Filed 4/9/15 P. v. Nomesiri 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                                           NOT TO BE PUBLISHED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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C075767

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F06714)

         v.

CHINDA NOMESIRI,

                   Defendant and Appellant.




         A jury found defendant Chinda Nomesiri guilty of assault with a deadly weapon (a
shovel), and found he personally inflicted great bodily injury on September 22, 2011,
based on evidence that he hit victim Vue Cheng with a shovel numerous times after
defendant’s mother shot Cheng. The jury also found defendant guilty of discharging a
firearm in a grossly negligent manner and possessing a firearm by a felon, based on
conduct days before the shooting. (Pen. Code, §§ 245, subd. (a)(1), 246.3, 12012, subd.
(a)(1), 12022.7, subd. (a).) The trial court sentenced defendant to prison for six years
eight months, and he timely appeals.

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       Defendant first challenges the handling of the meaning of “life” and “death” as
relevant to his culpability for assault with a deadly weapon. On the particular facts of
this case, we agree that the trial court should have instructed that if Cheng were already
dead from the gunshot wound at the time defendant hit him, no assault by defendant
occurred. However, we find the error harmless for reasons we explain. We also reject
related claims of no substantial evidence and prosecutorial misconduct.
       Second, defendant challenges the admission into evidence of his pretrial
statements on two grounds, claims that are forfeited for lack of any motion to exclude the
statements on these grounds. Third, defendant contends he is not liable for restitution
based on funeral expenses. For reasons we shall explain, we remand for a hearing to
determine any relevant details of funeral and other costs. We affirm the convictions and
sentence, but vacate the restitution award and remand with directions.
                                     BACKGROUND
       Defendant’s family grew marijuana in their backyard, and there were alarms in
place to alert the family of attempted raids. On September 18 or 19, 2011, defendant, a
convicted felon, fired a .22-caliber Iver Johnson carbine rifle into the air to scare off
potential raiders (counts one and two, grossly negligent discharge and firearm possession
by a convicted felon).
       On the night of September 22, 2011, victim Cheng was among those attempting
another raid, and defendant’s mother shot Cheng in the neck.1 Defendant then bashed
Cheng repeatedly in the head with a shovel as he lay on the ground (count three, assault
with a deadly weapon with personal infliction of great bodily injury).




1  Defendant’s mother, originally a codefendant charged with involuntary manslaughter
(Pen. Code, § 192, subd. (b)), died before trial, on November 24, 2012.

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        When two officers arrived and examined Cheng, they each detected a pulse, and
one heard Cheng gasping for breath. Cheng was dead when a paramedic arrived and
examined him minutes later.
        The People’s witness, pathologist Dr. Stephany Fiore, testified the bullet wound to
the neck was fatal. Death was caused by the bullet wound, not by the blows from the
shovel, which caused a skull fracture, lacerations, and facial bruising that indicated
Cheng was still alive when struck by the shovel. Cheng could have spoken after the
gunshot, and could have lived for several minutes; a pulse detected by first responders
would signal he was still alive.
        Pathologist Dr. Judy Melinek, called to testify by the defense, agreed the gunshot
wound to the neck caused death, but opined the resulting loss of blood to the brain would
cause death within seconds. She thought “it would be unlikely to damn near impossible”
for Cheng to have made noises or talked after he was shot. On cross-examination, she
conceded it was possible that his heart may have continued to beat for several minutes,
but believed he was dead when first struck by the shovel. In her view, under California
law, the heart can still be beating, but a person can be brain dead. The bleeding did not
indicate that Cheng was alive after he was shot. She conceded “brain death” was a term
used in a hospital setting, not in the field.
        In a pretrial interrogation, partly admitted into evidence (see Part II of the
Discussion, post) defendant stated an alarm sounded just after 2 a.m., but he did not see
anybody in the yard and went back to bed.2 About an hour or so later, he heard
something and then saw two men in the yard, one cutting at a plant with a machete or
large knife, and another trying to jump the fence. Defendant screamed or yelled, and his
mother fired the gun. Defendant heard one man (Cheng) on the ground speaking Hmong,




2   The parties on appeal cite to the transcript used as an aid by the jury. We do the same

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telling his companion that he had been shot, and defendant then struck the man on the
ground repeatedly with a shovel. He hit Cheng around 10 to 20 times on his head, body,
back, and legs.
                                      DISCUSSION
                                             I
                                       Life or Death
       Defendant raises overlapping claims touching on the question whether Cheng was
alive or dead when defendant hit him. He first contends no substantial evidence shows
Cheng was alive. He adds that the trial court should have instructed the jury on the line
separating life from death, and that his trial counsel should have requested a pinpoint
instruction on the subject. Finally, he contends the prosecutor misled the jury on this
subject during part of an argument to which trial counsel failed to object. We agree with
defendant’s instructional error claim, but find the error harmless based on the arguments
given by both counsel. We find substantial evidence supports the conviction, and find the
prosecutorial misconduct claim forfeited. (See fn. 3, post.)
       A. Background
       The defense theory, beginning with opening statements to the jury, was that Cheng
was dead before he hit the ground, and therefore the charged assault was actually on a
“dead victim.” As summarized ante, the evidence conflicted on this point.
      The prosecutor argued hitting Cheng with the shovel constituted assault with a
deadly weapon, and the ensuing skull fracture constituted great bodily injury.
Referencing the “battle of the experts” in the case, the prosecutor argued Cheng was still
alive when defendant struck him with the shovel, as shown by defendant’s statements, the
testimony of the two officers, and Dr. Fiore’s testimony. The prosecutor argued that Dr.
Melinek’s testimony about brain death had no application to the facts shown by the
evidence in this particular case. The prosecutor conceded in argument to the jury that “if



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[Cheng] was dead when the blows were inflicted, there is no crime . . . . This is only a
crime if [Cheng] was still alive.”
      The defense, in reply, emphasized Dr. Melinek’s testimony. Defense counsel
argued that if Cheng died “as a result of the gunshot wound to the neck, there is no crime
committed.” He told the jury that if it concluded Cheng “was dead seconds after he was
shot, there is no crime.” In response, the prosecutor argued that “just because [Cheng]
died of the gunshot wound . . . does not mean that he was dead when [hit by the shovel].”
       B. The Law
       We accept defendant’s premise--as argued to the jury by the prosecutor and
impliedly accepted by defense counsel, as well as unopposed by the People in their
briefing on appeal--that assault with a deadly weapon cannot be committed upon a
corpse. This comports with cases holding that mayhem or sexual assaults cannot be
committed if the victim has already died. (See People v. Kraft (2000) 23 Cal.4th 978,
1058 [mayhem]; People v. Kelly (1992) 1 Cal.4th 495, 524 [rape]; People v. Huynh
(2012) 212 Cal.App.4th 285, 304-305 [oral copulation].)
       Defendant’s sub-contentions are all based on his reading of Health and Safety
Code section 7180, subdivision (a), part of the Uniform Determination of Death Act
(Act), which provides that, “An individual who has sustained either (1) irreversible
cessation of circulatory and respiratory functions, or (2) irreversible cessations of all
functions of the entire brain, including the brain stem, is dead. A determination of death
must be made in accordance with accepted medical standards.” (Stats. 1982, ch. 810, § 2,
p. 3099.) The purpose of the Act, as with other uniform laws, is “to make uniform the
law . . . among states enacting it.” (Health & Saf. Code, § 7180, subd. (b).) The goal of
this statutory scheme is to standardize “death” for purposes of facilitating organ
donations under the Uniform Anatomical Gift Act, and does not explicitly pertain to
criminal liability. (See id., § 7182.) But the People do not dispute that this statutory



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definition of death is applicable here, but instead focuses her argument on the jury’s
ability to choose one expert’s opinion over the other.3
       C. Instructional Error
       Defendant contends the trial court had a duty to instruct the jury that the law
required Cheng’s heart be pumping and brain be functioning at the time he was hit by the
shovel in order to convict defendant of assault. Alternatively, he contends trial counsel
was incompetent in failing to request a pinpoint instruction.
       We agree that the jury should have been instructed that if Cheng were already
dead from the gunshot wound at the time defendant hit him, no assault by defendant
occurred, although we do not agree with the content and form of defendant’s proposed
instructions. For purposes of this appeal, however, we shall assume the trial court erred
by giving incomplete instructions on assault with a deadly weapon, by failing to include
as an element that the People had the duty to prove Cheng was alive when struck by the
shovel. However, no prejudice resulted from the omission.
       Our Supreme Court repeatedly has held that in determining “whether the interplay
of argument with individually proper instructions produced a distorted meaning, it seems
appropriate to evaluate the remarks of both counsel to determine whether the jury
received adequate information.” (People v. Brown (1988) 45 Cal.3d 1247, 1256; see
People v. Fudge (1994) 7 Cal.4th 1075, 1111 [“such detailed argument supports our
conclusion that the error in refusing the instruction was harmless”]; cf. People v.
Champion (1995) 9 Cal.4th 879, 950 [prosecutor’s argument showed “no reasonable




3  To the extent defendant contends the prosecutor committed misconduct by assuming or
producing evidence that the “brain death” rules do not apply outside of the hospital
context, the lack of objection forfeits the contention of error. (See People v Bradford
(1997) 15 Cal.4th 1229, 1333.) In any event, as we explain post, the evidence supported
the jury’s implicit finding that Cheng was alive--even applying defendant’s definitions of
life and death--at the time he was assaulted by defendant.

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possibility that the outcome of the penalty phase was affected by the trial court’s failure
to instruct” on a given point]; People v. Beeler (1995) 9 Cal.4th 953, 983-984 [“the
prosecutor’s closing argument foreclosed any realistic possibility of the jury not believing
they had to find intent to kill”]; see also People v. Mathson (2012) 210 Cal.App.4th 1297,
1330-1331.)
       As we have described, both the prosecutor’s and defense counsel’s arguments
“foreclosed any realistic possibility of the jury not believing they had to find” (People v.
Beeler, supra, 9 Cal.4th at pp. 983-984) that Cheng was alive when struck by the shovel.
No rational jury could have been misled on this point, thus any error was harmless.
       D. Sufficiency of the Evidence
       Defendant raises the related claim that no substantial evidence supports the assault
verdict because it was not proven that Cheng was alive when assaulted.
       Evidence a body was warm when found, a foot was seen to move, and a
pathologist thought there was some bleeding which “ ‘probably’ occurred postmortem,
although it might have happened ‘perimortem,’ or around the time of death” was
sufficient to show the victim had been alive in a mayhem case. (See People v. Kraft,
supra, 23 Cal.4th at p. 1058.) And where conflicting experts disagreed about whether
penetration necessarily would have led to hemorrhaging in a perineal tear if the victim
had been alive, our Supreme Court upheld the jury’s resolution of that factual dispute.
(People v. San Nicolas (2004) 34 Cal.4th 614, 660-661.)
       During pretrial proceedings in this case, the trial court observed that “in watching
the videotape [of defendant’s interrogation], it appeared relatively clear that [defendant]
was aware that the individual who had been shot was dying, but was far from dead at the
time the shovel was being leveled on him.” The trial court denied a defense motion for
an acquittal based in part on the same reasoning, as well as the testimony of the two
officers who detected Cheng’s pulse when they arrived. The jury was presented with this
evidence, plus conflicting expert opinions, one of which opined defendant’s wounds from

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the shovel had been inflicted before his death based on the pattern of bruising and the
degree of bleeding beneath the scalp.
       Defendant’s argument on appeal in effect disregards the substantial evidence rule,
which requires us to view the evidence in the light most favorable to the verdict, to
determine if credible, solid, evidence supports the conviction. (See People v. Raley
(1992) 2 Cal.4th 870, 891; People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
Defendant’s own statements that he heard Cheng speak before he hit him (“I grabbed the
shovel and then I go over to hit that guy cause he was like. . . .he was telling his friend he
was like I’m shot or something like that. . . . And I just went in, I went in and hit him”)
belie his contention on appeal. The jury could have accepted that admission, which by
itself shows Cheng was alive (by any definition) when the assault began. Further, the
People’s expert testified the injuries were inflicted before death, and the defense expert’s
disagreement does not render the People’s evidence insufficient. Even assuming for the
sake of argument that the presence of a pulse is insufficient in and of itself to show life
for purposes of criminal law, the testimony of two officers that they felt a pulse
corroborated defendant’s own inculpatory admissions that Cheng was alive and speaking
immediately before the assault.
                                              II
                            Defendant’s Inculpatory Admissions
       Defendant contends his pretrial statements should have been suppressed because
they were involuntary and the police did not follow Miranda v. Arizona (1966) 384 U.S.
436 [16 L.Ed.2d 694].
       Defendant did not move to suppress his statements on these grounds, nor interpose
Miranda or involuntariness objections when they were introduced into evidence,
therefore he forfeited the claims. (See People v. Milner (1988) 45 Cal.4th 227, 236-237.)
       Defendant did move to exclude the statements based on the lack of an accurate
transcript. The trial court directed the parties to meet and confer about which portions of

                                              8
the interrogation were proposed for admission, and said it would review the transcript for
accuracy, and did so, making edits as appropriate. After making those changes, the trial
court denied the defense motion to exclude the statements based on an imperfect
transcript, and emphasized that the jury would be instructed that the transcripts were
merely an aid to following along with the videotape of defendant’s statements. Counsel
reached an agreement about which portions of the statement would be introduced, and the
jury was admonished that the videotape, not the transcript, was evidence.
       But defendant never suggested that his statements were involuntary or the product
of Miranda violations, and cannot raise those claims now.
       Defendant’s effort to recast the contention as one of ineffective trial counsel for
failing to object to the statements fares no better, because the record on appeal does not
demonstrate that either a Miranda or voluntariness objection would have been successful.
“ ‘[T]he mere failure to object rarely rises to a level implicating one’s constitutional right
to effective legal counsel.’ ” (People v. Mitchell (2008) 164 Cal.App.4th 442, 467.)
       The transcript shows defendant told Detective Heinlein that he was “exhausted,”
but he then answered questions for a long time, with no evident hesitation. He was
advised of his Miranda rights, described by Detective Heinlein as “a protocol that we
have to go by” but, contrary to defendant’s view, this use of the term “protocol” did not
minimize or obscure those rights. Detective Heinlein explained the right to remain silent,
the fact anything defendant said may be used against him, he had the right to an attorney
before questioning, and he had the right to appointment of an attorney free of charge
before any questioning if defendant could not afford to pay an attorney. Then defendant
freely and openly answered Detective Heinlein’s questions. Nothing suggests any
overbearing conduct leading to an involuntary admission, or violation of the dictates of
Miranda. On this record, the claim of ineffective trial counsel is baseless.




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                                              III
                                      Restitution Order
       Defendant makes three separate attacks on the restitution order, which we address
in a different order than presented in his briefing.
       Cheng’s common law wife told the probation officer she had been with Cheng for
10 years and they had three children together. She had spent $40,000 on funeral
expenses and attending counseling. The trial court awarded her $40,000 in restitution.
       Defendant, noting that California does not permit common law marriage, first
asserts Cheng’s widow had no standing to seek restitution. However, if she and Cheng
had entered into a valid common law marriage elsewhere, California would recognize
that marriage, notwithstanding California’s own prohibition on common law marriages.
(Fam. Code, § 308; see Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487,
490.) Therefore, it was incumbent on defendant to object to this portion of the probation
report, and to the widow’s statement read at sentencing, to preserve the fact-based claim
as to whether she had actually been Cheng’s wife. The failure to lodge a specific factual
objection to the contents of the probation report forfeits the contention on appeal. (See
People v. Evans (1983) 141 Cal.App.3d 1019, 1021.) Moreover, by statute, a “victim”
includes a person who sustained economic loss as a result of the crime and who either
was living in the household of the victim or had lived in the household for at least two
years in a relationship substantially similar to the relationship of spouse. (Pen. Code,
§ 1202.4, subd. (k)(3) (A), (B) & (C); see People v. Crisler (2008) 165 Cal.App.4th 1503,
1507-1508.) Defendant does not explain why a common law spouse, even if not
technically a legal spouse for other purposes in California, would not qualify as a victim
under this statute.
       Similarly, defendant’s contention the widow’s claimed figure of $40,000 was
“triple hearsay” is forfeited by his failure to interpose a hearsay objection at sentencing.
(Evid. Code, § 353, subd. (a); see People v. Suff (2014) 58 Cal.4th 1013, 1075-1076

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[failure to object promptly at penalty phase forfeits objections to evidence].) A statement
of losses in the probation report will support an award in that amount, absent a timely
challenge. (See People v. Keichler (2005) 129 Cal.App.4th 1039, 1048; Couzens,
Bigelow & Prickett, Sentencing Cal. Crimes (The Rutter Group 2013), Victim
Restitution, § 16:1.)
       Defendant’s more serious contention is that because the trial evidence clearly
proved that the shovel attack did not cause Cheng’s death, it was inappropriate to charge
him with funeral expenses. Defense counsel objected on this ground at sentencing, and
we agree with defendant in part on this point.
       Penal Code section 1202.4, subdivision (a)(1) provides for restitution for loss “as a
result of the commission of a crime.” Section 1202.4, subdivision (f) refers to restitution
for “economic loss as a result of the defendant’s conduct.” Defendant was not charged
with or convicted of any crime causing Cheng’s death, and there is no evidence that
Cheng’s death resulted from the crime of which defendant stands convicted.4 It is
possible, however, that some of Cheng’s widow’s expenses for Cheng’s burial may have
resulted from defendant’s crime. If she paid to make the body presentable for viewing,
for example, due to damage caused by the shovel, these charges resulted from
defendant’s conduct and would be properly attributed to him. Similarly, if part of the




4 There are cases involving the propriety and scope of restitution in cases of hit and run
(Veh. Code, § 20001) that turn on their facts, including whether the defendant received
probation or a prison sentence. Our Supreme Court has granted review to address some
of these issues. (People v. Martinez, review granted Sept. 10, 2014, S219970.) We will
not delve into that subject in this case, because the People did not attempt to show
defendant’s act of hitting Cheng with the shovel contributed in any way to Cheng’s death.
People v. Rubics (2006) 136 Cal.App.4th 452, on which the People rely is distinguishable
for two reasons: (1) the facts showed an accident was caused by the defendant’s unsafe
driving; and (2) the defendant was granted probation, not sent to prison as in this case.
(See id. at pp. 456-462.)

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family’s counseling was related to the disfigurement of Cheng’s body, those expenses,
too, would be compensable.
       Accordingly, we remand with directions to conduct a new restitution hearing to
identify what part, if any, of the funeral or counseling expenses were causally attributed
to defendant’s conduct in striking Cheng with a shovel after Cheng had been shot.
                                     DISPOSITION
       The judgment is affirmed, but the restitution order is vacated and the cause
remanded for a new restitution hearing consistent herewith.




                                                        DUARTE                , J.



We concur:



      BLEASE                , Acting P. J.



      BUTZ                  , J.




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