People v. Villalobos CA2/3

Filed 8/1/16 P. v. Villalobos CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B255090
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA331941)
v.
JORGE ERNESTO VILLALOBOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Suzette Clover, Judge. Affirmed.
Jonathan P. Milberg for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Connie H. Kan, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant Jorge Ernesto Villalobos was convicted by a jury of first
degree murder with a deadly weapon enhancement. He contends the judgment must be
reversed because the evidence was insufficient to support the verdict, and the trial court
made several evidentiary errors. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
a. Christina Ingram’s relationships with appellant and the victim
Christina Ingram worked at the Burbank Elks Lodge as a part time bartender.
Ingram began dating Villalobos, who lived with his parents in San Gabriel, in the spring
of 2006. Their relationship was marked by frequent verbal arguments and Ingram felt he
was too controlling. In approximately 2007, Ingram told Villalobos she wanted to “move
on.” They remained broken up for three to four months. During that period, Villalobos
telephoned Ingram “continuously,” asking her to give their relationship another chance.
Eventually Ingram “gave in” and they began to date “on and off” in the fall of 2007.
However, Ingram did not have feelings for Villalobos and “knew it wasn’t going to last.”
In approximately late November 2007, she told Villalobos that she was going to date
other people. Villalobos became “very angry and just very loud.” He said that “nobody
else was going to have” her, or words to that effect, “quite often.” When Ingram and
Villalobos argued, he would yell at her. Despite her desire to break up with Villalobos,
to calm him down and de-escalate arguments she would sometimes engage in sexual
activity with him. Ingram was afraid of Villalobos because she knew he possessed guns,
knives, and a crossbow.
The victim, Glen Giles, was an Elks Lodge member. He lived on Joaquin Drive in
Burbank, approximately 10 minutes’ drive from the lodge. He was extensively
remodeling his home. Due in part to the ongoing construction, the interior of the
residence was sometimes unsecured and accessible. Ingram and Giles met at the Elks
Lodge and began to date in late January 2008. Ingram did not tell Giles about Villalobos.
2
In late January 2008, Giles and Ingram met for a second date at the Robin Hood
restaurant. After dinner, they shared a dessert and then walked to the parking lot where
they hugged. After Giles left, Ingram saw Villalobos standing by her car. Ingram asked
what he was doing there. He replied, “ ‘I can’t believe you’re doing this.’ ” He stated
that friends had told him she was having dinner with Giles, and he “had to see it for
himself.” He made insulting remarks about Giles, asked what Ingram saw in him, and
used profanity. He again asked that Ingram give their relationship another chance. When
she declined, he started yelling. He stated that he “didn’t want to be made a fool of and
no one is going to mess with him” and he would “ ‘fuck up any motherfucker that plays
with me.’ ” To avoid a scene in the parking lot, Ingram suggested they continue talking
at her residence, where she and Villalobos had sexual relations.
At some point in February, Villalobos sent roses for Ingram to the Elks Lodge.
While on duty that night she learned Villalobos was in the parking lot. Giles was also at
the lodge at the time. On the lodge’s video monitors, she saw Villalobos look at Giles as
Giles left for the evening. When Ingram spoke to Villalobos, he made the observation
that Giles was a lodge member.
A week before the murder, Villalobos and Ingram had another argument. He said
he knew she was still seeing Giles because he had seen her with him. When Ingram
reiterated that she did not want to date Villalobos any longer, he became angry, yelled,
and asked for another chance. She again had sex with him to keep him quiet and because
he refused to leave.
b. Events of February 25 and 26, 2008
On February 25, 2008, Giles had coffee with Ingram at a Starbucks located in a
Vons store.
That evening, Giles attended a potluck bridal shower for the Elks Lodge chef,
Jimmy Ewart, and Ewart’s fiancée. Giles told Ingram, in a 9:00 p.m. telephone call, that
he was going to play some basketball and have a drink with friends. She spoke to him
again around 10:00 p.m. Giles left the lodge at or shortly before 10:00 p.m.
3
Ingram also communicated with Villalobos via texts and calls that evening.
Villalobos asked Ingram to call to wake him up the next morning because he had an early
training class at his work, Brinks Incorporated. Ingram called Villalobos as requested at
4:00 a.m. on February 26, 2008. She testified both that he seemed awake at the time and
also “out of it a little bit.” She then texted Villalobos at 7:00 a.m. stating, “ ‘Thank you
for loving me’ ” and at 7:24 a.m. regarding a song she liked. Villalobos called her at
approximately 8:30 a.m. to tell her his training had been cancelled and that he was getting
his car washed and running errands.
c. The discovery of Giles’s body
At approximately 10:00 a.m. on February 26, 2008, retired Burbank Police
Lieutenant Duane Dow, who lived across the street from Giles, opened his front door to
go for a walk with his wife. He discovered Giles’s nude body slumped in a kneeling
position against the wall on his front doorstep. Giles was “covered from head to toe with
blood.” There was blood on Dow’s doorbell and a pool of blood underneath Giles’s
body. Dow called the police.
d. The investigation
(i) Autopsy
An autopsy showed Giles died of multiple stab wounds. He had been stabbed
32 times and suffered wounds to his back, chest, face, and abdominal area. Nine of the
wounds were potentially fatal, and bled significantly. They ranged from a depth of three
to six inches. Eight stab wounds were concentrated in Giles’s left shoulder area. Two of
the wounds appeared to have been inflicted close in time, when Giles was not moving.
The location and placement of other wounds suggested Giles began to move during the
attack. One of the blows severed a rib. Impressions on the body indicated the attacker
used a serrated knife. Giles also sustained significant defensive wounds to his fingers,
arms and hands. Based on the contents of Giles’s stomach, the deputy medical examiner,
Dr. Yulai Wang, opined that Giles died within two to four hours of his last meal.
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(ii) The crime scene
A trail of blood led from Giles’s house to Dow’s front porch. “Copious”
amounts of blood were found in Giles’s home. It appeared to the investigating officer,
Detective Mitchell Ross, that Giles had been attacked as he lay sleeping on a mattress on
the floor in his bedroom. There was no sign of forced entry by the perpetrator.
Giles’s bedroom was “covered in blood.” The mattress was blood-soaked. There
was blood on the bedroom walls; on a dresser; on the bedroom light switch; on the floor;
on a pillow and blanket; and on the ceiling. The drywall on one wall had been gouged
three times; there was blood inside the gouges. The concrete floor bore a similar gouge
that appeared to have been made by a sharp object. The dresser bore six gouge marks.
Bloody newspaper advertisements were strewn about the floor. Giles’s wallet, which
contained $110, was on his dresser. A cellular telephone charger was plugged into the
wall, but Giles’s cellular telephone was missing and was never found. Giles’s severed
fingertips were found in the bedroom closet. The blood in the bedroom appeared to be
dry. Blood was also found in the great room, the dining room, and the hall. There was
no sign the house had been ransacked.
There were two sets of bloody footprints in the house. The larger set of bare
footprints belonged to Giles. He exited through a set of double doors on the north side of
the house and continued across the street to Dow’s house, pausing or collapsing several
times on the way. The perpetrator’s smaller footprints exited through a sliding glass door
on the north side of the house. The perpetrator’s footprints were “fabric prints,”
indicating the perpetrator wore socks. A bloody handprint was found on the sliding door
through which the perpetrator appeared to have exited. Streaks in the handprint
suggested the attacker wore gloves.
A large pool of blood was located on the home’s north side, at the back concrete
patio, near a faucet. The faucet or a hose had been turned on, soaking the area with an
inch of water mixed with blood. Bloody newspapers were strewn along a walkway on
the north side of the house.
5
Giles’s home abutted a hillside and a one-foot high retaining wall separated the
back of the house from the hillside. On the hillside, an officer found a bloody newspaper
advertisement that appeared similar to those found in the bedroom, a wad of bloodstained
money, and a Vons grocery receipt for the coffee that Giles and Ingram had shared the
previous day. Disturbances in the dirt on the hill just behind the house appeared to be
footprints. A concrete drainage channel ran the length of the hillside. It would have
been relatively easy for someone to park at the nearby Brace Canyon Park, walk up
Brace Canyon Road, go up the concrete drainage channel, and traverse an area covered
with foliage down to Giles’s backyard.
(iii) Footprint evidence
The bloody footprints at the scene appeared to have been made by Giles, whereas
the murderer made the bloody sock prints. Villalobos’s footprint had the same V-shaped
heel formation, narrow arch, and toe spacing as did the sock prints; his footprints also
appeared to be the same size as the sock prints. A forensic footwear expert compared the
bloody sock prints with Villalobos’s footprints and found that they corresponded. He
opined that Villalobos, among only a “very small number” of people, could have made
the sock prints.
(iv) Dog scent evidence
Using a device known as a “Scent Transfer Unit,” dog handler Edward Hamm
transferred the scent from the bloody handprint to a gauze pad. Hamm’s bloodhound,
Rosie, followed the scent down the hillside, across Brace Canyon Road, through a park,
and across Crest Ridge Drive. She went in circles before heading back along Crest Ridge
to Brace Canyon, to Joaquin Drive, and upto Giles’s front door. Hamm interpreted her
behavior as indicating the murderer’s car had been parked on Crest Ridge. The murderer
had followed a circular path from the car to Giles’s front door, and then back down the
hill. Rosie ignored the bloody money and receipt that the officers found on the hillside
and which contained Giles’s blood.
6
The next day, Hamm’s bloodhound Bojangles was taken to the Brinks facility
where Villalobos worked. From a nearby street, Bojangles followed the scent on the
scent pad approximately 100-150 feet through a gate into a Brinks lot, where armored
trucks were parked. Bojangles’s behavior suggested a scent matching that on the scent
pad was present, but he did not alert to any particular truck, door, or locker, or to any
persons in the area. Hamm and Bojangles then went to San Gabriel and parked around
the corner from the Villalobos residence. Bojangles followed the scent from the scent
pad to Villalobos’s front door.
(v) Villalobos’s arrest
After a warrant was obtained, officers Stephen Turner and Edmundo Zepeda,
assisted by several undercover police units, stopped Villalobos as he was driving away
from his residence in his Mustang at approximately 4:30 a.m. on February 27, 2008.
Turner searched Villalobos and placed him in the marked police car. At the direction of a
superior officer, Turner entered the driver’s side of the Mustang and drove it to a police
staging area located a block or two away. Turner saw Villalobos’s cellular telephone in
plain view in the center console cup holder and gave it to another officer for examination.
Turner did not search the Mustang. Neither Turner nor anyone else searched or reentered
the Mustang at the staging area, or entered the Mustang’s passenger side, and Turner did
not enter any other portion of the Mustang.1 Officers stayed with the Mustang, ensuring
it remained secure, while other officers executed the warrant at Villalobos’s residence.
The car was then towed to the police garage where it was secured.
1 On February 26, 2008, at approximately noon, Turner had questioned Giles’s
neighbors and assisted in canvassing the Joaquin Drive neighborhood; however, he was
not at the crime scene. From 4:48 p.m. until 5:45 p.m., he assisted the dog handler search
the hillside behind Giles’s house. He assisted searching the hill again from 6:35 p.m.
until 10:00 p.m. He never went inside Giles’s home and did not see any blood in the
backyard. He did not pass the area with the hose and bloody water. He never went
across the street to Dow’s home. He did not change his clothing or shoes before moving
the Mustang to the staging area.
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When arrested, Villalobos had a purplish discoloration on his elbow, marks on his
right hand and index finger, and a discoloration on his back.
(vi) Search of Villalobos’s car
A forensics team processed Villalobos’s car at the police garage on February 28,
2008, at approximately 11:00 a.m. A criminalist observed several stains in the Mustang
that tested presumptively positive for the presence of blood. He found such stains on the
driver’s side interior door panel, near the lock; on the driver’s seat and seat back; and on
the front passenger seat and seat back. Some were red stains, while others were dark
stains that did not immediately appear to be blood. The center console also tested
positive for the presence of blood and had white areas that appeared to have been buffed.
The criminalist selected three of the stained areas for DNA testing. DNA testing revealed
that the blood found on the passenger seat back and driver’s seat back was Giles’s.2 The
sample taken from the driver’s side door panel contained very little material, and was
inconclusive.
(vii) Search of Villalobos’s home
A detective discovered three knives in Villalobos’s bedroom closet. Two of the
knives, a “Ka-Bar” and a “SOG” knife, were in their boxes. A third knife, also a Ka-Bar,
was in a plastic sheath in a duffle bag in the closet. Also inside the closet were four
handguns, four magazines, two bolt-action rifles, and two 12-gauge shotguns. A pair of
jeans in Villalobos’s size was in the clothes dryer.
(viii) Cell phone evidence
Between February 14 and February 24, 17 calls were made from Villalobos’s
cellular telephone to Giles’s cellular telephone. The calls were made using a blocking
feature that prevented Giles from identifying who was calling. The brief duration of the
calls indicated the caller hung up without leaving a message or was routed to voicemail.
2 The chance of the DNA belonging to someone other than Giles was one in 270
quadrillion.
8
On the night of February 25, 2008, a blocked call was made from Villalobos’s cell
phone to Giles’s phone at 10:34 p.m. That call was picked up by a cell site located at
10771 Sherman Way in Sun Valley, indicating Villalobos was within three miles of that
location at the time. At the time Villalobos made the 10:34 p.m. call, Giles’s phone was
within the area covered by the cell site closest to his house.
At 12:45 a.m. on February 26, 2008, there was a “data transaction” on Giles’s
phone, which could have been “user generated or non-user-generated.” Giles’s cell
phone was, at that time, moving southwest. A text was either received or sent by Giles’s
phone at 1:17 a.m.
(ix) Expert testimony regarding the knives
Ernest Emerson, a manufacturer and designer of specialty combat knives, testified
regarding the quality and characteristics of the three knives found in Villalobos’s closet.
“Ka-Bar” is a generic name for a specialty fighting and utility knife used by the United
States Marine Corps since World War II. The SOG knife is also a military knife used by
the United States Navy Seals. In Emerson’s opinion, the Ka-Bar knife found out of its
box, in the duffle bag, had been used. It had two small, flattened portions on the edge
indicating it struck something harder than the steel of the blade, such as cement or a rock.
The damage was very difficult for a non-expert to see. There were also marks or
scratches on the blade, laterally and across on both sides, that could have been caused by
cleaning the knife. In Emerson’s opinion, the SOG knife and the Ka-Bar knife found in
its box were in pristine condition and had not been used.
The Ka-Bar knife that had been used had several features making it an effective
offensive weapon. A backstop or rear guard assisted a user to easily pull the knife out
after it had been inserted into something. The ergonomic grip was made of a grooved
rubber that provided traction and was impervious to liquids. A hilt or guard protected the
hand from sliding onto the knife during use. These features of the knife would help
prevent injuries to the hand. In Emerson’s opinion, the used Ka-Bar knife model
provided the greatest degree of protection for someone using the knife, as opposed to the
other two knives. The knife was effective as a combat weapon due to its thickness; its
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7-inch blade, which was designed to penetrate vital organs no matter where the opponent
was struck; and the presence of grooves along the blade, which allowed blood to flow out
of a wound, hastening death. Unlike a hunting knife, the Ka-Bar was designed so that the
force of a thrust was concentrated at the point. The used Ka-Bar knife, like the other two,
had a serrated edge. Ka-Bar knives were readily available at sporting goods, military
surplus, and other stores.
Debra Kowal, a toolmark expert, reviewed photographs of the knives and the
autopsy report during her technical review of the conclusions of another toolmark
analyst, Steven Dowell. Based on a comparison of the measurements of the knife and the
width and depth of the wounds, Kowal opined that none of the three knives found in
Villalobos’s closet could be excluded as the murder weapon, the same conclusion Dowell
had reached. Some of the abrasions on Giles’s body were made by a serrated blade.
Villalobos’s three knives “certainly could have” inflicted Giles’s injuries, but none could
definitively be identified as the murder weapon.3
The used Ka-Bar knife and its sheath were tested for DNA. The DNA mixture on
the sheath included at least four people. It was not certain that Giles’s DNA was present
on the sheath; there were DNA types consistent with his DNA, but “very weak, and
statistics was 1 in 7.” DNA from at least three people was present on the knife blade, but
Giles’s DNA was not.
(x) Sightings of Villalobos’s Mustang near Giles’s home
Villalobos owned a gray Ford Mustang GT with a “scooped” hood. The vehicle
had a “throaty” or “high performance exhaust” that made a loud noise.
3 Of Giles’s 32 wounds, 13 were selected for analysis. Kowal concluded nine of the
wounds fit the dimensions of Villalobos’s knives. Four of the wounds selected for
analysis had variations that could have been due to factors such as skin elasticity,
movement of the victim during the attack, or positioning of the body during the autopsy,
or might have indicated use of a second knife. According to the autopsy report, two of
the four wounds were made by an instrument with two sharp sides, whereas Villalobos’s
knives had a blunt edge and a sharp edge.
10
Giles’s neighbor Sheri Saurer, an experienced automobile mechanic, heard a car in
the neighborhood with a loud exhaust four or five times during the two to three weeks
prior to the murder. She looked out her window approximately three times to see the car
making the noise, and observed a silver or gray Mustang “almost exactly” like
Villalobos’s. She saw the car parked on Joaquin Drive once and observed it driving from
Brace Canyon onto Joaquin several times. Giles’s neighbor Lisa Spellman saw
Villalobos’s Mustang parked on Joaquin Drive on February 15, 2008. When she drove
by later, a man exited the car and walked towards Giles’s house. She could not identify
the man.
(xi) Villalobos’s work schedule
Villalobos worked at Brinks Incorporated, located at 12730 Raymer Street in
North Hollywood. Villalobos worked on February 25, 2008, from 9:35 a.m. until
9:41 p.m. He had the day off on February 26, 2008 and was not scheduled for training
that morning.
(xii) Police interviews of Ingram
Police officers interviewed or interrogated Ingram multiple times over the course
of several days. She initially did not disclose that she was or had been in a relationship
with Villalobos, but provided that information only after police discovered her text
messages to him. During subsequent interviews, certain officers called her a liar, accused
her of being an accessory to the murder, told her her life was over, refused to believe her
statements, and implied she should say what they wanted to hear. They called her a
“fucking bitch” and threatened to shove her head against the table and make it look like
an accident. Officers informed her that blood had been found in the Mustang. Because
she was frightened and exhausted, Ingram lied to the officers. Among other things, she
falsely stated that she used Giles to make Villalobos jealous, left Giles’s address out for
Villalobos to find, and observed Villalobos’s Mustang at Giles’s residence when she and
Giles were in a hot tub together. She also falsely stated that Villalobos was extremely
violent and had stated he was going to go take care of Giles.
11
2. Defense evidence
As relevant here, the defense presented the following evidence. Villalobos’s
sister-in-law, Lideth, saw Villalobos at his San Gabriel home at approximately 7:20 a.m.
on the morning of February 26, 2008.
Dr. David Posey, a forensic pathologist retained by the defense, opined that Giles
died between 6:00 a.m. and 8:00 a.m. on the morning of February 26. It was highly
improbable Giles died between 10:30 p.m. on February 25 and 2:30 a.m. on February 26.
His opinion was based on Giles’s ambient body temperature, the degree of rigor mortis,
the fact the blood at the crime scene was still wet, and the contents of Giles’s stomach.
As discussed more fully post, Villalobos’s mother testified that he arrived home
on the night of February 25 at approximately 11:30 p.m.
3. Rebuttal evidence
Detective Henry Garay listened to a telephone conversation between Villalobos
and his mother recorded while Villalobos was in jail on February 27, 2008. She stated
she was awake at 11:00 p.m. and Villalobos was not yet home.
As discussed more fully post, Officer Zepeda testified regarding Villalobos’s
mother’s statements.
4. Procedure
Trial was by jury. Villalobos was convicted of first degree murder. (Pen. Code,
§ 187, subd. (a).)4 The jury found he committed the crime “willfully, unlawfully,
deliberately and with malice aforethought.” It further found he personally used a deadly
and dangerous weapon, a knife, in commission of the crime. (§ 12022, subd. (b)(1).)
The trial court sentenced Villalobos to 26 years to life in prison. It ordered him to pay
direct victim restitution of $8,000 and imposed a restitution fine, a suspended parole
restitution fine, a court security assessment, and a criminal conviction assessment.
Villalobos appeals.
4 All further undesignated statutory references are to the Penal Code.
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DISCUSSION
1. Sufficiency of the evidence
Villalobos contends the evidence was insufficient to establish he was the
murderer, and therefore his conviction must be reversed. We disagree.
When determining whether the evidence was sufficient to sustain a criminal
conviction, “ ‘ “we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citation.]’ ” (People v. McCurdy (2014)
59 Cal. 4th 1063, 1104; People v. Johnson (2015) 60 Cal. 4th 966, 988.) We presume in
support of the judgment the existence of every fact the trier of fact could reasonably
deduce from the evidence. (People v. Medina (2009) 46 Cal. 4th 913, 919.) Reversal is
not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998)
18 Cal. 4th 297, 331; People v. Zamudio (2008) 43 Cal. 4th 327, 357.) The same standard
of review applies to cases in which the prosecution relies primarily on circumstantial
evidence. (People v. Brown (2014) 59 Cal. 4th 86, 106.) We must accept logical
inferences the jury might have drawn from the evidence even if we would have
concluded otherwise. (People v. Solomon (2010) 49 Cal. 4th 792, 811-812.)
There was ample evidence to establish Villalobos was the murderer. Giles had
recently begun dating Ingram, who – unbeknownst to Giles – was Villalobos’s girlfriend
or ex-girlfriend. Villalobos refused to acquiesce in Ingram’s wish to end their
relationship and became angry when Ingram attempted to break up. He stated that he
“didn’t want to be made a fool of and no one is going to mess with him” and he would
“ ‘fuck up any motherfucker that plays with me.’ ” Villalobos knew who Giles was:
he had seen him at the Elks Lodge and at the Robin Hood restaurant. He had Giles’s
number and repeatedly phoned him, using a blocking feature. Neighbors saw and heard
his distinctive Mustang on or near Joaquin Drive. Cell phone records showed Villalobos
was near Giles’s home at approximately 10:30 p.m. on the night of or preceding the
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murder. Villalobos worked in North Hollywood and lived in San Gabriel, and there was
no explanation for his presence near Giles’s home in Burbank at that time. Giles’s phone
was stolen during the attack, and was found moving southwest at 12:45 a.m. This fact,
coupled with the deputy medical examiner’s estimate of the time of death, suggested the
murder was completed by that time. Villalobos owned a used Ka-Bar fighting knife that
was specially designed for combat and provided protective features so that the user’s
hand would not be injured. The knife had damage apparently resulting from contact with
a hard surface like concrete. There was a gouge on the concrete floor in Giles’s bedroom.
Comparison of Giles’s wounds with the characteristics of the knife indicated it could
have been the murder weapon. Giles bled profusely, and the knife had blood grooves to
facilitate bleeding. Giles could not be excluded as a donor of DNA on the knife sheath,
though the evidence he was a contributor was weak. The bloody sock prints matched
Villalobos’s footprints, and only a very small number of other persons could have made
the same print. A bloodhound tracked scent taken from the bloody handprint to
Villalobos’s front door. The crime appeared inconsistent with a robbery: Giles’s wallet
on the dresser was undisturbed and the house was not ransacked. And most tellingly, the
victim’s DNA was found in bloodstains in Villalobos’s Mustang.
Villalobos contends that the foregoing evidence was legally insufficient.5 He
argues that Ingram was an admitted liar whose testimony was unbelievable. The bloody
money dropped on the hillside suggested the motive for the murder was robbery. No
eyewitness observed the murder, and no one saw Villalobos enter or leave Giles’s house
on the night of the murder. No witness identified Villalobos as the driver of the Mustang
seen or heard near Giles’s home. The cell phone records showed, at most, that Villalobos
was attempting to determine whether Ingram was seeing Giles, not that he intended to
murder Giles. Villalobos could not have determined, by calling Giles’s cell phone at
5 Villalobos appropriately does not challenge the sufficiency of the evidence to
prove premeditation and deliberation. As our recitation of the facts makes clear, there
was ample evidence of motive, manner of killing, and planning, three of the factors
commonly used to establish premeditation.
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approximately 10:30 p.m. on the night of February 25, whether Giles was home because
Giles’s phone was a mobile device. The phone records indicating Giles’s phone was
moving at 12:45 a.m. did not necessarily show the murder had already transpired; it was
possible Giles was alive and driving home at that time. The time of death could not be
reliably ascertained by reference to Giles stomach contents, because he might have
stopped for a drink with friends after leaving the Elks Lodge. The defense expert
testified that time of death was the following morning, when Villalobos’s witnesses
testified he was home in San Gabriel. Deputy Medical Examiner Wang’s contrary
opinion was “discredited” because he failed to consider a variety of factors that the
defense expert found important. None of the knives found in Villalobos’s closet were
definitively identified as the murder weapon, and there were inconsistencies between the
measurements of the used Ka-Bar knife and some of Giles’s wounds. The dog scent
evidence was unreliable for a variety of reasons. Villalobos’s fingerprints and DNA were
not found at the crime scene, and the bloody sock prints were not definitively identified
as his. The fact Giles’s blood was found in Villalobos’s Mustang was not compelling
evidence of guilt because “there is a strong probability Giles’[s] blood was planted in . . .
Villalobos’[s] car by the police,” demonstrated by the fact that officers told Ingram
Giles’s blood had been found in the Mustang before the criminalist discovered it there.
None of these arguments demonstrate the challenged evidence was physically
impossible or inherently improbable. Villalobos’s arguments amount to a request that
this court reweigh the evidence and substitute our judgment for the jury’s. This we
cannot do. The fact the evidence might have been reconciled with a contrary finding
does not warrant a reversal. (See, e.g., People v. Harris (2013) 57 Cal. 4th 804, 849-850;
People v. Livingston (2012) 53 Cal. 4th 1145, 1170.) We resolve neither credibility issues
nor evidentiary conflicts. (People v. Friend (2009) 47 Cal. 4th 1, 41; People v. Tripp
(2007) 151 Cal. App. 4th 951, 955; People v. Cortes (1999) 71 Cal. App. 4th 62, 81 [where
an appellant “merely reargues the evidence in a way more appropriate for trial than for
appeal,” we are bound by the trier of fact’s determination].) Although it is the jury’s duty
to acquit if it finds that circumstantial evidence is susceptible of two interpretations, one
15
of which suggests guilt and the other innocence, it is the jury, not the appellate court,
which must be convinced of the defendant’s guilt beyond a reasonable doubt. (People v.
Harris, at pp. 849-850; People v. Iboa (2012) 207 Cal. App. 4th 111, 117.) As we have
discussed, the evidence supported the jury’s verdict, and there was no evidentiary deficit.
2. Purported evidentiary errors
Villalobos contends the trial court erred by admitting evidence about his mother’s
statements, vandalism to Ingram’s car, and the knives found in his bedroom closet.
a. Applicable legal principles and standard of review
“Except as otherwise provided by statute, all relevant evidence is admissible.”
(Evid. Code, § 351.) Evidence is relevant if it has any tendency in reason to prove any
disputed fact that is of consequence to the determination of the action. (Evid. Code,
§ 210; People v. Williams (2008) 43 Cal. 4th 584, 633-634; People v. Wilson (2006)
38 Cal. 4th 1237, 1245.) Under Evidence Code section 352, a court has discretion to
exclude evidence if its probative value is substantially outweighed by the probability its
admission will create a substantial danger of undue prejudice. (People v. Williams (2013)
58 Cal. 4th 197, 270-271.) We review a trial court’s rulings on the admissibility of
evidence and application of Evidence Code section 352 for abuse of discretion.
(People v. Leon (2015) 61 Cal. 4th 569, 597, 599; People v. Masters (2016) 62 Cal. 4th
1019, 1056.)
The erroneous admission of evidence “does not require reversal except where the
error or errors caused a miscarriage of justice.” (People v. Richardson (2008) 43 Cal. 4th
959, 1001; Evid. Code, §§ 353, subd. (b), 354.) “ ‘[A] “miscarriage of justice” should be
declared only when the court, “after an examination of the entire cause, including the
evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.’ ” (People v.
Richardson, supra, at p. 1001; People v. Watson (1956) 46 Cal. 2d 818, 836.) The
admission of relevant evidence will not offend due process unless the evidence is so
prejudicial as to render the defendant’s trial fundamentally unfair. (People v. Hamilton
(2009) 45 Cal. 4th 863, 930; People v. Partida (2005) 37 Cal. 4th 428, 439.)
16
b. Evidence regarding vandalism to Ingram’s car
(i) Additional facts
Prior to trial the People moved to admit, pursuant to Evidence Code sections 1101,
subdivision (b) and 1109, evidence that Ingram had wished to end her relationship with
Villalobos but was afraid he would retaliate if she did so. According to the People’s
motion, Villalobos followed Ingram to her workplace and other locations and incessantly
telephoned her. Ingram believed Villalobos was responsible for two or three instances of
vandalism to her car in February 2008. The vandalism included smashing her
windshield, letting the air out of one of her tires, and scratching her car. The People also
sought to admit evidence that Villalobos had beaten and sexually assaulted a former
girlfriend and vandalized her car, and acted in a “possessive” manner towards a woman
who worked for him in 2000. The People argued that this evidence was relevant to prove
motive, intent, identity, and common plan.
The trial court initially denied the People’s motion without prejudice. As pertinent
here, it excluded the evidence of vandalism to Ingram’s car because Villalobos was not
charged with domestic violence and his conduct toward Ingram was not probative in
regard to his alleged murder of Giles.6
During redirect examination of James Ewart, the Elks Lodge chef and a friend of
both Ingram and Giles, the prosecutor elicited that Ingram had been uncomfortable with
her relationship with Villalobos during the six months preceding Giles’s murder. The
prosecutor asked for the “circumstances” upon which Ewart’s impression was based.
Ewart answered: “At the lodge. And there had been vandalism to her car---” Defense
counsel’s hearsay objection was sustained and the answer stricken. The prosecutor then
asked whether Ewart had observed that Ingram’s car had been vandalized. In a sidebar
conference, the trial court asked whether there was evidence Villalobos was responsible
for the vandalism. The prosecutor stated there was evidence Ingram believed Villalobos
6 The trial court excluded evidence of Villalobos’s alleged conduct towards the
other women. That ruling is not at issue here.
17
was responsible. The trial court allowed the prosecutor to ask whether Ewart had
observed vandalism to the car, but nothing else. Ewart then recounted that approximately
two weeks before the murder, he observed that a window on Ingram’s car had been
smashed while the car was parked at the Elks Lodge. A day or two before the murder, he
observed that the valve stem on one of Ingram’s tires had been removed and the tire
partially flattened.
At the conclusion of the day’s proceedings, the trial court expressed concern that
the prosecutor had violated its order excluding evidence of the vandalism. When
proceedings resumed, the trial court clarified that the prosecutor had not committed
misconduct. However, Ewart’s testimony about the vandalism should have been
excluded as irrelevant hearsay. Ingram’s state of mind was not at issue. Absent evidence
Villalobos was the person who vandalized the car, the evidence was irrelevant. However,
the court opined that the erroneous admission of the evidence was harmless. It granted
defense counsel’s request that the testimony be stricken. Subsequently, the court orally
informed the jury that Ewart’s testimony about the vandalism was not to be considered.7
The court’s final instructions to the jury included the admonition that it could not
consider any evidence that was stricken from the record.8 (CALCRIM No. 222.)
(ii) Discussion
Villalobos argues the evidence was irrelevant and was inadmissible propensity
evidence that should have been excluded under Evidence Code section 1101,
subdivision (a). He urges the “introduction” of evidence he may have vandalized
Ingram’s car deprived him of due process and a fair trial in violation of his federal
constitutional rights.
7 The court stated: “Ladies and gentlemen, before the People call their next witness,
on Friday, you’ll remember Jim Ewart testified in court. His testimony as to any
vandalism to Christina Ingram’s car is stricken and not to be considered.”
8 The court’s instruction, in pertinent part, stated: “If I ordered testimony stricken
from the record you must disregard it and must not consider that testimony for any
purpose.”
18
The flaw in Villalobos’s argument is that the evidence was excluded; the trial
court ordered it stricken. Any potential harm was remedied when the trial court
instructed the jury not to consider it. We presume the jury followed the trial court’s
instructions, and nothing in the record here suggests otherwise. (People v. Homick
(2012) 55 Cal. 4th 816, 866-867; People v. Smith (2007) 40 Cal. 4th 483, 517-518 [“ ‘The
crucial assumption underlying our constitutional system of trial by jury is that jurors
generally understand and faithfully follow instructions.’ ”].) Contrary to Villalobos’s
argument, we do not agree that the court’s instruction merely “emphasized” the evidence.
Nor was the evidence so inherently prejudicial that the jury would have been unable to
disregard it. “Whether it would be impossible for a jury to follow limiting instructions is
determined by the circumstances of each case, primarily in the trial court’s discretion
under Evidence Code section 352.” (Rufo v. Simpson (2001) 86 Cal. App. 4th 573, 599.)
Here, the trial court concluded the error was harmless. The challenged testimony was
limited and non-inflammatory. It comprised an exceedingly brief portion of the six-week
trial. Villalobos has failed to establish any violation of his rights to due process and a fair
trial.
c. Villalobos’s mother’s statements
(i) Additional facts
The prosecution called Villalobos’s mother, Guadalupe Villalobos, as a witness in
its case-in-chief.9 She testified that she was home on the evening of February 25, 2008,
and retired to her bedroom to watch the news, which was on between 11:00 p.m. and
midnight. Villalobos was at work and arrived home at approximately 11:30 p.m., while
she was watching the news.
Officer Zepeda testified that he spoke to Guadalupe during the search of the
Villalobos house on February 27, 2008. She told him she recalled Villalobos coming
home on February 25, but was unsure of the time; she was also unsure whether he left
9 For ease of reference, and with no disrespect, we hereinafter refer to Villalobos’s
mother by her first name, Guadalupe.
19
after he arrived home. The trial court denied the prosecutor’s sidebar request to ask
Zepeda whether Guadalupe made statements about Villalobos’s temperament.
Guadalupe was later called as a witness for the defense. She testified that the
search of her home was very difficult because seven or eight officers arrived very early in
the morning and left Villalobos’s room in great disarray. The officers asked her many
questions about Villalobos and Ingram, and told her Villalobos “was in a very big
problem.” During cross-examination, the prosecutor asked whether she told Zepeda that
of her three sons, Villalobos had the worst temper. Without objection, Guadalupe denied
making the statement but admitted stating that her three children had different
personalities.
The People recalled Officer Zepeda. He testified that he asked Guadalupe whether
Villalobos “got mad easily.” She replied that, of all her sons, Villalobos had the worst
temper. She asked “what had happened in Burbank.” Zepeda told her a serious crime
had occurred. Guadalupe began to cry and asked if Ingram had been murdered. Zepeda
had not told her Villalobos had been arrested for murder. Defense counsel did not object
to this testimony.
During argument, the prosecutor argued “it was very telling that [Guadalupe]
readily accepted that the trouble in Burbank was that the defendant must have killed” and
“basically confirmed that the investigation was where it should have been with the son
with the temper, the defendant.” The prosecutor further argued: “when a mother says in
response to there is a crime in Burbank or anything of that nature, is my son’s girlfriend
dead? That speaks volumes, ladies and gentlemen. That tells you a story all by itself.
That tells you what this defendant is capable of.”
(ii) Discussion
Villalobos argues introduction of his mother’s statements about his temper and the
possibility Ingram had been murdered deprived him of due process and a fair trial. He
urges that “[w]hether this was a case of prosecutorial misconduct” or whether Zepeda
volunteered the information, reversal is required. The People respond that Guadalupe’s
statements were properly admitted because they fell within the spontaneous statement
20
exception to the hearsay rule, and in any event no prejudice is apparent because the
evidence of guilt was overwhelming.
Villalobos’s contention has been forfeited because he failed to object to the
evidence or to the prosecutor’s argument. (See People v. Linton (2013) 56 Cal. 4th 1146,
1205 [to preserve a claim of prosecutorial misconduct, a defendant must make a timely
and specific objection and ask the trial court to admonish the jury to disregard the
improper argument]; Evid. Code, § 353, subd. (a); People v. Cage (2015) 62 Cal. 4th 256,
282 [failure to object to evidence forfeits the contention on appeal]; People v. Lindberg
(2008) 45 Cal. 4th 1, 48.) Villalobos argues he had no opportunity to object. He contends
that the trial court denied the People’s pretrial motion to introduce evidence of his
uncharged crimes against other women and had prohibited questions to Zepeda, during
his earlier testimony, regarding Guadalupe’s statements. Therefore, Villalobos argues,
defense counsel could not have anticipated that the prosecutor would introduce the
evidence. Any objection would simply have highlighted the evidence before the jury.
We disagree. Defense counsel had ample opportunity to object and could have
expected a favorable ruling given the trial court’s earlier exclusion of Zepeda’s
testimony. Guadalupe’s statements did not pertain to the uncharged misconduct at issue
in the pretrial motion, and the trial court’s rulings on that subject were irrelevant to
defense counsel’s failure to object. However, because Villalobos avers defense counsel
provided ineffective assistance, we address the merits of that claim.10
Evidence Code section 1101, subdivision (a) provides that subject to exceptions
not pertinent here, “evidence of a person’s character or a trait of his or her character
(whether in the form of an opinion, evidence of reputation, or evidence of specific
instances of his or her conduct) is inadmissible when offered to prove his or her conduct
10 The People’s argument that Guadalupe’s statements were admissible under the
spontaneous statement exception to the hearsay rule (Evid. Code, § 1240) is unhelpful.
Villalobos does not contend the evidence was objectionable because it constituted
hearsay; he argues it was improper propensity evidence and should have been excluded
under Evidence Code section 352.
21
on a specified occasion.” Accordingly, “[c]haracter evidence, sometimes described as
evidence of a propensity or disposition to engage in a type of conduct, is generally
inadmissible to prove a person’s conduct on a specified occasion.” (People v. Villatoro
(2012) 54 Cal. 4th 1152, 1159; People v. Carter (2005) 36 Cal. 4th 1114, 1147.)
To the extent Villalobos argues Guadalupe’s statements disclosed his prior violent
acts or uncharged offenses, he is incorrect. Her statement about his temper and her
concern that Ingram might have been murdered did not disclose that Villalobos had
committed any prior violent conduct or an uncharged crime. However, Guadalupe’s
statement that Villalobos had a bad temper amounted to improper character evidence, and
the People offer no argument demonstrating a legitimate basis for its admission. The
People also relied on Guadalupe’s query about Ingram to show Villalobos’s violent
character, assuming the comment implied Villalobos’s own mother believed he was
capable of murder. This was also improper character evidence.
However, Villalobos has failed to establish his counsel provided ineffective
assistance by failing to object. To establish ineffective assistance of counsel, a defendant
must show counsel’s representation fell below an objective standard of reasonableness
and there is a reasonable probability that, but for counsel’s errors, a more favorable
determination would have resulted. If the defendant makes an insufficient showing on
either component, the claim fails. (People v. Johnson (2016) 62 Cal. 4th 600, 653;
People v. Homick, supra, 55 Cal.4th at p. 893, fn. 44.) Counsel has wide discretion in
choosing the means by which to provide constitutionally adequate representation.
(People v. Johnson, supra, at p. 653.) If the record on appeal fails to show why counsel
acted or failed to act, “ ‘ “unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation, the claim must
be rejected on appeal. [Citation.]” ’ ” (Ibid.)
The record here does not demonstrate there could be no satisfactory explanation
for counsel’s failure to object. One theme of the defense case was that the investigation
and the People’s case were filled with contradictions and much of the evidence was
unbelievable. Conceivably, counsel might have made a deliberate tactical choice not to
22
object to the evidence or argument on the theory the evidence was unbelievable, and
could be used to the defense’s advantage. (See People v. Johnson, supra, 62 Cal.4th at
p. 654 [counsel might have made a deliberate tactical choice not to object to the
prosecutor’s argument so counsel could use it to his advantage during argument].) Here,
defense counsel argued in closing that it was unbelievable Villalobos’s mother would tell
a police officer Villalobos had a bad temper or imply he might have killed Ingram at the
same time her home was being searched. Moreover, the challenged testimony and
argument was but a brief portion of the trial. In light of the evidence discussed ante,
Villalobos has failed to show there is a reasonable probability that a more favorable
determination would have resulted had the evidence been excluded.
d. The knives found in Villalobos’s bedroom closet
Villalobos moved prior to trial to exclude evidence of the knives found in his
bedroom closet as well as Kowal’s and Emerson’s expert testimony. The prosecution
sought a contrary ruling that the evidence was admissible. After extensive consideration
of the issue, the trial court ruled the evidence was admissible because none of the knives
could be excluded as the murder weapon, and the evidence was more probative than
prejudicial under Evidence Code section 352.
Villalobos contends the trial court’s ruling was an abuse of discretion that
deprived him of due process and a fundamentally fair trial. He cites, inter alia, People v.
Henderson (1976) 58 Cal. App. 3d 349, 360 and People v. Archer (2000) 82 Cal. App. 4th
1380, 1392-1393, for the principle that evidence a defendant possessed weapons not used
in the charged crime is irrelevant and amounts to inadmissible propensity evidence.
Villalobos contends, in essence, that because the knives were not definitively identified
as the murder weapon they should have been excluded. He points out that the knives
were not unique and were readily available; there were some inconsistencies between
some of the wounds and the knives’ characteristics; Giles’s DNA was not found on the
blade; and the probability Giles’s DNA was on the knife sheath was weak.
We discern no error. “When the prosecution relies on evidence regarding a
specific type of weapon, it is error to admit evidence that other weapons were found in
23
the defendant’s possession, for such evidence tends to show not that he committed the
crime, but only that he is the sort of person who carries deadly weapons.” (People v.
Barnwell (2007) 41 Cal. 4th 1038, 1056; People v. Cox (2003) 30 Cal. 4th 916, 956,
disapproved on other grounds in People v. Doolin (2009) 45 Cal. 4th 390, 421, fn. 22;
People v. Riser (1956) 47 Cal. 2d 566, 577, disapproved on other grounds in People v.
Chapman (1959) 52 Cal. 2d 95, 98 and People v. Morse (1964) 60 Cal. 2d 631, 637, fn. 2,
648.)11 However, it has long been held that “[w]hen the specific type of weapon used to
commit a homicide is not known, it may be permissible to admit into evidence weapons
found in the defendant’s possession some time after the crime that could have been the
weapons employed. There need be no conclusive demonstration that the weapon in
defendant’s possession was the murder weapon.” (People v. Riser, supra, at p. 577;
People v. Cox, supra, at p. 956.)12 For example, People v. Carpenter (1999) 21 Cal. 4th
1016 held testimony the defendant stated he kept a gun in his van was properly admitted.
“Although the witnesses did not establish the gun necessarily was the murder weapon, it
might have been. . . . [T]his evidence did not merely show that defendant was a person
who possesses guns, but showed he possessed a gun that might have been the murder
weapon after the first and before the last of the killings. The evidence was thus relevant
and admissible as circumstantial evidence that he committed the charged offenses.” (Id.
at p. 1052.)
People v. Mills (2010) 48 Cal. 4th 158, compels rejection of Villalobos’s argument.
In Mills, the victim’s throat and breast had been cut. The trial court admitted evidence
that two box cutters, a small knife, and a larger knife were found in the defendant’s
11 As noted ante, the evidence showed that several guns were also found in
Villalobos’s closet. Defense counsel expressly stated that, as a strategic decision, the
defense did not object to admission of this evidence.
12 When a weapon is otherwise relevant to the crime’s commission, but is not the
actual murder weapon, it may also be admissible. (People v. Cox, supra, 30 Cal.4th at
pp. 956-957.) Here, the People did not contend the knives were admissible for such
purposes.
24
bedroom and car. (Id. at p. 196.) An expert testified that many types of knives could
have caused the fatal neck wound, which was not unique or distinctive, and any of the
four cutting devices could have been the murder weapon. The defendant subsequently
admitted he killed the victim with a Swiss Army knife. (Id. at p. 197.) As here, the
defendant argued that because none of the other four cutting devices could definitively be
identified as the murder weapon, the evidence was irrelevant and prejudicial under
Evidence Code section 352, and its admission violated his rights to due process and a
fundamentally fair trial. (People v. Mills, supra, at p. 196.) Our Supreme Court
disagreed, explaining: “Because defendant was accused of killing the victim by cutting
her throat and shortly after the crime was found in possession of several cutting devices,
any one of which could have been the murder weapon, the trial court acted within its
discretion in finding the evidence to be relevant. [Citation.] Moreover, as it was made
clear to the jury that a forensic analysis could not definitively identify any of the four
devices as the murder weapon, the court did not abuse its discretion in finding the
evidence to be more probative than prejudicial. [Citation.]” (Id. at p. 197.)
The same is true here. The evidence showed any one of the three knives could
have been the murder weapon. Admissibility did not hinge on conclusive proof the
weapons were actually used to commit the murder. (People v. Riser, supra, 47 Cal.2d at
p. 577.) Evidence Villalobos possessed knives that might have been the murder weapon
was relevant and admissible circumstantial evidence that he committed the crime. The
People did not offer the knives to show Villalobos was the sort of person who collected
deadly weapons and therefore had a propensity to commit the crime. Admission of the
evidence the knives were found in his closet, and Kowal’s testimony that Giles’s wounds
could have been made by the knives, was therefore proper. (See also, e.g., People v.
Homick, supra, 55 Cal.4th at pp. 876-877; People v. Cox, supra, 30 Cal.4th at p. 956;
People v. De La Plane (1979) 88 Cal. App. 3d 223, 239.)13
13 The federal authorities cited by Villalobos are distinguishable. In McKinney v.
Rees (9th Cir. 1993) 993 F.2d 1378, the trial court admitted evidence the defendant had
sometimes worn a knife on his clothing before the murder, and had once owned a knife
25
Villalobos further argues that even if the knife evidence was admissible, it should
have been excluded under Evidence Code section 352 as more prejudicial than probative.
He complains that the knife itself, in addition to photographs, was shown to the jury;
Emerson demonstrated how the knife “could be efficiently used to kill the victim,” a
highly inflammatory display; and during closing argument the prosecutor referred to the
knife as a “killing knife,” although the trial court had ordered her not to describe the knife
this way when examining Emerson. None of these arguments establish prejudice within
the meaning of Evidence Code section 352. That Villalobos was in possession of
fighting knives that might have been the murder weapon soon after the killing was highly
probative evidence. We fail to see how the display of the knife itself, as opposed to a
photograph, was inflammatory or prejudicial. Emerson did not demonstrate how the
knife could be used to kill another person, as Villalobos suggests. Emerson did briefly
demonstrate the “hammer grip” to illustrate that the knife’s design concentrated force to
the point. He also briefly demonstrated the direction and motion necessary to have
caused the slight damage to the used knife. But Emerson never purported to demonstrate
the knife’s’ killing capabilities. Even assuming arguendo that the prosecutor erred by
referring to the knife as a “killing knife” during argument, we discern no possible
prejudice. The People’s theory was that the used Ka-Bar knife was, in fact, used to kill
the victim, and the evidence showed the knife was used by the military in combat
situations. While the evidence was no doubt unfavorable for the defense,
“ ‘ “[p]rejudice” in the context of Evidence Code section 352 is not synonymous with
“damaging”: it refers to evidence that poses an intolerable risk to the fairness of the
that was indisputably no longer in his possession at the time of the murder. The Ninth
Circuit concluded this evidence was irrelevant and impermissible character evidence.
(Id. at pp. 1382-1384.) In Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, the court
held it was error to admit evidence the defendant’s mother owned two unused sets of
cutlery, which were not found in the defendant’s direct possession, were not purchased
by the defendant, and differed in many material respects from the knife found at the
murder scene. (Id. at p. 887.) Here, in contrast to these cases, Villalobos was found in
possession of three knives shortly after the murder, any of which could have been the
murder weapon.
26
proceedings or reliability of the outcome.” ’ ” (People v. Duff (2014) 58 Cal. 4th 527,
564; People v. Scott (2011) 52 Cal. 4th 452, 491.)14
3. Cumulative error
Villalobos contends that the cumulative effect of the purported errors deprived
him of due process and a fair trial. As we have “ ‘either rejected on the merits
defendant’s claims of error or have found any assumed errors to be nonprejudicial,’ ” we
reach the same conclusion with respect to the cumulative effect of any purported errors.
(People v. Cole (2004) 33 Cal. 4th 1158, 1235-1236; People v. Butler (2009) 46 Cal. 4th
847, 885.)
14 In light of our conclusion that the trial court did not err, we need not reach the
parties’ arguments regarding whether admission of the knife evidence was prejudicial.
27
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, Acting P. J.
We concur:
LAVIN, J.
HOGUE, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
28