People v. Pettigrew ( 2021 )

Filed 3/25/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074122
v. (Super.Ct.No. INF1600783)
SCOTT EDMUND PETTIGREW, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Johnnetta E. Anderson,
Judge. Affirmed with directions.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts III.C and III.D.
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Cavalier and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Scott Edmund Pettigrew challenges his conviction for the first degree
murder of Mimie Cowen, contending substantial evidence does not support the jury’s
finding that the murder was premeditated, and the trial court erred prejudicially by
instructing the jury with a standard “flight” instruction that it could consider defendant’s
postarrest suicide attempts as evidence of a consciousness of guilt. In addition, defendant
argues there is no evidence to support the trial court’s implied finding that he had the
ability to pay a $514.58 “booking fee,” and the court erred when calculating presentence
credits to be applied to his state prison sentence of 25 years to life.
In the published portion of this opinion, we conclude defendant’s conviction for
first degree murder is supported by substantial evidence of premeditation. In addition,
because there is no evidence defendant fled to avoid arrest or tried to escape from
custody, we agree with defendant that the trial court erred by instructing the jury on
flight. However, we conclude the error was harmless.
In the unpublished portion of this opinion, we conclude the trial court’s order
imposing a “booking fee” without finding defendant had the ability to pay, if error, was
harmless. And we accept the People’s concession that defendant is entitled to an
additional 21 days of presentence credit.
Because we find no reversible error, we affirm the judgment as modified to
accurately reflect defendant’s presentence custody credits.
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I.
PROCEDRAL BACKGROUND
A jury found defendant guilty on all three counts alleged in the information, to wit,
first degree murder (Pen. Code, § 187, subd. (a), count 1); elder abuse with force likely to
cause great bodily harm or death (Pen. Code, § 368, subd. (b)(1), count 2); and
misdemeanor violation of a protective order (Pen. Code, § 166, subd. (c)(1), count 3). In
addition, the jury found true the sentencing allegation for count 2 that defendant caused
the death of a person under the age of 70 years. (Pen. Code, § 368, subd. (b)(3)(A).)
The trial court sentenced defendant to state prison for 25 years to life for count 1;
the middle term of three years for count 2, plus five years for the elder abuse
enhancement, to run consecutively with the sentence on count 2, both stayed pursuant to
Penal Code section 654; and one year in county jail for count 3, to run concurrently with
the sentence on count 1. Among other fines and fees, the court ordered defendant to pay
a $514.58 “booking fee.” And, relevant here, the court determined defendant was
entitled to 1,228 days of presentence custody credit toward his prison sentence for “actual
time.”
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II.
FACTS
A. Prosecution’s Case.
1. Relevant events before the murder.
Cowen was 66 years old at the time of her murder and had lived in Cathedral City
since 2002. Defendant was 50 years old at the time of the murder and had moved into
Cowen’s home sometime around March 2016.
On May 31, 2016, R.D., one of Cowen’s next-door neighbors, was in his backyard
when he heard a “ruckus”—yelling and screaming—coming from Cowen’s house. He
heard a man shout in an angry voice, “You will rue the day that you were born if
anything happens to those dogs,” and, “Senile old bitch.” R.D. heard Cowen respond, but
he could not make out what she said. The shouting lasted for about 10 minutes.
The same day, a woman who lived on the street behind Cowen’s house, found a
stray dog and asked M.P., her next-door neighbor, if she could locate its owner. Later
that afternoon, M.P.’s daughter said there was a man outside screaming and saying bad
words. When M.P. went outside to investigate, she saw defendant and heard him
screaming, “Mona, Mona, where are you? Fucking bitch. Where are you? I can’t
believe she did that. Where are you, Mona? Where are you, baby?” M.P. waved to
defendant and said, “Excuse me, sir.” He replied, “Oh, my God. You have her.”
Defendant walked over and thanked M.P. She said to him, “I feel like I don’t want to
give it [(the dog)] to you, because you were so angry at her. You say you are going to . . .
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kill her. You are so mad.” Defendant replied, “Oh, no. I would never do that to my
baby. I can’t believe that bitch let her out.” He took the dog and walked away.
2. Day of the murder.
On June 14, 2016, a deputy with the Riverside County Sheriff’s Department drove
to Cowen’s home to personally serve defendant with an elder abuse temporary restraining
order. He arrived after 1:00 p.m., and Cowen directed the deputy to defendant’s
bedroom. The deputy knocked on the door and asked for defendant. Defendant opened
the door, and the officer handed him the restraining order and explained that defendant
was required to remove his dogs from the home by the end of the day. Defendant said,
“Okay,” turned around, and walked back into his bedroom. The deputy did not speak to
defendant about the additional requirement under the restraining order that he stay five
yards away from Cowen. The interaction lasted no more than two or three minutes.
That evening, Cowen called the Cathedral City Police Department for assistance in
getting inside her home. She was out front and appeared to be in good health when an
officer arrived at 7:35 p.m. Cowen told the officer that her front door would not open,
and she could not enter through the garage because the garage door was not working
either. She gave the officer the key to a padlock on a side gate, and the officer entered
the garage through a side door to the home and discovered the garage door opener had
been unplugged. He plugged the door opener in and opened the door.
Cowen told the officer that the sheriff’s department had served a restraining order
on defendant earlier that day, and it was to go into effect at midnight. She asked the
officer to speak to defendant, but when the officer approached defendant’s bedroom to
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speak with him, he heard water running in an adjacent bathroom. The officer knocked on
the door of the bathroom, announced his presence, and asked for defendant by name but
did not receive a response. The officer opened the bathroom door and saw the bathtub
water running but found no one inside. The officer heard what sounded like a television
playing and dogs barking in defendant’s bedroom. He knocked on the door several times
but received no answer. The officer then walked outside so he could look into the
bedroom through the French doors that lead from the room to the backyard, but the
windows were covered. As he walked through the inside of the home, the officer noticed
it was neat and tidy, but he could smell dog urine. He suggested Cowen use a
management company or find a different way of renting out space in her home and left.
Sometime later, Cowen spoke on the phone to her son. Her son heard a man
“yelling” and “ranting” in the background. He recognized defendant’s voice from prior
conversations he had with defendant. When he asked who was there with Cowen, she
said, “Scott’s there. He is doing it again.” Concerned about what was going on, Cowen’s
son told her to turn on an audio recorder because he “wanted her to have a record.” He
also told her he and his wife were on their way to her house. Cowen’s son heard glass
being broken and things being smashed during the last 25 to 30 seconds of his
conversation with his mother.
Audio recorded by Cowen, which was played for the jury, captured the following
exchange between Cowen and defendant:
“COWEN: . . . Stay away from me. Stay the fuck away from me. You bastard.
You bastard. Now you’re gonna start beating up an old lady, huh?
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“PETTIGREW: You’re an old cunt, aren’t ya? Are you recording me? You don’t
know? Huh? Cunt.
“COWEN: I just don’t understand why. . .
“PETTIGREW: You know why?
“COWEN: I don’t understand.
“PETTIGREW: Oh . . .
“COWEN: Get the fuck out of here.
“PETTIGREW: Oh, (unintelligible).
“COWEN: Get out of here.
“PETTIGREW: Cunt. . .
“COWEN: Get out of here. Get off me. Go . . .”
About 9:30 p.m., R.D. (the same next-door neighbor who had heard shouting from
Cowen’s backyard two weeks earlier) and his wife heard two grunts or groans from a
male voice coming from Cowen’s backyard. At the same time, the couple who lived
next-door to Cowen on the opposite side also heard a “distressful,” “groaning or
moaning-type noise” coming from Cowen’s backyard. And sometime between 9:00 and
10:00 p.m., another neighbor whose property abutted the back of Cowen’s property was
in his backyard when he heard a commotion and shouting coming from Cowen’s
backyard. He heard a man “yelling a lot” and a woman “responding but not yelling,” and
he heard a splashing sound from Cowen’s pool that lasted no more than 30 seconds.
While driving to Cowen’s home, her son called her many times, but she did not
answer. He also called the police to report he had heard an argument and altercation
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between his mother and defendant, and he asked that an officer be sent to check on her.
The same officer who had earlier assisted Cowen to get inside her home was dispatched
to perform a welfare check. When he arrived at 11:42 p.m., the officer rang the doorbell
and knocked on the front door. He then walked around the outside of the house and
looked inside the windows to see if anything was out place. In the living room, the
officer observed dogs walking around loose and broken vases or flowerpots on the floor,
which were not there earlier.
The officer called for additional officers to respond, then tried to get into the
backyard through the side gate but found it had been locked. When another unit arrived,
he and two other officers jumped the side fence and walked into the backyard. The
French door that opened from the kitchen to the backyard patio was ajar. The officers
observed broken glass and other items on the floor that had not been there earlier in the
evening.
The French doors that lead into defendant’s bedroom were now partially
uncovered, and an officer saw a man lying on the bed in a fetal position. The other
officers discovered Cowen floating facedown in the pool, pulled her out, and attempted to
resuscitate her. She had no pulse and her pupils did not react to light. Officers then
cleared the house and entered defendant’s bedroom. They called for defendant to show
his hands, stand up, and walk out to the hallway so he could be detained safely. The
bedroom was messy and cluttered, and the television was on with the volume high. The
officers handcuffed defendant, who was nude.
The fire department arrived and pronounced Cowen dead.
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3. The investigation.
Cowen’s house smelled of dog urine, and there was dog feces throughout the
home. The kitchen was messy with dirty dishes, and the refrigerator was mostly empty.
A black rug had been laid over the threshold to the French doors, and there appeared to
be skid marks from blood or some other fluid across the concrete from the kitchen to the
steps of the pool. Broken glass, a broken picture frame, a broken cellular phone, a
recording device, and two long strands or clumps of light-colored hair were recovered
from the floor of the kitchen area. One clump of hair was found just inside the French
door, and a larger clump was recovered at the end of the kitchen countertop. Cowen had
bald spots on her head, and the clumps were consistent with her hair. An ornamental cat
with its paw broken off was found on the kitchen counter. The paw was found lodged
into one of the upper kitchen cabinet doors. Cowen had circular or oblong marks on her
back and shoulder area, which were consistent with being struck with a salt or pepper
mill that was found in the kitchen. In addition, some items were recovered from the
bottom of the pool, including a pair of tweezers, a drinking glass, a disposable lighter, a
purple lipstick case, and packaged chicken.
Defendant’s bedroom was messy and dirty, with trash and dirty dishes strewn
around, and wet or damp clothing on the floor. Some bloody tissues were also found on
the floor. The bed had no linen or bedding on it. There was an open bottle of vodka in
the room and oil and food containers on the dresser. It appeared as though defendant had
been hoarding food there. Several boxes of over-the-counter sleeping medication were
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also found in his room. In defendant’s bathroom, a detective noticed what appeared to be
dried vomit or blood next to the toilet.
Cowen’s bedroom was locked from the inside, and officers had to force the door
open. In her bedroom and bathroom, officers found clothing, towels, linen, paperwork,
and food that would normally be kept in the kitchen. It appeared Cowen had been
keeping everything she needed in her bedroom.
An evidence technician scraped under defendant’s fingernails for biological
evidence and photographed and documented his injuries. He had a long scratch in the
middle of his back, what appeared to be bruising around his left cheek bone and bruises
on both arms, a scratch near his right ear, and a scratch down his throat that was
approximately three and a half inches long. A sample of Cowen’s blood was drawn
during her autopsy, and a buccal swab was taken from defendant at the police station for
reference DNA testing. A blood sample was also taken from defendant.
Cowen’s DNA was found in the fingernail scrapings from defendant’s righthand
fingers. What visually appeared to be dried blood under Cowen’s right fingernail was
tested and found to include foreign DNA, but the sample was too small to conclusively
determine the source.
4. Cowen’s postmortem examination.
At the time of her postmortem examination, Cowen was five feet four inches tall
and weighed 117 pounds. The pathologist observed several contusions or bruises, and
scrapes or scratches on her face, head, chest, shoulders, back, arms, hands, and fingers
caused by blunt force trauma. Cowen had large patches on her head where the hair was
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missing or sparse. An internal examination revealed hemorrhaging or bleeding on the
underside of her scalp and to the surface of the brain caused by blunt force trauma.
Cowen also had hemorrhaging on the inside of her eyelids and to the internal neck tissues
that were consistent with asphyxia from strangulation. An examination of the heart
revealed Cowen had approximately 90 percent blockage in her right coronary artery. She
also had two broken ribs.
The pathologist opined Cowen’s cause of death was blunt force trauma with
submersion in water and cardiovascular disease as a possible contributing factor. She
could not exclude asphyxia or cardiac arrest from Cowen’s mildly enlarged heart and
arterial blockage as causes of death. Although there was no water in Cowen’s lungs, the
pathologist could not rule out drowning as the cause of death either.
5. Defendant’s suicide attempts.
After he was arrested and placed in a holding cell, defendant tried to hang himself
with his clothing. Officers took away his clothing and dressed him in a paper suit. While
on suicide watch, defendant removed the paper suit and once again tried to kill himself.
B. Defense Case.
Defendant purchased a 750-milligram bottle of vodka at 3:44 p.m. on the day of
the murder. He had a blood-alcohol concentration (BAC) of 0.023 percent when his
blood was drawn the next morning at 11:41 a.m.
Two defense experts opined that, if a hypothetical man of defendant’s age, height,
and weight had not consumed any additional alcohol after 11:30 p.m., on June 14, 2016,
yet still had a BAC of 0.023 percent the following morning at 11:40 a.m., the man would
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have had a BAC between 0.26 and 0.31 percent at 9:30 p.m. and a BAC between 0.22
and 0.23 percent at 11:30 p.m. the night before. One of the experts testified that someone
with a BAC of 0.22 or 0.26 percent would be “immensely impaired” with respect to their
ability to safely operate a motor vehicle. The second expert testified a person with a
BAC in that range would be mentally impaired and experience “significant loss of
inhibitions,” an “exaggerated emotional” state, “significant loss of attention, of judgment,
of control,” confusion, and disorientation. The second expert further testified drinking
alcohol “prevents you from accessing stored information and making a good judgment
weighing all the circumstance, what to do. You just are more reactive and [make]
confused decisions.”
III.
DISCUSSION
A. Defendant’s Conviction for First Degree Murder is Supported by
Substantial Evidence of Premeditation.
Defendant does not dispute that he killed Cowen, but argues the evidence
establishes he “killed [her] in a rash fit of rage rather than after a careful weighing of
considerations.” Therefore, he contends the jury’s finding that he acted with
premeditation and its guilty verdict of first degree murder must be reversed and the
verdict reduced to second degree murder. We disagree and affirm the jury’s finding and
verdict.
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1. Additional background.
At the close of the People’s case-in-chief, defendant moved for a directed acquittal
(Pen. Code, § 1118.1), arguing the prosecutor had not proven defendant had the requisite
state of mind for first degree murder. The prosecutor responded the evidence had
established the attack on Cowen “was lengthy” in duration, “span[ned] the length of the
interior” of the home, and “extend[ed] back into the backyard area.” According to the
prosecutor, the extensive injuries Cowen suffered throughout her body from blunt force
trauma, the hemorrhaging to her eyelids and neck that were consistent with asphyxia, and
the fact she was found dead facedown in the pool, when considered in light of the prior
incidents during which defendant threatened to kill Cowen, was sufficient evidence from
which the jury could find defendant acted with premeditation and deliberation for
purposes of first degree murder.
Defendant responded the prosecutor’s argument was speculative. He argued the
undisputed evidence of Cowen’s injuries was not enough to prove specific intent to kill
and premeditation and deliberation, and he suggested the evidence supported a finding of
reckless conduct. The trial court found the prosecution had introduced sufficient
evidence to support a verdict of first degree murder and denied the motion.
During closing argument, the prosecutor said the evidence established defendant
violently attacked Cowen in the kitchen, striking her in the head and back with the pepper
mill and yanking out clumps of her hair, strangled her, then dragged her out to the pool
and left her there facedown. The prosecutor argued it was a planned, “two-stage” and
“multifaceted” attack and killing. With respect to the degree of murder, the prosecutor
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argued the evidence proved defendant acted with premeditation because he planned to
kill her, not merely hurt her. “He was not going to leave [Cowen] beaten. He was not
going to leave her to tell her story. He was going to leave her dead. His plan was to end
her. His plan was to leave her facedown in that pool.”
Defense counsel argued to the jury the evidence did not establish premeditation or
careful deliberation. Instead, he argued the evidence was more consistent with a
“spontaneous, random, off the hook,” “thoughtless and uncareful” killing. He suggested
defendant may have snapped and acted rashly and violently in an “alcohol-fueled rage.”
Finally, before sentencing, the trial court stated it found “sufficient credible
evidence” to support the jury’s verdict on count 1 and denied defendant’s motion for a
new trial or for imposition of the lesser verdict of second degree murder.
2. Standard of review.
“‘In determining evidentiary sufficiency, the court reviews the entire record, in the
light most favorable to the judgment, for the presence of substantial evidence.
Substantial evidence is evidence sufficiently reasonable, credible, and of such solid value
“that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.”’” (People v. Gonzales (2012) 54 Cal.4th 1234, 1273, quoting People v. Johnson
(1980) 26 Cal.3d 557, 578.) “‘The federal standard of review is to the same effect:
Under principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
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essential elements of the crime beyond a reasonable doubt.’” (People v. Westerfield
(2019) 6 Cal.5th 632, 713; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
“‘Even where, as here, the evidence of guilt is largely circumstantial, our task is
not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the
evidence might “‘“be reasonably reconciled with the defendant’s innocence.”’”’”
(People v. Veamatahau (2020) 9 Cal.5th 16, 36.) Instead, “‘[w]e presume in support of
the judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.’” (People v. Covarrubias (2016)
1 Cal.5th 838, 890.)
3. Applicable law.
Murder is the unlawful taking of the life of a human being or fetus with malice
aforethought. (Pen. Code, § 187, subd. (a).) Malice may be express or implied. (Pen.
Code, former § 188, 1st par.)1 Express malice means “a deliberate intention unlawfully
to take away the life of a fellow creature.” (Ibid.) Malice is implied “when no
1 Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
amended Penal Code sections 188 and 189 (Stats. 2018, ch. 1015, §§ 2, 3) to separate
their previously unnumbered paragraphs “into sequential subdivisions and subsections.”
(People v. Prado (2020) 49 Cal.App.5th 480, 488, fns. 5, 6.) The substantive
amendments made to those sections by Senate Bill No. 1437 have no bearing here. For
the sake of clarity, we will cite to and quote from Penal Code former sections 188 and
189 as they read on the date of defendant’s 2016 offense. (See Cal. Style Manual (4th ed.
2000) § 2:7, pp. 50-51 [“If a section or subdivision has several unnumbered or unlettered
paragraphs, specific paragraphs should be referenced.”].)
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considerable provocation appears, or when the circumstances attending the killing show
an abandoned and malignant heart.” (Ibid.) An unlawful killing with express malice,
such as a “willful, deliberate, and premeditated killing,” is first degree murder. (Pen.
Code, former § 189, 1st par.) An unlawful killing with implied malice is second degree
murder. (Ibid.)
To prove a killing was willful, deliberate, and premeditated, the People are not
required to prove the defendant “maturely and meaningfully reflected upon the gravity of
his or her act.” (Pen. Code, former § 189, 4th par.) “‘An intentional killing is
premeditated and deliberate if it occurred as the result of preexisting thought and
reflection rather than unconsidered or rash impulse.’ [Citation.] In this context,
‘“premeditated” means “considered beforehand,” and “deliberate” means “formed or
arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.”’” (People v. Jennings
(2010) 50 Cal.4th 616, 645.) The extent of the reflection is key, not its duration; thoughts
may rapidly follow each other and a cold and calculated judgment to kill may be arrived
at very quickly. (People v. Morales (2020) 10 Cal.5th 76, 88; People v. Cage (2015)
62 Cal.4th 256, 276.)
Our Supreme Court has identified three categories of evidence to consider when
determining whether a murder was deliberate and premeditated: planning activity,
motive, and the manner of the killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.)
When the record contains evidence in all three categories, the verdict is generally
affirmed. (People v. Stitely (2005) 35 Cal.4th 514, 543.) But those categories or factors
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are not exclusive or determinative—they are merely intended to guide a reviewing court’s
assessment of whether the evidence supports a reasonable inference that the killing was
the result of the defendant’s preexisting reflection and not the result of an unconsidered
or rash impulse. (People v. Cage, supra, 62 Cal.4th at p. 276.) “A first degree murder
conviction will be upheld when there is extremely strong evidence of planning, or when
there is evidence of motive with evidence of either planning or manner.” (People v.
Romero (2008) 44 Cal.4th 386, 401; accord, People v. Proctor (1992) 4 Cal.4th 499,
529.)
4. Analysis.
The strongest factor to support a finding of premeditation and deliberation in this
case was the manner of killing. The evidence, and the reasonable inferences to be drawn
from it, suggests defendant argued with Cowen in the kitchen area, during which he
threw or smashed glass and ceramic items (e.g., the picture frame and cat statue) and
threw some of her belongings into the pool (e.g., the tweezers and lipstick case). The
argument quickly escalated into defendant physically striking Cowen in the head,
shoulder, and back with one or more blunt objects (such as the pepper mill) and yanking
out two large clumps of her hair. Defendant then either strangled Cowen in the kitchen
or dragged her from the kitchen to the pool and strangled her there. Finally, he left
Cowen facedown in the pool and went back to his bedroom where he stripped down from
his wet clothing and laid in bed until the police arrived.
From the evidence that defendant used multiple means of attacking and killing
Cowen—striking her with a blunt object(s), yanking out her hair, strangling her with his
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hands,2 dragging her to the pool, and leaving her there where she may have drowned—a
jury could reasonably conclude the killing was not “the result of a rash, impulsive act.”
(People v. Combs (2004) 34 Cal.4th 821, 851 [use of “multiple weapons”].) Instead, the
jury could have reasonably concluded the killing “occurred in stages” (People v. Streeter
(2012) 54 Cal.4th 205, 244) and took place over a sufficiently prolonged period to allow
defendant to reflect on his actions. (People v. Potts (2019) 6 Cal.5th 1012, 1028
[evidence defendant used “multiple weapons” to kill his wife showed killing was
“undoubtedly ‘prolonged’” and “suggest[ed] deliberation”].)
Defendant counters that the manner of the killing suggests “a sudden explosion of
violence,” which was “the product of drunken rage” “rather than careful thought and
weighing of considerations.” But we may not reweigh the evidence or reverse the jury’s
verdict merely because a reasonable jury might have drawn the inferences suggested by
defendant. (People v. Williams (2018) 23 Cal.App.5th 396, 408, 410.) “The jury could
have reasonably found that the victim’s injuries reflected an emotional, berserk attack, as
suggested by defendant’s briefing. But it was permitted to find otherwise.” (Id. at p.
410.)
2 The People suggest the evidence that defendant strangled Cowen by itself
proves deliberation. But there was no evidence about how long defendant strangled
Cowen or about the pressure he would have had to apply to her neck to inflict the injuries
she suffered. (See People v. Shamblin (2015) 236 Cal.App.4th 1, 11 [from evidence an
assailant applied significant force to the victim’s neck for a “prolonged period of time, a
rational juror could find that [he] committed a premeditated and deliberate murder.”].) In
any event, as stated in the text, evidence of strangulation coupled with the other methods
of attack does support a finding of deliberation and premeditation.
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The same facts of defendant’s multistage and multiple-method attack also support
an inference of some planning activity. “The act of planning—involving deliberation and
premeditation—requires nothing more than a ‘successive thought[] of the mind.’”
(People v. San Nicolas (2004) 34 Cal.4th 614, 658.) “[P]lanning 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 in People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22.) To repeat, what matters here is the extent of the defendant’s reflection
on his actions, not its duration. (People v. Morales, supra, 10 Cal.5th at p. 88; People v.
Cage, supra, 62 Cal.4th at p. 276.)
That defendant moved from each stage of the attack to the next—physically
striking Cowen on the head, shoulders, and back, pulling out her hair, strangling her or
dragging her to the pool, then strangling her there, and finally leaving her in the pool
facedown—supports the inference that he engaged in some limited extent of planning
during the attack but before he finally killed her. The suggestion in defendant’s brief that
the planning must have occurred a significant time before he commenced the attack itself
is unsupported. (See People v. Shamblin, supra, 236 Cal.App.4th at p. 13 [“[T]he jury
could reasonably have inferred that defendant devised the plan to kill the victim to avoid
detection for the sexual assault during or after the sexual assault, and that he applied
pressure to her neck for up to five minutes to carry out that plan.”].)
Finally, there is strong evidence that defendant’s motive for killing Cowen was
because she obtained a restraining order, which required him to remove his dogs from the
home. Defendant moved into Cowen’s house around March 2016; yet, a few shorts
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months later, on May 31, a neighbor heard defendant yelling and screaming at Cowen in
the backyard—when she apparently let defendant’s dogs loose—telling her she would
“rue the day” she was born if anything happened to the dogs. Later that day, another
neighbor heard defendant yelling and screaming as he looked for his dog, saying
“Fucking bitch” and “I can’t believe she did that.” When the neighbor expressed some
qualms about returning the dog to defendant, because she had heard him say he wanted to
kill it, defendant said, “Oh, no. I would never do that to my baby.” He did not deny that
he said he wanted to kill Cowen, and said, “I can’t believe that bitch let [the dog] out.”
The evidence strongly suggests matters deteriorated rapidly between Cowen and
defendant, and she clearly feared having any contact with him. On the day of the murder,
police officers found they both were hoarding food and other essential items in their
rooms, the kitchen was messy with dirty dishes, the refrigerator was mostly empty, and
Cowen’s bedroom was locked from the inside. It is equally clear from the evidence that
the main source of contention was defendant’s dogs because Cowen had taken the step of
obtaining a temporary restraining order, which required defendant to remove them from
the home and to stay five yards away from her. Defendant had the dogs locked up in his
room when a police officer helped Cowen get inside the house, but the home smelled of
dog urine.
Defendant responds he “had no motive to kill Cowen.” According to him, the
evidence of “bad blood” between him and Cowen was motive for him to be angry with
her, not motive for him to want to kill her. In addition, he argues killing Cowen as
revenge for her getting a restraining order that required him to remove his dogs from the
20
home “would have been counter-productive because it meant that both he and the dogs
would be out of a home.” And he argues there is no evidence that his threatening
statements, overheard by neighbors two weeks before the murder, “were more than angry
hyperbole.” But once more, defendant asks that we substitute our judgment for that of
the jury and choose an inference favorable to him rather than a reasonable inference that
is favorable to the judgment. (People v. Williams, supra, 23 Cal.App.5th at pp. 408,
410.) We decline to do so.
Moreover, these arguments seem to rest on the incorrect assumption that, to support
a conviction for first degree murder, his motive for killing Cowen must have been rational.
“Motive is the emotional urge that induces a particular act.” (1 Witkin, Cal. Criminal Law
(4th ed. 2012) Elements, § 4, p. 263, italics added [“(e.g., need, avarice, revenge, jealousy,
fear)”].) “‘[T]he law does not require that a first degree murderer have a “rational” motive
for killing.’” (People v. Jackson (1989) 49 Cal.3d 1170, 1200.) “Anger at the way the
victim talked to [the defendant] [citation] or any motive, ‘shallow and distorted but, to the
perpetrator, genuine[,]’ may be sufficient.” (People v. Lunafelix (1985) 168 Cal.App.3d
97, 102.) “[T]he incomprehensibility of the motive does not mean that the jury could not
reasonably infer that the defendant entertained and acted on it.” (People v. Pensinger
(1991) 52 Cal.3d 1210, 1238.) That Cowen’s murder appears to have been senseless and
irrational did not prevent the jury from reasonably concluding defendant acted out of
anger and in revenge for what he perceived to be Cowen taking his beloved dogs away
from him, and that motive supports the verdict.
21
In sum, we conclude the record contains substantial evidence that defendant
deliberated and premeditated before he killed Cowen, and we affirm the jury’s verdict of
first degree murder.
B. The Trial Court Erred By Instructing the Jury with CALCRIM No. 372, but
the Error was Harmless.
Defendant argues the trial court erred prejudicially by instructing the jury with
CALCRIM No. 372 that it could consider evidence of his two suicide attempts while in
jail as consciousness of his guilt. He contends the instruction violated his federal due
process rights to a fair trial by relieving the prosecution of its burden to prove the
elements of each crime beyond a reasonable doubt. We conclude the instructional error
was harmless.
1. Additional background.
In their trial brief, the People requested an in limine ruling that evidence of
defendant’s postarrest suicide attempts was admissible to prove his consciousness of
guilt. Defendant objected, arguing the evidence was not relevant to proving
consciousness of guilt and, in the alternative, it should be excluded under Evidence Code
section 352 as overly prejudicial. The trial court concluded the evidence was more
probative on the question of consciousness of guilt than prejudicial and overruled the
22
objection but stated defendant could argue to the jury that he had some other reason for
trying to kill himself.3
Defendant also objected to the People’s request that the jury be instructed with
CALCRIM No. 372, the standard flight instruction, but the court overruled the objection
for the same reasons it overruled his objection to admission of the evidence. The trial
court instructed the jury as follows: “If the defendant fled or tried to flee after he was
accused of committing a crime, that conduct may show that he was aware of his guilt. If
you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning
and importance of that conduct; however, evidence that the defendant fled or tried to flee
cannot prove guilt by itself.”
The prosecutor discussed CALCRIM No. 372 during her closing argument. “If
the defendant fled or tried to flee after he was accused of committing the crime, that
conduct may show he was aware of his guilt. You may think to yourself, I didn’t hear the
defendant went anywhere. The defendant attempted to commit the ultimate flight after he
was in police custody. He knew it. He didn’t want to be prosecuted for this. He did it
and didn’t want to be held responsible. He wanted to avoid all of this.” The prosecutor
argued defendant was “driven by having his own way,” he “wasn’t going to submit to
someone else’s process” or allow himself “to be held responsible,” and he “was going to
try and have the final say of what happened to him.” She explained that, if the jurors
3 Although in the context of his claim of instructional error defendant argues
evidence of his suicide attempts was not relevant, he does not challenge on appeal the
trial court’s evidentiary ruling to admit the evidence.
23
concluded “defendant fled or tried to flee, it is up to you to decide the meaning and
importance of that conduct.” And she cautioned the jury that evidence of defendant’s
suicide attempts “can’t prove guilt by itself,” but was instead “another brick in the wall”
or “another stitch or color in the tapestry of what we have as far as the evidence before
you all.”
Defense counsel did not address CALCRIM No. 372 or the evidence of
defendant’s suicide attempts during closing argument. But in rebuttal, the prosecutor
argued defendant’s two suicide attempts showed “[h]e appreciated his conduct and what
he had done.” “The defendant was going out by his own hand, because he [felt] the
weight of his conduct. That’s why he tried to end himself. And that’s why you get this
instruction. That’s why you get the instruction is to consider that in light of this conduct.
That he was aware of his guilt.”
2. Standard of review.
In a criminal case, the trial court has a sua sponte duty to instruct the jury on all
general principles of law relevant to the issues raised by the evidence. (People v. Brooks
(2017) 3 Cal.5th 1, 73.) The trial court is not required, however, to give the jury a
pinpoint instruction if it is argumentative, duplicative of other instructions, or is not
supported by substantial evidence. (People v. Hartsch (2010) 49 Cal.4th 472, 500.)
“A claim of instructional error is reviewed de novo. [Citation.] An appellate court
reviews the wording of a jury instruction de novo and assesses whether the instruction
accurately states the law. [Citation.] In reviewing a claim of instructional error, the court
24
must consider whether there is a reasonable likelihood that the trial court’s instructions
caused the jury to misapply the law in violation of the Constitution. [Citations.] The
challenged instruction is viewed ‘in the context of the instructions as a whole and the trial
record to determine whether there is a reasonable likelihood the jury applied the
instruction in an impermissible manner.’” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
Instructional error requires reversal of the judgment only if it resulted in a
miscarriage of justice, meaning it is reasonable probable the defendant would have fared
better in the absence of the error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475;
People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Cavitt (2004) 33 Cal.4th 187,
209 [erroneous limiting instruction subject to Watson harmless error analysis].)
3. Analysis.
“Evidence showing consciousness of guilt, such as flight or escaping from jail, is
generally admissible within the trial court’s discretion.” (People v. Anderson (2018)
5 Cal.5th 372, 391.) “‘“[F]light requires neither the physical act of running nor the
reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a
purpose to avoid being observed or arrested.”’” (People v. Bradford (1997) 14 Cal.4th
1005, 1055.) While physical flight to evade capture or escape from custody are two
obvious examples of relevant conduct, the courts have long held “‘[a]ny conduct of a
defendant subsequent to the commission of the crime tending to show consciousness of
guilt is relevant and admissible . . . .’” (People v. Butler (1970) 12 Cal.App.3d 189, 193,
italics added.) “[T]here need only be some evidence in the record that, if believed by the
25
jury, would sufficiently support the suggested inference [of consciousness of guilt].”
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.)
In People v. James (1976) 56 Cal.App.3d 876, the court observed that, in an
appropriate case, a defendant’s postarrest suicide attempt to evade prosecution “can be
said to constitute circumstantial evidence of guilt,” and the evidence may support a jury
drawing “a reasonable inference of consciousness of guilt.”4 (Id. at p. 890.) Other courts
have also recognized that evidence of a defendant’s attempted suicide after the
commission of a crime constitutes relevant circumstantial evidence of guilt if the
evidence supports an inference that the suicide attempt was an effort to evade
prosecution. (People v. Sorrentino (1956) 146 Cal.App.2d 149, 161 [“There was also
evidence of consciousness of guilt on the part of appellant, since he stated that he would
have committed suicide if the officers had not taken his gun.”]; Hall v. Scribner
(N.D. Cal. 2008) 619 F.Supp.2d 823, 845 [on federal habeas, finding persuasive state
appellate court’s holding that error in prosecutor’s closing argument, if any, was harmless
beyond a reasonable doubt considering evidence from which the jury was “‘virtually
certain’” to draw inferences of consciousness of guilt, “‘[t]he first and most dramatic of
these [being] defendant’s attempted suicide the day before [his] interview [with
police]’”]; see generally 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 119, p. 951
4 The defendant in People v. James, supra, 56 Cal.App.3d 876, did not attempt to
kill himself, so the defendant here correctly characterizes the discussion of suicide in
James as dictum. We are not, of course, bound by dictum, but we nonetheless find James
to be persuasive and follow it. (People v. Bueno (2019) 32 Cal.App.5th 342, 350
[“Courts are to be guided by ‘“dictum only to the extent it remains analytically
persuasive.”’”].)
26
[“Evidence that the defendant attempted suicide after committing the alleged crime or
being arrested may be admitted to show consciousness of guilt.”].)5 As already noted,
defendant does not challenge on appeal the admission of evidence of his postarrest
suicide attempts. (See fn. 3, ante.)
CALCRIM No. 372 is merely a distillation of the instructional duty imposed on
the trial court by Penal Code section 1127c.6 (See People v. Paysinger (2009)
174 Cal.App.4th 26, 30-32 [affirming instruction of jury with CALCRIM No. 372 and
rejecting, inter alia, claim the instruction meaningfully differed from the language of
§ 1127c].) Our Supreme Court has interpreted section 1127c as mandating a rule that
when the prosecution introduces evidence the defendant fled, “and if such evidence is
relied on as tending to show guilt, then a flight instruction is proper.’” (People v. Abilez
5 Our Supreme Court has similarly recognized, albeit indirectly, that a postoffense
suicide attempt is relevant to prove the defendant’s consciousness of guilt. (People v.
Panah (2005) 35 Cal.4th 395, 482 [Trial court properly excluded evidence of defendant’s
suicide attempt four years before the alleged crime, despite defendant’s assertion it was
relevant to “negate any inference of consciousness of guilt from his suicide attempt . . .
the morning after the crime.” (Italics added.)]; People v. Carter (1957) 48 Cal.2d 737,
748 [Where “[t]he prosecution relied on defendant’s attempted suicide as evidence of a
guilty mind, and thus as indirect evidence that defendant had administered the beating to
[the victim],” the trial court erred by excluding rebuttal evidence of defendant’s
statements to a doctor explaining why he tried to kill himself.].)
6 Penal Code section 1127c provides: “In any criminal trial or proceeding where
evidence of flight of a defendant is relied upon as tending to show guilt, the court shall
instruct the jury substantially as follows: [¶] The flight of a person immediately after the
commission of a crime, or after he is accused of a crime that has been committed, is not
sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may
consider in deciding his guilt or innocence. The weight to which such circumstance is
entitled is a matter for the jury to determine. [¶] No further instruction on the subject of
flight need be given.”
27
(2007) 41 Cal.4th 472, 521-522.) “‘A flight instruction is proper whenever evidence of
the circumstances of [a] defendant’s departure from the crime scene . . . logically permits
an inference that his movement was motivated by guilty knowledge.’” (Id. at p. 522.)
“The evidentiary basis for the flight instruction requires sufficient, not uncontradicted,
evidence.” (People v. Richardson (2008) 43 Cal.4th 959, 1020.)
a. There was no substantial evidence of flight, so the trial court
erred by instructing the jury with CALCRIM No. 372.
As defendant contends, he did not “flee or try to flee after the crime.” Instead,
when the police arrived to perform a welfare check on Cowen, they discovered defendant
lying in his bed in a fetal position. And there is no evidence he tried to escape from
custody after his arrest. Therefore, the record simply did not contain substantial evidence
to support instructing the jury with CALCRIM No. 372, and the trial court should not
have done so.
However, although the trial court was under no sua sponte duty to give a limiting
instruction (Evid. Code, § 355; People v. Sánchez (2016) 63 Cal.4th 411, 460), under the
circumstances of this case, where the prosecutor requested one, we believe the trial court
would have been justified in instructing the jury on the limited use it could make of
defendant’s suicide attempts. The official California criminal jury instructions
promulgated by the Judicial Council include four specific instructions on how a jury may
consider evidence of a defendant’s actions as consciousness of his or her guilt.
(CALCRIM No. 362 [false statements], No. 371 [suppression & fabrication of evidence],
No. 372 [flight], & No. 2130 [refusal to submit to chemical test upon arrest for driving
28
under the influence of alcohol and/or drugs].) Unfortunately, there is no general use
consciousness of guilt limiting instruction that could have been used here.7
But, rather than shoehorn defendant’s suicide attempts into the category of flight,
and instruct the jury with CALCRIM No. 372, the trial court should have drafted its own
instruction or directed the prosecutor to draft her own, using the pattern instructions
and/or the relevant cases as a guide. (See 5 Witkin, Cal. Criminal Law (4th ed. 2012)
Criminal Trial, § 700, pp. 1074-1075 [setting forth acceptable sources of language for
jury instructions]; Cal. Rules of Court, rule 2.1050(e) [“Whenever the latest edition of the
Judicial Council jury instructions does not contain an instruction on a subject on which
the trial judge determines that the jury should be instructed, or when a Judicial Council
instruction cannot be modified to submit the issue properly, the instruction given on that
subject should be accurate, brief, understandable, impartial, and free from argument.”].)
b. CALCRIM No. 372 did not violate defendant’s due process
trial rights.
Defendant also argues that instructing the jury with CALCRIM No. 372 violated
his due process right to a fair trial under the Fourteenth Amendment to the United States
Constitution because the instruction “reliev[ed] the state of proving every element of the
charged crime[s] beyond a reasonable doubt.” He argues evidence of his suicide attempts
7 Because the courts have held evidence of any type of postoffense conduct that
tends to prove the defendant’s consciousness of guilt is relevant and may be admissible
(People v. Butler, supra, 12 Cal.App.3d at p. 193), pursuant to rule 2.1050(d) of the
California Rules of Court, we respectfully suggest the Judicial Council consider drafting
a more general instruction that might be used in cases that do not fit within the existing,
specific consciousness of guilt instructions.
29
was irrelevant to the salient issue at trial—whether he was guilty of premeditated first
degree murder or second degree murder. In addition, “by informing the jury that ‘the
crime was committed’ and that appellant was ‘aware’ he was guilty of that crime,”
defendant contends the instruction improperly allowed the jury to infer from the
attempted suicides that he was guilty of premeditated first degree murder.
Courts have consistently rejected similar challenges to standard flight instructions.
For example, in People v Jackson (1996) 13 Cal.4th 1164, the defendant argued four
instructions on consciousness of guilt, including CALJIC No. 2.52 (the precursor to
CALCRIM No. 372), “violated his right to due process by lessening the prosecution’s
burden of proof.” (Jackson, at p. 1223.) Our Supreme Court was not persuaded.
“In People v. Wright (1988) 45 Cal.3d 1126 . . . , we distinguished between instructions
which properly ‘“pinpoint[] the theory of the defense”’ and those which ‘improperly
impl[y] certain conclusions from specified evidence . . . .’ (Id. at p. 1137.) In that case
we gave as an example of the former an alibi instruction which directs the jury to acquit a
defendant if it believed him not to be present at the time the crime was committed. (See
CALJIC No. 4.50.) We thus approved of People v. Wilson (1929) 100 Cal.App. 428 . . . ,
in which the court reversed the conviction of a robbery defendant who put on an alibi
defense and was refused an alibi instruction. (Wright, supra, 45 Cal.3d at p. 1137.) On
the other hand, we disapproved as ‘argumentative’ the instruction requested by the
defendant in Wright, which would have instructed the jury to ‘consider’ various pieces of
evidence, such as the fact that all the robbers wore ski masks, in assessing the defendant’s
guilt. (Id. at p. 1138.)” (Jackson, at pp. 1223-1224.)
30
The court observed that the instructions at issue “made clear to the jury that certain
types of deceptive or evasive behavior on a defendant’s part could indicate consciousness
of guilt, while also clarifying that such activity was not of itself sufficient to prove a
defendant’s guilt, and allowing the jury to determine the weight and significance assigned
to such behavior. The cautionary nature of the instructions benefits the defense,
admonishing the jury to circumspection regarding evidence that might otherwise be
considered decisively inculpatory. [Citations.] We therefore conclude that these
consciousness-of-guilt instructions did not improperly endorse the prosecution’s theory
or lessen its burden of proof.” (People v. Jackson, supra, 13 Cal.4th at p. 1224; accord,
People v. Rogers (2013) 57 Cal.4th 296, 333 [Claims that CALJIC No. 2.52 “is
argumentative and permits the jury to draw arbitrary and/or biased inferences from
isolated items of evidence have long since been rejected and will not be reconsidered
here.”].)
More recently, appellate courts have rejected the same types of challenges to
CALCRIM No. 372 that defendant articulates here. (People v. Price (2017)
8 Cal.App.5th 409, 454-458; People v. Paysinger, supra, 174 Cal.App.4th at pp. 30-32;
People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1157-1159.) “[T]he word ‘if’ in
the operative clause—‘If the defendant fled or tried to flee immediately after the crime
was committed’—does not logically modify only the phrase ‘the defendant fled or tried to
flee,’ as defendant contends. Rather, ‘if’ modifies the entire phrase, including the words
‘after the crime was committed.’ Thus, it is highly unlikely a reasonable juror would
have understood the instruction as dictating that ‘the crime was committed.’” (Paysinger,
31
at p. 30.) And as stated in Price, the instruction “does not focus on certain evidence and
direct the jury how to consider the evidence. Rather, while informing the jury that it can
infer guilt from flight, it both leaves it ‘up to you [the jury] to decide the meaning and
importance of that conduct’ and further, limits the use of flight evidence by providing
that it is not alone sufficient to prove guilt.” (Price, at p. 458, italics added.) We agree
with and adopt the reasoning of our colleagues in Price, Paysinger, and Hernández Ríos
and, therefore, reject defendant’s due process argument.
c. The instructional error was harmless.
Finally, although we conclude the trial court should not have instructed the jury
with CALCRIM No. 372, because there was no substantial evidence that defendant fled
or escaped from capture, we find the error was harmless. CALCRIM No. 372 expressly
informed the jury that, if it found defendant tried to kill himself while in custody, it was
the sole judge of “the meaning and importance” of defendant’s suicide attempts. And the
trial court properly instructed the jury with CALCRIM No. 200 to disregard inapplicable
jury instructions. In other words, the jury was told to decide for itself whether
defendant’s suicide attempts had any relevance when deciding guilt and the degree of
murder on count 1 and, if it decided the evidence was irrelevant, it knew to disregard the
flight instruction. (See People v. Silveria and Travis (2020) 10 Cal.5th 195, 245
[reviewing court must presume jury understood and followed instructions].)
By instructing the jury to disregard inapplicable instructions, the trial court
mitigated the potential for prejudice from the erroneously given flight instruction.
(People v. Richardson, supra, 43 Cal.4th at p. 1020; People v. Saddler (1979) 24 Cal.3d
32671, 684; People v. Vega (2015) 236 Cal.App.4th 484, 503; People v. Lamer (2003)
110 Cal.App.4th 1463, 1472.) And, considering the overwhelming evidence of
defendant’s guilt—including relevant evidence of defendant’s consciousness of his guilt
when he tried to kill himself—we find it was not reasonably probable he would have
fared any better had the trial court not given the flight instruction. (People v. Moore
(2011) 51 Cal.4th 1104, 1133; People v. San Nicolas, supra, 34 Cal.4th at p. 669.)
C. Failure to Make a Finding of Ability to Pay the “Booking Fee” was
Harmless.
In his opening brief, defendant argues there is no evidence to support the trial
court’s implied finding that he has the ability to pay a $514.58 “booking fee” pursuant to
Government Code section 29550.2. The People respond that, because defendant was
arrested and booked into jail by officers with the Cathedral City Police Department, the
trial court could not have imposed the fee under section 29550.2, which applies solely to
defendants arrested by county law enforcement agencies, but instead the court imposed
the fee pursuant to section 29550.1, which applies to defendants arrested by city law
enforcement agencies. Moreover, because defendant did not object to the fee in the trial
court, the People argue defendant has forfeited his claim of error. And, because section
29550.1 does not expressly require that a defendant have the ability to pay the fee, the
People argue the trial court was simply not required to make such a finding in the first
place.
Finally, in his reply brief, defendant concedes he was arrested by city police
officers but argues this court should remand for the trial court to expressly determine and
33
state the statutory basis for imposing the “booking fee.” In addition, notwithstanding that
Government Code section 29550.1 does not require a finding of ability to pay, defendant
argues constitutional due process mandates such a finding.
Counties are authorized to charge cities and other governmental agencies with
police forces for the expenses incurred to book their arrestees into county jail. (Gov.
Code, § 29550, subd. (a)(1).) In turn, cities and the like may recoup the fees they pay to
the counties by imposing a “criminal justice administration fee” (known colloquially as a
“booking fee”) on the arrestees upon their conviction. (Id., §§ 29550.1, 29550.2.) And,
when an arrestee is booked into county jail by one of the county’s own officers, the
county may recoup its costs directly from the arrestee upon his or her conviction by
imposing the “booking fee.” (Id., § 29550, subd. (c).)
We agree with defendant that the trial court was required to describe the specific
statutory basis for his “booking fee” (see People v. High (2004) 119 Cal.App.4th 1192,
1200), but we disagree that a remand for clarification on that matter is necessary. As the
People state, it is indisputably clear from the record that defendant was arrested and
booked into jail by city police officers and, therefore, Government Code section 29550.1
governs his “booking fee.” (See People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399,
fn. 6, disapproved on other grounds in People v. McCullough (2013) 56 Cal.4th 589, 599
& People v. Trujillo (2015) 60 Cal.4th 850, 858, fn. 5.) A remand would be an idle act.
(Civ. Code, § 3532 [“The law neither does nor requires idle acts.”].)
The People are also correct that, unlike Government Code sections 29550 and
29550.2, section 29550.1 does not make the imposition of a “booking fee” contingent on
34
a defendant’s ability to pay. (Compare Gov. Code, §§ 29550, subd. (d)(2) & 29550.2,
subd. (a) with Gov. Code, § 29550.1, subd. (a).) And, as the People also correctly state,
our Supreme Court has held a defendant’s failure to timely object to the imposition of a
“booking fee” under either of those sections, on the ground the sentencing court failed to
make a finding of ability to pay, forfeits such a claim of error on appeal. (People v.
McCullough, supra, 56 Cal.4th at p. 597.) But the legal landscape has shifted
dramatically since McCullough was decided, in the form of People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas).
“In a nutshell, Dueñas . . . held that a sentencing court violated the due process
rights of a defendant who committed her acts out of poverty when it imposed certain
mandatory fees and fines that lack a statutory exception without first making a finding the
unemployed defendant (who suffered from cerebral palsy) had the ability to pay while
she was on probation.” (People v. Oliver (2020) 54 Cal.App.5th 1084, 1100 (Oliver).)
And in People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted Nov. 13, 2019,
S257844,8 our colleagues in Division One of this appellate district extended the
reasoning from Dueñas to a “booking fee” imposed pursuant to Government Code
section 29550.1, and held it was error for the trial court to not conduct an ability to pay
hearing when the defendant expressly requested one. (Kopp, at pp. 95-96.)
8 Our Supreme Court granted review in People v. Kopp, supra, 38 Cal.App.5th
47, to decide: “Must a court consider a defendant’s ability to pay before imposing or
executing fines, fees, and assessments? If so, which party bears the burden of proof
regarding defendant’s inability to pay?” (People v. Kopp (Nov. 13, 2019, S257844)
___ Cal.5th ___ [2019 Cal. Lexis 8371, *1].)
35
At least one appellate court has held that failure to object on Dueñas, supra,
30 Cal.App.5th 1157 grounds to imposition of the “booking fee” under Government Code
section 29550.1 forfeits the claim of error on appeal. (People v. Gutierrez (2019)
35 Cal.App.5th 1027, 1030-1033) In contrast, this court has held that failure to timely
interpose a Dueñas objection to the imposition of certain fees and fines that do not
require a finding of ability to pay or, like a minimum restitution fine, expressly prohibit
the sentencing court from considering ability to pay, does not result in a forfeiture.
(People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034; see Oliver, supra,
54 Cal.App.5th at pp. 1100-1101 [“Although several of our sister courts have concluded
otherwise, we see no good reason to revisit that question here.”].) But we need not
decide today whether defendant forfeited a claim of Dueñas error in this case by failing
to timely object below to the “booking fee” on the basis of inability to pay (or, indeed, by
waiting until his reply brief to make his due process claim of error).
Even if we were to conclude the trial court erred by not making a finding of
defendant’s ability to pay before it imposed the “booking fee,” such error is subject to
federal harmless error analysis under Chapman v. California (1967) 386 U.S. 18.
(Oliver, supra, 54 Cal.App.5th at p. 1101; People v. Jones, supra, 36 Cal.App.5th at
pp. 1034-1035.) In determining whether the error was harmless beyond a reasonable
doubt, we may consider the wages defendant may earn in prison. (Ibid.) Defendant was
sentenced to state prison for 25 years to life, and he “will likely have the opportunity
during his lengthy prison sentence to pay” the $514.58 fee “through prison wages and
36
gifts.” (Oliver, at p. 1101.) Therefore, we conclude the error, if there was any, was
harmless beyond a reasonable doubt.
D. Defendant Must Be Awarded 21 Additional Days of Presentence Custody
Credit.
Last, defendant argues the trial court erred when it calculated the actual days of
presentence custody to be credited to his prison sentence. Defendant was arrested and
booked into jail on June 15, 2016, the day after the murder. Had defendant’s sentencing
taken place on October 25, 2019, as originally scheduled, the court’s calculation of 1,228
actual days in custody would have been correct. However, the court granted a stipulated
motion to continue the hearing and did not sentence defendant until November 15, 2019.
The People correctly concede defendant is entitled to credit for the additional
21 days he spent in presentence custody, for a total of 1,249 days. When, as here,
“[c]omputational error[]” in an award of presentence credits is merely one of two or more
errors claimed on appeal, we may correct the error in the first instance. (People v.
Guillen (1994) 25 Cal.App.4th 756, 764; but see Pen. Code, § 1237.1 [when presentence
credit error is the sole issue on appeal, the defendant must first move the trial court for
relief]; People v. Delgado (2012) 210 Cal.App.4th 761, 764 [so noting].) Therefore, we
will direct the clerk of the superior court to prepare an amended abstract of judgment to
reflect the correct figure of 1,249 days of presentence custody credit.
37
IV.
DISPOSITION
The clerk of the superior court is directed to prepare an amended abstract of
judgment that reflects defendant is entitled to 1,249 days of presentence custody credit
toward his state prison sentence and to forward the amended abstract to the Department
of Corrections and Rehabilitation.
In all other respects the judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
McKINSTER
Acting P. J.
We concur:
MILLER
J.
FIELDS
J.
38