Filed 5/15/14 P. v. Peterson CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C072521

                   Plaintiff and Respondent,                                     (Super. Ct. No. 09F01628)

         v.

MICHAEL J. PETERSON,

                   Defendant and Appellant.




         The jury found defendant Michael J. Peterson guilty of first degree murder and
found true an allegation he used a deadly weapon (a knife), but not true a robbery-murder
special circumstance, and the trial court found he had two prior serious felony
convictions (both first-degree burglaries). (Pen. Code, §§ 187, subd. (a), 190.2, subd.
(a)(17); 459, 667, subd. (a); 12022, subd. (b)(1).) The trial court sentenced defendant to
prison for 25 years to life for murder, consecutive to 11 years for the enhancements, and
he timely appealed.



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       On appeal, defendant challenges two evidentiary claims. One was the admission
of his statement to a nurse a few months after the killing to the effect that he had killed
before. The other was the introduction of evidence of defendant’s relationship to White
supremacist groups. We find no prejudicial error and shall affirm the judgment.
                                           FACTS
       This was a cold case murder, solved by a DNA match.
       On November 5, 1992, police arrived at John Arana’s house, to find his body in
the bedroom, with blood in various locations in the house. The kitchen sinks were filled
with reddish water and contained items including knives, sexual lubricant, and
homosexual pornographic magazines with Nazi symbols apparently drawn on them. The
toilet had discarded bandages in it. There were no signs of forced entry.
       A friend of Arana’s testified he knew Arana sometimes combined cocaine use
with sexual behavior. Arana’s tenant, in a house behind Arana’s, reported hearing blunt
noises like something hitting the wall. Arana’s TV, VCR, answering machine, wallet,
and truck were missing. The truck was found three days later, wiped clean.
       The pathologist found 28 stab wounds, from a knife five inches long or greater,
but no hilt marks, which are typically caused when a knife with a hand guard is plunged
fully into a body. In stabbings where a knife with no hand guard is used, the assailant’s
hand can easily slip off the handle and he or she is then cut with his or her own knife. A
criminalist and a detective testified in accord. The pathologist and detective each
described defensive cuts on Arana’s hands and fingers. Arana’s own sperm was found in
his mouth and anus.
       On the evening of November 4, 1992, defendant went to a hospital emergency
room with injuries to his left wrist and a joint of his right index finger, claiming his wife
had cut him with a butcher knife.
       Marjorie Evert testified she was working as a nurse and peace officer at Deuel
Vocational Institution, a state prison, on February 13, 1993, in the hospital, where

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defendant was a patient. Some patients were psychiatric cases, but she could not recall
whether defendant in that group. Defendant became very upset and angry when told it
was not time for him to exercise, and he broke windows and said he was going to kill
Evert when he got out, adding, “You’re not the first and you won’t be the last.” She had
previously said the threat was made to staff consisting of herself and another nurse, not
necessarily herself personally. However, she took defendant’s threat seriously.
       Ultimately, a DNA match linked defendant to the crime scene.
       On January 20, 2009, Sergeant Keller and Detective Jason went to Missouri to talk
to defendant in a prison there. When asked if he knew about any Sacramento murders,
defendant said he had been a member of the “Nazi Low Riders” and witnessed two gang
murders in 1990 or 1991, which he described. One man was hit with a crowbar and put
in a refrigerator because he had molested someone’s niece, and a woman was choked for
being a “rat.” He showed Keller a “bird” tattoo on his shoulder and said it was a Nazi
Low Rider emblem. He said that in 1991, the gang kidnapped and tortured him. He
denied homosexual activity. He denied knowing Arana or anything about his killing.
       At trial, defendant testified a White man named Terry Rae Cooper, whom he met
at Loaves and Fishes--a services provider to homeless people--went with him to the
parking lot of a bar on Broadway, where they first saw Arana. Cooper suggested
defendant could “turn a trick” with Arana to get money for cocaine. After Cooper
approached Arana, he drove Cooper and defendant to Arana’s house, where defendant
fell asleep on a couch. Something woke him up, he went into the bedroom, and Cooper
told him to “get the hell out of here” or “get back” and cut defendant with a knife.
Defendant grabbed a rag to wrap his hand, ran away, and went to the emergency room,
telling the staff his wife had stabbed him. He never heard from Cooper again and did not
know about Arana’s murder. In 1993 he moved to Kansas City, where his mother lived.
       Defendant also testified that in 1991 he had been beaten and sexually tortured by
Nazi Low Riders, with whom he had associated while at the state prison in Susanville,

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after which he did not associate with them. He told Sergeant Keller that he “ran with”
that gang, but did not say that he was a member. He claimed he had not witnessed the
murders he described to Keller, he was relaying “secondhand” information to him. He
admitted he had an “iron eagle” tattoo, a picture of which was shown to the jury. He
admitted that tattoo “could be construed as a White Power Tattoo.” He also described the
SS lightning bolts as reflecting Aryan ideology and in the prison system they pertained to
White supremacy, which was the ideology of the Nazi Low Riders. Some of the symbols
added to the homosexual magazines shown at trial were Nazi symbols, except a
backwards swastika, but he denied drawing them, although he sometimes drew, and was
good at art, stating he drew “much better than that.”
       Defendant did not remember threatening Evert, but he had been having bipolar
“spikes,” and was on suicide watch at the time, during which he “said stupid things like
that all the time.” He denied being homosexual, but admitted he had engaged in oral
homosexual conduct between seven and nine years prior to 1992. When arrested on
another matter in December 1992, defendant gave a false name and did not mention the
stabbing incident. He had several convictions involving moral turpitude in California and
Missouri, including first and second degree burglaries, forgery, misdemeanor and felony
thefts, and robbery.
       In rebuttal, an experienced officer described fruitless efforts, via governmental and
private databases, to find “Terry Rae Cooper,” and he eliminated all persons named
“Terry Cooper” as not matching the gender, age, or race defendant had described. He
also identified various photographs taken of the magazines found in the sinks, depicting
men with Nazi symbols drawn on them. DNA from the scene matched Arana or
defendant, but no third parties. A photograph of defendant’s chest tattoo was admitted
into evidence.
       The People argued defendant wanted to steal from Arana and then tried to conceal
evidence of having killed him by submerging evidence in water and the toilet. Defendant

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lied about his wounds to hospital staff, and lied to Detective Keller about being in the
house. His DNA--and no one else’s--was found in the house. Cooper never existed.
Defendant was not comfortable with his homosexuality, which might be because of the
Nazi Low Riders, yet he drew Nazi symbols on the pornographic images in the
magazines and had a Nazi tattoo.
       The defense emphasized the People’s high burden of proof, and that defendant’s
DNA had not been found in the bedroom with Arana’s body, but only in other areas of
the house, and argued Arana was stabbed by Cooper, as defendant testified.
       The jury rejected the robbery-murder special circumstance, but found defendant
guilty of first degree murder with use of a knife.
                                       DISCUSSION
                                              I
                                     Evert’s Testimony
       The People moved in limine to introduce Evert’s testimony containing defendant’s
admission that he had killed before. The People emphasized the close time between the
killing (November 4-5, 1992) and the alleged threat (February 13, 1993).
       The trial court agreed the evidence was admissible, referencing its closeness in
time to the killing, and found it was substantially more probative than prejudicial, but
cautioned the prosecutor to “limit the amount of detail” surrounding the incident. After
Evert’s testimony, following another defense objection, the trial court reiterated its ruling,
finding the closeness in time of the threat to the killing was highly probative, and whether
defendant actually meant the words to be taken as true was for the jury to decide.
       On appeal, defendant contends the evidence was unduly inflammatory under state
law, and violated his right to due process. We disagree.
       A. Forfeiture
       To the extent that defendant contends the evidence violated due process, rather
than state-law evidentiary rules, the People contend the point is forfeited for lack of trial

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objection. Evidence Code section 353, subdivision (a)1 requires “timely” and “specific”
objections to evidence. “The reason for the rule is clear--failure to identify the specific
ground of objection denies the opposing party the opportunity to offer evidence to cure
the asserted defect.” (People v. Holt (1997) 15 Cal.4th 619, 666; see People v. Williams
(1997) 16 Cal.4th 153, 250 [due process claim not preserved due to lack of trial
objection].)
        But the trial court granted a request that all trial objections be deemed
“Federalized[.]” The granting of this inappropriate request muddies the record regarding
the timeliness and specificity of any of the many objections voiced during this trial;
accordingly, we shall reach the merits of defendant’s due process claim.
        B. Due Process
        As defendant concedes in his reply brief, he has preserved only the claim that the
trial court committed state law error, which had the additional legal effect of violating
due process. (People v. Partida (2005) 37 Cal.4th 428, 433-439 (Partida).) “Only if
there are no permissible inferences the jury may draw from the evidence can its
admission violate due process. Even then, the evidence must ‘be of such quality as
necessarily prevents a fair trial.’ [Citation.] Only under such circumstances can it be
inferred that the jury must have used the evidence for an improper purpose.” (Jammal v.
Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; see People v. Kelly (2007) 42 Cal.4th
763, 787; People v. Steele (2002) 27 Cal.4th 1230, 1246; cf. Partida, supra, 37 Cal.4th at
p. 439 [even if evidence should be excluded under state law, its admission “results in a
due process violation only if it makes the trial fundamentally unfair”].)




_____________________________________________________________________
1   Undesignated statutory references are to the Evidence Code.

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       Here, the evidence was admissible under state law, and because there were
permissible inferences the jury could but was not compelled to draw from it, it did not
violate due process or render defendant’s trial fundamentally unfair.
       Relevant evidence has “any tendency in reason” of proving or disproving a
material disputed fact. (§ 210.) Contrary to defendant’s view, Evert’s testimony meets
this threshold standard, because the jury could, but was not required to, construe
defendant’s statement as an admission that he killed before, and that he was referring to
Arana’s death, not merely blustering or referring to a Nazi Low Rider killing, as
defendant’s briefing speculates.
       Nor was this evidence unduly inflammatory so as to require exclusion. Section
352 provides in full: “The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.”
       “The two crucial components of section 352 are ‘discretion,’ because the trial
court's resolution of such matters is entitled to deference, and ‘undue prejudice,’ because
the ultimate object of the section 352 weighing process is a fair trial.” (People v. Harris
(1998) 60 Cal.App.4th 727, 736 (Harris).) “ ‘Prejudice’ does not mean a result which is
unfavorable, it means a result which is unfair.” (Zellerino v. Brown (1991)
235 Cal.App.3d 1097, 1109; see People v. Yu (1983) 143 Cal.App.3d 358,
377[“ ‘Prejudicial’ is not synonymous with ‘damaging.’ ”] “ ‘The prejudice which
exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or
damage to a defense that naturally flows from relevant, highly probative evidence.’
[Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a
person or cause on the basis of extraneous factors.’ ” (People v. Zapien (1993) 4 Cal.4th
929, 958.)



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       As we have pointed out: “Evidence is not inadmissible under section 352 unless
the probative value is ‘substantially’ outweighed by the probability of a ‘substantial
danger’ of undue prejudice or other statutory counterweights.” (People v. Holford (2012)
203 Cal.App.4th 155, 167.) Moreover, “Trial courts enjoy ‘broad discretion’ in deciding
whether the probability of a substantial danger of prejudice substantially outweighs
probative value. [Citations.] A trial court’s exercise of discretion ‘will not be disturbed
except on a showing the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (Id. at
pp. 167-168.)
       In determining whether uncharged act evidence will be unfairly prejudicial, we
typically consider: (1) the probative value of the evidence, (2) the comparatively
inflammatory nature of the evidence, (3) the probability of jury confusion about how to
use the evidence, (4) remoteness, and (5) consumption of trial time. (See, e.g., Harris,
supra, 60 Cal.App.4th at pp. 737-741.) We consider each of these points in turn.
       First, we note there is no challenge to the trustworthiness of the statement. (See,
e.g., People v. Cudjo (1993) 6 Cal.4th 585, 607.) Evert testified she took the threat
seriously. This made the evidence of defendant’s statement highly probative of the fact
that he had killed someone in the past.
       Second, compared to the gruesome evidence surrounding the murder itself, this
testimony was not comparatively shocking, such that it would tend to skew the jury’s
assessment of all of the other evidence of defendant’s guilt. (Cf. Harris, supra,
60 Cal.App.4th at pp. 737-738 [jury’s assessment of testimony about comparatively
minor charged conduct was skewed by evidence of brutal, speculative, and extremely
inflammatory uncharged conduct].) The threat evidence was comparatively benign.
       Third, the evidence was not confusing: Assuming the jury credited Evert, it would
either conclude defendant was boasting to frighten her, spoke out of a mental lapse, or



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was making a sincere statement that he had killed. Deciding which inference to draw
from his statement would not be difficult or confusing for the jury.
       Fourth, the prior incident, although “remote” as viewed from the time of trial, was
very close in time to the murder, as the trial court pointed out.
       Fifth, the evidence was not time-consuming, occupying less than 10 full pages of
transcript, including cross-examination.
       All of these factors militated in favor of admission of this evidence.
       We also note that the prosecutor’s argument emphasized the abundant other
evidence of defendant’s guilt, including his DNA in the house, the fact he had cuts
consistent with hurting himself while stabbing Arana, defendant’s prior record which cast
doubt on his veracity, and the apparently missing items from the victim’s house, showing
a motive to steal. Therefore this case is not one where strong evidence of a prior incident
is used by the prosecution to leverage a weak case. In short, we see no abuse of
discretion in the admission of this evidence.
       C. Harmless Error
       Moreover, given the other evidence, any error was harmless. “As a general
matter, the ‘[a]pplication of the ordinary rules of evidence’ ” does not amount to a due
process violation, “[a]ccordingly, the proper standard of review is that announced in
People v. Watson (1956) 46 Cal.2d 818, 836 [], and not the stricter beyond-a-reasonable-
doubt standard reserved for errors of constitutional dimension [citation].” (People v.
Fudge (1994) 7 Cal.4th 1075, 1102-1103 (Fudge).) In this case, the DNA matches,
defendant’s recent cuts after the killing, and lies at the hospital about how he got those
cuts, the lack of evidence that “Terry Rae Cooper” existed, and defendant’s flight to
another state all show it is not reasonably probable the result would have been different
had evidence of his statement to Evert been excluded. (See Cal. Const., art. VI, § 13;
Watson, supra, at p. 836.)



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                                             II
                               Evidence of White Supremacy
       On appeal, defendant contends the trial was rendered unfair because of admission
of evidence he was affiliated with White supremacist groups, had a swastika tattoo, and
that Nazi symbols were found drawn on the magazines found in Arana’s kitchen sink.
We disagree.
       Defendant objected to the relevance of his tattoos, and his understanding of other
White pride tattoos, and argued that references to the Aryan Brotherhood and White
power would be prejudicial. The trial court found the fact the magazines were found
submerged in the sink was highly probative, reflecting an effort to destroy evidence, and
stated defendant opened the door to the disputed evidence by testifying to crimes
committed by Nazi Low Riders, including his own beating by them. After viewing
defendant’s tattoo outside the jury’s presence, the trial court found a photograph of it
admissible, because it circumstantially linked defendant to the attempted destruction of
similar symbols drawn on the magazines.
       Defendant later objected to the admission of photographic exhibits depicting
homosexual pornography and White supremacy symbols. The trial court found sufficient
evidence linked defendant to the magazines and the attempt to destroy them, which was
probative on the issue of identity, and did not find they were unduly prejudicial.
However, the trial court suggested giving the jury only photographs of the pages of the
magazines bearing symbols, to lessen the impact. The trial court found defendant’s own
tattoo was relevant and “far outweighs any prejudicial effect,” and offered to give a
limiting instruction that defendant’s association with White supremacy groups was not to
be used to find he was a person of bad character or was predisposed to commit murder or
robbery. The court gave the instruction, and defendant does not claim it was improper.
Further, the prosecutor’s argument emphasized that the jury should not consider
defendant’s beliefs as evidence of guilt.

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       On appeal, defendant faults trial counsel for not pressing further objections,
specifically to Sergeant Keller’s testimony about defendant claiming affiliation with the
Nazi Low Riders, and in any event claims the admission of evidence of the Nazi symbols
found on the magazines and defendant’s own tattoo should have been excluded. We elect
to reach the merits of his claims, and we find them unpersuasive.
       Someone at the scene of the crime placed magazines with Nazi symbols drawn on
photographs of men contained within them in the kitchen sink, along with other items of
evidence, under water, in an arguable effort to destroy evidence.2 The fact that defendant
had some affiliation with a Nazi group, an admitted ability to draw, and a tattoo similar to
those drawn on the magazines, tended to link him to the crime scene. Defendant’s
beliefs, which were never elicited in any detail, regarding the Nazi and White power
movements, in and of themselves, were not relevant to the question of his guilt. But his
affiliations and his markings were highly probative of his presence at the murder scene,
and his participation in the murder and subsequent effort to hide evidence of the killer’s
identity in a manner highly inconsistent with that passive presence to which he testified.
Under these circumstances, the probative value of the evidence exceeded its prejudicial
effect, particularly given the limiting instruction to the jury. (See People v. Lindberg
(2008) 45 Cal.4th 1, 50.) Contrary to defendant’s view, we see no reason why the jury
would not follow this instruction as to this evidence. “ ‘In the absence of evidence to the


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2 The record shows photographs from the magazines. One is a cover picture depicting a
shirtless muscular man on with an “SS” (Schutzstaffel) lightning bolt runic symbol drawn
on his upper right arm. Another is this same picture, with the man holding what appears
to be a whip or other similarly shaped device. Another picture shows a different open-
shirted, naked and muscular man, holding what appears to be a baton, also with “SS”
bolts drawn on his upper left arm. A fourth shows a close-up view of a muscular left
arm, possibly holding a baton, showing an anticlockwise swastika. A photograph of
defendant depicts a standard Nazi party symbol, with an eagle over a swastika, near and
above his left nipple.

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contrary, the presumption [that the jury adhered to the limiting instructions] will
control.’ ” (People v. Zack (1986) 184 Cal.App.3d 409, 416.)
       Nor, as stated in part I, ante, would any error be prejudicial. Defendant was in the
house, and cut his hand in the manner consistent with a killer using the type of unguarded
knife found at the murder scene, then sought medical attention, lying to hospital staff
about how he became injured. He then fled the state, without reporting the alleged
“Terry Rae Cooper” incident. No third-party DNA was found at the scene, only
defendant’s and the victim’s DNA. In such circumstances, it is not reasonably probable
any error in the admission of this evidence caused actual prejudice. (See Fudge, supra,
7 Cal.4th at pp. 1103-1104.)
                                      DISPOSITION
       The judgment is affirmed.



                                                        DUARTE                , J.



We concur:



      HULL                  , Acting P. J.



      HOCH                  , J.




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