25
Cal.4th 543, 587 [defense counsel does not provide ineffective assistance of
counsel by declining to lodge a futile objection].) Moreover, as we have
concluded the record contains overwhelming evidence of Scott’s guilt, his
ineffective assistance of counsel claim fails for lack of a showing of prejudice,
as this case did not turn on the prosecutor’s comments made in passing.
VI. The Restitution Issue
The People concede, and we agree, that the court at sentencing,
misapprehended its discretion in ordering “a $10,000 victim restitution fund
32
fine as I’m required to do,” and that the matter should be remanded so the
trial court can exercise its discretion on the matter.
Section 1202.4, subdivision (b), provides that in every case where a
defendant is convicted of a crime, the court “shall” impose a restitution fine,
unless it finds compelling and extraordinary reasons for not doing so. The
fine is required to be no less than $300 and no more than $10,000. A
defendant’s inability to pay is not a compelling and extraordinary reason for
declining to impose a restitution fine. However, inability to pay may be
considered in deciding whether to increase the amount of the restitution fine
in excess of the minimum. (Ibid.)
When imposing the restitution fine, the trial court stated:
“The Court is going to make the following findings based on the anticipated
sentence. The defendant does not have the ability to reimburse the county
for court-appointed counsel fees, investigation costs, and other costs of
probation conducting the presentence investigation, and preparation of a
probation officer’s report. [¶] . . . [¶] The court does not order the 70 dollar
court construction and operations fee because the defendant doesn’t have the
ability to pay it. The court will order a $10,000 victim restitution fund fine as
I’m required to do. (Italics added.)
Where, as here, a sentence choice is based on an erroneous
understanding of the law, the matter must be remanded for an informed
determination. (People v. Downey (2000) 82 Cal.App.4th 899, 912.)
Moreover, in light of the court’s other comments regarding restitution, it is
reasonably likely the court would have considered imposing a lesser amount
if it were aware of its discretion to do so.
33
As this matter is being remanded, we note that after briefing in this
case was completed, the California Supreme Court decided People v. Tirado
(2022) 12 Cal.5th 688 and held that the “statutory framework” of section
12022.53, as amended by Senate Bill No. 620, “permits a court to strike the
section 12022.53[, subdivision] (d) enhancement found true by the jury and to
impose a lesser uncharged statutory enhancement instead.” (Tirado, supra,
at p. 692.) On remand, the parties may address the applicability of Tirado to
this case, if any.
34
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded to the
superior court with directions that it reconsider its $10,000 restitution fine
imposed on Scott consistent with this opinion. The trial court may also
consider Tirado, supra, 12 Cal.5th 688 and whether to exercise its discretion
to strike the section 12022.53, subdivision (d) firearm enhancement or to
impose a lesser firearm enhancement, as well as any other new sentencing
laws applicable to Scott’s sentence.
.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
35