Filed 1/19/16 P. v. Grattan CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065292

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD239168)

SHANE GRATTAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Amalia L. Meza, Judge. Affirmed.

         Nancy J. King, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie

Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
                                               I.

                                      INTRODUCTION

       A jury found Shane Grattan guilty of first degree murder. (Pen. Code, § 187,

subd. (a).)1 The trial court sentenced Grattan to an indeterminate term of 25 years to life.

       On appeal, Grattan contends that the trial court erred in restricting his presentation

of third party culpability evidence by excluding evidence of the third party's commission

of various uncharged crimes. Grattan also contends that the trial court erred in finding a

witness to be unavailable for trial and in admitting the witness's preliminary hearing

testimony and statements to law enforcement officers, while excluding the unavailable

witness's statement to a district attorney investigator that he did not intend to testify at

trial. In addition, Grattan claims that the trial court erred in limiting his presentation of

evidence related to his good character. Grattan also maintains that the record does not

contain evidence from which a reasonable jury could find that the killing at issue was a

murder in the first degree. Finally, Grattan contends that the cumulative error doctrine

requires reversal of the judgment. We affirm the judgment.




1      All subsequent statutory references are to the Penal Code, unless otherwise
specified.
                                               2
                                             II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     The People's evidence

       1.     Grattan and the victim

       Grattan lived in his van. He frequently parked the van in a parking lot near a

marina on Harbor Drive (Harbor Drive parking lot) throughout January 2012, including

during the night and early morning hours of January 18, 2012 to January 19, 2012, when

the murder was committed.

       The victim, Darrin Joseph, had been using a wheelchair for several months prior

to the murder. Joseph checked into a hotel on January 4, 2012, and had paid for a room

through January 11. On January 12, Joseph did not have money to pay for a room.

       2.     The events preceding the murder

       On the evening of January 18, at approximately 8:45 p.m., David Sommers parked

his car in the Harbor Drive parking lot. Sommers saw a wheelchair next to Grattan's van

and noticed that the van doors were open. Sommers could hear voices coming from

inside the van.

       At approximately 9:00 p.m. that night, another man, Robert Foes, parked his van

in the Harbor Drive parking lot near Grattan's van, intending to sleep in his van that night.

Foes also saw the wheelchair next to Grattan's van. In addition, Foes saw a bicycle

leaning against the front of Grattan's van. As he was falling sleep at approximately 9:00

to 9:30 p.m., Foes heard two men shouting. One of the men said something about



                                              3
going back to get his ".45" and the other responded, "It better be loaded or I'll get my

.45."

        The jury also heard the preliminary hearing testimony of Charles Ketring, whom

the trial court found was legally unavailable to testify at trial. As described in detail in

part III.B., post, Ketring was sleeping in his van in the Harbor Drive parking lot on the

night of the murder. At approximately 11:00 or 11:30, Ketring was awakened by an

argument. Ketring looked out of his van and saw Grattan get into Grattan's van. Ketring

then heard banging from inside Grattan's van. (See pt. III.B., post.)

        3.    Daniel Statler's testimony

        Daniel Statler was homeless. He stayed in the marina near the Harbor Drive

parking lot and used his bicycle for transportation. One evening in January 2012, 2

Statler met Grattan at the marina. Statler helped Grattan clean up Grattan's van and

then spent the night in the van, before leaving the next morning.

        The next evening, Statler returned to Grattan's van at about 8:00 p.m. There

was another person there, a white male in his mid-50s with white or gray hair. 3

Grattan and the man told Statler that the man had just purchased Grattan's van.

Grattan left, and the man told Statler that he was sorry that he had bought the van

because he was under the impression that Statler wanted to buy it. The man had some

jewelry that he was trying to sell and asked Statler whether he knew anyone who

2       On appeal, the People contend that this was the evening prior to the murder.
Statler did not testify as to the dates on which he interacted with Grattan.
3       During a police interview, Statler identified Joseph as the other man he saw in the
van.
                                               4
would want to buy the jewelry. Statler told the man that he could possibly help the

man sell the jewelry. Grattan returned to the van and became angry. According to

Statler, Grattan thought that Statler was trying to steal his friend. Statler believed

there might be a romantic relationship between Grattan and the man. 4

       Statler stated that Grattan yelled at him and told him to " 'get the fuck' " out of

his van and to leave. Statler tried to calm Grattan down and said he did not want any

problems. Statler got on his bicycle and left the area.

       4.     The discovery of the body

       Sandra Sawler and her boyfriend, Darren Virgo, went to the marina next to the

Harbor Drive parking lot on the morning of January 19 at approximately 7:30 a.m. in

order to have coffee and go fishing. At approximately 7:40 a.m., as Sawler was

returning from getting a sweatshirt from her truck, she saw Joseph's body in some

bushes. Sawler returned to Virgo and told him that she thought she had seen a dead

body. Virgo went back to the bushes with Sawler, and the two saw Joseph's body.

       Sawler and Virgo saw Grattan's van parked nearby, and approached it. Sawler

and Virgo saw Grattan in the rear of the van. Virgo asked Grattan, " 'Hey, do you

know you're sleeping ten feet from a dead guy?' " Grattan pointed toward the bushes

where Joseph's body was, and said, " 'Over there?' " Virgo responded, " 'Yeah.' "

Grattan asked Virgo whether he had called the police, and Virgo told him that he had




4      Joseph's mother testified that Joseph was gay.
                                             5
not. Grattan said that he would call the police. Grattan then asked Sawler and Virgo

whether they were going to wait for the police, and they responded in the affirmative.

       Sawler and Virgo walked away from the van. Within seconds, Grattan left

his van and walked out of Sawler and Virgo's view. 5 At approximately 8:27 a.m.,

Virgo called the police.

       5.     Video evidence

       Police recovered video surveillance footage from a total of twelve video cameras

placed around the Harbor Drive parking lot and surrounding area from the night and early

morning hours of January 18 and 19th. Forensic video expert Grant Fredericks testified

concerning the images that could be seen on the surveillance videos.

       At approximately 9:18 p.m., 6 two individuals were near Grattan's van, one of

whom was on a bicycle. The cyclist rode away and was not seen again. The other

individual got into Grattan's van. At 1:05 a.m., an object, consistent with a human in a

wheelchair, moved away from the van and then returned to the van at 1:08 a.m.

       At 2:49 a.m., an individual with a blanket draped over his body, walked away

from the passenger's rear side of Grattan's van and then returned to the van. At 2:52 a.m.,



5      At trial, Sawler and Virgo both testified that after initially speaking with Grattan,
they waited for a while, and then returned to his van when no police arrived at the scene.
Sawler and Virgo also both testified that when they returned, Grattan again told them that
he would call the police, before walking away. However, video surveillance revealed
that Sawler and Virgo interacted only once with Grattan, and that Grattan walked away
within seconds of their initial encounter.
6      The parties stipulated that the time stamp from the videos was approximately one
hour ahead of the actual time. We refer to the actual time in the text, as estimated from
the time stamps on the videos.
                                             6
the same individual walked away from the passenger's side of Grattan's van to the front

of the van, and bent forward near the grille area of the van. At 3:13 a.m., an individual

walked away from the front of the van and around a nearby car. Approximately two

minutes later, that individual pushed an empty wheelchair about 200 feet away from the

van, in the parking lot. The individual then returned to the van's passenger side.

       Between 3:22 a.m. and 4:09 a.m., an individual made several trips from Grattan's

van toward some nearby washrooms and the bay, and then returned to the van. During a

couple of these trips, the individual was carrying objects, and on one occasion, at

approximately 3:41 a.m., the individual appeared to be dragging something from the van.

       At 4:18 a.m., an individual walked away from Grattan's van, stopped at a garbage

container and then walked out of view of the camera at 4:21 a.m. No activity occurred

near the van for approximately the next 50 minutes. At approximately 5:10 a.m., an

individual who appeared to be wearing the same clothing as the individual who left the

van at 4:18 went to the van.7 No further activity occurred near the van, until Sawler and

Virgo approached the van at approximately 7:50 a.m.

       6.     The victim's injuries and cause of death

       Paramedics arrived at the scene and determined that the victim, later identified as

Joseph, was dead. The medical examiner determined that Joseph died of blunt force

trauma to his head, neck and chest. As described in part III.C., post, Joseph had

numerous broken bones, bruises, and lacerations throughout his entire body.


7       Fredericks testified that the individual appeared to be wearing a "hoodie with . . .
light-area fabric underneath . . . ."
                                              7
      7.      Forensic evidence

      Drag marks and bloodstains demonstrated that Joseph had been dragged from the

van a distance of approximately 22 feet to the bushes where his body was discovered.

Police found blood and blood spatter throughout the van, as well as evidence that

someone had attempted to clean the interior of the van. A sweatshirt and a shoe found

in the van contained DNA that matched both Joseph and Grattan. Police also found

Grattan's DNA in scrapings under Joseph's fingernails. Numerous bloodstains

located in the interior of the van and items in the van contained Joseph's DNA.

      8.      Grattan's arrest

      When police arrested Grattan a few weeks after the murder, he had a newspaper

article in his backpack about the murder. The article indicated that the police were

looking for Grattan.

B.    The defense

      Two character witnesses testified that they believed that Grattan was

nonviolent.

      The defense presented evidence that Ketring had interfered with the

investigation in various ways. (See pt. III.B.1.d., post.) The defense also presented

evidence concerning the People's unsuccessful efforts to ensure that Ketring would be

available to testify at trial. In addition, the defense presented photographs of the

Harbor Drive parking lot in an attempt to demonstrate that Ketring would have been

unable to see Grattan's van, given the locations of Ketring's van and Grattan's van on

the night of the murder.

                                            8
                                            III.

                                       DISCUSSION

A.     The trial court did not err in excluding evidence of Statler's commission of various
       uncharged crimes

       Grattan claims that the trial court erred in excluding evidence of Statler's

commission of various uncharged crimes, which Grattan sought to introduce in order to

suggest that Statler was the perpetrator of the murder. Specifically, Grattan contends that

the trial court erred in excluding the evidence pursuant to Evidence Code sections 1101,

subdivision (a) and 352. We review this contention pursuant to the abuse of discretion

standard of review. (See People v. Guerra (2006) 37 Cal.4th 1067, 1113 [abuse of

discretion standard of review applies to any ruling by a trial court concerning the

admissibility of evidence].)

       Grattan also claims that the trial court's ruling excluding this evidence deprived

him of his constitutional right to present a defense. We assume for purposes of this

decision that the de novo standard of review applies in determining whether the court's

exclusion of the evidence violated Grattan's constitutional rights. (See People v. Seijas

(2005) 36 Cal.4th 291, 304 [stating "independent review 'comports with this court's usual

practice for review of mixed question determinations affecting constitutional rights' "].)

       1.     Factual and procedural background

              a.     The parties' briefing on in limine motions

       Prior to trial, the defense filed a motion in limine requesting permission to present

evidence and argument at trial suggesting that Statler had committed the murder. The


                                              9
defense argued that evidence that Statler was in Grattan's van on the night of the murder

and that an argument had occurred in Statler's presence supported the inference that he

committed the murder. The defense also argued that Statler had two possible motives to

kill the victim. First, the defense suggested that Statler might have murdered Joseph out

of anger upon learning that Joseph had purchased Grattan's van shortly after Statler had

expressed an interest in buying it. Grattan also suggested that Statler might have

murdered Joseph in the course of committing a robbery after Joseph had shown Statler

jewelry in the van earlier on the night of the murder.

       Grattan also requested permission to present evidence that Statler had committed

various crimes unrelated to the charged offense, including several batteries and numerous

instances in which Statler had threatened other people, including law enforcement

officers. Grattan summarized Statler's extensive criminal history and lodged police

reports detailing this history.8

       The People filed an opposition in which they argued that the defense should not be

permitted to present evidence of Statler's culpability for the murder because the evidence

demonstrated that Statler had left Grattan's van before the murder occurred and Statler

had no "motive or reason to kill the victim." The People also argued that evidence of

Statler's prior bad acts should be excluded pursuant to Evidence Code section 1101,

subdivision (a). In addition, the People contended that evidence of Statler's bad acts was

not admissible pursuant to Evidence Code section 1101, subdivision (b) because none of


8      In describing Statler's criminal history, the defense summarized 26 separate
incidents.
                                             10
the uncharged offenses was sufficiently similar to the charged offense. The People

further argued that any third party culpability evidence should be excluded pursuant to

Evidence Code section 352 because such evidence would produce "speculative inferences

that Mr. Statler did this brutal killing," and it would "take many weeks" to provide an

"accurate depiction of Mr. Statler's history."

                b.     The hearing on the motion and the trial court's ruling

         The trial court held a lengthy hearing regarding whether the court should permit

the defense to introduce evidence suggesting that Statler had committed the charged

crime and evidence of Statler's commission of various bad acts unrelated to the charged

crime.

         At the conclusion of the hearing, the trial court ruled that "the evidence of third-

party culpability meets the threshold of raising a reasonable doubt as to defendant's guilt

as set forth in [Hall], so the Court will allow the defense to present to the jury a third-

party culpability defense by questioning witnesses and presenting argument to the jury."

However, the court further ruled that the defense would not be permitted to present

evidence of Statler's commission of uncharged bad acts. The court reasoned:

            "With regard to the request to introduce specific instances of Statler's
            conduct as proof of his identity as [the] perpetrator of this offense,
            the Court will deny that request. In order for prior incidents to be
            admissible, they must share common features that are sufficiently
            distinctive so as to support the inference that the same person
            committed both acts. [¶] The defense says that the prior acts of Mr.
            Statler are extremely similar to this case and they represent a pattern
            of behavior, but the Court hasn't found a single prior incident
            committed by Mr. Statler that shares unusual and distinctive features
            with the acts of this case.


                                               11
            "What we have is a history of arrests and convictions for crimes, the
            most violent of which are the following: A [domestic violence] case
            where his girlfriend suffered a cut on the nose, abrasion on the throat
            and redness on the face.

            "The other most violent act was in October 2011, Statler was
            arrested for knocking a person down and then continuing to beat
            him.

            "And . . . the third is April 2012, Statler was arrested and charged
            with knocking someone to the ground and pushing his elbow into his
            neck.

            "And the last one that the Court could find that showed evidence of
            violence was September 1, 2012, where Statler was arrested for
            punching a transient and knocking him unconscious.

            "All of these prior incidents are different from what occurred in this
            case. [¶] In this case there is evidence that the victim was brutally
            beaten. There is no prior incident in Mr. Statler's background that
            comes close to the brutality of the injuries suffered by the victim in
            this case so the Court finds that the prejudicial effect of introducing
            each and every one of these prior acts will outweigh their probative
            value under [Evidence Code section] 352.

            "Furthermore, the assertion that the prior acts would show Statler
            has a propensity for violence runs counter to Evidence Code
            [section] 1101, which imposes the rule that character evidence is
            inadmissible to prove a person's conduct on a specified occasion."

       2.      Governing law

               a.     Third party culpability evidence and Evidence Code section 1101

       In People v. Hall (1986) 41 Cal.3d 826 (Hall), the California Supreme Court

"disapproved the judicially created heightened standard of relevancy for third party

culpability evidence, holding that it should be treated like any other evidence." (People

v. Davis (1995) 10 Cal.4th 463, 501 (Davis).) The Hall court explained the standard for

admitting defense evidence that a third party committed a crime, as follows:

                                              12
          "To be admissible, the third-party evidence need not show
          'substantial proof of a probability' that the third person committed
          the act; it need only be capable of raising a reasonable doubt of
          defendant's guilt. At the same time, we 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 circumstantial evidence linking the third person to the
          actual perpetration of the crime." (Hall, supra, at p. 833.)

       In Davis, the Supreme Court held that third party culpability evidence is subject to

the limitation on character evidence contained in Evidence Code section 1101,

subdivision (a).9 (Davis, supra, 10 Cal.4th at p. 501 ["Hall did not abrogate Evidence

Code section 1101 as applied to such evidence"]; see also People v. Farmer (1989) 47

Cal.3d 888, 921 ["Because specific instances of past conduct were offered to prove [third

party's] conduct on this occasion, the court properly excluded the information under

Evidence Code section 1101"].) Evidence Code section 1101, subdivision (a) provides in

relevant part, "[E]vidence 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




9      Evidence Code section 1101, subdivision (b) provides in relevant part:

          "(b) Nothing in this section prohibits the admission of evidence that
          a person committed a crime, civil wrong, or other act when relevant
          to prove some fact (such as motive, opportunity, intent, preparation,
          plan, knowledge, identity, absence of mistake or accident, or
          whether a defendant in a prosecution for an unlawful sexual act or
          attempted unlawful sexual act did not reasonably and in good faith
          believe that the victim consented) other than his or her disposition to
          commit such an act."
                                             13
or her conduct) is inadmissible when offered to prove his or her conduct on a specified

occasion." (Evid. Code, § 1101, subd. (a).)

          Evidence that a person has committed an uncharged bad act may be admissible for

purposes of proving that person's identity as the perpetrator of a charged offense under

Evidence Code section 1101, subdivision (b). However, such evidence is admissible only

when "the uncharged misconduct and the charged offense . . . share common features that

are sufficiently distinctive so as to support the inference that the same person committed

both acts." (People v. Ewoldt (1994) 7 Cal.4th 380, 403 (Ewoldt).) " 'The pattern and

characteristics of the crimes must be so unusual and distinctive as to be like a signature.' "

(Ibid.)

                b.     A defendant's constitutional right to present a defense

          In Nevada v. Jackson (2013) ___ U.S. ___ [133 S.Ct. 1990], the United States

Supreme Court stated that while a defendant has a right to present a complete defense at

trial, state evidentiary rules do not ordinarily infringe this right:

             " '[T]he Constitution guarantees criminal defendants "a meaningful
             opportunity to present a complete defense," ' [citation], but we have
             also recognized that ' "state and federal rulemakers have broad
             latitude under the Constitution to establish rules excluding evidence
             from criminal trials," ' [citation]. Only rarely have we held that the
             right to present a complete defense was violated by the exclusion of
             defense evidence under a state rule of evidence." (Id. at p. 1992.)

          Similarly the California Supreme Court has observed, "[a]lthough the complete

exclusion of evidence intended to establish an accused's defense may impair his or her

right to due process of law, the exclusion of defense evidence on a minor or subsidiary



                                               14
point does not interfere with that constitutional right." (People v. Cunningham (2001) 25

Cal.4th 926, 999.)

       3.      Application

       Grattan appears to suggest that evidence of Statler's uncharged acts was admissible

to prove that Statler, and not Grattan, was the perpetrator of the charged offense:

            "Here, the evidence showed the brutal beating that killed Joseph was
            clearly done by someone who was enraged to the point of violence.
            Statler, who admitted to being in the van with the victim within
            hours of Joseph's death, was a person who regularly became so
            enraged. Over and over, Statler threatened to kill people. He threw
            chairs and other objects at people. He beat individuals around the
            face and attempted strangulation, and on at least one occasion
            continuing the beating after the victim was unconscious."

       Evidence that Statler was a person who "regularly became . . . enraged," and

repeatedly "threatened to kill people," is character evidence that is inadmissible pursuant

to Evidence Code section 1101, subdivision (a), unless offered to prove some fact other

than Statler's predisposition to commit the charged offense. Grattan fails to point to any

evidence that Statler previously committed a crime so similar to the charged offense "so

as to support the inference that the same person committed both acts." (Ewoldt, supra, 7

Cal.4th at p. 403.) Grattan has thus failed to demonstrate that evidence of Statler's

commission of uncharged bad acts was admissible to prove Statler's identity as the

murderer pursuant to Evidence Code section 1101, subdivision (b).10 The trial court



10     In his reply brief, Grattan asserts, "If Statler were the defendant, the prosecution
would undoubtedly argue that his distinctive prior acts of violence were admissible to
show . . . his common plan to use violence to effect acts of robbery." To the extent
Grattan intends by this argument to claim that Statler's prior bad acts were admissible in
                                             15
therefore did not abuse its discretion in excluding evidence of Statler's commission of

various uncharged bad acts pursuant to Evidence Code section 1101, subdivision (a).11

        With respect to Grattan's constitutional claim, the trial court permitted Grattan to

present other third party culpability evidence (i.e. that Statler was present in Grattan's van

on the night of the murder and that he had a motive for killing the victim). The court's

proper application of Evidence Code section 1101, subdivision (a) to exclude the

uncharged act evidence did not violate Grattan's right to present a complete defense. (See

Nevada v. Jackson, supra, 133 S.Ct. at p. 1992 [" ' "state and federal rulemakers have

broad latitude under the Constitution to establish rules excluding evidence from criminal

trials" ' "].)

        Accordingly, we conclude that the trial court did not err in excluding evidence of

specific instances of Statler's conduct in order to prove that he, and not Grattan, was the

perpetrator of the murder.12




order to prove a common plan or scheme, we reject that argument. Beyond this assertion,
Grattan fails to provide any analysis of the evidence of the prior acts and whether they are
sufficiently similar to the charged offense to be admissible under this theory. (See
Ewoldt, supra, 7 Cal.4th at p. 402 [describing the nature and degree of similarity between
the uncharged and charged conduct necessary to admit evidence for purposes of proving
a common plan].) Further, Grattan did not present this argument in his opening brief or
provide any reason for raising it for the first time in reply. (See Shade Foods, Inc. v.
Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10
[" ' "points raised in the reply brief for the first time will not be considered, unless good
reason is shown for failure to present them before. . . ." ' "].)
11      In light of our conclusion that the trial court did not err in excluding the evidence
pursuant to Evidence Code section 1101, subdivision (a), we need not address Grattan's
contention that the trial court erred in also excluding the evidence pursuant to Evidence
Code section 352.
                                              16
B.     The trial court did not err in finding Ketring unavailable for trial and in admitting
       his preliminary hearing testimony in evidence; any error in admitting Ketring's
       statements to law enforcement officers and in excluding evidence that Ketring told
       an investigator that he did not intend to testify at trial was harmless

       Grattan claims that the trial court erred in determining that Ketring was legally

unavailable for trial and in admitting his preliminary hearing testimony in evidence.

Grattan also claims that the trial court erred in admitting Ketring's statements to law

enforcement officers and in excluding evidence that Ketring told an investigator with the

district attorney's office that he did not intend to testify at trial.

       1.      Factual and procedural background

               a.      Pretrial proceedings

       On October 18, 2013, approximately 10 days before the start of the trial, the

prosecutor informed the court that the People were having difficulty locating Ketring.

The prosecutor indicated that she would likely be requesting a hearing for the purpose of

demonstrating the People's due diligence in attempting to locate Ketring for trial, in order

to establish the admissibility of his preliminary hearing testimony at trial.

       Three days before the trial, the court held a hearing concerning whether the People

had exercised due diligence in attempting to locate Ketring for trial. District Attorney

12      Grattan also appears to argue that the trial court erred in excluding evidence of
Statler's prior bad acts for purposes of impeaching Statler's credibility. However, the trial
court permitted Grattan to impeach Statler with three convictions for crimes involving
moral turpitude, and Grattan fails to identify any additional specific instances of conduct
involving moral turpitude that the trial court erroneously precluded him from using for
impeachment purposes. (People v. Doolin (2009) 45 Cal.4th 390, 443 [trial courts have
"broad discretion to admit acts of moral turpitude to impeach a witness's credibility"].)
Accordingly, Grattan is not entitled to reversal of the judgment on the ground that the
court erroneously restricted his presentation of evidence intended to impeach Statler's
credibility.
                                                17
Investigator Jonathan Smith testified that he had seen Ketring at the preliminary hearing

in August 2012 and that he had spoken with him shortly after the hearing, on a couple of

occasions, for the purpose of maintaining contact with him in anticipation of trial.

Investigator Smith said that Ketring had telephoned him on September 19, 2013, at

approximately 11 p.m. According to Smith, Ketring appeared surprised when Smith

answered the phone. During the phone call, Investigator Smith told Ketring that he

wanted to serve Ketring with a subpoena to testify at trial. Ketring told Smith that it was

"too late," and hung up the phone. After that call, Smith exchanged several text messages

with Ketring during which Ketring reaffirmed that he did not intend to appear at the trial.

Smith also stated that he knew that Ketring lived in his van, but explained that he did not

know where Ketring parked his van.

       A paralegal with the district attorney's office, Doemoni Eynon, stated that she had

consulted several computer databases in an attempt to locate Ketring, including various

law enforcement databases, vehicle and driver's license registries, and a credit reporting

database. Eynon identified several post office boxes and one street address associated

with Ketring. Eynon sent letters to each of the post office boxes and to the street address

requesting that Ketring contact the district attorney's office. The district attorney's office

received no response to any of Eynon's letters.

       Mel Sosa, another investigator with the district attorney's office, testified that he

began looking for Ketring approximately three to four months before the trial. Sosa

stated that he was present in the prosecutor's office during a July 2013 telephone

conversation between the prosecutor and Ketring during which Ketring told the

                                              18
prosecutor that he was out of the country. Ketring refused to provide the prosecutor with

his location during the conversation. Investigator Sosa explained that he repeatedly left

telephone messages for Ketring in the weeks before the trial, but never received a

response. Sosa also listed Ketring as a subject in the "Officer Notification System," a

database through which investigators can request notification in the event that a subject is

contacted by law enforcement. Sosa explained that he never received any notifications

through this system regarding Ketring. Investigator Sosa also stated that he had recently

gone to an address associated with Ketring, only to find that the location was a dirt lot

and there was no sign of Ketring. Sosa also had recently gone to the location of the

murder in an attempt to find Ketring or his van, but had been unsuccessful.

       At the conclusion of the due diligence hearing, the trial court determined that the

People had carried their burden of establishing that they had undertaken reasonable

efforts to locate Ketring. The court also ruled that the People would be permitted to offer

Ketring's preliminary hearing testimony in evidence at trial. The court permitted the

parties to file briefs concerning whether the People would also be permitted to offer in

evidence two statements that Ketring made to law enforcement officers near the time of

the murder, as statements consistent with Ketring's preliminary hearing testimony, in the

wake of the defense's impeachment of Ketring at the preliminary hearing.

       The People filed a brief in which they requested permission to offer evidence that

Ketring had made statements to law enforcement officers that were consistent with his

preliminary hearing testimony, pursuant to Evidence Code sections 1236 and 791. The

People contended that the statements in question were admissible as prior consistent

                                             19
statements because the defense had impeached Ketring at the preliminary hearing by

asking him questions concerning whether he had called the district attorney's office

during the course of the investigation and falsely represented that he was an attorney.

       Grattan filed a brief opposing admission of the statements, arguing that "at most,

the defense implied a general tendency to fabricate," during cross-examination of Ketring

at the preliminary hearing. The defense argued further that it had not suggested during

cross-examination of Ketring that he had a "specific motive" to fabricate and, therefore,

the People could not demonstrate that Ketring's statements to law enforcement officers

had been made before the motive to fabricate arose, as is required in order for a statement

to be admissible as a prior consistent statement pursuant to Evidence Code section 791,

subdivision (b).

       The trial court held a hearing during which the prosecutor and defense counsel

reiterated their arguments pertaining to the admissibility of Ketring's statements to law

enforcement officers. After hearing counsel's arguments, the court ruled that Ketring's

statements were admissible. The court reasoned that defense counsel had "broadly

impeached" Ketring at the preliminary hearing concerning his alleged misrepresentations

to the district attorney's office, and that Ketring's statements to law enforcement officers

had been made before Ketring made the false representations.

              b.     Ketring's preliminary hearing testimony

       At trial, Ketring's preliminary hearing testimony was read to the jury. Ketring

stated that for several months before the murder, he had been sleeping in his van, which

he had parked in the Harbor Drive parking lot. On January 18, 2012, Ketring went to

                                             20
sleep at approximately 8:30 or 9:00 p.m. At approximately 11:00 to 11:30, Ketring was

awakened by the sound of yelling. Ketring heard someone say, " '[F]uck you. I'll kick

your ass. You better—better roll my shit back. You better roll it back.' " Ketring did not

hear anyone respond to this yelling, which was coming from the area of Grattan's van.

       Ketring looked out of his van and saw Grattan walking toward Grattan's van.

Grattan got into the van through the passenger side "cargo" door and shut the door.

Immediately thereafter, Ketring heard a banging sound emanating from inside the van.

The banging sounds continued for about twenty minutes. Ketring then heard a tapping

sound, then more "[r]andom banging."

       Ketring was awakened again at approximately 5:00 to 5:30 the following morning

by the sound of "[someone] . . . hitting the sheet metal of [Grattan's] van with a hammer."

Approximately fifteen or twenty minutes later, Ketring heard the side doors to Grattan's

van open and close. Ketring then heard the "engine cranking over and over," as if

someone were attempting to start the van.

       During cross-examination, defense counsel asked Ketring whether he had placed

telephone calls to various individuals associated with the murder investigation and

misrepresented his identity during those calls. For example, counsel asked whether

Ketring had ever contacted the district attorney's office and stated that he was a family

member of the victim. Ketring denied ever having done so. Defense counsel also asked

whether a police sergeant had instructed Ketring not to interfere with the investigation.

Ketring responded, "He had mentioned something."



                                             21
             c.     Ketring's statements to law enforcement officers

      During the trial, the People played a portion of an audio recording of San Diego

Police Detective Rob Newquist's interview of Ketring that was conducted a few hours

after police discovered Joseph's body. During the interview, Ketring described, in a

manner consistent with his preliminary hearing testimony, having been awakened the

previous night by the sound of yelling and then seeing Grattan get into Grattan's van and

hearing banging sounds coming from the van. In addition, as he testified at the

preliminary hearing, Ketring told the detective that he heard more banging coming from

the van the following morning at around 5:00 or 5:30 a.m.

      A second police detective briefly testified that Ketring had made similar

statements to him during a February 8, 2012 interview.

             d.     Evidence implicating Ketring in misrepresenting his identity in
                    telephone calls to the district attorney's office

      The following two stipulations were read to the jury:

          "[O]n February 10, 2012,[13] Olivia Colon, an employee of the San
          Diego County District Attorney's Office received a phone call from
          an individual identifying himself as Dan Miller. The individual
          requested to speak with the prosecutor and believed the case against
          the defendant had been undercharged. The individual indicated he
          knew about the murder and believed the victim had been kidnapped,
          tortured and raped. The individual who identified himself as Dan
          Miller was calling from a phone number . . . which was assigned to
          Charles Ketring.

          "[O]n February 10, 2012, Nancy Dodd, an investigator at the District
          Attorney's Office, received a telephone call from a male caller who
          identified himself as Dan Miller. He was upset and would not leave


13    February 10, 2012 was approximately three weeks after the murder.
                                           22
             a voice mail. He said that he was the victim's brother-in-law and
             that the victim had been tortured, befriended [sic] and that the whole
             case started as a kidnapping."

          The defense presented evidence that, in the weeks after the murder, Ketring

telephoned various officials involved in the murder investigation and misrepresented his

identity during these calls. The defense also presented evidence that a police detective

received information that Ketring had told harbor police officials that he was immune

from receiving parking violations based on his status as a witness in this case, and that

the detective twice admonished Ketring not to interfere with the activities of the harbor

police.

                 e.     The trial court's exclusion of evidence that Ketring told an
                        investigator that he did not intend to testify at trial

          At trial, the defense filed a motion requesting permission to present evidence to

impeach Ketring's credibility. In particular, the defense stated that it wanted to present

evidence that Ketring had told an investigator with the district attorney's office that he did

not intend to testify at trial, as well as evidence that Ketring had not returned telephone

calls or letters from the district attorney's office attempting to locate him for trial.

          The People filed an opposition in which they acknowledged that evidence that the

People had been unsuccessful in locating Ketring for trial was relevant, but contended

that Ketring's statement to a district attorney investigator that Ketring did not intend to

testify was inadmissible hearsay. The People also argued that evidence that Ketring was

"unreliable" was inadmissible, because "[w]hether someone is 'unreliable' is not a

character trait for [honesty] or veracity."


                                               23
       At trial, the defense called Investigator Smith to testify concerning his efforts to

locate Ketring for trial. Defense counsel asked Smith, "And what did Mr. Ketring tell

you about coming to testify to the trial?" At this point, the prosecutor raised a hearsay

objection. The defense requested a side bar conference, which the court granted.14

During the side bar conference, the defense explained that the testimony was "not being

offered for the truth of the matter . . . it's being offered to show [Ketring] is unreliable."

       The prosecutor argued that "[u]nreliable is not a character trait for honesty and

truthfulness, and [Ketring's statement is] hearsay."

       The court sustained the prosecutor's hearsay objection.

       2.     The trial court did not err in finding Ketring unavailable for trial and in
              admitting his preliminary hearing testimony in evidence

              a.      Governing law and standard of review

       "A criminal defendant has the right, guaranteed by the confrontation clauses of

both the federal and state Constitutions, to confront the prosecution's witnesses. (U.S.

Const., 6th Amend.; Cal. Const., art. I, § 15.)" (People v. Herrera (2010) 49 Cal.4th 613,

620 (Herrera).) "Although important, the constitutional right of confrontation is not

absolute. [Citation.] 'Traditionally, there has been "an exception to the confrontation

requirement where a witness is unavailable and has given testimony at previous judicial

proceedings against the same defendant [and] which was subject to cross-

examination . . . ." [Citation.]' [Citation.] Pursuant to this exception, the preliminary



14    The record does not indicate that the trial court had previously addressed the
defense's written motion to admit the evidence.
                                               24
hearing testimony of an unavailable witness may be admitted at trial without violating a

defendant's confrontation right." (Id. at p. 621.)

       Evidence Code section 1291, subdivision (a)(2) codifies the exception and

provides that "former testimony," such as preliminary hearing testimony, is not made

inadmissible by the hearsay rule if "the declarant is unavailable as a witness," (italics

added) and "[t]he party against whom the former testimony is offered was a party to the

action or proceeding in which the testimony was given and had the right and opportunity

to cross-examine the declarant with an interest and motive similar to that which he has at

the hearing." (Ibid.)

       The Herrera court summarized the law governing whether a witness is

unavailable for purposes of the federal constitutional law, as follows:

          "A witness who is absent from a trial is not 'unavailable' in the
          constitutional sense unless the prosecution has made a 'good faith
          effort' to obtain the witness's presence at the trial. [Citation.] The
          United States Supreme Court has described the good faith
          requirement this way: 'The law does not require the doing of a futile
          act. Thus, if no possibility of procuring the witness exists (as, for
          example, the witness' intervening death), "good faith" demands
          nothing of the prosecution. But if there is a possibility, albeit
          remote, that affirmative measures might produce the declarant, the
          obligation of good faith may demand their effectuation. 'The lengths
          to which the prosecution must go to produce a witness . . . is a
          question of reasonableness." [Citation.] The ultimate question is
          whether the witness is unavailable despite good-faith efforts
          undertaken prior to trial to locate and present that witness.' "
          (Herrera, supra, 49 Cal.4th at p. 622.)

       The Herrera court explained that determining whether a witness is unavailable

under California law is similar:



                                             25
           "Our Evidence Code features a similar requirement for establishing a
           witness's unavailability. Under [Evidence Code] section 240,
           subdivision (a)(5) (section 240(a)(5)), a witness is unavailable when
           he or she is '[a]bsent from the hearing and the proponent of his or her
           statement has exercised reasonable diligence but has been unable to
           procure his or her attendance by the court's process.' (Italics added.)
           The term '[r]easonable diligence, often called "due diligence" in case
           law, " 'connotes persevering application, untiring efforts in good
           earnest, efforts of a substantial character.' " ' [Citation.]
           Considerations relevant to the due diligence inquiry 'include the
           timeliness of the search, the importance of the proffered testimony,
           and whether leads of the witness's possible location were
           competently explored.' [Citations.] In this regard, 'California law
           and federal constitutional requirements are the same.' " (Herrera,
           supra, 49 Cal.4th at p. 622.)

       "[A]ppellate courts should independently review a trial court's determination that

the prosecution's failed efforts to locate an absent witness are sufficient to justify an

exception to the defendant's constitutionally guaranteed right of confrontation at trial."

(People v. Cromer (2001) 24 Cal.4th 889, 901.)

              b.      Application

       As discussed above, the People presented considerable evidence concerning their

efforts to locate Ketring, including making numerous telephone calls, consulting various

databases, and investigating possible leads concerning his whereabouts. Further, the

People's search was timely, in that Investigator Sosa began searching for Ketring several

months prior to the trial. Thus, several factors relevant to the due diligence inquiry

support the trial court's finding that the People exercised reasonable diligence in

attempting to locate Ketring. (See Herrera, supra, 49 Cal.4th at p. 622 [listing

considerations relevant to due diligence inquiry].) Further, Ketring's testimony was



                                              26
corroborated by the testimony of other witnesses as well as by physical evidence linking

Grattan to the crime.

       Grattan contends that Ketring's homelessness and his "erratic and bizarre behavior

in inserting himself into the investigation," foretold his likely unavailability and therefore

required that the People undertake "effort[s] to prevent Ketring's disappearance" such as

invoking the material witness provisions of section 1332.15 Ketring's homelessness

clearly did not constitute "good cause" to demand security for his appearance under

section 1332, and Ketring's behavior in inserting himself into the investigation suggested,

if anything, that he was interested in the case and would appear at future proceedings.

       Grattan contends that the People could have employed various additional

investigative techniques such as conducting surveillance of various post office boxes

associated with Keating in an effort to locate him. However, " '[w]here the record

reveals, . . . that sustained and substantial good faith efforts were undertaken, the


15     Section 1332 provides in relevant part:

          "(a) [W]hen the court is satisfied, by proof on oath, that there is good
          cause to believe that any material witness for the prosecution or
          defense . . . will not appear and testify unless security is required, at
          any proceeding in connection with any criminal prosecution . . . the
          court may order the witness to enter into a written undertaking to the
          effect that he or she will appear and testify at the time and place
          ordered by the court or that he or she will forfeit an amount the court
          deems proper.

          "(b) If the witness required to enter into an undertaking to appear
          and testify, either with or without sureties, refuses compliance with
          the order for that purpose, the court may commit the witness, if an
          adult, to the custody of the sheriff . . . until the witness complies or is
          legally discharged."
                                              27
defendant's ability to suggest additional steps (usually, as here, with the benefit of

hindsight) does not automatically render the prosecution's efforts "unreasonable." ' "

(People v. Diaz (2002) 95 Cal.App.4th 695, 706.)

       Accordingly, we conclude that the trial court did not err in determining that

Ketring was legally unavailable for trial and in admitting his preliminary hearing

testimony in evidence.

       3.     Any error that the trial court committed in admitting Ketring's statements
              to law enforcement officers was harmless

              a.     We assume that the trial court erred in admitting in evidence
                     Ketring's statements to law enforcement officers

       We assume, for purposes of this decision, that the trial court erred in admitting

Ketring's statements to law enforcement officers as prior consistent statements pursuant

to Evidence Code sections 1236 and 791. We make this assumption for the following

reasons.

       Evidence Code section 1236 provides, "Evidence of a statement previously made

by a witness is not made inadmissible by the hearsay rule if the statement is consistent

with his testimony at the hearing and is offered in compliance with Section 791." (Italics

added.)

       Evidence Code section 1202 provides, in relevant part: "Any . . . evidence offered

to attack or support the credibility of the [hearsay] declarant is admissible if it would

have been admissible had the declarant been a witness at the hearing."

       Evidence Code section 791 permits the introduction of "[e]vidence of a statement

previously made by a witness that is consistent with his testimony at the hearing," where

                                              28
"[a]n express or implied charge has been made that his testimony at the hearing is

recently fabricated or is influenced by bias or other improper motive, and the statement

was made before the bias, motive for fabrication, or other improper motive is alleged to

have arisen." (Evid. Code, § 791, subd. (b).)

       In People v. Kopatz (2015) 61 Cal.4th 62, 84 (Kopatz), the Supreme Court held

that evidence of a declarant's prior consistent statements are not admissible at a trial

pursuant to Evidence Code sections 1236 and 791 where the declarant does not testify at

the trial. (Citing People v. Hitchings (1997) 59 Cal.App.4th 915, 922 (Hitchings).) The

Kopatz court explained that the prior consistent statements of such a declarant are "not

consistent with his 'testimony at the hearing' within the meaning of Evidence Code

section 1236." (Kopatz, supra, at p. 84, italics added.) The Kopatz court noted that prior

consistent statements of an unavailable witness may be admissible pursuant to Evidence

Code section 1202 to "support the credibility of the [hearsay] declarant," (Kopatz, supra,

at p. 85, quoting Evid. Code, § 1202) in cases in which the foundational requirements for

the introduction of the statements contained in section 791 are met.

       Grattan objected to the introduction of Ketring's prior consistent statements on the

ground that the defense had not made an "express or implied charge" (Evid. Code, § 791,

subd. (b)) at the preliminary hearing that Ketring's testimony was "influenced by bias or

other improper motive." (Ibid.) (See pt. III.B.1.a, ante.) He reiterates that objection on

appeal. In addressing the admissibility of Ketring's prior consistent statements, neither




                                             29
the People nor Grattan addressed Kopatz,16 Hitchings or Evidence Code section 1202 in

the trial court or on appeal.

       We have serious doubts as to whether the defense adequately raised an objection

to the admissibility of Ketring's statements to law enforcement officers on the ground that

Ketring had not provided "testimony at the hearing" under Evidence Code section 1236

in either the trial court or on appeal. However, we need not consider whether Grattan

forfeited this objection, nor the merits of any possible objections to the introduction of

the evidence under Evidence Code section 1236 or 1202, because we assume for

purposes of this decision that the trial court erred in admitting the statements and

conclude, for the reasons stated below, that any such error was harmless.

              b.      Standard of prejudice

       We assume further that Grattan is correct that Ketring's statements to law

enforcement officers were testimonial in nature, for purposes of determining whether the

assumed improper admission of the statements in evidence violated Grattan's federal

constitutional right to confront the witnesses against him. (See People v. Chism (2014)

58 Cal.4th 1266, 1289 [summarizing "six factors to consider in determining whether

statements made in the course of police questioning" are testimonial for purposes of

confrontation clause analysis].) Therefore, we must apply the standard of prejudice

applicable to errors implicating federal constitutional rights (Chapman v. California

(1967) 386 U.S. 18, 24 (Chapman), and consider whether the error was harmless beyond



16     Kopatz was decided after the trial in this case.
                                              30
a reasonable doubt (ibid.). (See People v. Vargas (2009) 178 Cal.App.4th 647, 662

[" 'Confrontation clause violations are subject to federal harmless-error analysis under

Chapman' "].)

              c.     Any error was harmless beyond a reasonable doubt

       In considering the potential impact of the erroneous admission of Ketring's

statements to law enforcement officers, we begin by observing that the improperly

admitted statements were not substantive evidence of Grattan's guilt different in kind

from that which the jury otherwise heard. Rather, the erroneously admitted statements

were consistent with Ketring's preliminary hearing testimony, which was subject to

Grattan's cross-examination and which we have concluded was properly admitted at trial.

(See Kopatz, supra, 61 Cal.4th at p. 87 [improperly admitted prior consistent statement of

unavailable declarant constituted harmless error where it was "entirely duplicative of

[declarant's preliminary hearing] testimony, which was subject to cross-examination"].)

       Further, as Grattan argues in his brief, Ketring's prior consistent statements were

not admitted to rehabilitate Ketring's credibility in the wake of cross-examination at the

preliminary hearing that suggested that Ketring "recently had fabricated his story."

(People v. Gurule (2002) 28 Cal.4th 557, 621 [describing basis for admissibility of prior

consistent statements under Evidence Code sections 1236, and 791, subdivision (b)].)

Rather, the defense impeached Ketring with cross-examination at the preliminary hearing

that, according to Grattan, demonstrated his "bizarre behavior . . . during the course of the

investigation." As Grattan contends in this brief, "Nothing about the consistency of the

prior statements to law enforcement was relevant to the issue of Ketring's general

                                             31
credibility as a witness." We agree that, in judging Ketring's credibility, the jury was

unlikely to attach significant weight to the fact that Ketring had made statements to law

enforcement officers that were consistent with his preliminary hearing testimony. In

short, Ketring's prior consistent statements were unlikely to have had significant

evidentiary value either as substantive evidence or to bolster Ketring's credibility.

       Grattan claims that the error in introducing Ketring's preliminary hearing

testimony and prior statements17 was prejudicial because, apart from Statler, who the

prosecutor argued was "confused," Ketring was the only person who "placed [Grattan] at

the marina where the van was during the night and /or early morning when [the victim]

was killed." We disagree.

       Even assuming that the jury would have entirely disregarded Ketring's preliminary

testimony but for the improper admission of his prior consistent statements, the People

presented other compelling evidence, entirely independent of Ketring's testimony, that

established Grattan's guilt. Sawler and Virgo testified that just hours after the murder,

Grattan was in a van that he owned, in which the murder obviously occurred. 18

When Virgo asked Grattan whether he was aware that there was a dead body

approximately 10 feet from the van, Grattan asked Virgo whether he had already




17     Although Grattan does not distinguish between Ketring's preliminary hearing
testimony and his statements to law enforcement officers in his prejudice argument, as
noted in the text, we have concluded that Ketring's preliminary hearing testimony was
properly admitted in evidence.
18     A bag found in the van contained Grattan's personal property, including a
prescription for Percocet.
                                             32
called the police. When Virgo responded that he had not, Grattan stated that he

would call the police. However, instead of calling the police, Grattan fled the scene.

       In addition, the People presented video surveillance evidence and forensic video

expert testimony from which the jury could have found that only a single individual,

other than the victim, was in the van between the time the victim was murdered and the

time Sawler and Virgo saw Grattan in the van. In addition, when police arrested

Grattan, he had an article in his backpack about the murder that stated that the police

wanted to question him in connection with the murder. A sweatshirt found in the

van had blood on it and DNA matching both Grattan and the victim. A shoe in the

van had blood on it and the DNA of both Grattan and the victim. Grattan's DNA was

found in scrapings from under the victim's fingernails.

       Accordingly, we conclude that any error in admitting Ketring's statements to law

enforcement officers was harmless beyond a reasonable doubt.

       4.     Any error that the trial court committed in excluding evidence that
              Ketring told an investigator that he did not intend to testify at trial
              was harmless

       Grattan claims that the trial court erred in excluding, on hearsay grounds, Ketring's

statement to Investigator Smith that he did not intend to testify at the trial. Grattan

contends that Ketring's statement was admissible for a nonhearsay purpose, namely, to

demonstrate Ketring's lack of reliability as a witness. We assume for purposes of this

decision that the trial court erred in excluding the statement on the ground that the

evidence was admissible for a nonhearsay purpose, namely that it constituted, as Grattan



                                              33
contends, "[e]vidence . . . of Ketring's lack of reliability." However, we conclude that the

exclusion of Ketring's statement was harmless under any standard of prejudice.

       As the People note in their brief, the jury heard a considerable amount of evidence

suggesting that Ketring was attempting to avoid testifying at trial. Investigator Smith

testified that, prior to the preliminary hearing, he spoke with Ketring over the telephone

and exchanged text messages, and also met with him in person. After Ketring testified at

the preliminary hearing, Investigator Smith was asked to locate Ketring in order to serve

him with a subpoena to testify at Grattan's trial. Smith explained that he was able to

contact Ketring by telephone, but that he had been unable to serve him with a subpoena.

Investigator Sosa also testified that he had been asked to locate Ketring because Ketring

was a witness in the case. Investigator Sosa stated that he received information

concerning an address that might be associated with Ketring, but that when he went to the

address, it was a dirt lot. Sosa also stated that he had never had any contact with Ketring.

From Smith's and Sosa's testimonies, the jury could reasonably infer that Ketring was

attempting to avoid testifying at trial. Therefore, evidence that Ketring told Smith that he

would not testify at trial was not likely to have significant probative value.19

       In addition to the unlikelihood that the jury would have reached a significantly

different impression of Ketring as a witness but for the exclusion of this statement to



19     The People also contend that the error was harmless because "testimony was
previously elicited that Ketring told [Investigator] Smith that he was not coming to
court." This argument is unpersuasive because the testimony to which the People refer
was Investigator Smith's testimony at an Evidence Code section 402 hearing conducted
outside the presence of the jury.
                                             34
Investigator Smith, the People presented compelling evidence of Grattan's guilt. (See pt.

III.B.3.c., ante.) In light of this evidence, and the marginal probative value of the

excluded evidence, any error that the trial court committed in excluding evidence that

Ketring told Investigator Smith that he did not intend to testify at trial was harmless

under any standard of prejudice.

C.      The trial court did not abuse its discretion under state law or violate Grattan's
        constitutional right to present a defense in limiting his presentation of evidence
        related to his good character

        Grattan claims that the trial court erred in limiting his presentation of evidence

related to his good character pursuant to Evidence Code sections 1101, and 1102,

subdivision (a). We review this contention under the abuse of discretion standard of

review. (See People v. Guerra, supra, 37 Cal.4th at p. 1113.)

        Grattan also claims that the trial court's ruling limiting the presentation of this

evidence amounted to a deprivation of his constitutional right to present a defense. We

assume for purposes of this decision that the de novo standard of review applies in

determining whether the court's exclusion of this evidence violated Grattan's

constitutional right to present a defense. (See People v. Seijas, supra, 36 Cal.4th at p.

304.)

        1.     Governing law

        Evidence Code section 1101, subdivision (a) provides in relevant part, "Except as

provided in . . . [Evidence Code] Section[ ] 1102 . . . 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



                                               35
evidence of specific instances of his or her conduct) is inadmissible when offered to

prove his or her conduct on a specified occasion." (Italics added.)

       Evidence Code section 1102, subdivision (a) provides, "In a criminal action,

evidence of the defendant's character or a trait of his character in the form of an opinion

or evidence of his reputation is not made inadmissible by [Evidence Code] Section 1101

if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity

with such character or trait of character."

       "Under [Evidence Code] Section 1102, the accused in a criminal case may

introduce evidence of his good character to show his innocence of the alleged crime—

provided that the character or trait of character to be shown is relevant to the charge made

against him." (Cal. Law Revision Com. com., 29B pt. 3B West's Ann. Evid. Code (2009

ed.) foll. § 1102, p. 311; see also People v. Qui Mei Lee (1975) 48 Cal.App.3d 516, 526

[stating that "[t]he character or character trait must, of course, be relevant to the offense

charged," citing Law Revision Commission comment to Evidence Code section 1102.)

       As discussed in part III.A.2, ante, ordinarily, an application of the rules of

evidence does not impermissibly violate a defendant's right to present a defense.

However, the complete exclusion of evidence intended to establish a defense may impair

the defendant's right to present a defense. (See pt. III.A.2.,ante.)

       2.     Factual and procedural background

       Prior to trial, the defense filed a motion seeking to present the testimony of various




                                              36
witnesses as to Grattan's "good character" including that he is "humble, helpful, and

peaceful," and that he had performed "numerous good deeds." The defense argued that

this evidence was admissible pursuant to Evidence Code section 1102, subdivision (a).

The People filed a motion to preclude the defense from presenting character evidence that

Grattan is "likable, kind, helpful, and nurturing," on the ground that the evidence was

irrelevant to the charged offense and was not admissible pursuant to Evidence Code

section 1102, subdivision (a).

       The court held a hearing on the motions prior to trial. The prosecutor

acknowledged that the defense should be permitted to present character witnesses to

testify as to Grattan's reputation for nonviolence. However, the prosecutor requested that

the court prohibit the defense from presenting evidence that Grattan was generous,

helpful, polite and courteous. Defense counsel argued that it should be permitted to

introduce evidence that Grattan was kind and nurturing. The court ruled that the defense

could present evidence that Grattan was peaceful and nonviolent, but that evidence that

he was kind, quiet, humble, courteous, polite, and nurturing was irrelevant and

inadmissible under Evidence Code section 1102.

       At trial, outside the presence of the jury, defense counsel renewed her request to

be permitted to present evidence that Grattan had "the character trait for helpfulness."

Counsel argued, "The People's case is that this was a tortuous, prolonged killing and the

fact that an individual[ ] [is] helpful, I believe, is in opposition to the . . . ability to

commit a tortuous murder."

                                                 37
       The trial court responded, "Well, the fact that he was helpful is not a relevant

character trait so that will not come in . . . ."

       3.       Application

       The trial court did not abuse its discretion in concluding that evidence that Grattan

was humble, helpful, likeable, courteous, polite, and nurturing was irrelevant in

determining whether he had committed the charged murder, since those traits do not

pertain to the elements of the charged offense. Therefore, the court did not abuse its

discretion in concluding that the proffered evidence was not admissible pursuant to

Evidence Code section 1102, subdivision (a). (See People v. Qui Mei Lee, supra, 48

Cal.App.3d at p. 526 [character evidence must be relevant in determining whether

defendant committed the charged crime].) Further, because the trial court properly

permitted Grattan to present evidence concerning character traits that were relevant in

determining whether he had committed the charged offense, i.e., his character for

peacefulness and nonviolence, the trial court did not impermissibly restrict Grattan's right

to present a defense. (See People v. Boyette (2002) 29 Cal.4th 381, 428 [" 'Although

completely excluding evidence of an accused's defense theoretically could rise to this

level, excluding defense evidence on a minor or subsidiary point does not impair an

accused's due process right to present a defense' "]; People v. Thornton (2007) 41 Cal.4th

391, 445 ["Excluding irrelevant evidence did not deprive defendant of his right to present

a defense"].)




                                                38
       Accordingly, we conclude that the trial court did not abuse its discretion under

state law and did not violate Grattan's constitutional right to present a defense in limiting

his presentation of evidence related to his good character.20

D.     There is sufficient evidence in the record to support the jury's finding that the
       murder was of the first degree

       Grattan contends that the record does not contain sufficient evidence from which a

reasonable jury could find that the murder was of the first degree. Specifically, Grattan

claims that there is insufficient evidence to support a finding that the killer committed a

willful, deliberate and premeditated murder or that the killer committed the murder by

means of torture.

       1.     Governing law and standard of review

              a.     Sufficiency of the evidence

       In determining the sufficiency of the evidence to support a conviction, "the

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he

court must review the whole record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence—that is, evidence which is

reasonable, credible, and of solid value—such that a reasonable trier of fact could find the



20     Grattan also appears to argue that the trial court erred in limiting his presentation
of character evidence pursuant to Evidence Code section 352. However, neither the
parties nor the trial court referred to Evidence Code section 352 in addressing this
evidence in the trial court. Thus, Grattan is not entitled to reversal on this ground.
                                             39
defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557,

578.)

               b.     First degree murder

        Section 189 provides in relevant part:

           "All murder which is perpetrated by . . . torture, or by any other kind
           of willful, deliberate, and premeditated killing . . . is murder of the
           first degree."

               c.     Willful, deliberate and premeditated murder

        In the context of first degree murder, "[t]he word 'willful' means intentional.

'[W]illfulness does not include any concept that is not contained in express malice.' "

(People v. Concha (2010) 182 Cal.App.4th 1072, 1083.) " '[P]remeditated' means

'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon

as a result of careful thought and weighing of considerations for and against the proposed

course of action.' [Citations.] The process of premeditation and deliberation does not

require any extended period of time. 'The true test is not the duration of time as much as

it is the extent of the reflection. Thoughts may follow each other with great rapidity and

cold, calculated judgment may be arrived at quickly. . . .' " (People v. Mayfield (1997) 14

Cal.4th 668, 767.)

        In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the Supreme Court

identified three categories of evidence that are relevant in proving premeditation and

deliberation: planning activity, motive, and the manner of killing. " 'However, . . .

"Anderson does not require that these factors be present in some special combination or

that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply

                                              40
intended to guide an appellate court's assessment whether the evidence supports an

inference that the killing occurred as the result of preexisting reflection rather than

unconsidered or rash impulse." ' " (People v. Steele (2002) 27 Cal.4th 1230, 1249.) For

example, where there is evidence that the defendant committed a murder over a

prolonged period of time, "the manner of killing alone" may "support[ ] a finding of

premeditation and deliberation." (People v. Shamblin (2015) 236 Cal.App.4th 1, 11

(Shamblin) [citing case law concluding that record contained sufficient evidence of

premeditation and deliberation where strangulation lasted five minutes or more].)

              d.     Murder by means of torture

       In People v. Edwards (2013) 57 Cal.4th 658 (Edwards), the Supreme Court

outlined the elements of murder by means of torture:

          "Murder by torture requires 1) an act or acts causing death that
          involve a high degree of probability of death, 2) a causal relationship
          between the torturous act and death, 3) a willful, deliberate, and
          premeditated intent to inflict extreme and prolonged pain on a
          person for the purpose of revenge, extortion, persuasion, or for any
          other sadistic purpose, and 4) commission of the act or acts with
          such intent." (Id. at pp. 715-716.)

       The Edwards court explained that "[t]he ' "finding of murder-by-torture

encompasses the totality of the brutal acts and the circumstances which led to the victim's

death. [Citations.] The acts of torture may not be segregated into their constituent

elements in order to determine whether any single act by itself caused the death; rather it

is the continuum of sadistic violence that constitutes the torture." ' [Citation.] [¶] 'The

jury may infer the intent to inflict extreme pain from the circumstances of the crime, the



                                              41
nature of the killing, and the condition of the body.' " (Edwards, supra, 57 Cal.4th at p.

716.)

        2.    Application

        The record contains evidence from which a reasonable jury could find that the

killer beat a disabled victim to death over a prolonged period of time by inflicting

injuries over nearly his entire body. The victim's injuries included a lacerated tongue,

bruising and scraping of the penis and scrotum, multiple fractured ribs on both sides of

the chest, fractured nasal bones, a fractured hyoid bone, 21 and a broken Adam's apple.

The victim had bruising, contusions and lacerations over his entire body. A medical

examiner testified that in his opinion, none of victim's injuries would have been

immediately fatal, and that his death was not rapid. This evidence is sufficient to support

a finding that the killer committed a willful, deliberate and premeditated murder. (See

Shamblin, supra, 236 Cal.App.4th at p. 11 [evidence as to "the manner of killing alone"

may "support[ ] a finding of premeditation and deliberation" where the evidence supports

finding that killing took place over prolonged period of time].)

        The same evidence also supports a finding that the murder was committed by

means of torture. Medical testimony concerning the victim's injuries constituted

evidence that the killer committed "acts causing death that involve a high degree of

probability of death," and "a causal relationship between the torturous act and death."

(Edwards, supra, 57 Cal.4th at pp. 715-716.) Moreover, evidence that the killer


21     According to a medical examiner, the hyoid bone is a "horseshoe shaped bone"
located at "the base of the tongue."
                                            42
perpetrated a savage beating of a disabled victim constitutes evidence from which the

jury could reasonably find that the killer intended to inflict extreme pain for a sadistic

purpose. (See id. at p. 716 ["evidence of an 'unusually forcible strangulation attempt'

together with other violent acts . . . [constitutes] sufficient evidence of a premeditated

intent to inflict extreme and prolonged pain"].) In particular, evidence that the killer

inflicted numerous injuries to the victim's genitals constitutes evidence of a premeditated

intent to inflict extreme and prolonged pain. (See People v. Whisenhunt (2008) 44

Cal.4th 174, 201 [concluding that evidence was sufficient to support first degree murder

by torture where defendant inflicted horrific injuries on victim including burns to "her

genital region" and stating "jury may infer the required mental state for murder by torture

from the condition of the victim's body"].)

       Accordingly, we conclude that there is sufficient evidence in the record to support

the jury's finding that the murder was of the first degree.

E.     The cumulative error doctrine does not require reversal of the judgment

       Grattan contends that the cumulative effect of the errors that he alleges requires

reversal. "Under the 'cumulative error' doctrine, errors that are individually harmless may

nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th

694, 772, fn. 32.)

       Apart from two assumed evidentiary errors that we have concluded were harmless

(see pts. III.B.3. and III.B.4., ante ), we have rejected the remainder of Grattan's claims.

We further conclude that any errors that the trial court may have committed in admitting

Ketring's statements to law enforcement officers and in excluding evidence that Ketring

                                              43
told an investigator that he did not intend to testify at trial, whether considered

individually or together, do not require reversal. Accordingly, there is no cumulative

error that requires reversal of the judgment.

                                             IV.

                                       DISPOSITION

       The judgment is affirmed.



                                                                            AARON, J.

WE CONCUR:

McDONALD, Acting P. J.

PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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