People v. Kerley

Filed 5/18/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A138219
v.
LONNIE JAMES KERLEY, (Solano County
Super. Ct. No. FCR286584)
Defendant and Appellant.
After a lengthy trial, a jury found defendant Lonnie James Kerley (Kerley) guilty
of second degree murder in connection with the death of his former girlfriend, Danna
Dever (Dever). The trial court sentenced Kerley to 15 years to life in state prison. On
appeal, Kerley asserts that numerous evidentiary, instructional, and constitutional errors
require reversal of his conviction. For the reasons that follow, we will affirm.
FACTUAL BACKGROUND1
Dever began dating Kerley in the early 1980’s, and their daughter, Mandee
Kerley, was born in 1986. Kerley, Dever, and Mandee lived together on Oakbrook Circle
in Cordelia, California (the Oakbrook residence). Kerley worked for the Napa School
District, driving a garbage truck and later working in the plumbing department.
1
Rather than attempt a comprehensive summary of the extensive evidence
presented at trial, we provide here only an overview for context and as relevant to the
issues on appeal. Additional details will be provided as necessary for discussion of each
issue below.
1
1. Dever and Kerley’s Relationship
At trial, the prosecution presented extensive testimony from Dever’s family,
neighbors, and friends that her relationship with Kerley was abusive and physically
violent.
For example, Denae D., Dever’s sister, testified that, when Dever was eight or
nine months pregnant with Mandee, she witnessed Kerley, who was wearing steel-toed
boots, punching and kicking Dever in the stomach as Dever tried to leave their apartment.
Denae testified that eventually the police were called and that Kerley “took off.” Denae
described Dever’s relationship with Kerley as verbally and physically abusive, and stated
that she observed Dever with “many black eyes” over the course of their relationship.
She also testified that Kerley “broke or bruised” Dever’s ribs, and at one time, cut
Dever’s hair. According to Denae, Kerley would not allow Dever to spend time with
Denae and her family.
Shortly after Mandee was born, Susan D., Dever’s stepmother, received a phone
call from Kerley’s mother, who was “frantic” and worried that Dever would hurt herself
or Mandee. Susan went to Dever’s house. When she arrived, Dever began to open the
door, but Kerley appeared, pushed Susan aside, knocked Dever to the ground and began
kicking her. Meanwhile, Kerley’s mother picked up Mandee and took her to the car.
Kerley then left with his mother and Mandee. Dever suffered bruises to her side, hip, leg,
and arm. Susan also testified that on several occasions she saw Dever with black eyes
and with her face or arms “black and blue.”
Deborah M., another of Dever’s sisters, testified that sometime before 1990, Dever
called and asked Deborah to come over because she (Dever) was fighting with Kerley.
Deborah arrived at Dever’s apartment and witnessed Kerley kicking Dever, who was on
the floor “crying and screaming.” Deborah also saw Dever with “her face all bruised
up,” an eye that had been “bludgeoned,” and bruises on her back. Over the years, Dever
left Kerley approximately five times and stayed with Deborah at her home.
2
2. December 1989 Incident
On December 24, 1989, at around 1:00 a.m., Fairfield police officer Caree Harper
responded to a call reporting a disturbance at the Oakbrook residence. When Officer
Harper arrived, she heard Dever screaming “Trudy, Trudy” very loudly. As Dever
continued screaming, another officer who had arrived knocked on the door. Kerley
opened the door, said, “ ‘Everything is fine,’ ” and quickly slammed it shut again. Dever
continued to scream, and Officer Harper and the other officer broke a window in order to
pull Dever out of the house. Dever was “hysterical, frantic, scared [and] panicked,” and
told the officers, “ ‘Hurry, I know he’s going to kill me.’ ” Dever was taken to the police
station, where she gave a statement. Dever told Officer Harper that Kerley had beaten
her because she failed to find a woman with whom she could have sex while Kerley
watched. Dever said that Trudy had engaged in sex with them before, but she refused to
do so again because Kerley had held a gun to her head and was too violent. Officer
Harper photographed Dever’s injuries, which included a one-inch cut above her left eye
and a bruise on her thigh.
3. January 1996 Incident and Domestic Violence Charges
On January 7, 1996, Fairfield police officer Hank McCoy responded to a domestic
violence call at the Oakbrook residence. Dever answered the door with two black eyes,
and was shaking and crying uncontrollably. Dever jumped onto Officer McCoy and
yelled, “ ‘Help me, help me, save me, save me, he did this.’ ” Kerley was standing in the
doorway, and Mandee was in the back of the room. Officer McCoy carried Dever to his
patrol car and put her in the back seat. Dever told Officer Julie Cross that Kerley had
“stomped her right hand and foot at the same time, and then he kicked her in her eye with
his right foot.” Dever said that, when she went to call 911, Kerley told her he would kill
her if any police officers came to the house. The police obtained an emergency
protective order preventing Kerley from contacting Dever or Mandee. Kerley was
arrested and taken to the police station, where he gave a statement that Dever was injured
when she ran into a wooden fence and then “proceeded to scratch and hit herself.”
3
A few days later, Dever appeared at the Fairfield Police Department and filled out
a form requesting that the domestic violence charges against Kerley be dropped.
Nevertheless, domestic violence charges were filed against Kerley on January 23, 1996.
On February 6, 1996, Dever again visited the Fairfield Police Department and submitted
a form requesting that the charges be dropped. A five-page letter apparently signed by
Dever was also received by the Fairfield Police Department, asking that the charges be
dropped and stating that Dever injured herself. Kerley had a court appearance on the
domestic violence charges scheduled for June 19, 1996.
4. Dever’s Disappearance
Dever disappeared on approximately June 14, 1996. Kerley did not report her
missing until August 5, 1996, when he told the Fairfield Police Department that at around
4:15 a.m. on the morning of June 14, 1996, Dever made a comment to the effect that she
“couldn’t take it anymore” and left the residence with a friend that he did not know.
Kerley stated that Dever left on foot without taking anything with her and that he
believed she was using methamphetamine.
On August 27, 1996, Fairfield Police Officer Matt Rubin met with Kerley at the
Oakbrook residence to follow up on his missing person report. Kerley told Officer Rubin
that Dever had left at approximately 8:00 a.m. on June 14, 1996. Dever had gotten
dressed, taken her purse and approximately $3,000 that had been intended for household
expenses and the mortgage payment, told him that she “loved him but had to leave” and
walked out the door. Kerley said Dever did not take her car and he did not know where
she had gone. Kerley stated that he was in bed, crying and upset, when Dever left.
At trial, Kerley’s mother, Eleanor K., testified that Kerley had called her early in
the morning on June 14, 1996 and asked her to come to the house, saying that “ ‘Danna’s
going to leave’ ” and asking that she come talk to Dever. Eleanor and Kerley’s father
Lonnie went to the Oakbrook residence, and Eleanor talked with Dever. Dever said that
she “wanted to leave,” that “she was picking up weight, and he wanted her to get her
weight down,” and that she “had places to go and things to do.” Eleanor K. testified
Dever also said she was having an affair with her brother-in-law.
4
Kerley and Dever were arguing about some money intended for a school function
that Dever had spent. Eleanor testified that Dever hugged Mandee, said that she was
leaving and that she loved her, and said, “ ‘I’ll see you later.’ ” Dever left carrying only
her purse, and Eleanor did not see where she went after she went out the front door.
Kerley’s father, Lonnie, took Mandee to school that morning before 8:00 a.m., so he was
not at the home when Dever left.
5. Discovery of Jane Doe No. 7
On July 8, 1996, two local ranch hands were looking for a coyote near Highway
113 and Flannery Road in a “very rural” area outside of Rio Vista in Solano County. One
of the ranch hands saw a nude female body in a dry creek bed partially covered by a
green blanket from the torso up. The body was five or six feet from Flannery Road in a
ditch seven to nine feet deep, which together with the brush and trees in the area made it
difficult to see. The ranch hands left the body undisturbed and alerted the authorities.
The body was very decomposed, skeletonized, and dry, with no organs visible
inside. No clothing, jewelry, or identifying information was found on the body, which
was designated “Jane Doe No. 7.”
6. Autopsy of Jane Doe No. 7
On July 9, 1996, Dr. Brian Peterson, a contract forensic pathologist for Solano
County, performed an autopsy on Jane Doe No. 7. Dr. Peterson concluded that the cause
of death could not be determined. He also testified that he removed the chest plate to
examine the chest cavity, using pruning shears to cut all but two of the ribs. Dr. Peterson
opined that the cuts made to remove the chest plate were not consistent with injuries from
stomping, because stomping would not produce symmetrical or “neat” fractures. The
body’s right hand was removed and saved for identification purposes.
Technicians were later able to rehydrate the skin on the right hand and obtain a
usable fingerprint from the right thumb. A fingerprint examiner searched for the print in
various databases, but no matches resulted.
On July 16, 1996, Charles Cecil, a forensic anthropologist and retired medical
death investigator for San Francisco County, examined the remains of Jane Doe No. 7.
5
He testified that the chest plate had been removed during the autopsy and opined that
there was no evidence in the chest cavity of trauma at the time of death.
7. Anonymous Letter Received
On July 16, 1996, the Solano County District Attorney’s Office’s received an
anonymous typewritten letter addressed to the “District Attorney of Solano County,
victim/witness” unit. The letter stated that the author had met a “Danny” at a bar in May,
that Danny was bragging about killing a woman over a drug deal gone bad and that he
“ ‘threw her body in some bushes off Highway 13 near Rio Vista.’ ” The letter also
mentioned that the body had been wrapped in a blanket, and referenced a July 9, 1996
newspaper article reporting that a body (Jane Doe No. 7) had been discovered on
Flannery Road. The letter described “Danny” as a “big guy with a beard” who frequents
a Buckhorn Bar and Carolyn’s Bar in Dixon.
At trial, a handwriting expert testified that she compared the handwriting on the
envelope containing the letter with numerous samples of Kerley’s handwriting, and
concluded that it could not have been written by him. The expert also compared samples
of Eleanor K.’s handwriting with the envelope and concluded that it was not addressed by
her either. However, the person who addressed the envelope had attempted to disguise
his or her handwriting.
8. Dr. Murad Examines Jane Doe No. 7
In July of 1997, investigators delivered Jane Doe No. 7’s skull to Dr. Turhon
Murad, a forensic anthropologist and professor of anthropology at California State
University in Chico. Dr. Murad examined the skull and wrote a report to assist
investigators in identifying the remains. In May of 1998, the rest of Jane Doe No. 7’s
remains were brought to Dr. Murad in Chico for analysis.
Contrary to Dr. Peterson’s testimony that he had removed the chest plate during
the original autopsy, Dr. Murad testified that the chest plate had not been removed when
he received the remains. Dr. Murad testified that he identified two fractures on the left
first rib and the ninth right rib which had fully healed at the time of death, and one
6
fracture on the right first rib that was in the process of healing at the time of death,
meaning it had most likely been fractured six weeks or less before death.
Dr. Murad also identified fractures on both the left and right side of ribs two
through nine that occurred “perimortem,” meaning “around the time of death.”
Dr. Murad also testified that the hyoid bone in the throat was fused on the right side but
not the left side, and had been “displaced” and was “laying over on its side.” Dr. Murad
opined that the damage to the ribs was consistent with being beaten or “stomped” on the
chest, and that the manner of death was a homicide.
Dr. Murad had the body exhumed and reexamined it in January of 2012. His
subsequent examination did not change his opinion that the manner of death was a
homicide, possibly as a result of a beating.
9. Excavation of the Yard at the Oakbrook Residence
In April of 2006, Fairfield Police Department Detective Steven Trojanowski began
looking into Dever’s disappearance. Trojanowski spoke with Kimberly R., a neighbor of
Kerley and Dever’s on Oakbrook Circle, who told him that there was a “fly infestation”
in the neighborhood and that “Lonnie Kerley was digging all around [his] property at
different hours of the day and night” around the time of Dever’s disappearance. In May,
after obtaining consent from the new owner of the Oakbrook residence, investigators
from the Fairfield Police Department and the FBI dug up a depressed area in the
backyard. The team found a black nylon suitcase containing a “necklace with a cross on
it,” some clothing that included “lady’s nylon sweatpants,” a collar, a hair brush, and the
remains of a dog. Because no human remains were located, all the items were reburied.
At trial, Laura K., who lived with Kerley at the Oakbrook residence before they
married in 1999, testified that Kerley had a dog named Poison. When Poison died in
1998, Kerley buried the dog in a suitcase in the backyard. Laura K. testified that she
went outside to see what Kerley was doing, and he asked her to go back into the house.
When she went back outside a second time, Kerley “yelled at [her] to go back inside.”
7
10. Investigation Reopens; Dever Identified
In February and March of 2007, Kerley received several telephone calls from the
police regarding Dever’s disappearance. Shortly afterwards, he took a tanning bed out of
his house, “cut it up,” loaded the pieces into the car, and drove to Napa to dispose of it.
In April of 2007, Fairfield police investigator Rebecca Belk was assigned Danna
Dever’s case. Belk asked a fingerprint examiner to perform a fingerprint comparison
between Dever and Jane Doe No. 7. The fingerprint examiner concluded that Jane Doe
No. 7 was Dever, and the investigation was reclassified as a potential homicide.
11. Kerley’s Interview and Arrest
On May 15, 2007, a Fairfield Police detective went to Kerley’s new residence in
Fairfield to notify Mandee Kerley (as next of kin) that Dever’s remains had been
identified. Kerley, Laura, and Mandee rode together in their own car to the police
station. On the way, Kerley repeatedly told Laura, “ ‘I may be arrested today but
remember family sticks with family.’ ”
At the police station, detectives told Kerley that Dever’s remains had been
identified, and that she was deceased. Kerley was “nonreactive” to the news. After
asking whether Mandee had been informed, Kerley stated “I feel bad ‘cause, you know,
somebody you lived with for a while.” Toward the end of the interview, when told by
detectives that they believed Dever had been murdered, Kerley responded, “Okay. Hm,
okay, I guess that’s about it for now, I guess.”
In July 2010, a pubic hair was recovered from the cargo area of a 1972 Chevy
Nova hatchback that Kerley had owned prior to 1999. The hair shared the mitochondrial
DNA profile of Dever or her maternal relatives, expected to occur in no more than 0.17
percent of the Caucasian population. Kerley and the car’s new owner were excluded as
sources of the hair. On October 28, 2010, Kerley was placed under arrest. Kerley was
indicted by the grand jury for Dever’s murder on August 2, 2011.
12. Further Forensic Analysis of Dever’s Remains
In 2012, Dr. Terri Haddix, a forensic pathologist and medical doctor, examined
Dever’s remains on behalf of the defense. Dr. Haddix also reviewed medical reports
8
associated with treatment of Dever in the early 1990’s, police reports on the examination
of the remains in the field, the coroner’s records associated with the examination of the
remains, the autopsy report, the anthropology reports authored by Charles Cecil and
Turhon Murad, photographs of the body at the scene and at the time of the original
autopsy, photographs taken during Dr. Murad’s examination, and the grand jury
transcript.
Haddix opined that Dever’s cause of death and manner of death were both
undetermined.2 Haddix also disagreed with Dr. Murad and opined that Dever’s chest
plate was removed as part of the initial autopsy, as reflected in the autopsy report.
Haddix testified that Dever’s hyoid bone was not damaged, but merely unfused on one
side. Haddix explained that the hyoid bone has three parts, and as an individual grows
older, the three parts fuse together. Haddix testified that Dever’s hyoid bone was simply
fused on one side but not the other, which was “very, very normal” and in no way
indicative of a defect or a fracture.
Dr. Allison Galloway, a forensic anthropologist, also examined Dever’s remains in
2012, along with Dr. Haddix, on behalf of the defense. In forming her opinion, she
reviewed the grand jury testimony, the autopsy report, and the reports of Charles Cecil
and Dr. Murad. Dr. Galloway agreed with Dr. Haddix that there was no damage or
fracture to Dever’s hyoid bone; it was simply fused on one side and not the other, which
she characterized as “absolutely normal.” Dr. Galloway also opined that certain damage
to Dever’s ribs postdated her death and was consistent with removal of the chest plate as
part of the autopsy, and that this was not even a “close call.”
PROCEDURAL BACKGROUND
On August 2, 2011, a Solano County grand jury indicted Kerley on one count of
murder (Pen. Code, § 187, subd. (a).) Trial began on October 24, 2012 and concluded on
2
In California, “manner of death” appears on the death certificate and can be one
of only five options: natural, accident, suicide, homicide, or undetermined. “Cause of
death” is not so limited and describes the specific cause of death, such as a heart attack,
infection, gunshot wound, or drowning.
9
December 19, 2012. On January 2, 2013, the jury found Kerley guilty of second degree
murder, and the trial court later sentenced him to 15 years to life in prison. This appeal
followed.
DISCUSSION
On appeal, Kerley contends that: (1) there was insufficient evidence for the jury to
conclude that Dever’s death was a homicide; (2) the trial court erred in admitting
evidence of Kerley’s prior acts of domestic violence under Evidence Code section 11093;
(3) the jury instructions regarding the evidence of uncharged domestic violence
impermissibly lowered the prosecution’s burden of proof; (4) the admission of certain
hearsay statements of the deceased violated Kerley’s confrontation clause rights under
Crawford v. Washington4; (5) the trial court violated Kerley’s due process rights in
denying a motion for a mistrial based on the admission of those statements; (6) the trial
court erred in admitting certain hearsay statements of the deceased; (7) defense counsel
was ineffective in failing to request a limiting instruction with respect to those
statements; (8) the evidence was insufficient to support the jury instructions regarding
suppression of evidence; (9) the trial court erred in admitting certain diary entries of
Kerley’s daughter Mandee Kerley; (10) the trial court erred in admitting evidence that
Kerley destroyed a tanning bed and buried the remains of his dog in his backyard;
(11) the trial court erred in excluding Kerley’s proffered evidence of third party
culpability; and (12) the cumulative effect of the alleged errors requires reversal. We will
address each argument in turn.
I. Sufficient Evidence Supports the Jury’s Guilty Verdict
Kerley’s first argument is that there was insufficient evidence for the jury to
conclude that Dever’s death was a homicide. In particular, Kerley argues that
Dr. Murad’s testimony that Dever’s death was a homicide was “inherently improbable”
because it was contradicted by all the other expert testimony regarding the cause and
3
All further statutory references are to the Evidence Code, unless otherwise
indicated.
4
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
10
manner of Dever’s death. The People respond that, even without Dr. Murad’s opinion,
there was ample circumstantial evidence that Dever’s death was a homicide, and that
Dr. Murad’s opinion was not “inherently improbable,” but merely one with which other
experts disagreed. In response to the People’s argument that circumstantial evidence
showed that Dever was murdered even apart from Dr. Murad’s opinion, Kerley argues
that there was no “evidence showing that Dever died violently, that the cause of death
was from an assaultive act and thus a homicide,” and that “[w]hether Dever’s death was a
homicide as opposed to an accidental death was a critical issue in dispute.”
“ ‘To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citations.]” (People v. Wallace (2008) 44 Cal. 4th 1032, 1077; Jackson v.
Virginia (1979) 443 U.S. 307, 317–320.) The standard of review is the same in cases in
which the prosecution relies on circumstantial evidence. (People v. Snow (2003)
30 Cal. 4th 43, 66.) “ ‘Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court which must
be convinced of the defendant’s guilt beyond a reasonable doubt.’ ” (People v. Stanley
(1995) 10 Cal. 4th 764, 792–793.) Accordingly, we must affirm the judgment if the
circumstances reasonably justify the jury’s finding of guilt regardless of whether we
believe the circumstances might also reasonably be reconciled with a contrary finding.
(People v. Thomas (1992) 2 Cal. 4th 489, 514; People v. Rodriguez (1999) 20 Cal. 4th 1,
11 (Rodriguez).)
Kerley’s argument fails because it is based on the faulty premise that an expert
opinion that Dever’s death was a homicide is necessary in order to sustain Kerley’s
murder conviction. People v. Towler (1982) 31 Cal. 3d 105 (Towler) is instructive. In
Towler, as here, the victim’s body was found in a remote area, two months after he
disappeared. (Id. at p. 112.) Because of the deterioration of the body, the medical
11
evidence at trial did not establish a cause of death. (Id. at p. 113.) As here, the defendant
argued on appeal that, “in view of the inconclusiveness of the medical testimony and the
absence of any proof as to the precise time, manner or cause of death, the trial court could
not properly find him guilty of murder under the applicable reasonable doubt standard.”
(Id. at p. 117.) The Supreme Court rejected this argument and concluded that the verdict
was supported by evidence that the defendant had the “motive, intent, and opportunity” to
kill the victim, and, even though “other possible causes of death were not conclusively
disproved, . . . the [fact finder] could have rejected as unreasonable the suggested
inference that [the victim] had committed suicide or that his death was accidental.”
(Id. at p. 120.)
So too here. Even without the testimony of the medical experts, there was ample
circumstantial evidence from which the jury could conclude that Dever was murdered
and that Kerley was responsible. Dever’s body was discovered without clothing or
jewelry, partially wrapped in a blanket by the side of the road in a remote location. (See
Towler, supra, 31 Cal.3d at p. 120; People v. Huynh (2012) 212 Cal. App. 4th 285, 301
[noting that a body found in an alley wrapped in a blanket was not consistent with
accidental death]; People v. Kraft (2000) 23 Cal. 4th 978, 1057 [similar].) As Kerley does
not dispute, there was ample circumstantial evidence that he had the “motive, intent, and
opportunity” to kill Dever, including his long history of domestic violence and threats
toward her, plus the pendency of domestic violence charges against him, with a hearing
scheduled for mere days after her disappearance. Reviewing the record as a whole in the
light most favorable to the prosecution, there was sufficient evidence to support the jury’s
guilty verdict even without Dr. Murad’s opinion that Dever’s death was a homicide.
Moreover, Dr. Murad’s testimony, if credited by the jury, provided substantial
evidence to support the conclusion that Dever was beaten to death. The testimony of a
single witness, if believed by the factfinder, is sufficient to prove any fact. (§ 411;
People v. Kirvin (2014) 231 Cal. App. 4th 1507, 1514 [“It is ‘not the role of this court to
redetermine the credibility of experts or to reweigh the relative strength of their
conclusions,’ ” quoting People v. Poe (1999) 74 Cal. App. 4th 826, 831].) “Conflicts and
12
even testimony which is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends.” (People v. Huston (1943) 21 Cal. 2d 690, 693, overruled on another ground in
People v. Burton (1961) 55 Cal. 2d 328, 352.) We conclude the evidence as a whole was
sufficient to support the jury’s verdict.
II. The Trial Court Did Not Err in Admitting Prior Incidents of Domestic Violence
Under Section 1109
A. Factual Background
As part of their motions in limine, the People sought to introduce evidence
pursuant to sections 1101, subdivision (b) and 1109 that on numerous occasions Kerley
had committed acts of domestic violence against Dever. Kerley objected to admission of
this evidence.
The trial court heard lengthy argument on these issues and ruled that most of the
instances of domestic violence proffered by the People were admissible pursuant to both
sections 1101, subdivision (b) and 1109, while others were not.
Kerley challenges the trial court’s rulings admitting prior instances of domestic
violence pursuant to section 1109 on the grounds (1) that there was insufficient evidence
that Dever’s death was caused by an assaultive act and (2) that the undue prejudice from
this evidence substantially outweighed its probative value within the meaning of section
352. Kerley argues the erroneous admission of this evidence was harmful, depriving him
of a fair trial.5 The People respond that the trial court properly admitted this evidence
under section 1109.
B. Applicable Law
Ordinarily, propensity evidence—evidence that a defendant committed an
uncharged offense—is inadmissible to prove the defendant’s disposition to commit the
charged offense. (§ 1101, subd. (a).) Evidence that the defendant committed uncharged
5
Kerley does not challenge the trial court’s ruling that the prior instances of
domestic violence were admissible under section 1101, subdivision (b).
13
crimes or other acts, however, is admissible to prove relevant facts other than disposition,
such as motive, intent, and absence of mistake or accident. (§ 1101, subd. (b).)
The Legislature, moreover, has carved out specific exceptions to this general rule
in cases involving domestic violence, elder abuse, and child abuse (§ 1109) and cases
involving sexual offenses (§ 1108). Section 1109 provides, in relevant part, “in a
criminal action in which the defendant is accused of an offense involving domestic
violence, evidence of the defendant’s commission of other domestic violence is not made
inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section
352.” (§ 1109, subd. (a).) “[T]he California Legislature has determined the policy
considerations favoring the exclusion of evidence of uncharged domestic violence
offenses are outweighed in criminal domestic violence cases by the policy considerations
favoring the admission of such evidence.” (People v. Johnson (2000) 77 Cal. App. 4th
410, 420.) As a result, section 1109 “permits the admission of defendant’s other acts of
domestic violence for the purpose of showing a propensity to commit such crimes.
[Citation.]” (People v. Hoover (2000) 77 Cal. App. 4th 1020, 1024 (Hoover).) Section
1109 “reflects the legislative judgment that in domestic violence cases, as in sex crimes,
similar prior offenses are ‘uniquely probative’ of guilt in a later accusation.” (People v.
Johnson (2010) 185 Cal. App. 4th 520, 532 (Johnson).)
As noted, section 1109 expressly incorporates the limitations of section 352.
Therefore, before admitting evidence under section 1109, the trial court must exercise its
discretion to determine whether the probative value of the evidence is “substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (§ 352.)
“Undue prejudice,” as used in section 352, however, does not mean evidence that
is harmful to the defendant’s case. “ ‘ “ ‘[T]he prejudice which exclusion of evidence
under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a
defense that naturally flows from relevant, highly probative evidence. “[A]ll evidence
which tends to prove guilt is prejudicial or damaging to the defendant’s case. The
14
stronger the evidence, the more it is ‘prejudicial.’ The ‘prejudice’ referred to in Evidence
Code section 352 applies to evidence which uniquely tends to evoke an emotional bias
against the defendant as an individual and which has very little effect on the
issues.” ’ ” ’ ” (People v. Fruits (2016) 247 Cal. App. 4th 188, 205 (Fruits), quoting
People v. Holford (2012) 203 Cal. App. 4th 155, 167 (Holford), italics omitted.)
“ ‘Trial courts enjoy “ ‘broad discretion’ ” in deciding whether the probability of a
substantial danger of prejudice substantially outweighs probative value. [Citations.] A
trial court’s exercise of discretion “will not be disturbed except on a showing the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.” ’ ” (Fruits, supra, 247 Cal.App.4th at
p. 202, quoting Holford, supra, 203 Cal.App.4th at pp. 167–168.)
C. Kerley Was Accused of a Domestic Violence Offense
We first address Kerley’s argument that his prior acts of domestic violence were
improperly admitted into evidence because the People failed to prove Dever was killed
by an assaultive act. Section 1109 contains no such requirement.
Section 1109 applies to any “criminal action in which the defendant is accused of
an offense involving domestic violence, . . .” as defined in Penal Code section 13700.
(§ 1109, subds. (a), (d)(3).) Thus, the application of section 1109 to the present case
turns on whether Kerley was “accused” of domestic violence. Kerley was accused of
murdering Dever. To prove that Kerley murdered Dever, the People were required to
prove that he committed an act that caused her death with malice aforethought.
(CALCRIM No. 520.) Causing someone’s death with malice aforethought
unquestionably meets the Penal Code section 13700 definition of “abuse” as
“intentionally or recklessly causing . . . bodily injury.” (E.g., People v. Brown (2011)
192 Cal. App. 4th 1222, 1235.) There is no question that Kerley and Dever were
cohabitating and had a child together. Therefore, Kerley was “accused of an offense
involving domestic violence” and section 1109 was properly applied to the proffered
domestic violence evidence.
15
Kerley’s argument that the People failed to prove that Dever died as a result of an
assaultive act misses the point.6 Section 1109 is triggered by the nature of the accusation,
not by the sufficiency of the evidence presented to prove that accusation. Moreover, as
discussed in section I above, we have found that the jury’s conclusion that Kerley
murdered Dever was supported by substantial evidence. There was no evidentiary gap.
D. Evidence Code Section 352
As noted, the People in their motions in limine sought to admit numerous prior
instances of domestic violence Kerley perpetrated against Dever, against his prior
girlfriend, Nancy F., and against the woman he married after Dever disappeared, Laura
K. They sought admission under section 1101, subdivision (b) to prove Kerley’s intent,
motive, and identity, and to prove Kerley had a common scheme or plan to assault
women with whom he had a romantic relationship. Kerley filed a motion in limine to
exclude this evidence pursuant to section 1109 on the grounds that it was irrelevant to the
charged crime and unduly prejudicial.
The trial court held a section 402 hearing on the admissibility of these prior
instances of domestic violence. After extensive argument, the trial court ruled that most
of the alleged instances were admissible under sections 1101, subdivision (b) and 1109.
The court, however, granted Kerley’s motion to exclude three instances: (1) Kerley’s
1981 conviction for assaulting his prior girlfriend, Nancy F.; (2) Linda H.’s proffered
testimony that she found Dever tied up in the bed in her home; and (3) Laura K.’s
proposed testimony that Kerley locked her in a closet. The trial court, therefore,
expressly considered Kerley’s arguments and exercised its discretion in deciding which
prior instances were admissible and which were not under section 352.
First, we note the trial court admitted the domestic violence evidence under
section 1101, subdivision (b), to prove Kerley’s state of mind, intent, motive, identity,
and a common scheme or plan. Kerley does not address this ruling in his challenge to the
6
Kerley’s argument that the jury was permitted improperly to use the evidence of
prior domestic violence to prove that he murdered Dever is addressed in section III
below.
16
admission of the prior domestic violence evidence. Kerley’s consistent pattern of
assaulting Dever was certainly relevant to his state of mind, intent, and motive in
connection with the allegation that he murdered Dever. (Fruits, supra, 247 Cal.App.4th
at pp. 203–204; Hoover, supra, 77 Cal. App. 4th 1020, 1026.) The trial court’s ruling
allowing proof of the prior instances of domestic violence under section 1101,
subdivision (b) stands as a valid basis for admission of this evidence independent of its
ruling under section 1109. Admission of this evidence under section 1101,
subdivision (b), however, is still subject to section 352 analysis. Although Kerley does
not challenge the trial court’s ruling admitting prior instances of domestic violence to the
extent it was based on section 1101, subdivision (b), we will consider his section 352
arguments as they apply to this basis for admission as well.
On appeal, Kerley lists 10 instances of domestic violence and argues that, even if
relevant to show Kerley’s propensity to commit domestic violence under section 1109,
their admission into evidence contravened section 352 because the probative value of this
evidence was substantially outweighed by the likelihood that jurors would be confused,
misled, or distracted from their “main inquiry” of determining whether Dever was
murdered and whether Kerley was responsible. These 10 instances are:
1. Tracy A. saw Kerley slap Dever, pull her out of a car by the arm and throw her
onto the ground.
2. Denae D. saw Kerley punch and kick a pregnant Dever in the stomach with
steel-toed boots as she lay on the ground.
3. Susan D. observed Kerley kick Dever as she lay on the floor between the door
and the wall of their home.
4. Dever asked Christy H. to help her hide from Kerley because he had beaten her
up again.
5. Darla C. saw Kerley restrain Dever by holding her feet as she was on the
ground trying to get out of their home. Dever was bruised.
6. Deborah M. observed Kerley kicking Dever all over her body as she lay on the
floor of their home. On another occasion, around Christmas time, Deborah saw Dever
17
with black eyes, a bruised face, and bruises on her back. Dever told Deborah that Kerley
had beaten her on the back with a two-by-four.
7. Dever told Fairfield Police Department Officer Harper that Kerley had kicked
her in the eye.
8. Desirae C. observed Kerley grab Dever by the back of the head, push her head
to the floor, and rub the side of her face and her hair on the floor to mop up water that she
had spilled on the floor.
9. In spring 1993, Dever ran from her house into her neighbor’s home across the
street yelling that Kerley had a gun and was threatening to kill her.
10. On January 7, 1996, Dever told Officer Cross that Kerley had stomped Dever’s
hand and foot and kicked her in the eye.
Kerley argues many of the uncharged instances of domestic violence were too
remote to be admissible and that they were so inflammatory that the jury was likely to
have convicted Kerley based on these prior instances rather than on substantive evidence
of the charged murder. Kerley also argues that any probative value was substantially
outweighed by the time consumed proving and refuting these prior instances. Finally,
Kerley argues admission of these prior instances prejudiced him and rendered impossible
his chances of getting a fair trial.
In conducting the careful weighing process to determine whether propensity
evidence is admissible under section 352, trial courts “must consider such factors as its
nature, relevance, and possible remoteness, the degree of certainty of its commission and
the likelihood of confusing, misleading, or distracting the jurors from their main inquiry,
its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden
on the defendant in defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission . . . .” (People v. Falsetta (1999)
21 Cal. 4th 903, 917.)
To start our analysis of the balance between probative value and undue prejudice
under section 352, we look to the probative value of the evidence. (E.g., Johnson, supra,
18
185 Cal.App.4th at pp. 531–533.) As noted, the Legislature concluded that, in domestic
violence cases in particular, a history or pattern of domestic violence is very probative.
“ ‘The propensity inference is particularly appropriate in the area of domestic
violence because on-going violence and abuse is the norm in domestic violence cases.
Not only is there a great likelihood any one battering episode is part of a larger scheme of
dominance and control, that scheme usually escalates in frequency and severity. Without
the propensity inference, the escalating nature of domestic violence is likewise masked.
If we fail to address the very essence of domestic violence, we will continue to see cases
where perpetrators of this violence will beat their intimate partners, even kill them, and
go on to beat or kill the next intimate partner. Since criminal prosecution is one of the
few factors which may interrupt the escalating pattern of domestic violence, we must be
willing to look at that pattern during the criminal prosecution, or we will miss the
opportunity to address this problem at all.’ ” (Assem. Com. on Public Safety, Rep. on
Sen. Bill No. 1876 (1995–1996 Reg. Sess.) June 25, 1996, pp. 3–4.) (Hoover, supra,
77 Cal. App. 4th 1020, 1027–1028.)
Evidence that Kerley abused Dever multiple times is more probative than evidence
that he did so once or twice; it is the frequency, regularity, and severity with which
Kerley beat Dever that infuses this propensity evidence with probative strength. (See,
e.g., People v. Cabrera (2007) 152 Cal. App. 4th 695, 706 (Cabrera) [“Here, the probative
value of [prior domestic violence Victim 1’s] and [prior domestic violence Victim 2’s]
testimony is principally in its cumulative nature. Taken together, [Victim 1’s] and
[Victim 2’s] testimony sets forth a continuous and fairly unbroken pattern of domestic
abuse which commenced in 1995 and continued until 2002. The testimony of [the
current victim] demonstrated the pattern commenced again when appellant began dating
her. Thus the testimony of [Victim 1] and [Victim 2] was highly relevant and probative
because it created a strong inference that appellant had a propensity to commit the acts
[the current victim] described”].) Kerley argued at trial that not one of these alleged prior
instances of domestic violence actually occurred; all of the witnesses were lying. The
sheer volume of this testimony from multiple witnesses refuted Kerley’s argument.
19
“ ‘ “The principal factor affecting the probative value of an uncharged act is its
similarity to the charged offense.” ’ ” (Johnson, supra, 185 Cal.App.4th at p. 531,
quoting People v. Hollie (2010) 180 Cal. App. 4th 1262, 1274.) “Thus, the statute reflects
the legislative judgment that in domestic violence cases, as in sex crimes, similar prior
offenses are ‘uniquely probative’ of guilt in a later accusation. [Citation.] Indeed,
proponents of the bill that became section 1109 argued for admissibility of such evidence
because of the ‘typically repetitive nature’ of domestic violence.” (Johnson, supra,
185 Cal.App.4th at p. 531.)
In the present case, Dr. Murad testified, based on his observation that several ribs
on Dever’s left and right sides had been broken around the time of her death, and based
on her damaged hyoid bone, that Dever had been beaten and that her death was a
homicide. The jury could conclude, based on this testimony and other evidence, that
Kerley had killed Dever by beating her so severely that he broke her ribs and hyoid bone.
Of the 10 instances of domestic violence appellant challenges, nine (numbers 1
through 8 and 10 above) reflect similar assaultive conduct that could have resulted in
broken bones. The remaining instance (number 9) in which Dever claimed Kerley had a
gun and threatened to kill her was not factually similar to the beating alleged to have
caused Dever’s death. It was, however, relevant to Dever’s fear of Kerley, as discussed
in Section VI below.
Kerley’s consistent and frequent assaults on Dever in ways that could easily break
her ribs and other bones are compelling evidence of his propensity to do just that.
Kerley’s preferred method of assaulting Dever—kicking her in the stomach and torso,
sometimes with steel-toed boots—was remarkable because it was precisely the type of
assault that would break ribs. Dever complained that Kerley kicked her in the stomach,
beat her in the back with a two-by-four, and apparently broke her ribs. Witnesses saw
Kerley kick Dever in the stomach and on other occasions observed bruises to her torso.
All of the pathologists agreed that Dever had several ribs that had been broken long
before she died. The evidence of Kerley’s specific predilection toward kicking Dever in
the torso is strikingly similar to the cause of death identified by Dr. Murad.
20
Another factor in the section 352 analysis is the degree of certainty with which the
prior instances of domestic violence occurred. (People v. Falsetta, supra, 21 Cal. 4th 903,
917.) Appellant argues most of the prior instances were observed by Dever’s family and
friends, who were biased against Kerley and were otherwise impeached by their own
conduct. Appellant is correct that five of the ten instances were related by Dever’s family
members. Incident number 4 was described by Christy H., who had known both Dever
and Kerley since childhood.
It is not surprising that the assaults suffered by a victim of domestic violence are
most likely to be seen by family members and friends. This does not make their
testimony inherently unreliable. Moreover, numerous witnesses observed Dever with
black eyes, bruises, and other physical manifestations of abuse. And while the family
members likely were biased in favor of Dever, the overwhelming volume and consistency
of the domestic violence testimony made for compelling evidence that it was true. To the
extent Kerley elicited impeachment evidence as to each witness, the jurors received that
evidence and factored it into their credibility findings. The jury apparently did not share
Kerley’s dim view of the reliability of the witnesses’ testimony.
Appellant claims that incidents 1 through 5 above occurred at least 10 years before
the charged offense and, therefore, were presumptively inadmissible under section 1109,
subdivision (e).7 The record does not support this claim. Each of the first five incidents
is addressed in turn:
1. Tracy A. testified she saw Kerley throw Dever on the ground and threaten
to kill her when Dever was “probably about six or seven months pregnant.” Mandee
Kerley was born September 28, 1986. Therefore, Dever was “six or seven months
pregnant” from approximately June 28 through July 28, 1986. The information alleges
Kerley murdered Dever sometime on or after June 14, 1996. Based on the testimony,
7
Section 1109, subdivision (e) provides: “Evidence of acts occurring more than
10 years before the charged offense is inadmissible under this section, unless the court
determines that the admission of this evidence is in the interest of justice.” This
particular issue was not raised below, so the trial court did not make any specific
findings.
21
therefore, this act of domestic violence occurred less than 10 years before the charged
offense.
2. Similarly, Denae D. testified she saw Kerley punch and kick Dever in the
stomach when she (Dever) was “eight or nine months pregnant,” which would be August
and September 1986, less than 10 years before the charged offense.
3. Susan D. watched Kerley kick Dever as she lay on the floor of their home.
This occurred when “Mandee was only maybe a month old,” so after September 28, 1986
and less than 10 years before the charged offense.
4. Christy H. described two incidents. One when she went to Dever’s home
and saw that Dever’s torso was badly bruised. She testified this was after Mandee was
born. The second incident was when Dever came to Christy’s house to hide from Kerley,
stating that he had just beaten her again. Christy did not give the year of that incident,
but said she last saw Dever in approximately 1987. The record does not support Kerley’s
claim that this incident occurred more than 10 years before the charged offense.
5. Darla C. observed Kerley restraining Dever by the feet as she was trying to
get away from him. This occurred when “Mandee was a baby,” so less than 10 years
before the charged offense.
Because none of the incidents at issue occurred more than 10 years before the
charged offense, they were all presumptively admissible under section 1109,
subdivision (a)(1). (See Fruits, supra, 247 Cal. App. 4th 188, 202, 206; Johnson,
supra,185 Cal. App. 4th 520, 539.)
In addition, the record reflects that Kerley engaged in a consistent pattern of
abusing Dever throughout the 10 years preceding her death. Even if some of the conduct
were remote, the evidence hardly suggests Kerley lead a “substantially blameless” life
between the early assaults and the death. (See Johnson, supra, 185 Cal.App.4th at
p. 534.)
Kerley argues the extensive evidence of his prior domestic abuse was likely to
confuse, mislead and distract the jurors from their “main inquiry,” i.e., deciding whether
Kerley murdered Dever. This is a valid concern. (People v. Falsetta, supra, 21 Cal. 4th
22
at p. 917.) A substantial portion of the People’s case was devoted to proving the prior
incidents of domestic violence. However, viewing the trial as a whole—including the
jury instructions and closing arguments—we find that the charged offense was the
primary focus of the trial. Kerley’s history of abusing Dever, as noted, comprised a
substantial portion of the evidence and argument, but a significantly greater portion of the
evidence was devoted to proving the charged crime.
Moreover, propensity evidence under section 1109 is directly relevant to this
“main inquiry.” The very reason the Legislature authorized admission of prior domestic
violence evidence was to enable the jury to conclude that the defendant had a propensity
to abuse his partner and, based on that propensity, that he was likely to, and did in fact
commit the charged crime. (People v. Reliford (2003) 29 Cal. 4th 1007, 1014 (Reliford);
People v. Brown, supra, 192 Cal. App. 4th 1222, 1235–1237.) The prior instances are not
sufficient by themselves to prove the charged crime, but the fact that defendant regularly
assaulted the victim is evidence the jury can use to conclude, along with other evidence,
that the defendant assaulted the victim in committing the charged crime. Kerley cites no
case holding the jury is not permitted to consider section 1109 propensity evidence in
determining whether the defendant committed the charged crime—that is precisely the
reason the Legislature made it admissible in the first place.
Kerley notes that he was previously convicted for only one of the 10 prior
instances of domestic violence. He is correct that this is a relevant factor in the section
352 analysis—the concern is that a jury might convict a defendant to punish him for the
uncharged acts, rather than because the evidence is sufficient to prove the charged crime.
(People v. Ewoldt (1994) 7 Cal. 4th 380, 405 [addressing evidence of uncharged acts
admitted under section 1101, subdivision (b) before section 1109 was enacted].) Viewing
the trial as a whole, however, it is unlikely that the jury would have been confused on
whether it was deciding whether to convict Kerley for murdering Dever or for assaulting
her in the past. (See People v. Loy (2011) 52 Cal. 4th 46, 74–76 (Loy).) And while the
litany of abuse Dever suffered at Kerley’s hands is disturbing, it is not likely a jury would
23
be more emotionally upset that he beat and kicked her than it would be that he beat her to
death and dumped her naked body in a remote ditch.
Kerley also argues that the prior acts of domestic violence were much more
inflammatory than the charged offense, which would likely cause the jury to decide the
murder charge based on the emotional pull from the history of domestic violence rather
than from the evidence that he killed Dever.
As noted, the evidence of prior incidents of domestic violence was substantial and
compelling. The jurors learned that, over a period of 10 years, Kerley regularly punched
and kicked Dever, slapped her, threw her to the ground when she was pregnant, punched
and kicked her in the stomach when she was pregnant, restrained her from leaving the
home, stalked her, beat her in the back with a two-by-four, kicked her in the eye, mopped
the floor with her face and hair, stomped on her hand and foot, and repeatedly threatened
to kill her. The jurors also learned that Kerley demanded Dever procure a woman with
whom he and Dever could have three-way sex, had held a firearm to the head of a prior
sex partner, and kicked Dever in the eye for failing to locate a partner.
Most of this evidence was damaging to Kerley’s case because it presented
compelling evidence of his propensity to beat Dever. As noted, however, this type of
“prejudice” is not the “prejudice” envisioned by section 352. The frequency and
regularity with which Kerley beat Dever provided vivid proof that he would likely beat
Dever again. The severity and viciousness with which he assaulted Dever was probative
of the intensity and depth of his willingness to harm her. This is all probative evidence
relevant to the jury’s determination whether Kerley committed the charged crime, not
“undue prejudice” within the meaning of section 352. (Fruits, supra, 247 Cal.App.4th
at p. 205; Cabrera, supra, 152 Cal. App. 4th 695, 706.)
On the other hand, evidence that Kerley demanded that Dever procure a woman
with whom they could have sex, and his prior conduct of holding a gun to Trudy’s head
during their sexual encounters, was the type of “undue prejudice” to which section 352
applies. Kerley’s sexual deviance, and his use of a firearm in pursuit of these sexual
desires, do not tend to prove that Kerley was likely to beat Dever. Therefore, they carried
24
no probative value on a relevant issue, but did introduce unduly prejudicial evidence
against Kerley. The question is whether this portion of the evidence, in the context of the
trial as a whole, was likely to cause the jury to convict Kerley of murder based on its
emotional reaction to his deviant sexual desires rather than on the evidence that Kerley
assaulted Dever and caused her death. We address this issue in Section XII below.
III. The Jury Instructions Regarding the Uncharged Domestic Violence Did Not
Impermissibly Lower the Prosecution’s Burden of Proof
The jury was given the following instruction regarding the uncharged domestic
violence evidence, which is part of CALCRIM No. 852: “The People presented evidence
that the defendant committed domestic violence that was not charged in this case.
[¶] Domestic violence means abuse committed against an adult who is a spouse,
cohabitant, person with whom the defendant has had a child, or person who dated or is
dating the defendant. [¶] Abuse means intentionally or recklessly causing or attempting
to cause bodily injury, or placing another person in reasonable fear of imminent serious
bodily injury to himself or herself or to someone else. [¶] The term cohabitants means
two unrelated persons living together for a substantial period of time, resulting in some
permanency of the relationship. Factors that may determine whether people are
cohabiting include, but are not limited to, (1) sexual relations between the parties while
sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership
of property, (4) the parties’ holding themselves out as husband and wife, (5) the parties’
registering as domestic partners, (6) the continuity of the relationship, and (7) the length
of the relationship. [¶] You may consider this evidence only if the People have proved by
a preponderance of the evidence that the defendant in fact committed the uncharged
domestic violence. Proof by a preponderance of the evidence is a different burden of
proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact is true.”
25
For reasons that are not clear from the record8, neither the written nor the oral
version of the instructions included these additional paragraphs from CALCRIM
No. 852: “If the People have not met this burden of proof, you must disregard this
evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic
violence, you may, but are not required to, conclude from that evidence that the
defendant was disposed or inclined to commit domestic violence and, based on that
decision, also conclude that the defendant was likely to commit [and did commit]
_________________ , as
charged here. If you conclude that the defendant committed the uncharged domestic
violence, that conclusion is only one factor to consider along with all the other evidence.
It is not sufficient by itself to prove that the defendant is guilty of _________________
. The People must still prove
(the/each) (charge/ [and] allegation) beyond a reasonable doubt.”
The jury was also instructed consistently and repeatedly that the People had the
burden of proving each element of the charged crime of murder beyond a reasonable
doubt.
On appeal, Kerley argues that the partial CALCRIM instruction No. 852 that was
given erroneously permitted the jury to convict him of murder based on a preponderance
of the evidence, and that it erroneously permitted the jury to consider prior acts of
domestic violence to prove Dever’s cause of death. Defense counsel did not object to the
instruction as given before the trial court, but because Kerley argues that the instruction
violated his constitutional rights by lowering the prosecution’s burden of proof, we will
consider his argument on the merits. (See Pen. Code, § 1259; People v. Orellano (2000)
79 Cal. App. 4th 179, 181 fn. 1 (Orellano).)
Our Supreme Court considered a similar instruction in Loy, supra, 52 Cal. 4th 46.
The instruction given there contained language similar to the language omitted here: “ ‘If
you find the defendant committed a prior sexual offense or sexual offenses, you may, but
8
In discussing the jury instructions, the trial court and counsel appeared to refer
to the full version of the instruction.
26
are not required to, infer that the defendant had a disposition to commit the same or a
similar type sexual offense. If you find that the defendant had this disposition, you may,
but are not required to, infer he was likely to commit and did commit the crime of which
he’s accused.’ ” (Loy, supra, 52 Cal.4th at p. 71)
The Supreme Court noted that it had, in Reliford, supra, 29 Cal. 4th 1007, upheld
this same instruction with the following additional language: “ ‘However, if you find by
a preponderance of the evidence that the defendant committed a prior sexual offense in
1991 involving S[.]B[.], that is not sufficient by itself to prove beyond a reasonable doubt
that he committed the charged crime. The weight and significance of the evidence, if
any, are for you to decide.’ ” (Reliford, supra, 29 Cal.4th at p. 1012.)
In Loy, the Supreme Court noted that, before the addition of this language to the
standard instruction in 1999, the courts of appeal had divided on whether the instruction
was constitutional. Several courts concluded it was not, and these are the cases upon
which Kerley relies here. (Id. at pp. 72–74.) However, the Supreme Court in Loy found
that, “under the facts and overall instructions of this case,” the cases concluding that the
pre-1999 version of the instruction was constitutional “have the better view,” and that
the additional admonishment upheld in Reliford was not necessary to render the
instruction constitutional. (Id. at p. 74.)
In Loy, Reliford, and the court of appeals cases finding the pre-1999 version of
the instruction unconstitutional, the challenged language told the jury that it “ ‘may . . .
infer [the defendant] was likely to commit and did commit the crime of which [he is]
accused.’ ” (Loy, supra, 52 Cal.4th at p. 71; see Reliford, supra, 29 Cal.4th at
pp. 1011–1013; People v. Younger (2000) 84 Cal. App. 4th 1360, 1379–1383; People v.
James (2000) 81 Cal. App. 4th 1343, 1349–1356; Orellano, supra, 79 Cal. App. 4th 179,
184–185; People v. Vichroy (1999) 76 Cal. App. 4th 92, 98–100; Gibson v. Ortiz (9th Cir.
2004) 387 F.3d 812, 821–823; Doe v. Busby (9th Cir. 2011) 661 F.3d 1001, 1008–1009,
1023.) The concern identified in these cases was that the language above “allowed the
jury to find that [the defendant] committed the uncharged sexual offenses by a
preponderance of the evidence and thus to infer that he had committed the charged acts
27
based upon facts found not beyond a reasonable doubt, but by a preponderance of the
evidence.” (Gibson v. Ortiz, supra, 387 F.3d at p. 822.)
We conclude that the instruction, as given here, did not permit the jury to convict
Kerley of murder based on a preponderance of the evidence. As in Loy, the “court
merely told the jury it could not consider the evidence of the prior [acts of domestic
violence] for any purpose unless it found he had committed them by a preponderance of
the evidence. Nothing in that instruction canceled the reasonable doubt instructions the
jury also received.” 9 (Loy, supra, 52 Cal.4th at p. 76.) “ ‘Nothing in the instructions
authorized the jury to use the preponderance-of-the-evidence standard for anything other
than the preliminary determination whether defendant committed [prior acts of domestic
violence].’ ” (Ibid.) Instead, the instructions as a whole repeatedly “ ‘explained that, in
all other respects, the People had the burden of proving defendant guilty ‘beyond a
reasonable doubt.’ ” (Loy, supra, 52 Cal.4th at p. 76; quoting Reliford, supra, 29 Cal.4th
at p. 1016.)
Moreover, the incomplete jury instruction actually given in this case omitted the
very language that arguably could lead a jury to convict the defendant of the charged
crime based upon the lower standard of proof. The jury in the present case was not told it
may infer from the prior acts of domestic violence that the defendant “was disposed or
inclined to commit domestic violence and, based on that decision, also conclude that the
defendant was likely to commit and did commit” the charged murder. (CALCRIM
No. 852.) The instruction actually given here was less likely to suggest the jury could
convict the defendant based on a preponderance of the evidence than the one given in
Loy.
We likewise see no error in the prosecutor’s statement to the jury that “[i]n
domestic violence cases other acts of domestic violence are relevant and admissible to
9
The instruction in Loy told the jury it could not “consider the evidence . . . for
any purpose,” whereas the instruction here did not contain “for any purpose” and simply
stated that the jury could not “consider this evidence” unless it found the uncharged acts
proven by a preponderance. (See Loy, supra, 52 Cal.4th at p. 76.) This omission does
not change our analysis.
28
show continuous domestic violence and, in this case, the ultimate act of domestic
violence is when the defendant killed his live-in girlfriend.” The jury was indeed
permitted to infer from the prior acts of domestic violence that Kerley had the disposition
to commit the charged offense, and that he was likely to do so. (See Reliford, supra,
29 Cal.4th at p. 1014 [“evidence of the uncharged offense may support the inference that
defendant had a disposition to commit the charged offense which, in turn, may support
the inference that he was likely to commit and did commit the charged offense”]; People
v. Brown, supra, 192 Cal. App. 4th 1222, 1237 [“a defendant’s propensity to commit
domestic violence . . . is relevant and probative to an element of murder, ‘namely,
[defendant’s] intentional doing of an act with malice aforethought that resulted in the
victim’s death’ ”].) Nothing in the prosecutor’s statement suggested that the
preponderance of evidence standard was applicable to any element of the charged
offense. We conclude that the instructions as given did not violate Kerley’s
constitutional rights by lowering the prosecution’s burden of proof.10
IV. The Admission of Certain Statements of the Deceased Did Not Violate
Crawford v. Washington
Kerley argues the trial court violated Crawford, supra, 541 U.S. 36 by admitting
over his objection testimonial statements Dever made to police officers on two occasions,
December 24, 1989 and January 7, 1996. The People respond that Kerley’s argument is
foreclosed by the doctrine of forfeiture by wrongdoing, that Dever’s statements on both
occasions were properly admitted without violating Crawford, and that, in any event,
admission of these two statements, even if error, was harmless error.
A. Factual Background
1. 1989 Statements to Officer Harper
10
For similar reasons, we reject Kerley’s argument that the instruction
impermissibly allowed the jury to consider evidence of uncharged domestic violence to
prove that “an assaultive crime occurred in the first place and that defendant committed
it.” The uncharged domestic violence was relevant to this issue, and, as discussed above,
there was sufficient evidence for the jury to conclude that Dever was murdered.
29
On December 24, 1989, Dever called a neighbor, Kimberly R., and in a coded
message told her Kerley was assaulting her and asked Kimberly to come to the house.
Kimberly called the police.
Fairfield Police Officers Caree Harper and Carol Edmonds responded at
approximately 1:00 a.m. When they arrived at Kerley’s residence, the officers heard a
woman yelling “Trudy, Trudy.” The screaming intensified as they approached the front
door. The officers knocked and yelled, “ ‘police.’ ” Kerley opened the door, said,
“ ‘Everything is fine,’ ” and slammed the door in the officers’ faces. The screaming
continued. Officer Edmonds warned if Kerley did not open the door, they would break
the front window of the house. When Kerley failed to open the door again, the officers
broke out the front window and pulled Dever out through the opening.
Dever was hysterical, frantic, scared, panicked, and crying. She screamed,
“ ‘Hurry, I know he is going to kill me.’ ” Dever had a cut above her left eye, an injury
behind her left ear, and injures to her right ring finger and thigh. Officer Harper brought
Dever out to the street in front of the house. Dever began to run around screaming, so
Officer Harper placed her in the back of a patrol car for safety. Kerley never came out of
the house. The officers were unable to arrest Kerley because their Sergeant ordered them
to clear the scene.
Officer Harper drove Dever to the police station to take her statement. On the way
to the police station, Dever told Officer Harper that she (Dever) was concerned for her
safety and for the safety of her daughter. Dever wanted to return to get her daughter from
the daughter’s paternal grandparents. Dever spent at least a couple of hours at the police
station. Although Dever stopped yelling, she never calmed down that day.
On direct examination, the People elicited from Officer Harper only the portions
of Dever’s statements described above. On cross-examination, Kerley’s counsel
suggested that Trudy may not even exist. When counsel asked her if she had ever talked
to anyone named “Trudy,” Officer Harper responded, “I never talked to Trudy. I was
told about Trudy from Ms. Dever.”
30
On redirect examination, the prosecutor asked Officer Harper to relate Dever’s
explanation of why Kerley had beaten her as it related to Trudy. Kerley’s counsel
objected. The trial court overruled the objection on the ground that counsel had opened
the door to this topic. Officer Harper testified Dever said Kerley wanted her to find
another woman to have sex with so Kerley could watch, but Dever was not able to find
someone. Dever said Trudy had done it a couple of times, but Kerley had held a gun to
their heads and was too violent, so Trudy declined to return. That evening, they had gone
to a club named Pure Energy to find another woman, but Dever was unsuccessful in
finding one. When they returned home, Kerley said, “ ‘you deserve this’ ” and, from a
standing position, kicked Dever in the head and eye.
2. 1996 Statements to Officers McCoy and Cross
The second incident occurred January 7, 1996. At 5:40 p.m., Fairfield Police
Officer McCoy responded to a domestic violence call at Kerley’s residence. When he
knocked on the front door, Dever answered. She had two black eyes and a puffy and
swollen face. She was trembling and crying uncontrollably and had a look of “stark
raving terror” on her face. Dever reached for Officer McCoy’s hand and then jumped
onto him, wrapping her arms around his neck and her legs around his waist. Shaking
uncontrollably, Dever said, “ ‘Help me, help me, save me, save me, he did this.’ ” Kerley
was standing in the doorway. Officer McCoy was not able to pry Dever from his torso
until they walked out to the patrol car in front of the house.
Officer McCoy had Dever sit in the back of his patrol car. She was still shaking.
She said Kerley had assaulted her; he was mad at her for gaining weight. Dever told
Officer McCoy Kerley had a gun by the doorway. When Officer McCoy returned to the
house, he found the gun in the doorway and observed Mandee (age eight or nine) in the
house.
Officer Julie Cross arrived about 14 minutes after the domestic violence dispatch
call. When she arrived, Dever was in one patrol car and Kerley was in another. Officer
Cross spoke with Dever in the patrol car. Dever’s makeup was smeared and she looked
like she had been crying. Officer Cross could see that Dever’s eyes were blackening and
31
her wrist and ankle were a little red and swelling. Officer Cross was trying to get both
sides of what had happened at the residence. Over Kerley’s objection, Officer Cross
testified Dever said she and Kerley were arguing, she went to the floor, and Kerley
stomped on her right hand and foot and kicked her in the eye. Dever said when she tried
to call 911, Kerley said if anyone from the police department came to the house, he
would kill Dever.
Kerley was arrested and taken to the police station. After waiving his Miranda
rights, Kerley told Officer Cross that Dever had run out of the house, hit a wooden fence,
and then scratched and hit herself, injuring her eye, wrist, and foot. As Dever was
scratching and hitting herself, she said Kerley didn’t love her any more. Although they
had argued, there was no physical fight. Kerley said, “ ‘If I’m so bad, why does she keep
coming back. I didn’t lay a hand on her.’ ”
B. Applicable Law
1. Crawford
Under the Sixth Amendment to the United States Constitution, a defendant in a
criminal case has the right to be confronted with the witnesses against him. In Crawford,
supra, 541 U.S. 36, the Court held the Sixth Amendment confrontation clause bars the
admission of testimonial statements by a non-testifying witness unless the witness is
unavailable and the defendant had a prior opportunity to cross-examine the witness. (Id.
at pp. 61–68.) In Crawford, the Court did not fully define “testimonial” statements, but
noted they include, at a minimum, “prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and . . . police interrogation.” (Id. at p. 68.)
The Court further defined “testimonial” in a pair of cases decided together, Davis
v. Washington and the companion case of Hammond v. Indiana (2006) 547 U.S. 813
(Davis). Addressing statements made by victims of domestic violence to law
enforcement officers, the Court in Davis explained: “Statements are nontestimonial when
made in the course of police interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively indicate that there
32
is no such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.” (Davis,
supra, 547 U.S. at p. 822.) Therefore, the victim’s call to 911 in Davis, made as she was
being attacked by the defendant, was non-testimonial despite the fact that the victim
responded to questions from the 911 operator. (Id. at pp. 817, 828.)
In the Hammond case, police officers responding to a domestic disturbance call
found the victim alone on the front porch. She appeared frightened, but told the officers
nothing was the matter. The officers found the defendant inside the house. One officer
remained with the defendant in the kitchen while another interviewed the victim in the
living room. The victim told the officer the defendant had pushed her to the ground,
shoved her head into broken glass, and twice punched her in the chest. The victim’s
statements were memorialized in a “ ‘battery affidavit.’ ” (Davis, supra, 547 U.S. at
pp. 819–820.) When the victim did not appear at trial, the officer recounted her
statements for the jury. (Id. at p. 820.)
The Supreme Court held the Hammond victim’s statements to the police were
testimonial—and therefore inadmissible without cross-examination—because there was
no emergency in progress. When the officers arrived, they did not hear arguing or things
being broken and did not see anything being thrown or broken. The victim was alone on
the front porch and stated there was no problem. When the officer interviewed the victim
in the living room—where he obtained the challenged statements—“he was not seeking
to determine (as in Davis) ‘what is happening,’ but rather ‘what happened.’ Objectively
viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate
a possible crime–which is, of course, precisely what the officers should have done.”
(Id. at pp. 829–830.)
In People v. Cage (2007) 40 Cal. 4th 965 (Cage), our Supreme Court applied
Crawford, Davis, and Hammond in a child abuse case. The defendant in Cage was
convicted of aggravated assault for slashing her 15-year-old son across the face with a
shard of glass while her mother held the child down. (Id. at pp. 970, 972.) The victim
was taken to a hospital, where a surgeon asked him for purposes of treating him, “what
33
happened?” The victim responded “ ‘he had been held down by his grandmother and cut
by his mother.’ ” (Id. at p. 972.)
A police officer interviewed the victim in a waiting room of the emergency
department before he was treated. The officer asked the victim “ ‘what had happened
between [him] and the defendant.’ ” The victim responded he and his mother had gotten
into an argument and his mother pushed him, causing him to fall backward onto a coffee
table and break its glass top. His grandmother then held him as his mother picked up a
piece of broken glass and cut him. (Cage, supra, 40 Cal.4th at p. 971.) After the victim
was released from the hospital, the police officer conducted a tape-recorded interview
with him at the police station. The victim gave a more detailed account of the attack.
(Id. at pp. 972–973.) The victim did not testify at trial. His statements to the surgeon and
both statements to the officer were introduced into evidence at trial. (Id. at pp. 972–974.)
The California Supreme Court reviewed Crawford, Davis, and Hammond and
distilled the following principles: “First, . . . the confrontation clause is concerned solely
with hearsay statements that are testimonial, in that they are out-of-court analogs, in
purpose and form, of the testimony given by witnesses at trial. Second, though a
statement need not be sworn under oath to be testimonial, it must have occurred under
circumstances that imparted, to some degree, the formality and solemnity characteristic
of testimony. Third, the statement must have been given and taken primarily for the
purpose ascribed to testimony—to establish or prove some past fact for possible use in a
criminal trial. Fourth, the primary purpose for which a statement was given and taken is
to be determined ‘objectively,’ considering all the circumstances that might reasonably
bear on the intent of the participants in the conversation. Fifth, sufficient formality and
solemnity are present when, in a nonemergency situation, one responds to questioning by
law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth,
statements elicited by law enforcement officials are not testimonial if the primary purpose
in giving and receiving them is to deal with a contemporaneous emergency, rather than to
produce evidence about past events for possible use at a criminal trial.” (Id. at p. 984.)
Based on these principles, the court held the victim’s statements to the officer who
34
interviewed him in the hospital emergency waiting room and at the police station were
testimonial. (Ibid.) The incident leading to the injury had been over for more than an
hour. The assailant was far away. The victim was in no danger of further assault by his
mother. (Id. at p. 985.)
On the other hand, the victim’s statements to the surgeon were non-testimonial,
and therefore admissible pursuant to an Evidence Code hearsay exception. The primary
purpose of the surgeon’s question, objectively viewed, was to gather information needed
for proper diagnosis and treatment, not to establish past facts for possible use in a
criminal trial. (Cage, supra, 40 Cal.4th at p. 986.)
The United States Supreme Court further elucidated the definition of “testimonial”
in Michigan v. Bryant (2011) 562 U.S. 344 (Bryant). In Bryant, police officers
responded to a dispatch indicating that a man had been shot. When they arrived, they
found the victim lying on the ground of a gas station parking lot with a gunshot wound to
his abdomen. The officers asked him “ ‘what had happened, who had shot him, and
where the shooting had occurred.’ ” The victim responded by naming his assailant and
describing the circumstances leading to his having been shot. The conversation was
interrupted within five to ten minutes when emergency medical services arrived. The
victim died. (Id. at p. 349.)
The court held the victim’s statements to the officers at the scene were non-
testimonial. The circumstances surrounding the interaction between the victim and the
officers objectively indicated that the primary purpose of the questioning was to enable
the police to meet an ongoing emergency. (Bryant, supra, 562 U.S. at pp. 349, 378.) The
court clarified that the trial court is to apply an objective standard based on all relevant
circumstances and to consider the perspectives of both the questioner and the declarant.
(Id. at pp. 360, 375–376.)
2. Forfeiture by Wrongdoing
35
The United States Supreme Court has identified only two circumstances in which
testimonial statements not subject to cross-examination can be admitted into evidence
without offending the confrontation clause: dying declarations and forfeiture by
wrongdoing. The latter doctrine dictates that a defendant forfeits his Sixth Amendment
right to confront a witness against him when he by a wrongful act makes the witness
unavailable to testify at trial. (Giles v. California (2008) 554 U.S. 353, 355, 358 (Giles).)
In Giles, the Court held that the doctrine of forfeiture by wrongdoing permits admission
of unconfronted statements of an unavailable witness only if the trial judge finds by a
preponderance of the evidence that the defendant by a wrongful act made the witness
unavailable with the intent of preventing the witness from testifying. (Id. at pp. 358–
368.) The goal of the doctrine was to remove the “otherwise powerful incentive for
defendants to intimidate, bribe, and kill the witnesses against them—in other words, it is
grounded in ‘the ability of the courts to protect the integrity of their proceedings.’ ”
(Id. at p. 374.)
In Giles, the Court addressed application of the doctrine specifically to domestic
violence cases: “Acts of domestic violence often are intended to dissuade a victim from
resorting to outside help, and include conduct designed to prevent testimony to police
officers or cooperation in criminal prosecutions. Where such an abusive relationship
culminates in murder, the evidence may support a finding that the crime expressed the
intent to isolate the victim and to stop her from reporting abuse to the authorities or
cooperating with a criminal prosecution—rendering her prior statements admissible
under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the
victim from resorting to outside help would be highly relevant to this inquiry, as would
evidence of ongoing criminal proceedings at which the victim would have been expected
to testify.” (Giles, supra, 554 U.S. at p. 377.) Thus, the doctrine applies to evidence the
defendant intended to dissuade the victim from reporting the abuse to law enforcement
authorities as well as from testifying at trial. (People v. Banos (2009) 178 Cal. App. 4th
483, 502 (Banos).)
36
The forfeiture by wrongdoing doctrine is codified in section 1390.11 Section 1390,
subdivision (a) provides: “Evidence of a statement is not made inadmissible by the
hearsay rule if the statement is offered against a party that has engaged, or aided and
abetted, in the wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness.” The section further requires that the proponent of the hearsay
statement establish by a preponderance of the evidence at a foundational hearing that the
requirements of subdivision (a) have been met. (§ 1390, subd. (b)(1).) Although the
hearsay statement the proponent seeks to offer is itself admissible at the foundational
hearing, and, therefore, can be considered in determining whether the prerequisites of
subdivision (a) have been met, the hearsay evidence at issue cannot be the sole basis for
this finding; it must be supported by independent corroborative evidence. (§ 1390,
subd. (b)(2).) The trial court, in deciding whether to admit the hearsay statement, may
take into account whether it is trustworthy and reliable. (§ 1390, subd. (b)(4); see People
v. Jones (2012) 207 Cal. App. 4th 1392, 1398 (Jones).)
C. Analysis
1. Whether Dever’s Statements Were Testimonial
a. 1989 Statements to Officer Harper
Dever’s statements to Officer Harper and Officer Edmonds as they were pulling
her out of the living room window, “Hurry, I know he’s going to kill me,” were not
testimonial. The officers arrived to find an argument in progress, featuring Dever yelling
“Trudy, Trudy” with increasing intensity. When they knocked, Kerley opened the door,
said, “ ‘Everything’s fine,’ ” and slammed the door in the officers’ faces. That left an
apparent domestic violence victim trapped in the house with her likely abuser, who
refused to let the officers determine the victim’s wellbeing. The officers demanded
Kerley open the door. He did not. The officers were so concerned about Dever’s safety,
11
Section 1390 became effective January 1, 2011, so it applied to Kerley’s 2013
trial. (§ 1390, subd. (c).) In the trial court, both parties argued the applicability of the
doctrine of forfeiture by wrongdoing, citing Giles and Banos. However, neither party
cited section 1390 in the trial court or in their briefs on appeal to this court until we
requested supplemental briefing on this issue.
37
they broke out the front window and dragged her out through the window. They could
see Dever was injured around her eye. The officers asked no questions. Dever—who
was hysterical, frantic, scared, panicked, and crying—begged the officers for help
because she believed Kerley was going to kill her. This was an ongoing, unresolved, and
dangerous emergency situation. The officers were not investigating past acts of domestic
violence; they were providing emergency help to a presumed victim of presently ongoing
domestic violence. Kerley was in the house, where he was able to continue the assault,
grab a weapon, or attack the officers. The officers’ goal was to address the ongoing
emergency and render everyone safe. Dever’s motivation was to get help from the
officers and to stay alive. When all circumstances are viewed objectively, Dever’s plea
for help to prevent Kerley from killing her was non-testimonial within the meaning of
Crawford. (Bryant, supra, 562 U.S. at p. 361; Davis, supra, 547 U.S. at p. 828; Cage,
supra, 40 Cal.4th at p. 986.)
However, Dever’s statements to Officer Harper at the police department were
clearly testimonial. Dever had been removed from the scene of the violence. She never
did completely calm down that evening, but she was no longer hysterical and yelling.
(Cf. Banos, supra, 178 Cal. App. 4th 483, 498 [although domestic violence victim was still
“excited” and “upset,” statements to police officer after the emergency was over were
testimonial].)
Although Kerley was not in custody, he presented no danger to Dever in the police
station. Officer Harper conducted a standard post-incident interview of a domestic
violence victim in order to establish and document what had happened at the house.
Although the timing and duration of the interview are not clear from the record, Dever
was at the police station for approximately two hours. Viewing all of the circumstances
objectively, it is clear the primary purpose of the police station interview was to gather
evidence of past events for possible use in a criminal prosecution. This interview is
indistinguishable from the police interviews in Crawford, Hammond, and Cage.
b. 1996 Statements to Officers McCoy and Cross
38
The statements Dever yelled to Officer McCoy as she jumped onto him and held
on for dear life—“ ‘Help me, help me, save me, save me, he did this’ ”—were
non-testimonial. Again, the officers were called to a home on a report of domestic
violence. They had no idea what to expect. When Officer McCoy knocked on the door,
Dever opened the door. Kerley was in the house behind her. Dever had two black eyes
and was crying and shaking uncontrollably. Before the officers could ask any questions,
Dever jumped onto Officer McCoy, wrapping her arms and legs around him. Officer
McCoy could not pry her free, so he had to walk with her latched onto him to a patrol car
in front of the house before he could release her.
Dever was still shaking when she got to the police car. Dever said Kerley beat her
because she had gained weight.12 She also informed Officer McCoy that Kerley had a
gun in the house right next to the door where he was standing. These statements were
also non-testimonial. The officers had just arrived, apparently during or shortly after an
assault, and had no time to determine what they had on their hands. Before they could
begin to sort out what was going on, or even whether a crime had been committed,
Dever—still shaking—told Officer McCoy what had happened and warned him of the
danger the gun posed to all of them. Again, there is no evidence these statements were in
response to questioning; they appear to have been volunteered by Dever. Kerley was still
in the house unrestrained with immediate access to a firearm. Officer McCoy returned to
the house and found the firearm right where Dever had said it was. He was still dealing
with an ongoing, unstable, and dangerous situation. Based on all of the relevant
circumstances, Dever’s statements to Officer McCoy at the door and in the car were
non-testimonial. (Bryant, supra, 562 U.S. at p. 361; Davis, supra, 547 U.S. at p. 828;
Cage, supra, 40 Cal. 4th 965, 986.)
Dever’s later statements to Officer Cross, however, were testimonial. Officer
Cross arrived approximately 14 minutes after the dispatch. By then, Kerley had been
placed in the back of a patrol car. Dever was in a second car. Officer Cross spoke to the
12
The trial court sustained an objection to additional statements Dever made
explaining why Kerley had beaten her.
39
officers on scene, and then went to speak with Dever in order to get both sides of what
had happened. At that point, the emergency was over. Kerley and Dever were physically
separated. Kerley had no access to his guns. Dever was in no immediate danger from
Kerley. Officer Cross was conducting an interview to gather facts about past events for
potential use in a criminal investigation.13 Again, the circumstances of this interview are
indistinguishable from the questioning of the victim in the Hammond case. (Davis,
supra, 547 U.S. at pp. 829–830.)
2. Opening the Door
The People argue Kerley opened the door to admission of Dever’s testimonial
hearsay describing the reasons Kerley kicked her in 1989; that is, by asking on cross-
examination whether Officer Harper had ever spoken with Trudy, Kerley waived his right
to object to Dever’s explanation on redirect that Kerley had kicked her because she failed
to find a woman with whom they could have sex in place of Trudy. On this basis, the
trial court overruled Kerley’s objection to elicitation of this testimony. Kerley argues this
was error, because his cross-examination of Officer Harper on whether she had ever
spoken to Trudy did not leave a misleading impression that could only be corrected by
admission of Dever’s statements.
Under the doctrine of “opening the door,” one party may render otherwise
inadmissible evidence admissible by introducing the topic selectively such as to leave a
misleading impression. (E.g., People v. Hart (1999) 20 Cal. 4th 546, 653; People v.
Jordan (2003) 108 Cal. App. 4th 349, 365–366.) A trial court’s ruling on whether rebuttal
evidence is admissible on this theory is reviewed for abuse of discretion. (Hart, supra,
20 Cal.4th at p. 653.)
13
Kerley suggests the mere fact that Officer Cross testified she wanted to find out
“what had happened” renders any subsequent statement testimonial. This phrase does not
have such talismanic properties; the phrasing of the question is only one factor in the
analysis. In several cases, statements were found not to be testimonial even though they
followed the question, “What happened?” (E.g., Bryant, supra, 562 U.S. 344, 349
[officers asked, “ ‘what had happened, who had shot [the victim], and where the shooting
had occurred’ ”; subsequent responses were non-testimonial]; Cage, supra, 40 Cal. 4th
965, 986 [surgeon’s asking, “what happened” did not render answer testimonial].)
40
We conclude the trial court abused its discretion in ruling that the door had been
opened to the details about Kerley kicking Dever in the head because she was unable to
find a sex partner to replace Trudy. Kerley’s question of Officer Harper—“So you never
talked to anyone named Trudy?”—elicited the responsive answer, “I never talked to
Trudy” and the non-responsive answer, “I was told about Trudy from Ms. Dever.” While
there was no objection to the non-responsive portion of Officer Harper’s answer, it did
not open the door to everything Dever said in connection with Trudy. Assuming Trudy
did exist and, therefore, the suggestion on cross that she may not exist was misleading,
Dever’s description about having had sex with Trudy and Kerley in the past, Kerley’s use
of a firearm during sex, Kerley’s demand that Dever obtain another woman for sex, and
the fact that Kerley kicked Dever in the head for failing to do so was not necessary to
rebut this misleading impression. None of these details confirmed Trudy’s existence and
most were irrelevant to Trudy’s existence. The trial court, therefore, erred in admitting
this testimony on the theory that Kerley opened the door to its admission. (People v.
Hopson (2017) 3 Cal.5th 424, 439–443.)
3. Forfeiture by Wrongdoing
Prior to trial, the People filed an in limine motion to admit Dever’s out-of-court
statements as spontaneous statements pursuant to section 1240 and to prove her state of
mind pursuant to section 1250. The People made a detailed proffer based on the
testimony presented to the grand jury. When the motion was heard, the People also
argued that all of Dever’s statements were admissible under the doctrine of forfeiture by
wrongdoing, as well as sections 1240 and 1250. Kerley opposed the admission of this
testimony on all grounds, including forfeiture by wrongdoing.
During argument on the issue of forfeiture by wrongdoing, the trial court observed
that, as to the 1989 incident, based on Kerley’s conduct of opening the front door, seeing
the police officers, and slamming the door in their faces, saying, “ ‘Everything is fine’ ”
and “ ‘We’ve got to talk it over,’ ” one could infer he wanted to prevent Dever from
talking to the police. Regarding the second incident from 1996, the court opined that, if
Dever had said “Yeah, he doesn’t want me to talk to you. He doesn’t want me to tell
41
anyone,” then the forfeiture by wrongdoing exception would probably apply, citing
Banos, supra, 178 Cal. App. 4th 483.14 After extensive argument, the trial court ruled that
the bulk of Dever’s statements was admissible pursuant to sections 1240 and 1250. The
court cited Banos and described its holding, but did not specifically rule at this point on
the forfeiture by wrongdoing issue.
However, during the trial, after most of the evidence had been presented, the trial
court overruled a defense objection to admission of one of Dever’s statements on the
grounds that a reasonable juror could find that Kerley had caused Dever to be unavailable
by killing her.
Under section 1390, the People were required to establish by a preponderance of
the evidence in a foundational hearing that Kerley had engaged in wrongdoing
(murdering Dever) that was intended to, and did, make her unavailable as a witness.
(§ 1390, subds. (a) and (b)(1)). Dever’s hearsay statements themselves could be used to
establish these elements at the foundational hearing, but the elements could not be met
solely on the basis of Dever’s hearsay statements; they had to be supported by
independent corroborative evidence. (§ 1390, subd. (b)(2).)
As part of motions in limine, the People filed a written proffer in support of their
motion to admit Dever’s statements pursuant to sections 1240 and 1250. This proffer
included the following evidence culled from the grand jury testimony:
1. Nancy F., Kerley’s former girlfriend, testified before the grand jury that
Kerley was very controlling in that he watched where she went, what she did and to
whom she spoke. During their relationship, he had hit, kicked, and punched her and
handcuffed her to a bed. Kerley was once arrested for assaulting Nancy. Nancy wrote a
letter to the District Attorney asking that charges be dismissed. She did so because she
feared Kerley; he had threatened to kill her in the past.
14
As detailed above, officer Cross later testified Dever told her that, when she
(Dever) tried to call 911 during the January 7, 1996 assault, Kerley said he would kill her
if the police came to the house in response to her call.
42
2. Susan D., Dever’s step-mother, saw Kerley punch and kick Dever in the
face and body. As Kerley was beating Dever, Kerley’s mother took Mandee out of the
house. Kerley told Dever that, if she ever wanted to see Mandee again, she would have
to return to him. Dever feared Kerley and tried to leave him several times. Each time she
did so, Kerley contacted the family within hours to find her.
3. Dever’s sister, Deborah M., testified Kerley was very controlling and
would not allow Dever to go anywhere or to see family. The only time the family saw
Dever was when she tried to escape from Kerley. Dever was terrified of Kerley and
feared he would kill her. She said if she ever disappeared, Deborah should have the
backyard dug up. Deborah often saw Dever with black eyes, bruises, and other injuries.
4. Another sister, Denae D., saw Kerley assault Dever when she tried to leave
him. Dever expressed fear that Kerley would kill her.
5. On December 24, 1989, Dever’s neighbor, Kimberley R., called the police
for Dever when Dever told her Kerley had kicked her in the face. Dever went to live
with family members for a period of time after this incident. Dever told Kimberly she
wanted to leave Kerley, but that she was afraid of him. Dever asked Kimberly to come
check on her if she did not see Dever for a few days because she may be handcuffed
inside the house. On one occasion, Kimberly took Dever and Mandee to her (Dever’s)
father’s house because Dever wanted to get away from Kerley.
6. On December 24, 1989, Kerley slammed the door in Officer Harper’s face
when she responded to a domestic violence call and heard Dever screaming in the home.
Kerley refused to open the door as demanded by the officers. After they broke a window
and dragged Dever out of the home, Kerley disregarded orders to come out of his house.
7. About six months before Dever disappeared, Desirae C. saw Kerley force
Dever’s head to the floor to mop up spilled water with her hair. She watched as Kerley
told Dever she would never leave him. If she did, he would find her wherever she went.
“ ‘If you leave me, they will never find your body. I’ll dig this backyard up, and I’ll bury
you so deep they’ll never [find] your body.’ ”
43
8. On January 7, 1996, Dever, with two black eyes and a puffy face, jumped
on Officer McCoy yelling, “ ‘Help me, save me. He did this to me.’ ” “ ‘He has a
gun.’ ” She later told Officer Cross, in one of the testimonial statements at issue, that
Kerley had threatened to kill her. Kerley claimed Dever had inflicted the injuries on
herself.
9. Kerley was arrested and charged with domestic violence as a result of this
January 7, 1996 incident. On January 12, 1996, Dever appeared at the police department
and asked that the charges against Kerley be dropped. In arguing the forfeiture by
wrongdoing issue, the prosecutor proffered that Kerley had a court date on the pending
felony domestic violence case June 19, 1996. Dever went missing five days before this
court appearance.
10. In spring 1993, Dever ran out of her house and straight into a neighbor’s
house yelling, “ ‘He’s going to kill me, he’s going to kill me, he’s got a gun.’ ” Dever
begged her neighbors, Richard H. and his wife, not to call the police because Kerley
would hurt her if she did.
11. Laura K., who married Kerley shortly after Dever disappeared, told the
grand jury that Kerley threatened to kill Laura and her son if she ever left him. She
wanted to call the police on Kerley several times, but he would take the phone away from
her.
In short, the People’s proffer showed that Kerley isolated Dever from family and
friends to keep her from seeking outside help; discouraged her from calling the police,
reporting her abuse to authorities, or cooperating in a prosecution; and knew she was a
likely witness in his pending felony prosecution for beating her up on January 7, 1996.
Based on the information contained in the People’s proffer alone, the trial court easily
could have found Kerley killed Dever with the intent to prevent her from reporting his
abuse to the police and from testifying against him in his upcoming criminal case.
(Banos, supra, 178 Cal. App. 4th 483, 502–503.) As the Supreme Court articulated in
Giles, in the context of domestic violence cases, “[w]here such an abusive relationship
culminates in murder, the evidence may support a finding that the crime expressed the
44
intent to isolate the victim and to stop her from reporting abuse to the authorities or
cooperating with a criminal prosecution—rendering her prior statements admissible
under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the
victim from resorting to outside help would be highly relevant to this inquiry, as would
evidence of ongoing criminal proceedings at which the victim would have been expected
to testify.” (Giles, supra, 554 U.S. at p. 377 (italics added).) Kerley had controlled and
isolated Nancy F. before Dever and Laura K. after her. He kept Dever from seeing her
family and friends. Kerley clearly communicated to Dever that, if she called the police,
he would kill her. Kerley was facing felony domestic violence charges for assaulting
Dever and had an impending court date when she disappeared. Dever obviously would
have been the key witness against him.
The People’s proffer contained abundant evidence independent of Dever’s hearsay
statements to corroborate that Kerley killed her to keep her from reporting him to the
police and testifying against him in court. Of the evidentiary points summarized above,
numbers 1, 2, 4, 6, 7, 8, 9, and 11 were based in whole or in part on percipient
observations by witnesses other than Dever. The independent corroboration requirement
of section 1390, subd. (b)(2) was comprehensively satisfied.15
The evidence presented during the trial supplied further basis for concluding that
Kerley killed Dever, at least in part, to prevent her from reporting his abuse to the police,
and to keep her from testifying against him in the pending criminal case.16 At trial,
15
Kerley argues that, under section 1390, subdivision (b)(2), each of Dever’s
hearsay statements must be supported by independent corroborative evidence. Kerley
misreads section 1390. Section 1390, subd. (b)(2) does not require that each statement
admitted under that section be independently corroborated; it requires only that the
elements of subdivision (a)—that is, that Kerley engaged in wrongdoing that was
intended to, and did, procure Dever’s unavailability as a witness—be supported by
independent corroborative evidence.
16
Kerley argues this court may consider only the evidence presented to the trial
court when the motion was heard, citing People v. Welch (1999) 20 Cal. 4th 701, 739;
People v. Hernandez (1999) 71 Cal. App. 4th 417, 425. Neither case is on point.
(Cf. People v. Smithey (1999) 20 Cal. 4th 936, 971–972 (Smithey) [on appeal, the court
45
Desirae testified that Kerley would not allow Dever to attend family functions. Officer
Cross testified Dever told her that Kerley had stomped on her right hand and foot and
kicked her in the eye. When she tried to call 911, Kerley said he would kill Dever if
anyone from the police department came to the house. Finally, Deborah M. testified
Dever told her shortly before she disappeared that Kerley was upset about his upcoming
court date in the domestic violence prosecution and blamed Dever for the pending
charges.
Kerley may have had additional motives for killing Dever. The question,
however, is whether the evidence showed by a preponderance that preventing Dever from
either reporting his assaults to the police or testifying against him in the pending domestic
violence case was one of Kerley’s motives for killing Dever; it need not have been his
only reason. (Banos, supra, 178 Cal. App. 4th 483, 502–504.)
When compared to the cases applying the doctrine of forfeiture by wrongdoing,
the evidence in this case of Kerley’s intent is quite compelling. In the Supreme Court’s
first application of the doctrine, Reynolds v. United States (1879) 98 U.S. 145 (Reynolds),
the defendant was charged with bigamy. At his first trial, the defendant’s second wife,
Mary Jane Schofield, testified against him. In a second trial on the same indictment, the
prosecutor issued a subpoena for Schofield, who lived with the defendant. When an
officer went to the house to serve Schofield with the subpoena, the defendant told him
she was not home and refused to disclose her whereabouts. The defendant said Schofield
would not appear at his trial. When the officer made a second attempt to serve the
subpoena on Schofield at the defendant’s home, he was told by the defendant’s first wife
considered evidence presented after the trial court’s evidentiary ruling as a basis for
affirming on a ground other than that relied upon by the trial court].) Moreover, section
1390 permits the trial court to consider evidence presented at trial if the foundational
hearing is held after the trial has begun. (§ 1390, subd. (b)(3).) As noted, the trial court,
near the end of the trial, overruled a hearsay objection to one of Dever’s statements on
the grounds that a reasonable jury could find that Kerley had caused Dever to be
unavailable as a witness by killing her. Thus, the trial court ultimately concluded, after
hearing the bulk of the trial evidence, that the doctrine of forfeiture applied to at least one
hearsay statement.
46
that Schofield had not been at the house for three weeks. (Id. at pp. 159–160.)
On this showing, the Supreme Court held the defendant had forfeited his right to
confront Schofield at trial and admitted her prior testimony into evidence. “The accused
was himself personally present in court when the showing was made, and had full
opportunity to account for the absence of the witness, if he would, or to deny under oath
that he had kept her away. Clearly, enough had been proven to cast the burden upon him
of showing that he had not been instrumental in concealing or keeping the witness away.”
(Reynolds, supra, 98 U.S. at p. 160.)
In Jones, supra, 207 Cal. App. 4th 1392, the defendant was charged with making a
criminal threat, grand theft, and simple assault of Bri-Ana Breland. The absent witness
was a prior girlfriend, Dominique Durden, who had disclosed damaging information to
the police. The evidence of the defendant’s intent to dissuade Durden from testifying
came from their recorded jail calls. In the calls, Durden expressed concern that the
defendant thought she had talked to the police and assured the defendant that she had his
back. The defendant implied that he had friends on the outside who could assist him in
doing whatever was necessary. When Durden failed to appear in response to a subpoena,
her testimonial statements to the police were read into the record. The court found the
defendant’s conduct constituted wrongdoing that dissuaded Durden from testifying and
affirmed application of the doctrine of forfeiture by wrongdoing. (Id. at pp. 1398–1399.)
Kerley’s long history of beating and threatening Dever, isolating her from family
and friends, discouraging her from calling 911 or talking to the police, and anger over his
pending domestic violence case provided far greater evidence of dissuasion than in
Reynolds or Jones. Substantial evidence supports the trial court’s implied finding that
Kerley murdered Dever at least in part to keep her from reporting him to the police and
testifying against him in his pending domestic violence case. (Banos, supra,
178 Cal. App. 4th 483, 502–503.) Kerley therefore forfeited his right to object to Dever’s
unconfronted testimonial statements. (Giles, supra, 554 U.S. 353, 368, 377; Banos,
supra, 178 Cal.App.4th at p. 503.)
47
V. The Trial Court Did Not Err in Denying Motion for Mistrial Based on Alleged
Crawford Error
Kerley argues the trial court erred in denying his motion for a mistrial after
admitting evidence of Kerley’s sexual relations with Dever and another woman. The trial
court denied the mistrial motion on the grounds, as noted, that Kerley’s trial counsel had
opened the door on cross-examination and that Dever’s description of the sexual history
with Trudy was a spontaneous statement. The People respond that the trial court
correctly ruled Kerley had opened the door and Dever’s statements were spontaneous. In
addition, the People argue Dever’s statements were admissible to prove her state of mind
under section 1250 and, in any event, the ruling did not deprive Kerley of a fair trial.
As discussed above, we have concluded that Dever’s narration of the events
leading up to Kerley kicking her in the head was testimonial, but that Kerley has forfeited
his confrontation rights as to these statements by wrongdoing. The trial court, therefore,
did not err in admitting Dever’s statements into evidence or denying Kerley’s mistrial
motion on Crawford grounds. Kerley’s contention that admission of this evidence was
unduly prejudicial is addressed in Section XII below.
VI. The Trial Court Did Not Err in Admitting Certain Hearsay Statements of the
Deceased
Kerley argues many of Dever’s statements to relatives, friends, and neighbors
describing her fear of Kerley and the injuries she suffered at his hands were hearsay
statements not subject to any exception and that their admission deprived him of a fair
trial. The People argue most of the statements were admissible either as spontaneous
statements under section 1240 or to prove Dever’s state of mind under section 1250. In
supplemental briefing, the People also argue Dever’s statements were admissible
pursuant to section 1390.
A. Additional Background
48
After lengthy pretrial motions, the trial court ruled that all but three of Dever’s
statements regarding prior domestic violence were spontaneous statements and were
admissible under sections 1240 and 1250. The statements are these:
1. Statements to Christy H.
Christy H., who had known both Dever and Kerley since childhood, testified that
Dever came over to her house one day, told her Kerley had beaten her up again, and
asked her to close her blinds because Kerley was on his way over. Christy described
Dever as “very upset,” “very distraught,” and anxious to have the blinds drawn,
apparently so Kerley could not see her in the house. Kerley did arrive on his motorcycle
and drove up and down the street in front of [Christy’s] home. Dever told Christy she
was afraid of Kerley.
2. December 24, 1989 Statements to Kimberly R.
Kimberly R. testified she received a call from Dever December 24, 1989. Dever
spoke as if they had been at the bar together and had just separated. She asked, “ ‘Did
you see that couple? . . . He must have kicked her in the face because she was
bleeding. . . . [¶] They were fighting out front. . . . I can’t wait until you get here. When
are you coming over?’ ” Kimberly inquired, “ ‘Are you trying to tell me that [Kerley]
has kicked you?’ ” Dever responded, “ ‘Yes, yes. When are you coming over?’ ”
Kimberly told Dever she was going to call the police: “ ‘Do you really want me to call
the police?’ ” Dever responded, “ ‘I can’t wait.’ ” Kimberly hung up and called the
police.
3. December 24, 1989 Statements to Officer Harper
As discussed above, when Officer Harper on December 24, 1989 pulled an injured
Dever out of the front window of their house, Dever screamed, “ ‘Hurry, I know he’s
going to kill me.’ ” She was hysterical, frantic scared, panicked and crying. As Officer
Harper drove Dever to the police station, Dever was no longer screaming, but had not
calmed down. Dever continued to express concerns for her own safety and was very
concerned for her daughter, even more than she was about her own injuries.
49
4. December 27, 1989 Statements to Emergency Room Doctor
On December 27, 1989, three days after Kerley kicked Dever in the eye, Dever
went to the hospital because of her injuries. Emergency room physician, Dr. Dane,
testified Dever’s chief complaint was that she was suffering from blurred vision and
dizziness because she was kicked in the eye by her ex-boyfriend. Dr. Dane diagnosed
left-eye trauma, bruising around the eye, and multiple contusions.
5. 1993 Statements to Richard and Leeann H.
In spring 1993, Richard H. was working in his front yard across the street from
Kerley’s home when he heard hysterical screaming. Dever came running across the
street from her house, hopped over the fence in their front yard, and ran into their house.
She screamed, “ ‘He’s got a gun. He’s gonna kill me. He’s gonna kill me. He’s got a
gun.’ ” Richard’s wife, Leeann H., said she had never seen someone shake so much and
be so petrified before in her life. When Richard and Leeann went to call 911, Dever
begged them not to call because, she said, he (Kerley) would hurt her very badly if they
called. Dever said he would kill her. After Dever begged them two or three times not to
call, Richard and Leeann decided not to call 911.
In lieu of calling 911, Richard H. went to the home of a neighbor who was a police
officer. The police officer went to talk to Kerley. When Richard returned home, Dever
said Kerley was going to hurt her and that she was fed up and tired of it. She did not
know how to escape it. Dever said she ran over to Richard and Leeann’s house when
Kerley threatened her.
6. Statements to Leeann H.
As noted, Leeann and Richard H. lived across the street from Kerley and Dever for
years. Leeann was friendly with Dever. When she first moved in, Dever would wear
shorts and tank tops in summer, but over time began wearing long-sleeved shirts and long
pants, even on warm days. Dever would constantly rub her arms and legs. Leeann asked
whether she was cold. Dever responded, “no, that [Kerley] had roughed her up the night
before.”
7. January 7, 1996 Statements to Officer Cross
50
As discussed above, on January 7, 1996, Officer Cross was dispatched to the
Kerley residence on a call of domestic violence. She arrived approximately 14 minutes
after the call went out and found that Dever had been placed in one patrol car and Kerley
in another. Officer Cross interviewed both. When asked to describe Dever’s demeanor,
Officer Cross testified that Dever’s makeup was smeared and it looked like she had been
crying. Her eyes showed some blackening and her right wrist and ankle were turning red
or beginning to swell. Dever told Officer Cross that Kerley had stomped on her right
hand and foot and kicked her in the eye. When Dever tried to call 911, Kerley said he
would kill Dever if anyone from the police department came to the house.
8. June 1996 Statements to Terry G.
Terry G. worked with Dever’s sister Denae and supplied methamphetamine to
Dever. One day, about a week before Dever disappeared, Dever called Terry
approximately 30 times. She begged Terry for help. Terry met her at a market. Dever
had a black eye and a cut lip and she looked scared. Dever told Terry she had woken up
in her car with the car running despite the fact that she had gone to sleep in her bed the
night before. Dever believed Kerley had drugged her. Dever asked Terry for
methamphetamine because she “was afraid that if she fell asleep again or something, she
was gonna—it was gonna end up looking like a suicide or something.” As they parted,
Dever said to Terry, “ ‘If anything happens to me, he did it.’ ”
9. May 1996 Statement to Marian A.
Marian A. was Deborah M.’s daughter and Dever’s niece. Marian testified she
last saw Dever in May or June 1996 in the living room of Dever’s home. Kerley was
home, but not in the living room. Dever was very scared and said to Marian’s mother in
a low voice, “ ‘if anything happens to me, dig up the backyard.’ ”
10. Statement to Deborah M.
Deborah M. was Dever’s sister. When asked if she had seen Dever with any
injuries, Deborah responded, “Just bruises on her back. I mean, she told me that he
would—with a two by four, he would take two by fours to her and beat her on the
back . . . is what she said how she got the bruises.”
51
B. Evidence Code Section 1390
We will affirm a trial court’s decision if it is correct, even if it is based on
erroneous reasoning. “ ‘ “No rule of decision is better or more firmly established by
authority, nor one resting upon a sounder basis of reason and propriety than, that a ruling
or decision, itself correct in law, will not be disturbed on appeal merely because given for
a wrong reason. If right upon any theory of the law applicable to the case, it must be
sustained regardless of the considerations which may have moved the trial court to its
conclusion.” [Citation.]’ ” (People v. Zapien (1993) 4 Cal. 4th 929, 976 (Zapien), citing
D’Amico v. Board of Medical Examiners (1974) 11 Cal.3rd 1, 19; Smithey, supra,
20 Cal. 4th 936, 972.)17
As discussed above, we have concluded that Kerley by his wrongdoing forfeited
his right to confront Dever on her testimonial statements. Having found that the evidence
satisfies the elements of section 1390—that Kerley killed Dever at least in part to prevent
her from reporting his abuse to the police or to keep her from testifying against him in his
pending domestic violence prosecution—we conclude that all of Dever’s hearsay
statements were admissible under the hearsay exception carved out by section 1390.18
17
Kerley argues the long-standing doctrine articulated in Zapien applies only to
pure questions of law. Zapien contains no such limitation, and the doctrine is routinely
applied in fact-dependent contexts. (E.g., Zapien, supra, 4 Cal.4th at pp. 975–976
[despite trial court’s arguably flawed reasoning, court of appeal finds that a witness’s
prior preliminary hearing testimony was admissible under section 1291 because the
defendant had the opportunity and a similar motive to cross-examine the witness at the
preliminary hearing]; Smithey, supra, 20 Cal.4th at p. 972 [appellate court finds that
testimony eliciting the murder victim’s out-of-court statement was admissible to prove
her state of mind, which was placed in issue by the defendant’s subsequent testimony].)
18
Kerley argues it is unfair to apply section 1390 on appeal because he had no
opportunity to make a record regarding its applicability below. As noted, however, the
parties fully argued forfeiture by wrongdoing in pretrial motions below (albeit without
reference to section 1390), so Kerley had an adequate opportunity to develop his record
on this issue. Both parties also have addressed this specific issue in supplemental
briefing in this court. In his supplemental briefing, Kerley does not identify any
additional evidence he would have presented in the trial court. We conclude the record is
adequately developed for application of section 1390 to the present case. (See Banos,
52
Thus, it is unnecessary to reach the parties’ arguments regarding section 1240, section
1250, and forfeiture.
C. Evidence Code Section 352
As we have discussed at length above, evidence that Kerley consistently and
repeatedly beat Dever throughout the course of their relationship was properly admitted
to prove quite persuasively that Kerley had a propensity to do just that. Dever’s stated
fear of Kerley and her belief he would likely kill her provided compelling evidence that it
was highly unlikely she would entrust her beloved daughter to such a man.
On the other hand, hearsay statements of a murder victim’s fear of the defendant
or her belief that the defendant will kill her carry a high risk of prejudice to the defendant.
The jury may very well conclude that the victim’s fear accurately reflected the
defendant’s intent and that the victim correctly predicted that the defendant would kill
her. (People v. Thompson (1988) 45 Cal. 3d 86, 102; People v. Green (1980) 27 Cal. 3d 1,
26; Ireland, supra, 70 Cal. 2d 522, 532.)
On balance, we conclude the trial court did not abuse its considerable discretion in
concluding that the probative value of this evidence substantially outweighed any undue
prejudice from its admission. The entire trial came down to whether the jury concluded
Kerley had beaten Dever to death, consistent with his propensity to assault her, or
whether Dever had simply left her daughter to be raised by a man she considered violent
and dangerous. Dever’s statements provided potent evidence of his propensity to beat her
and convincing evidence that she would not likely leave her daughter to be raised by him
alone. The probative value of this evidence outweighed the risk of undue prejudice.
(Fruits, supra, 247 Cal. App. 4th 188, 205–209; Johnson, supra, 185 Cal. App. 4th 520,
533–534.)
VII. Defense Counsel Was Not Ineffective in Failing to Request a Limiting Instruction
supra, 178 Cal. App. 4th 483, 500–503 & fn. 12 [on remand from the United States
Supreme Court, court of appeal determines application of forfeiture by wrongdoing
doctrine to facts of that case without trial court findings on the issue].)
53
Kerley argues his trial attorney was ineffective because she failed—once the trial
court admitted evidence that Kerley abused Dever under section 1250—to request an
instruction limiting the jury’s consideration of such evidence to Dever’s state of mind.
The People respond that very few of Dever’s statements were admissible only to prove
her state of mind; most were also admitted under section 1240, rendering them fully
admissible without the need for a limiting instruction. They also argue trial counsel
could have had valid strategic reasons for her decision not to request a limiting
instruction. Finally, the People argue Kerley fails to show he was prejudiced by any
failure to request a limiting instruction.
To prevail on an ineffective assistance of counsel claim, Kerley must show:
(1) that his attorney’s performance fell below an objective standard of reasonableness;
and (2) that he suffered prejudice; i.e., that there is a reasonable probability that, but for
counsel’s deficient performance, the outcome of the proceedings would have been
different. (Strickland v. Washington (1984) 466 U.S. 668, 687–688, 691–694.)
“ ‘A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ ” (People v. Bolin (1998) 18 Cal. 4th 297, 333.)
As detailed above, Dever’s statements were fully admissible under section 1390.
Therefore, counsel was not ineffective for failing to request a limiting instruction.
VIII. The Trial Court Did Not Prejudicially Err in Instructing the Jury Regarding
Suppression of Evidence
Kerley argues that the trial court erred by instructing the jury pursuant to
CALCRIM No. 371, which provides: “If someone other than the defendant tried to
create false evidence, provide false testimony, or conceal or destroy evidence, that
conduct may show the defendant was aware of his guilt, but only if the defendant was
present and knew about that conduct, or, if not present, authorized the other person’s
actions. It is up to you to decide the meaning and importance of this evidence. However,
evidence of such conduct cannot prove guilt by itself.”
The prosecution sought this instruction on the theory that Kerley’s mother had
written the anonymous letter to the police suggesting that Dever’s killer was a man
54
named “Danny” in an attempt to draw suspicion away from her son. Kerley argues that it
was error to give the instruction because no evidence supports the inference that Kerley’s
mother wrote the letter or that she did so in Kerley’s presence or with his authorization.
“Whether or not any given set of facts may constitute suppression or attempted
suppression of evidence from which a trier of fact can infer a consciousness of guilt on
the part of a defendant is a question of law. . . . [T]here must be some evidence in the
record which, if believed by the jury, will sufficiently support the suggested inference.
Furthermore, the determination of whether there is such evidence in the record is a matter
which must be resolved by the trial court before such an instruction can be given to a
jury.” (People v. Hannon (1977) 19 Cal. 3d 588, 597–598 (Hannon), disapproved on
other grounds in People v. Martinez (2000) 22 Cal. 4th 750, 762–763.) As relevant here,
the evidence need not conclusively establish fabrication by others or defense
authorization of the fabrication before the instruction may be given; “ ‘there need only be
some evidence in the record that, if believed by the jury, would sufficiently support the
suggested inference.’ ” (People v. Alexander (2010) 49 Cal. 4th 846, 921.)
On appeal, the People argue that there was sufficient evidence to support the
instruction. In support of the inference that Kerley’s mother sent the letter, the People
point to Kerley’s mother’s testimony that she never witnessed domestic violence or saw
Dever with injuries as evidence that Kerley’s parents were willing to lie to protect him.
The People also suggest that because Kerley’s parents were present at Kerley’s house the
morning Dever disappeared, they may have been involved with covering up the crime.
According to the People, because the letter “was intended to deflect suspicion away from
[Kerley] with false assertions,” and because Kerley did not write the letter himself, the
jury could reasonably conclude that Kerley authorized or was involved with the letter’s
creation.
We agree with Kerley that the evidence was insufficient to support an inference
that he authorized or was present for the writing of the letter. However, we conclude that
the error was rendered harmless by the balance of the instruction. The jury was
instructed that an adverse inference of consciousness of guilt was permissible only if it
55
first found “someone other than [Kerley] tried to create false evidence [or] provide false
testimony,” and then “only if [Kerley] was present and knew about that conduct, or, if not
present, authorized the other person’s actions.” The jury was further instructed to
“decide the meaning and importance of this evidence” and cautioned that “evidence of
such conduct cannot prove guilt by itself.” Elsewhere, the jury was instructed that some
instructions might not apply, depending upon its determination of the facts, and it should
follow the instructions that applied to the facts as it found them. We presume the jury
understood and followed these instructions. (People v. Holt (1997) 15 Cal. 4th 619, 662.)
At worst, there was no evidence to support the instruction and it was superfluous. (See
People v. Nunez and Satele (2013) 57 Cal. 4th 1, 48–49 [if evidence did not support
consciousness of guilt instruction, “we presume that the jury concluded that the
instructions did not apply to him and it should not infer a consciousness of his guilt”];
People v. Jackson (1996) 13 Cal. 4th 1164, 1225 [any error in giving instruction on
fabrication of evidence was harmless because “ ‘[a]t worst, there was no evidence to
support the instruction and . . . it was superfluous’ ” (quoting People v. Pride (1992)
3 Cal. 4th 195, 249)]; Crew, supra, 31 Cal. 4th 822, 849 [similar].) Given the voluminous
evidence in this lengthy trial, and the limitations and cautions built into the instruction
itself as discussed above, we conclude that “ ‘[u]nder the circumstances, reversal on such
a minor, tangential point is not warranted.’ ” 19 (People v. Jackson, supra, 13 Cal.4th at
p. 1225.)
19
The tangential nature of the letter evidence here distinguishes this case from
Hannon, supra, 19 Cal. 3d 588, upon which Kerley relies. In Hannon, an investigator
with the district attorney’s office, Leach, testified that he asked the defense’s key alibi
witness, Brown, if he would answer several questions. (Id. at p. 596.) Brown refused,
stating that “ ‘[an] attorney’ ” or “ ‘his attorney’ ” had ordered him not to speak to
representatives of the People. (Ibid.) The prosecution successfully sought a
consciousness of guilt instruction on the theory that the defendant had suppressed
evidence by forbidding Brown from speaking to the prosecution. (Id. at pp. 596–597.)
The Supreme Court held that this was error, because the record failed to supply the
necessary nexus between the defendant himself and the alleged suppression of evidence.
(Id. at pp. 599–600.)
56
IX. The Trial Court Did Not Err in Admitting Mandee Kerley’s Diary Entries for
Purposes of Impeachment
At trial, Kerley called his daughter, Mandee Kerley, as a defense witness. During
direct examination, Mandee testified her parents had a good, non-violent relationship.
On cross-examination, the People impeached this testimony by eliciting three entries
from her diary, which Kerley asserts were admitted into evidence in error. In particular,
the trial court admitted, over defense counsel’s objection:
1. A diary entry in which Mandee described going away for a weekend to her
grandparents’ house, and coming home to find a “hole in the door” and that her mother
“seemed really high strung.” Later that day, Dever told Mandee that Kerley had “taken a
weight bar and that he tried to choke her with it,” that she “gasped for air” and “thought
she was going to die.”
2. An entry from 2003 in which Mandee (then age 16) described stepping on
the ribs of her friend Shawn when she was five years old. Referring to her father,
Mandee wrote: “ ‘Sure, at times I hated him. [¶] . . . [¶] In fact, for awhile when my
mom left I blamed him for his psychotic behavior. [¶] . . . [¶] But, although at times he
makes me want to either hit him or make me cry furiously, I still have some strange
loyalty to him. [¶] . . . [¶] Like, although he was abusive to my mother, I think I
understand it. [¶] . . . [¶] I’m not justifying it, but sometimes people can make me so
furious that even if you love them you hurt them. [¶] . . . [¶] I did so once to my friend
Shawn.’ ” Mandee then described stepping on Shawn’s ribs while her friend Elizabeth
screamed for her to stop. “ ‘I did but it took awhile. [¶] . . . [¶] It’s like you want to hurt
them but you aren’t sure how to emotionally, so sometimes I resorted to physical
In concluding that the error was not harmless, the Supreme Court observed that the
case was “close,” and that “[d]efendant’s hopes for acquittal rested on two grounds,” one
of which was the “strength of Brown’s alibi testimony.” (Id. at pp. 602–603.) Because
the suppression of evidence allegations might “destroy the credibility” of Brown, a
critical defense witness, the court found the error was not harmless beyond a reasonable
doubt. (Id. at p. 603.) Here, by contrast, the testimony regarding the anonymous letter
was a relatively minor point upon which the prosecution’s case did not depend.
57
violence. [¶] . . . [¶] Do I blame this on what I saw from my parents? No, oddly enough,
I don’t.’ ”
3. An entry dating from April 1998, when Mandee Kerley was 11 years old,
in which she stated she was angry at her stepmother, Laura Kerley, and was “ ‘just
waiting for the right time to shoot or stab her and she’ll never expect it because I act so
nice like a goodie two shoes.’ ” She also wrote, “ ‘Die, bitch, die.’ ”
The defense moved in limine to exclude the diary entries on the theory that they
would be “irrelevant and prejudicial” and would “include[] character evidence” because
Mandee had written about how her father was “controlling.” The trial court denied the
motion and ruled that the diary entries could be used to impeach Mandee if she testified
inconsistently with what she had written in the diaries about her personal observations of
Kerley’s domestic violence.
During Mandee’s cross-examination at trial, defense counsel again objected to the
introduction of the first diary entry, this time on hearsay grounds. The prosecutor argued
that she intended to use the diary entry for impeachment, and the trial court overruled the
objection and admitted the entry for the limited purpose of impeachment of Mandee’s
testimony regarding her parents’ relationship. After Mandee testified regarding the first
diary entry, the trial court admonished the jury that the diary entry was “not being
admitted into evidence for the truth of the matter stated, that, for instance, this bar
incident with the bar may have happened or not, because this witness didn’t see it. She
may have been told that, but it’s not being offered for the truth of the matter stated. What
it’s being offer [sic] for is to impeach this witness who has previously said that, in her
opinion, the relationship was good, not violent.” Mandee went on to testify about the
second two diary entries, after the trial court overruled defense counsel’s objections
based on hearsay and relevance. At the end of the trial, the court instructed the jury that
“[t]he diaries of Mandee Kerley should not be considered as evidence of the truth of the
matters stated therein. They have only been received in evidence for the limited purpose
of evaluating the testimony of the witness Mandee Kerley.”
58
On appeal, Kerley argues that Dever’s statement to Mandee regarding the weight
bar incident was inadmissible because it was multiple hearsay and did not qualify for any
hearsay exception. Kerley argues that the second and third diary entries were improperly
admitted because they were irrelevant. Finally, Kerley argues that even, if the diary
entries were admissible for impeachment purposes, they were nevertheless inadmissible
under the balancing test set forth in section 352.
1. Dever’s Statement in the First Diary Entry
Kerley’s arguments fail with respect to Dever’s statement in the first diary entry,
because “out-of-court statements not offered to prove the truth of the matter stated are not
regarded as hearsay. No special exception to the hearsay rule need be invoked for their
admission; they are not within the hearsay rule at all.” (1 Witkin, Cal. Evidence (5th ed.
2012) Hearsay, § 5, pp. 788–789; see Am-Cal Investment Co. v. Sharlyn Estates, Inc.
(1967) 255 Cal. App. 2d 526, 542 [“Extrajudicial statements offered for impeachment are
not hearsay since they are not offered for the truth of the matter asserted”].) On reply,
Kerley responds that the statement was offered for its truth because it was relevant only if
it was true. We disagree.
Mandee testified that her mother and father had a “good relationship,” and that she
never saw any “physical fights” or “physical violence” between them. Mandee also
testified that there was not “a lot of anger in [her] house.” We think that the fact that
Mandee had been told by Dever that Kerley choked her with a weight bar, even apart
from its truth, had some “tendency in reason to . . . disprove the truthfulness of [her]
testimony” that her parents had a good, non-violent relationship, such that the trial court
did not abuse its broad discretion in finding the statement admissible for impeachment
purposes. (§ 780; See People v. Clark (2011) 52 Cal. 4th 856, 931–932.)
In any event, any error in admitting Dever’s statement was harmless. As noted
above, the jury was admonished during Mandee’s testimony that the statement was not
being admitted for its truth, and was instructed again at the close of trial that all the diary
entries were admitted for the limited purpose of impeaching Mandee Kerley’s testimony
and not for their truth. Given the voluminous evidence of domestic violence in this case,
59
including Dever’s numerous statements recounting beatings to friends, neighbors, and the
police, we conclude that, had the trial court excluded the fact that Mandee recorded
Dever’s statement, apart from its truth, it is not reasonably probable that a result more
favorable to Kerley would have been reached.
2. Mandee Kerley’s Second and Third Diary Entries
We agree with the People that the second and third diary entries were relevant as
impeachment evidence. Mandee Kerley’s statement that Kerley “ ‘was abusive to [her]
mother,’ ” her description of an incident in which she herself “ ‘resorted to physical
violence,’ ” and her statement that she did not “ ‘blame this on what [she] saw from [her]
parents’ ” tended to discredit her testimony at trial that her parents had a “good
relationship,” and that she never saw any “physical fights” or “physical violence”
between them. The trial court did not abuse its broad discretion in admitting this
evidence for impeachment purposes.
3. Undue Prejudice
Finally, Kerley argues that, even if the diary entries were admissible for
impeachment purposes, they were unduly prejudicial because of the danger that the jury
would use the diary entries to conclude that Dever’s death resulted from the type of acts
that Mandee wrote about, and that the jury would use the entries to corroborate the
uncharged acts of domestic violence. We disagree. As discussed above, the jury was
twice instructed not to consider the diary entries for the truth of the matters stated therein
and to use them only for the purpose of evaluating Mandee’s testimony. We presume
that the jury followed these instructions and did not consider the diary entries for any
impermissible purpose. (See People v. Wilson (2008) 44 Cal. 4th 758, 803 [“We of
course presume ‘that jurors understand and follow the court’s instructions’ ”].)
X. The Trial Court Did Not Err in Admitting Evidence That Kerley Buried a Suitcase
and Disposed of His Tanning Bed
Kerley argues that the trial court violated his due process rights by admitting
evidence that he: (1) dismantled and disposed of a tanning bed in early 2007; and
(2) buried the remains of his dog in a suitcase with a necklace and certain articles of
60
women’s clothing in 1998. Kerley argues that the evidence was irrelevant, and any
probative value was outweighed by the substantial danger of undue prejudice.
“ ‘Relevant evidence’ means evidence . . . having any tendency in reason to prove
or disprove any disputed fact that is of consequence to the determination of the action.”
(§ 210.) “We apply the deferential abuse of discretion standard when reviewing a trial
court’s ruling on a relevance objection. [Citations.]” (People v. Kipp (2001) 26 Cal. 4th
1100, 1123.)
Trial courts enjoy “ ‘broad discretion’ ” in deciding whether the probability of a
substantial danger of prejudice substantially outweighs probative value. (People v.
Michaels (2002) 28 Cal. 4th 486, 532; see People v. Memro (1995) 11 Cal. 4th 786, 866;
People v. Perry (2006) 38 Cal. 4th 302, 318.) A trial court’s exercise of discretion “will
not be disturbed except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice.” (Rodriguez, supra, 20 Cal. 4th 1, 9–10.)
61
1. Evidence Regarding Suitcase Burial
At trial, over defense objection, the prosecution introduced evidence that in 1998
Kerley buried in the backyard of the Oakbrook residence a nylon suitcase that contained
the remains of his dog, as well as “a necklace with a cross on it,” “a small ball, some
pieces of clothes, dark or grey . . . like lady’s nylon sweatpants, a collar, [and] a hair
brush.” 20 Laura K. also testified that Kerley buried his dog in the backyard in 1998 and
that, when she went outside to see what Kerley was doing, he “yelled at [her] to go back
inside.”
We do not agree that the trial court abused its discretion in admitting this evidence
under section 352. The evidence, although circumstantial and weak, had some “tendency
in reason” to support an inference that Kerley used the opportunity of his dog’s death to
bury clothing of Dever’s that would otherwise associate him with the crime—an
inference further supported by the fact that Dever’s body was discovered without
clothing—and that he did not want Laura to discover what he was doing. (See § 210.)
We also do not agree with Kerley that this probative value was substantially outweighed
by the danger of undue prejudice. Far from “bizarre and macabre,” the evidence that
Kerley buried his dog actually provided an explanation for Kerley’s digging in the
backyard. Evidence that Kerley buried the remains of his deceased pet was hardly likely
to inflame the jury’s passions against him. There was no abuse of discretion.
2. Evidence Regarding Tanning Bed
At trial, over defense objection, the prosecution introduced evidence that in early
2007, shortly after receiving phone calls from the police regarding Dever’s
disappearance, Kerley took his tanning bed into the backyard and “chopped it up,” placed
20
The People argue that Kerley’s claim regarding the dog burial evidence is
forfeited because it was defense counsel who elicited this evidence, and because defense
counsel did not object when Laura K. testified on that subject. Kerley responds that the
prosecution first elicited evidence on the suitcase burial in general, so he had to elicit the
death and burial of the dog to explain why the suitcase was buried in the backyard. We
need not decide whether this claim is forfeited, because as discussed above, we find no
error in admitting this evidence.
62
it into Laura’s car, and took it away. Laura also testified that the tanning bed had been
broken for about a year before Kerley disposed of it, that he had made some calls about
repairing it, and that he had investigated purchasing a new tanning bed to replace it.
Kerley argues that this evidence was improperly admitted because it was
irrelevant, asserting that destruction of the tanning bed did not show consciousness of
guilt. We find no abuse of discretion. Although circumstantial and not particularly
convincing, the timing of Kerley’s destruction of the tanning bed had some tendency to
support the inference that it had something to do with Dever’s disappearance. (See
§ 210.)
In any event, the admission of this evidence did not create any danger of undue
prejudice. Kerley introduced evidence that the tanning bed was not working, and Laura
Kerley testified that her car was a hatchback, which may have explained the need to
dismantle the tanning bed. In closing, the prosecutor disclaimed any reliance on the
evidence regarding the tanning bed, telling the jury that “whether [Dever] was crushed in
[the tanning bed], whether she was stomped, whether she was beat [sic], whether she was
kicked, whether she was punched, whether she was strangled, whether she was shot,
stabbed, what we know is that somebody murdered her.” The evidence regarding the
tanning bed was a fairly minor and collateral point in a weeks-long trial, and we find no
abuse of discretion in its admission.
XI. The Trial Court Did Not Err in Excluding Evidence of Third Party Culpability
Kerley argues that the trial court erred in excluding evidence regarding the
culpability of two third parties: Danny Lewis and Joe Naso.
Third party culpability evidence is to be treated like any other evidence, i.e., “if
relevant it is admissible . . . unless its probative value is substantially outweighed by the
risk of undue delay, prejudice, or confusion.” (People v. Hall (1986) 41 Cal. 3d 826,
834.) However, California courts “do not require that any evidence, however remote,
must be admitted to show a third party’s possible culpability. . . . [E]vidence of mere
motive or opportunity to commit the crime in another person, without more, will not
suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or
63
circumstantial evidence linking the third person to the actual perpetration of the crime.”
(People v. Hall, supra, 41 Cal.3d at p. 833; see People v. Elliott (2012) 53 Cal. 4th 535,
580 [same].) We review a trial court’s ruling on the admissibility of third party
culpability evidence for abuse of discretion. (People v. Elliott, supra, 53 Cal. 4th 535,
581.)
1. Evidence Regarding Danny Lewis
As discussed in connection with the instructions regarding suppression of
evidence, the prosecution introduced into evidence a July 16, 1996 anonymous letter to
the Solano County District Attorney’s Office on the theory that it had been written by
Kerley’s mother. The letter stated that someone named “Danny,” who frequented a
Buckhorn Bar and Carolyn’s Bar in Dixon, was bragging about killing a woman over a
drug deal gone bad, and “ ‘said that he killed a woman and threw her body in some
bushes off Highway 13 near Rio Vista.’ ” Defense counsel sought to introduce evidence
that one Danny Lewis was the “Danny” referenced in the letter and that Dever was the
woman killed. In particular, defense counsel said she would call Danny Lewis, who
would testify that he matched the description of “Danny” in the letter, although he would
deny that he wrote the letter or killed Dever. Defense counsel also proffered defense and
prosecution investigators who would testify as to their respective interviews with Lewis,
and who would confirm that Lewis matched the description in the letter. The trial court
ruled that defense counsel could argue to the jury that someone named “Danny” was the
actual perpetrator based on the letter, but excluded the other witnesses proffered by
defense counsel because there was no evidence linking Danny Lewis to the actual
perpetration of the crime.
On appeal, Kerley asserts that the evidence regarding Lewis was “capable of
raising a reasonable doubt,” and that it was unfair to allow the prosecution to argue that
Kerley’s mother wrote the anonymous letter without also permitting Kerley to argue that
Lewis was responsible for Dever’s death. We disagree. In order to connect Lewis to the
crime, the evidence had to establish that Lewis was the “Danny” referenced in the
anonymous letter, and that the “body in some bushes off Highway 13 near Rio Vista” was
64
Dever. While Lewis’s proffered testimony may have tended to establish the first
connection, there was no evidence in support of the second. Lewis would have denied
killing Dever, and there was no evidence that he ever met Dever or participated in any
“drug deal gone bad” with her. The letter asserted that “Danny” claimed in May 1996
that he had killed the woman, but Dever was not killed until June 1996. In addition, the
letter was anonymous, and Kerley proffered no evidence to corroborate the hearsay
statements contained therein. Under these circumstances, the trial court did not abuse its
discretion in concluding that Kerley had failed to offer sufficient “direct or circumstantial
evidence linking the third person to the actual perpetration of the crime.” (People v. Hall,
supra, 41 Cal.3d at p. 833.)
2. Evidence Regarding Joe Naso
Kerley also proffered evidence suggesting that Joe Naso killed Dever. At the time
of Kerley’s trial, Joe Naso was on trial in Marin County for murdering four women, each
with an alliterative name (Roxene Roggasch, Carmen Colon, Pamela Parsons, and Tracy
Tafoya) in 1977, 1978, 1993, and 1994, respectively. The women were dumped in rural
areas or on the side of the road. Kerley also suggested that Naso was responsible for the
unsolved murder of Heather Hibbs, who was found in 2002 in an irrigation canal in
Solano County approximately eight miles from where Dever’s body was found in 1996.
Naso told a defense investigator that he had “passed through Solano County many times”
and would go to public parks in the nearby town of Dixon in order to “ ‘people watch.’ ”
Naso also took photographs of his victims and other women naked from the waist down.
The trial court excluded this evidence, finding that it was insufficient to link Joe Naso to
the actual perpetration of the crime.
We conclude that the trial court did not abuse its discretion. There was no direct
evidence linking Naso to the crime or to Dever. Sergeant Dora Shelton with the Solano
County Sheriff’s Office testified that “quite a few” body dumps occur in the county, and
responding to such scenes is “not unusual.” Given this testimony, the trial court did not
abuse its discretion in finding that Naso’s alleged pattern of murdering women with
alliterative names and dumping their bodies in rural locations in neighboring counties
65
was not “so unusual and distinctive as to be like a signature,” as required. (People v. Suff
(2014) 58 Cal. 4th 1013, 1063.) Nor did the trial court abuse its discretion in rejecting
Kerley’s argument that Naso could have murdered Dever because she was found covered
in a blanket from the waist up, and Naso often took photographs of his victims and other
women naked from the waist down. Finally, the proffered testimony that Naso admitted
to “passing through Solano on many occasions” and to “people watching” in the town of
Dixon amount, at best, to evidence of “opportunity to commit the crime,” which is
insufficient to establish admissibility. (People v. Hall, supra, 41 Cal.3d at p. 833.) We
find no abuse of discretion in the exclusion of Kerley’s third party culpability evidence.
XII. There Was No Cumulative Error
We have concluded that the trial court erred in admitting Dever’s statement that
the reason Kerley kicked her in the head in 1989 was because she failed to procure a
woman for three-way sex after Trudy declined to participate due to Kerley’s violent
tendencies. Although this evidence was prejudicial, its admission—in light of the
extensive evidence of Kerley’s violent treatment of Dever—was not likely to have had a
significant impact on the jury. We have also found the evidence did not support the
consciousness of guilt instruction as it related to the “Danny” letter. This error, however,
was harmless in light of the instruction as a whole. On balance, it is not reasonably
probable that Kerley would have received a more favorable result had these errors not
occurred. (People v. Watson (1956) 46 Cal. 2d 818, 836.) Any arguable constitutional
error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S.
18, 26.)
DISPOSITION
The judgment is affirmed.
66
_________________________
REARDON, J.
We concur:
_________________________
STREETER, ACTING P. J.
_________________________
SMITH, J.*
*Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
67
A138219 People v. Kerley
People v. Kerley
(A138219)
Trial Court: Superior Court of Solano County, No. FCR286584
Trial Judge: Hon. Allan P. Carter
Attorneys: Jonathan Soglin and L. Richard Braucher, by appointments of the
Court of Appeal under the First District Appellate Project’s
independent case system, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Jeffery M. Laurence,
Assistant Attorney General, Catherine A. Rivlin and Michael
Chamberlain, Deputy Attorneys General, for Plaintiff and
Respondent.
68