Filed 10/23/14 P. v. Huerta CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066497
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF136504A)
                   v.

ARTURO HUERTA,                                                                           OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Cory J.
Woodward, Judge.
         Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max
Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
                                          -ooOoo-
                                    INTRODUCTION
       On April 17, 2011, appellant was arrested after Acamea Coy was found murdered
in appellant’s bedroom. Appellant was charged with first degree murder (Pen. Code,
§ 187, subd. (a)), and an enhancement alleging the use of a deadly weapon was included
(§ 12022, subd. (b)(1)). Following a jury trial, appellant was found guilty of the lesser
included offense of second degree murder, and the enhancement was found to be true.
Appellant was sentenced to an aggregate term of 16 years to life in prison.
       On appeal, appellant argues that (1) there was insufficient evidence to establish
that the victim’s death was caused by the appellant’s actions; (2) there was insufficient
evidence to establish that appellant acted with express or implied malice; (3) the trial
court abused its discretion by precluding appellant from cross-examining the substitute
pathologist about the original pathologist’s autopsy conclusions; (4) the trial court abused
its discretion by finding evidence of the substitute pathologist’s professional habits
inadmissible; and (5) the cumulative effect of the alleged errors warrants reversal of
appellant’s conviction. None of these arguments is persuasive, and the judgment will be
affirmed.
                                          FACTS
       Appellant rented a bedroom from Velia Alvarez. On April 17, 2011, Alvarez
heard the sounds of an argument coming from appellant’s room, and heard a woman’s
voice yelling “[N]o, no, Arturo, please. I moved with my daughter to 2nd Street.”
Alvarez then heard the sound of glass breaking and items being thrown around the room
and called the police.
       When police arrived at the scene, they observed appellant pacing inside his room
and evidence of blood on the rear door. The officers then entered the residence from the
front and rear entrances, and found appellant standing motionless in the kitchen, covered



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in blood, and the body of Acamea Coy in appellant’s bedroom. Coy’s arms were tied
with a necktie, and a scarf was tied around her face. Inside the room there was broken
glass on the floor, a glass Cisco bottle, and blood on all of the walls.
       Appellant was subsequently arrested and charged with first degree murder. At
trial, the substitute pathologist, Dr. Adel Shaker, testified that he believed the victim’s
cause of death to be exsanguination due to sharp injuries. Appellant testified in his own
defense and stated that he did not intend to kill the victim, but that she had struck
appellant with a Cisco bottle, and the two had struggled and rolled in the broken glass.
He further testified that during the struggle the victim got up, ran into a wall, and fell.
       At the conclusion of trial, appellant was found guilty of second degree murder,
and was sentenced to 16 years to life in prison. This appeal followed.
                                       DISCUSSION

I.     There Was Sufficient Evidence To Establish That The Victim’s Death Was
       The Natural And Probable Consequence Of Appellant’s Actions.
       A.     Standard of Review.
       We view the record in the light most favorable to the conviction and presume the
existence of every fact in support of the conviction the trier of fact could reasonably infer
from the evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.). “Reversal is not
warranted unless it appears ‘‘‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].” [Citation.]’ [Citation.]” (People v.
Duran (2002) 97 Cal.App.4th 1448, 1457.)
       B.     Analysis
       In cases of homicide, criminal liability only attaches if the victim’s death is the
“natural and probable consequence of a defendant’s act[.]” (People v. Roberts (1992) 2
Cal.4th 271, 321.) On appeal, appellant asserts that there was insufficient evidence to
establish that the victim’s death was a natural or probable result of appellant’s actions, as



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appellant struck the victim after she broke a bottle over his head, and appellant could not
predict that the victim would then fall on the glass and die from rapid exsanguination.
       This argument, however, is based on appellant’s version of events and not on a
review of the record in the light most favorable to the conviction that presumes the
existence of every fact in support of the conviction the trier of fact could reasonably infer
from the evidence. Using the appropriate standard of review, there was evidence
presented that appellant and the victim were arguing before the victim’s death, that the
victim was overheard pleading with appellant, and that a bottle was broken during the
argument. The evidence also showed the victim was subsequently found dead from
exsanguination in a pile of broken glass, and that her hands had been tied and her eyes
blindfolded by appellant. All of this evidence, viewed in the light most favorable to the
conviction, is sufficient to establish that the victim’s injuries and exsanguination were
caused by appellant’s actions.
       Appellant also argues, however, that causation was not established at trial due to
Dr. Shaker’s testimony that it was equally compelling that the victim died due to the
combination of alcohol and cocaine that was in her bloodstream, as it was that she died
from exsanguination. While it is true that Dr. Shaker testified that he could not exclude
cocaethylene poisoning as a cause of death with medical certainty, he also testified that
he believed the victim’s death was caused by exsanguination due to sharp injuries, that he
assigned a high probability to that causation theory, and that it was the only cause of
death he listed on his report.
       Viewing this direct and circumstantial evidence in the light most favorable to the
conviction, we find there was substantial evidence to support a finding that the victim’s
death was a natural or probable result of appellant’s actions and to support appellant’s
conviction for second degree murder.




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II.    There Was Sufficient Evidence To Establish That Appellant Acted With
       Implied Malice.
       A.     Standard of Review.
       As previously set forth, the substantial evidence standard of review applies.
       B.     Analysis.
       “Second degree murder is the unlawful killing of a human being with malice
aforethought but without the additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree murder.” (People v. Knoller
(2007) 41 Cal.4th 139, 151.) “Such malice may be either express or implied.” (Pen.
Code, § 188.) “[W]hen it is proved that the defendant assaulted the victim with a deadly
weapon in a manner endangering life and resulting in death, ‘“malice is implied from
such assault in the absence of justifying or mitigating circumstances.”’ [Citation.]”
(People v. Lines (1975) 13 Cal.3d 500, 506.)
       Here, appellant argues that there was insufficient evidence to establish malice, as
hitting the victim with his hands and struggling with the victim do not constitute an
assault with a deadly weapon in a manner endangering life. In the alternative, appellant
argues that striking the victim with a bottle is also insufficient to establish implied
malice, as fatal exsanguination is not a foreseeable consequence of the infliction of
superficial wounds.
       With regard to the first claim, appellant again assumes his own version of events
rather than viewing the evidence in the light most favorable to the conviction. Given the
direct and circumstantial evidence supporting a finding that appellant struck the victim
with a bottle, the prosecution was under no obligation to show that unarmed blows
constituted an assault with a deadly weapon in a manner endangering life. Regarding the
second claim, appellant’s assertion that a glass bottle is not a deadly weapon is
contradicted by applicable case law. In People v. Cordero (1949) 92 Cal.App.2d 196,
199, the First District Court of Appeal found that a glass bottle, when used as a club, is a


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deadly weapon. Further, Dr. Shaker’s testimony established that exsanguination was a
possible consequence of superficial wounds, and that the victim in this case did in fact die
from such exsanguination.
       Therefore, viewing this direct and circumstantial evidence in the light most
favorable to the conviction, we find there was substantial evidence to support a finding
that appellant acted with malice, and to support appellant’s conviction for second degree
murder.

III.   The Trial Court Did Not Err by Precluding Appellant From Cross-
       Examining Dr. Shaker As To The Conclusions In The Original Pathologist’s
       Autopsy Report.

       A.     Facts.
       The autopsy in the case was performed by Dr. Wallis, whose autopsy report listed
four causes of death: (1) sharp and blunt force trauma; (2) asphyxia; (3) cocaine
intoxication; and (4) sickle cell process. When Dr. Wallis was determined to be
unavailable for trial, Dr. Shaker was named as the substitute pathologist and submitted a
report stating that, based on his review of the file, the sole cause of death was
exsanguination from sharp injuries.
       Prior to trial, the prosecution filed a motion in limine seeking to prohibit Dr.
Shaker from being questioned as to Dr. Wallis’s conclusions regarding cause of death.
Following a hearing, the trial court stated that Dr. Shaker could be questioned regarding
his consideration of other causes of death, but that defense counsel would not be able to
“argue that these other causes were causes of death.”
       At trial, defense counsel asked Dr. Shaker on five occasions whether Dr. Wallis
had indicated that the sharp injuries suffered by the victim were fatal, and the trial court
sustained the prosecution’s objections to all five questions. Outside the presence of the
jury, the trial court stated that the questions were improper, as they did not concern why



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Dr. Shaker rejected the causes of death listed by Dr. Wallis, but merely sought to
introduce Dr. Wallis’s conclusions into evidence.
       B.     Standard of Review.
       The admission or exclusion of evidence is reviewed for an abuse of discretion.
(People v. Brown (2000) 77 Cal.App.4th 1324, 1337-1338.)
       C.     Analysis.
       “An expert witness may not, on direct examination, reveal the content of reports
prepared or opinions expressed by nontestifying experts.” (People v. Campos (1995) 32
Cal.App.4th 304, 308.) “[I]f an expert does rely in part upon the opinions of others, the
expert may be cross-examined as to the content of those opinions.” (Mosesian v.
Pennwalt Corporation (1987) 191 Cal.App.3d 851, 864, disapproved on another ground
in People v. Ault (2004) 33 Cal.4th 1250, 1272, fn. 15.)
       Here, while Dr. Shaker testified that he relied on Dr. Wallis’s autopsy report when
determining cause of death, it is not at all clear that he relied on Dr. Wallis’s opinion as to
cause of death when making that determination. In fact, the record reflects that Dr.
Shaker rejected three of the four causes of death included in Dr. Wallis’s autopsy report.
       Therefore, as Dr. Shaker rejected the opinion portion of Dr. Wallis’s autopsy
report, the trial court did not abuse its discretion by determining that Dr. Shaker did not
rely on the opinions of Dr. Wallis, and precluding appellant from cross-examining Dr.
Shaker as to those opinions.
       Further, even if it could be established that Dr. Shaker did rely on Dr. Wallis’s
opinion with regard to cause of death, any error in the exclusion of that testimony was
harmless. The line of questioning presented by defense counsel concerned whether or not
Dr. Wallis had deemed the sharp injuries suffered by the victim to be fatal. While
defense counsel may have been asking those questions for impeachment purposes, the




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record reflects that, like Dr. Shaker, Dr. Wallis did in fact list sharp force trauma as a
cause of death in her autopsy report.
       Moreover, appellant was not prejudiced by being unable to use Dr. Wallis’s listing
of sharp force trauma as a cause of death to introduce the other causes of death found in
her report. While appellant was prohibited from introducing Dr. Wallis’s conclusions
regarding those additional causes of death, he was not prohibited from cross-examining
Dr. Shaker about those potential causes of death. Indeed, defense counsel extensively
cross-examined Dr. Shaker about the possibility of cocaethylene poisoning, which was
listed as cause of death in Dr. Wallis’s autopsy report.
       Therefore, because Dr. Shaker rejected rather than relied on Dr. Wallis’s opinion
regarding cause of death, and because any error in precluding defense counsel from
cross-examining Dr. Shaker about the contents of Dr. Wallis’s autopsy report was
harmless and non-prejudicial, appellant is not entitled to relief.

IV.    The Trial Court Did Not Err By Precluding Appellant’s Proposed Habit
       Testimony Concerning Dr. Shaker.

       A.     Facts.
       During trial, but outside the presence of the jury, the trial court held an Evidence
Code section 402 hearing regarding habit evidence offered by the defense. At the
hearing, Carley Strauss testified that she had worked with Dr. Shaker as an autopsy
assistant, and that Dr. Shaker worked faster than the other three doctors she had worked
with. She further testified that Dr. Shaker sometimes had a theory concerning the cause
of death before performing the autopsy, but that she did not know what he eventually
declared as cause of death.
       Following Strauss’s testimony, Holly Cameron testified that she had worked with
Dr. Shaker as an autopsy assistant, and that he was twice as fast as the other doctors she
had assisted. She further testified that, approximately 85 percent of the time, Dr. Shaker



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had a theory concerning cause of death before performing the autopsy, and that he
changed the initial theory approximately half of the time.
         At the conclusion of the hearing, the trial court found Strauss and Cameron’s
testimony to be inadmissible under Evidence Code section 1104 and of little probative
value.
         B.    Standard of Review.
         As noted above, the admission or exclusion of evidence is reviewed for an abuse
of discretion. (People v. Brown, supra, 77 Cal.App.4th at pp. 1337-1338.)
         C.    Analysis.
         Under Evidence Code section 1104, “[e]xcept as provided in Sections 1102 and
1103, evidence of a trait of a person’s character with respect to care or skill is
inadmissible to prove the quality of his conduct on a specified occasion.” Sections 1102
and 1103 provide exceptions relating to certain instances of conduct engaged in by the
defendant or victim in a criminal proceeding.
         Here, the testimony offered by Strauss and Cameron clearly sought to introduce
evidence of hastiness on the part of Dr. Shaker that related to his care or skill as a
pathologist, and is therefore inadmissible under Evidence Code section 1104. On appeal,
appellant attempts to circumvent that fact by asserting that the testimony is admissible
evidence of habit or custom under section 1105. That section, however, requires that the
offered evidence be “otherwise admissible[.]” As section 1104 explicitly states that
“evidence of a trait of a person’s character with respect to care or skill is inadmissible to
prove the quality of his conduct on a specified occasion” (italics added), appellant’s
argument fails on the merits.
V.       Appellant Was Not Prejudiced By Cumulative Error.
         “[A] series of trial errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial error.



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[Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 844-845.) Here, appellant argues
that the cumulative effect of the errors alleged in his brief justify reversal of his
conviction. As noted above, however, we find the alleged errors in this case were not
errors at all and therefore cannot accumulate into prejudicial and reversible error.
                                       DISPOSITION
       The judgment is affirmed.

                                                                   _____________________
                                                                         LEVY, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
PEÑA, J.




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