Filed 6/1/16 P. v. McCarty 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Butte)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C073563

         v.                                                                     (Super. Ct. No. CM035018)

CHRISTOPHER JAMES MCCARTY,

                   Defendant and Appellant.


         Defendant Christopher James McCarty shot his father, Michael McCarty, in the
head with a rifle, causing instantaneous death.1 He was convicted by jury of first degree
murder and found to have personally and intentionally discharged a firearm causing great
bodily injury or death. The trial court sentenced defendant to serve an indeterminate term
of 50 years to life in state prison and imposed other orders.




1      To avoid confusion, we refer to defendant’s family members by their first names
or by their relation to defendant.


                                                             1
       On appeal, defendant contends: (1) his trial counsel provided constitutionally
deficient assistance by failing to object to testimony that defendant did not deny certain
statements made by a detective to defendant, purportedly while he was being transported
to the sheriff’s office and before he was advised of his rights under Miranda v. Arizona
(1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda); (2) the trial court prejudicially erred
and violated defendant’s constitutional rights by preventing defense counsel from asking
defendant’s brother, Daniel, whether he was the one who shot their father; (3) the trial
court prejudicially erred and further violated defendant’s constitutional rights by
admitting certain out-of-court statements, made two days before the murder, indicating
defendant was behaving strangely, he was not taking his medication, and the declarant
was afraid he would hurt himself or someone else; (4) the trial court also prejudicially
erred by overruling various objections to testimony elicited from the medical examiner;
and (5) the cumulative prejudice flowing from the foregoing assertions of error requires
reversal.
       We affirm. As we explain, defendant has not carried his burden with respect to
the ineffective assistance claim raised in his opening brief, and we decline to consider a
new argument related to this claim that was raised for the first time in his reply brief.
The trial court neither erred nor violated defendant’s constitutional rights by preventing
the defense from asking Daniel whether he shot Michael because there was no direct or
circumstantial evidence linking Daniel to the murder. We do agree with defendant that
hearsay statements indicating he was acting strangely, he was not taking his medication,
and the declarant was afraid he might hurt himself or someone else were improperly
admitted, but conclude the error was harmless. Assuming certain testimony from the
medical examiner was also improperly admitted, we conclude this assumed error was
also harmless. Finally, assessing the cumulative prejudice flowing from these actual and
assumed errors, we conclude reversal is not required.



                                              2
                                           FACTS
         Because we conclude certain evidence was improperly admitted and assume other
evidence was also improperly admitted, and must therefore assess the prejudicial effect of
these actual and assumed errors, we recite the facts in some detail based solely on
evidence we conclude was properly admitted. As always, we do so in the light most
favorable to the judgment.
         In August 2011, defendant and his brother, Daniel, lived with their father,
Michael, in Magalia, a small community east of Chico. Their mother, Patricia, lived in a
trailer park a few miles away. She and Michael were divorced. Defendant and Daniel
also had a sister, Sarah, and nephew, Tyler, who sometimes stayed over at Michael’s
house.
         The morning of the murder, the only people at the house were Michael, defendant,
Daniel, and Tyler, who was six years old and sleeping on the couch when Daniel got up
and went outside to clean his truck. At some point that morning, Patricia called the house
to tell Michael she needed to borrow one of the family’s trucks. According to Patricia’s
testimony, while she was on the phone with Michael, she heard him say to someone:
“What are you doing? Where are you going with that?” Patricia claimed not to know to
whom Michael was speaking and denied overhearing an argument while she was on the
phone. However, after the murder, Patricia told a friend, Amber Stromsoe, that Michael
and defendant were arguing about defendant wanting to take a vehicle. She also told
Daniel’s girlfriend’s mother, Tanya Nogales, that Michael and defendant were arguing
about “a gun or keys or both.” During the phone call, the line went dead. Patricia
immediately called back, but no one answered. When she called a third time, Daniel
answered. While he was outside vacuuming his truck, he had a cordless house phone
near him and heard it ringing when he stopped the vacuum. Patricia told Daniel she was




                                               3
talking to Michael but was disconnected, so Daniel went inside the house to give the
phone to his father.
       Meanwhile, Tyler awoke to a “loud noise” and was immediately greeted by
defendant, who came from the hallway and was holding a rifle. Defendant took Tyler
outside the house, telling him: “Don’t go back in there.” He then put the rifle in the back
of his father’s SUV. The loud noise Tyler heard was the discharge of the rifle, a
Browning semi-automatic hunting rifle chambered to fire a .300 Winchester Magnum
rifle cartridge, a “fairly high-powered cartridge.” The rifle was fired from the hallway, at
a distance no closer than about two feet from where Michael was standing in the doorway
to his master bedroom. The round that was fired entered Michael’s skull near his right
eye at a speed of roughly 3,000 feet per second, introducing a massive pressure wave that
“exploded” his skull, sending blood, bone fragments, and brain tissue throughout the
room. While the bullet did not hit the cordless phone Michael was holding to his face
when he was shot, the force of the skull explosion also broke the phone into pieces,
disconnecting the call before Patricia could hear the rifle’s report. Michael’s body
collapsed, coming to rest partly in the bedroom and partly in the hallway.
       As mentioned, defendant immediately took Tyler outside. Daniel, after answering
the phone call from Patricia, passed defendant and Tyler on his way into the house to
give the phone to Michael. Finding his father’s body on the floor in the condition
previously described, Daniel became “hysterical.” He did not remember talking to his
mother on the phone again, but remembered going outside and asking defendant: “What
happened?” According to Patricia, Daniel told her, “something happened to Dad,”
prompting her to immediately go to her neighbor Stromsoe’s trailer and ask for a ride
over to the house. Stromsoe testified Patricia “came pounding on [her] door” and said
she needed a ride to her ex-husband’s house because he and defendant were arguing




                                             4
when “the phone scuffled and disconnected”; Patricia was “hysterical” and “very worried
that they were arguing, and needed to get there.”
       When Patricia and Stromsoe got to the house, defendant, Daniel, and Tyler were
outside. Daniel and Tyler were in front of the house, while defendant was standing by
himself, off to the side of the house. Stromsoe described defendant’s demeanor as
“emotionless.” Nogales and her daughter, Daniel’s girlfriend, also came over to the
house. Apparently, Daniel had called Nogales’s daughter and asked her to come get
Tyler. Nogales also described defendant’s demeanor as “very blank,” whereas Daniel
was “very irate and screaming his dad was dead.” At some point, Daniel grabbed
defendant and yelled: “What did you do? What happened to Dad?” A neighbor, who
had also come over to the house, pulled Daniel off of his brother. Defendant said nothing
in response to this implied accusation. According to Stromsoe, defendant “didn’t say
anything from the time [she] arrived until the police came. He was -- there was no
response, no emotion.” Patricia confirmed defendant did not say anything, even when
she tried to talk to him.2
       Stromsoe called 911 after arriving at the house. Sheriff’s deputies arrived a short
time later. Defendant was again standing “[o]ff to the side,” away from the others who
were standing in a circular formation in front of the house. He was wearing a green
jacket that was removed during a pat-down search for weapons and placed on a fence
next to where defendant was standing. Another deputy spoke to defendant, who directed
the deputy to the rifle and admitted he placed the rifle in his father’s SUV. The rifle was
loaded, but the safety was on. Another deputy made the rifle “safe” by clearing the



2      Patricia also testified defendant had been “very quiet” in the weeks leading up to
the murder and would “disappear” for four or five days at a time, which was “not like”
her son. She attributed defendant’s behavioral change to him not taking certain
unspecified medication that had been prescribed to him by a doctor.


                                             5
chamber of one unfired .300 Winchester Magnum cartridge and removing the rifle’s
magazine that had a three-cartridge capacity, but contained only two cartridges. The
rifle, magazine, and unfired cartridges were collected as evidence. An expended
cartridge of the same caliber was found on the floor in the hallway next to Michael’s
body and was also collected as evidence. Subsequent testing confirmed this cartridge
was fired by the rifle recovered from the SUV. Ten latent fingerprints were lifted from
the rifle and magazine. Eight of the fingerprints matched defendant; while the other two
were unsuitable for identification, the fingerprint analyst was able to exclude Michael,
but not defendant, as the source of the prints. Deputies searched defendant’s bedroom
and found a box of .300 Winchester Magnum cartridges in a bag under a couch in the
room. The family’s motor home was also searched. On the bed in the motor home was a
green backpack and an open rifle case that was empty. Mail addressed to defendant was
found on a counter in the motor home. The green jacket was also collected as evidence
due to the presence of what appeared to be blood stains, three of which were tested and
confirmed to be blood. Subsequent DNA testing revealed Michael’s DNA profile
matched that of the blood on the jacket.
       Defendant was taken into custody and transported to the Butte County Sheriff’s
Office in Oroville, where he was interviewed by Detective Chris Nicodemus. The details
of the ride and subsequent interview are the subject of defendant’s first contention on
appeal and will be discussed in greater detail when we address that issue below.
       Statements defendant made during four jailhouse visits were also admitted into
evidence. We discuss statements made during one of these visits in greater detail in the
discussion portion of this opinion. For present purposes, it will suffice to note that during
a visit from Daniel, Daniel told defendant he told someone, presumably from the District
Attorney’s office, he and defendant “both got hit with the bat” and defendant “never got
to go to the hospital” to “get medicine for [his] damaged brain.” Defendant responded,



                                             6
“that had nothing to do with that day.” Defendant then admitted he was in the motor
home the morning of the murder. During another visit, after an unidentified visitor
suggested defendant claim temporary insanity, defendant said he did not remember
anything that happened except “walking in and seeing [his father] on the floor,” to which
the visitor replied: “Okay. Good boy.” During a third visit, the unidentified visitor told
defendant, “I’ve been praying for you,” to which defendant responded: “The devil just
got a hold of me, I guess, you know, everywhere I go I was hearing voices . . . .” During
the final visit, the unidentified visitor told defendant he needed “to think about . . . getting
[himself] fixed,” to which defendant replied: “Well, if everyone would have been taking
care of themselves and let me do what I needed to a long time ago, then I wouldn’t be
here and this all wouldn’t have happened . . . .”
                                        DISCUSSION
                                                I
                              Ineffective Assistance of Counsel
       Defendant contends his trial counsel provided constitutionally deficient assistance
by failing to object to testimony that defendant did not deny certain statements made by
Detective Nicodemus, purportedly while defendant was being transported to the sheriff’s
office and before he was advised of his Miranda rights. As we explain, this contention is
premised on an erroneous reading of the record. Properly understood, the record does not
support the ineffective assistance claim raised in defendant’s opening brief. Anticipating
this conclusion, for the first time in his reply brief, defendant makes a different argument,
i.e., even if there was no Miranda violation, his trial counsel’s failure to object still fell
below an objective standard of reasonableness because the admission of evidence
defendant did not deny certain statements made by the detective during the interrogation
violated his right to due process under Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d
91] (Doyle). This new argument is forfeited.



                                               7
                                             A.
                                  Additional Background
       As the Attorney General points out, the record does not support the view
defendant was questioned during the drive to the sheriff’s office. Rather, he was
questioned at the sheriff’s office after receiving the required Miranda warnings and
agreeing to speak to Detective Nicodemus.
       With respect to the content of the interrogation, Detective Nicodemus testified he
“explained to [defendant] that there were three people in the home: A decedent, a six-
year-old, and himself. The decedent did not kill himself and the six-year-old did not do
that, leaving one person.” The prosecutor then asked: “Did he deny any of that?” The
detective responded: “No.”
       Defense counsel did not object to this testimony on either Miranda or Doyle
grounds.
                                             B.
                                          Analysis
       A criminal defendant has the right to the assistance of counsel under both the Sixth
Amendment to the United States Constitution and article I, section 15, of the California
Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the
defendant not to some bare assistance but rather to effective assistance. [Citations.]
Specifically, it entitles him [or her] to ‘the reasonably competent assistance of an attorney
acting as his [or her] diligent conscientious advocate.’ [Citations.]” (Ibid., quoting
United States v. DeCoster (D.C.Cir. 1973) 487 F.2d 1197, 1202.) “‘In order to
demonstrate ineffective assistance of counsel, a defendant must first show counsel’s
performance was “deficient” because his [or her] “representation fell below an objective
standard of reasonableness . . . under prevailing professional norms.” [Citations.]
Second, he [or she] must also show prejudice flowing from counsel’s performance or lack



                                             8
thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.”’” (In re Harris (1993) 5 Cal.4th 813, 832-833; Strickland v. Washington
(1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) The burden of proving a claim of
ineffective assistance of counsel is squarely upon the defendant. (People v. Camden
(1976) 16 Cal.3d 808, 816.)
       Defendant has not carried his burden. For obvious reasons, an objection under
Miranda would have been properly overruled. As mentioned, defendant was questioned
at the sheriff’s office after receiving the required Miranda warnings and agreeing to
speak to Detective Nicodemus. Thus, defense counsel was not ineffective for failing to
make such a futile objection. (People v. Linton (2013) 56 Cal.4th 1146, 1168 [“Because
there appears to have been no sound basis for counsel to have objected to the admission
of defendant’s bedroom statements on the grounds of a Miranda violation, no deficient
performance by counsel has been established”]; see also People v. Lewis (2001) 26
Cal.4th 334, 359 [“Where ‘there was no sound legal basis for objection, counsel’s failure
to object to the admission of the evidence cannot establish ineffective assistance’”].)
This conclusion disposes of the claim raised in defendant’s opening brief.
       However, for the first time in his reply brief, defendant argues, even if there was
no Miranda violation, his trial counsel was still ineffective in failing to object. This is so,
he argues, because “[d]ue process principles of fundamental fairness prohibit using post-
arrest, post-Miranda warning silence in the face of accusations leveled by agents of the
state because the warnings implicitly promise the prosecution will not do so.” We must
first determine whether this argument is cognizable on appeal.
       “As a general proposition, points raised for the first time in a reply brief will not
be considered unless good reason is shown for failure to present them earlier.” (People v.



                                              9
Whitney (2005) 129 Cal.App.4th 1287, 1298; People v. Failla (2006) 140 Cal.App.4th
1514, 1519, fn. 3.) “‘Obvious considerations of fairness in argument demand that the
appellant present all of his [or her] points in the opening brief. To withhold a point until
the closing brief would deprive the respondent of his [or her] opportunity to answer it or
require the effort and delay of an additional brief by permission. Hence, the rule is that
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. [Citations.]’ [Citation.]” (People v.
Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2.)
       Defendant has advanced no good reason for withholding this argument until the
reply brief. The argument is therefore forfeited.
       Defendant may object that he did raise the argument in the opening brief, i.e., by
making reference to the prosecutor “exploit[ing] the evidence in his summation by
pointedly characterizing [defendant’s] mere silence as an incriminating response: ‘Then
another officer talks to him and says, “Well, there was only Tyler in there with your
father and you. And that wasn’t suicide, and Tyler didn’t do it.” And [defendant] didn’t
deny that. If he didn’t do it, there’s no way in the world that he wouldn’t have told that
officer, “No, you’re wrong. I didn’t do it.”’ [Citation.] Such argument placed the onus
squarely on [defendant] to speak up and refute the accusation even though he was entitled
to say nothing at that point.” However, this reference to the prosecutor’s use of
defendant’s post-Miranda warning silence was made under the subheading, “Prejudice,”
of the main heading: “APPELLANT’S TRIAL COUNSEL PROVIDED INEFFECTIVE
REPRESENTATION BY FAILING TO OBJECT ON FIFTH AMENDMENT
GROUNDS TO EVIDENCE OF APPELLANT’S ADOPTIVE ADMISSION OF GUILT
MADE DURING THE DRIVE TO THE STATION SINCE THE OFFICER SHOULD
HAVE KNOWN HIS STATEMENT WAS REASONABLY LIKELY TO ELICIT AN
INCRIMINATING RESPONSE.” (Italics added.) The arguments presented prior to the



                                             10
above-quoted reference to the prosecutor’s argument were directed solely at establishing
a Miranda violation and ineffective assistance of counsel for failing to object on this
ground, and were made under subheadings indicating they sought to establish such a
violation and accompanying ineffective assistance. No argument preceding the
“Prejudice” subheading sought to establish a due process violation under Doyle, supra,
426 U.S. 610. Nor did any heading or subheading announce such an argument was
intended. Nor was Doyle cited at all in the opening brief. Rule 8.204 of the California
Rules of Court requires that each brief “[s]tate each point under a separate heading or
subheading summarizing the point, and support each point by argument and, if possible,
by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).)
       And while defendant may further object he did cite People v. Savala (1970) 10
Cal.App.3d 958, a pre-Doyle case holding, “the silence of a suspect under arrest in reply
to accusatory statements . . . is not admissible against him [or her] even after a previously
effective waiver of his [or her] Miranda rights” (id. at p. 962), we cannot conclude the
above-quoted reference to the prosecutor’s argument, accompanied by citation to Savala,
without any discussion of this case or any argument it provided a separate reason for
concluding trial counsel’s failure to object to the admission of the evidence fell below an
objective standard of reasonableness, amounted to “reasoned argument . . . and discussion
of legal authority” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685),
as is required to present a cognizable argument on appeal. And again, to the extent this
reference and citation may be considered an “argument,” it was not made under a
separate heading or subheading, as is required by our Rules of Court. (Cal. Rules of
Court, rule 8.204(a)(1)(B).) Instead, it was made during defendant’s discussion of
prejudice allegedly flowing from the purported Miranda violation, under the subheading
“Prejudice,” virtually guaranteeing it would remain unaddressed by the Attorney General
in the respondent’s brief.



                                             11
         Accordingly, defendant’s assertion of ineffective assistance of counsel based on
failure to object to alleged Doyle error was not properly raised until the reply brief.
(Doyle, supra, 426 U.S. 610.) Because he has not advanced any good reason for failing
to do so until then, we shall not address it.
                                                II
                    Ruling Preventing Third Party Culpability Evidence
         Defendant claims the trial court prejudicially erred and violated his constitutional
rights by preventing defense counsel from asking Daniel on cross-examination whether
he shot Michael. We disagree.
         In People v. Hall (1986) 41 Cal.3d 826 (Hall), our Supreme Court held third-party
culpability evidence is admissible if the evidence is “capable of raising a reasonable
doubt of defendant’s guilt,” clarifying that “evidence 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.” (Id. at p. 833; see also People v.
Prince (2007) 40 Cal.4th 1179, 1242; People v. Panah (2005) 35 Cal.4th 395, 481.)
“[O]nce evidence of this type has been found relevant and admissible, the [trial] court
may nonetheless exercise discretion under Evidence Code section 352 to exclude it where
its probative value is substantially outweighed by the risk of undue delay, prejudice or
confusion.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1136, citing Hall, supra, 41
Cal.3d at p. 834.) “We review a trial court’s rulings on the admission and exclusion of
evidence for abuse of discretion. [Citation.]” (People v. Chism (2014) 58 Cal.4th 1266,
1291.)
         Of course, if Daniel answered “yes” to the proposed question, that confession
would have been capable of raising a reasonable doubt as to defendant’s guilt. However,
there is another legal principle at play here: “[I]t is improper to ask questions which



                                                12
clearly suggest the existence of facts in the absence of a good faith belief that the
question would be answered in the affirmative, or a belief that the facts could be proved,
and a purpose to prove them, if their existence be denied.” (People v. Johnson (1968)
260 Cal.App.2d 343, 344; see also People v. Lomax (2010) 49 Cal.4th 530, 580 [“trial
court properly prevented counsel from asking questions that lacked a good faith basis and
invited jury speculation on claims that would not be given any evidentiary support”].)
       Here, defense counsel had no good faith basis to believe Daniel would have
confessed to shooting his father. Prior to Daniel’s testimony, defense counsel argued
defendant’s jailhouse conversation with Daniel provided such a basis. In that
conversation, as mentioned previously, Daniel told defendant he told someone,
presumably from the District Attorney’s office, he and defendant “both got hit with the
bat” and defendant “never got to go to the hospital” to “get medicine for [his] damaged
brain.” Defendant responded: “[Y]eah, that had nothing to do with that day.” Daniel
replied: “I thought that made you not yourself or something. I don’t know, it’s just all
messed up. It’s so sad, I just wanted you to get the care that you needed.” Then, after an
apparently omitted portion of the conversation, the transcript of the conversation picks up
with Daniel saying to defendant: “[T]hey’re pinning everything on you. I don’t even
know what happened. You just got Tyler out, and I don’t know, I was out vacuuming my
truck.” Defendant responded: “I was outside with you, too, remember? I was cleaning
my RV. I remember that. I saw you, you were right there. You were right there in the
driveway and I was at my RV, cleaning my RV out. You were right there in front of the
shop.” Daniel replied: “That’s what I don’t understand, they’re saying that you done it.”
       Based on this conversation, defense counsel argued to the trial court: “Daniel is
clearly putting my client outside the house when it, it happened. Aside from Tyler, the
minor; my client; and Daniel, we have no evidence of anyone else being there. And
Daniel is saying that my client was outside the house. I think it’s a fair inquiry to ask him



                                             13
if he was inside the house when that shot was fired.” The trial court responded: “Well,
that’s a different question than what was proposed. Do you have anything further?”
Defense counsel indicated he had nothing beyond Daniel’s statements purportedly
placing defendant outside the house when the fatal shot was fired. The trial court denied
defense counsel’s request to ask Daniel whether he shot his father, but allowed him to
question Daniel concerning his statements placing defendant outside with him.
       We conclude the trial court did not abuse its discretion in so ruling. Even
assuming Daniel’s statements during the jailhouse visit can be read to place defendant
outside the house when the fatal shot was fired, they also placed Daniel outside the house
at this critical time. Therefore, they did not provide any good faith basis to believe
Daniel would confess to shooting his father. Nor would Daniel’s statements in the
conversation, or any other evidence presented during the trial, provide defense counsel
with a means of proving Daniel shot Michael in the event he denied doing so. Moreover,
in light of the other evidence adduced during the trial, the jury was far more likely to
interpret the conversation between defendant and Daniel to place defendant outside the
house, in the motor home where the empty rifle case was recovered, before the murder,
i.e., before removing the rifle from that case, entering the house with it, arguing with
Michael while he was on the phone with Patricia, and then shooting Michael in the face
with the rifle before removing Tyler from the house and placing the rifle in Michael’s
SUV. Thus, far from providing a good faith basis to attempt to elicit a confession from
Daniel, the conversation provided additional circumstantial evidence of defendant’s guilt
in an already strong case.
       Nevertheless, defendant argues Daniel’s “presence as one of a very limited
number of persons who could have possibly committed the crime” and his “conduct at the
scene before police arrived,” combined with the foregoing conversation, “supported
reasonable inferences sufficiently linking him to the offense to have the capacity to raise



                                             14
a reasonable doubt” as to defendant’s guilt under Hall, supra, 41 Cal.3d 826. As a
preliminary matter, these additional circumstances, now advanced to support the
requested inquiry into whether Daniel shot Michael, were not presented to the trial court
below. “[T]he proponent of evidence must identify the specific ground of admissibility at
trial or forfeit that basis of admissibility on appeal.” (People v. Ervine (2009) 47 Cal.4th
745, 783.) This is because “[a] party cannot argue the [trial] court erred in failing to
conduct an analysis it was not asked to conduct.” (People v. Partida (2005) 37 Cal.4th
428, 435.) Because defendant did not ask the trial court to take these additional
circumstances into consideration in determining whether to allow defense counsel to ask
Daniel whether he shot Michael, he has forfeited the argument the trial court “failed to
apprehend such circumstances permitted reasonable inferences capable of raising a
reasonable doubt.”
       In any event, even considering the combination of the jailhouse conversation
between Daniel and defendant, Daniel’s presence at the scene of the crime, and his
conduct before the arrival of sheriff’s deputies, this evidence does not provide a good
faith basis for defense counsel’s proposed question. We have already concluded the
jailhouse conversation does not supply any basis for believing Daniel shot Michael. Nor
does his presence at the crime scene, “absent any evidence, direct or circumstantial,
linking [him] to the crime . . . .” (People v. Panah, supra, 35 Cal.4th at p. 481.) Finally,
Daniel’s behavior following the murder is consistent with someone who found his
father’s deceased body and became “angry,” “upset,” and “hysterical” over the tragic and
unexpected loss, whereas defendant, described by witnesses as being “emotionless” and
“very blank,” did not respond when Daniel grabbed him and yelled: “What did you do?
What happened to Dad?” Thus, while defendant’s behavior after the murder supplied
circumstantial evidence of his culpability, the same cannot be said of Daniel’s behavior.
Nor are we persuaded by defendant’s argument that “evildoers are often adept at



                                             15
manipulating and exploiting the more predictable assumptions and conclusions people are
apt to draw from such reactions.” Indeed, this very argument tacitly admits Daniel’s
behavior was not consistent with his having murdered his father. The suggestion Daniel
might be an “evildoer,” pretending to be upset while manipulating defendant into
incriminating behavior, is pure speculation and does not supply a good faith basis for
asking Daniel whether he shot Michael.
       The trial court did not abuse its discretion in preventing defense counsel from
asking Daniel whether he shot Michael. Nor did this ruling violate any of defendant’s
federal constitutional rights. (See People v. Prince, supra, 40 Cal.4th at p. 1243
[rejecting claim the proper exclusion of third-party culpability evidence violated
defendant’s constitutional rights].)
                                               III
                                    Admission of Hearsay
       Defendant also contends the trial court prejudicially erred and further violated his
constitutional rights by admitting an out-of-court statement, made by Sarah two days
before the murder, warning Stromsoe to keep her son away from the house if defendant
was there because he “had been acting funny and had been off his meds” and Sarah was
afraid he “[m]ight hurt somebody or himself.” We agree the evidence was erroneously
admitted, but conclude the error was harmless.
       Subject to numerous exceptions, “hearsay evidence is inadmissible.” (Evid. Code,
§ 1200, subd. (b).) Such evidence is defined to mean “evidence of a statement that was
made other than by a witness while testifying at the hearing and that is offered to prove
the truth of the matter stated.” (Id., subd. (a).)
       Evidence Code section 1250 provides an exception for “evidence of a statement of
the declarant’s then existing state of mind, emotion, or physical sensation . . . .” In order
for this exception to apply, the statement must not have been made under circumstances



                                               16
indicating a “lack of trustworthiness” (Evid. Code, § 1252), and must be offered either
“to prove the declarant’s state of mind, emotion, or physical sensation,” or “to prove or
explain acts or conduct of the declarant.” (Evid. Code, § 1250, subd. (a).) Thus, a
prerequisite to this exception is that the declarant’s mental state or conduct be placed in
issue. (People v. Kovacich (2011) 201 Cal.App.4th 863, 884; People v. Noguera (1992)
4 Cal.4th 599, 621.)
       “In contrast, a statement which does not directly declare a mental state, but is
merely circumstantial evidence of that state of mind, is not hearsay. It is not received for
the truth of the matter stated, but rather whether the statement is true or not, the fact such
statement was made is relevant to a determination of the declarant’s state of mind.
[Citation.] Again, such evidence must be relevant to be admissible―the declarant’s state
of mind must be in issue. [Citation.]” (People v. Ortiz (1995) 38 Cal.App.4th 377, 389,
italics added.)
       Sarah’s out-of-court statements to Stromsoe can be broken into four parts: (1)
keep your son away from the house if defendant is home; (2) defendant has been acting
funny; (3) defendant has not been taking his medication; and (4) I am afraid defendant
might hurt himself or somebody else. The first statement is not hearsay at all. The fact
Sarah warned Stromsoe to keep her son away from defendant is circumstantial evidence
of Sarah’s mental state, i.e., her fear defendant might harm Stromsoe’s son. The second
and third statements set forth the reason for that fear. If offered to prove the truth of the
matters stated, i.e., defendant was acting strangely two days before the murder and was
not taking his medication, these statements would be inadmissible hearsay. However,
whether true or not, the fact these statements were made tends to circumstantially prove
Sarah feared for the safety of Stromsoe’s son. Finally, the fourth statement specifically
declares Sarah’s mental state, i.e., her fear defendant might hurt himself or someone else.
Thus, the first three statements are potentially admissible as non-hearsay circumstantial



                                              17
evidence of Sarah’s state of mind, while the fourth statement is potentially admissible
under the state of mind exception to the hearsay rule. Nevertheless, in order for these
statements to be admissible either as circumstantial evidence of Sarah’s state of mind or
under the state of mind exception to the hearsay rule, Sarah’s state of mind must be at
issue in the case. (See People v. Kovacich, supra, 201 Cal.App.4th at pp. 884-889.)
Under no conceivable theory of this case was Sarah’s state of mind two days before the
murder placed in issue.
       Nor has the Attorney General provided any argument justifying admission of the
challenged statements. She instead argues any assumed error was harmless. We agree.
While circumstantial in nature, the case against defendant was incredibly strong. Patricia
was on the phone with Michael when he was shot. While she denied Michael was
arguing with defendant at the time, her prior inconsistent statements made to Stromsoe
and Nogales, properly admitted for their truth, revealed Michael was arguing with
defendant before the phone disconnected. The argument was about defendant taking a
vehicle, or gun, or both. The phone was disconnected when a high-powered round fired
from a hunting rifle entered Michael’s skull at supersonic speed, exploding his skull and
shattering the cordless phone as Michael held it to his face. The rifle’s report woke up
Tyler, who was sleeping on the couch in the living room. Defendant immediately
emerged from the hallway and took Tyler outside. While Tyler denied defendant was
holding a rifle when he did so, Tyler’s prior inconsistent statement to one of the
responding deputies, properly admitted for its truth, revealed defendant was holding a
rifle when he took Tyler outside. Defendant himself admitted to placing the rifle in
Michael’s SUV after taking Tyler outside. Daniel testified he was outside vacuuming his
truck when he stopped the vacuum and heard a nearby cordless phone ringing. After
answering the call, which was Patricia calling back after being disconnected, Daniel
walked past defendant and Tyler on his way into the house to give the phone to his father,



                                            18
at which point he discovered Michael’s deceased body partly in the hallway and partly in
his bedroom. Michael’s blood was found on defendant’s jacket. Ballistics matched the
shell casing found next to Michael’s body to the rifle defendant placed in Michael’s
SUV. Defendant’s fingerprints were found on the rifle. An empty rifle case was found in
a motor home next to the house, along with a back pack and some of defendant’s mail,
and defendant admitted in a jailhouse conversation with Daniel that he was in this motor
home that morning, which corroborates Patricia’s out-of-court statements Michael and
defendant were arguing about defendant wanting to take a vehicle and/or a gun.
Defendant’s behavior following the murder was also incriminating, as previously
discussed. All of this provided a strong circumstantial case as to defendant’s identity as
the shooter.
       Finally, as we describe in greater detail below, the medical examiner testified the
end of the rifle’s barrel was no closer than “a foot and a half” away from Michael when
the fatal shot was fired, which estimate was based on the condition of the skin around the
entrance wound. Also based on the condition of the entrance wound, the medical
examiner testified the shot was fired “straight on,” as opposed to at an angle. This
evidence strongly negated any possibility the rifle was accidentally fired during a struggle
for the weapon, and coupled with the evidence of the argument between defendant and
Michael immediately before the shooting and defendant’s post-shooting incriminatory
conduct, strongly supported the jury’s conclusion defendant killed his father deliberately
and with premeditation.
       In light of this strong circumstantial evidence of guilt, we conclude there is no
reasonable probability the result would have been different had the challenged out-of-
court statements been excluded. (See People v. Guillen (2014) 227 Cal.App.4th 934,
1015 [prejudicial effect of erroneous admission of hearsay assessed under harmless error
standard of People v. Watson (1956) 46 Cal.2d 818, 836].) Moreover, even assuming



                                             19
defendant is correct the admission of these statements also violated his confrontation
rights because he had no opportunity to cross-examine Sarah, we also conclude based on
the strength of the case against defendant the error was harmless beyond a reasonable
doubt. (See People v. Noguera, supra, 4 Cal.4th at p. 623.)
                                             IV
    Admission of the Medical Examiner’s Blood Spatter and Trajectory Testimony
       Defendant further asserts the trial court prejudicially erred by overruling various
objections to blood spatter and trajectory testimony elicited from the medical examiner.
Assuming the trial court erred in allowing this testimony, the error was harmless.
                                              A.
                                  Additional Background
       The medical examiner, Dr. Thomas Resk, testified to being a physician and
forensic pathologist with additional certifications in anatomic and clinical pathology. Dr.
Resk explained a “pathologist” is a doctor who studies the causes of disease. A “forensic
pathologist is . . . a pathologist who is specially trained in areas of wound interpretation
and causes of death, timing of events related to death.” Dr. Resk also testified to having
performed roughly 4,000 autopsies in his career, with “probably 97 percent” being
forensic in nature. Specifically referring to homicides, the doctor testified: “I’ve done
hundreds of homicides of everything varying from gunshot wounds to stabbings, to
hatchet murders, to strangulation. I’ve done many, many hundreds of gunshot wound
cases.” In such cases, his role as the forensic pathologist is to examine the body and
provide “not only a cause of death, but the manner of death, whether it be natural,
accidental, suicide.”
       After describing his credentials and experience, Dr. Resk testified to the different
characteristics of skull wounds created by an impact from a projectile traveling at a
high velocity, as opposed to one traveling at a lower velocity. Dr. Resk also testified



                                              20
he examined Michael’s body at the scene of the crime, examined Michael’s bedroom
for blood spattering, and also examined a bullet hole in the bedroom window. Based on
the condition of Michael’s skull, Dr. Resk opined a bullet traveling at supersonic speeds
entered Michael’s skull near his right eye, introducing a massive pressure wave into
the skull that “basically exploded” his skull, ejecting the right portion of his brain into
the bedroom behind him and sending blood throughout the room. The bullet then exited
where the back of the skull would have been had it not been blown apart, resulting in
the absence of an identifiable exit wound. The doctor also testified, without objection,
the forces acting upon the body in such a case can cause blood and other bodily material
to be “blown back” toward the direction of the gunshot, referred to as “back spatter.”
       It was at this point in the prosecutor’s examination of Dr. Resk defense counsel
objected to the following question as calling for an answer outside the doctor’s scope of
expertise. The prosecutor asked: “Well, can you tell anything about how far an item, say
an item of clothing, was from [Michael’s] head by the amount of back spatter that comes
back in that direction and gets on that clothing?” After defense counsel’s objection was
overruled, Dr. Resk answered: “In part, I can tell that. One -- well, specifically for
[Michael], I looked at the clothing to see if there was any material on his clothing
certainly, as well as on everything forward, in front of him, and looked for that. But in
terms of actually determining the distance, the -- one of the things that would be looked
at, which I did not look at, would be the weapon, to see if there -- one, if a weapon is
available, if a weapon is there, and confiscated to look at the weapon itself, and see if
there’s any material on that -- blood, tissue -- see if there’s any blood or tissue within the
muzzle of the weapon itself. And I did not do that at the scene.”
       The prosecutor then asked Dr. Resk to assume “the rifle was recovered and did not
appear to have any blood or bodily material inside the muzzle or on the gun at all.”
Defense counsel objected that the hypothetical assumed facts not in evidence, which was



                                              21
also overruled. The prosecutor continued: “And so then suppose that a small amount of
blood or bodily material was found on a jacket that was presumed to be in the direction of
the back spatter, that is, where the gun was when it was fired, a small amount -- one, two,
or three small splotches of blood -- can you tell anything about, about how far that
individual was standing from [Michael] when the shot was fired?” Dr. Resk answered:
“I would be able to conclude from that, with that hypothetical, that the person -- or the
jacket, assuming that it was on a person, that the jacket was in the proximity of the, of the
victim, of [Michael]. And as far as being within one [foot], five feet would depend on
what the pattern of the back spatter was, how much spatter was around in front of the
decedent, once we could establish how the decedent was most likely standing, sitting,
laying down, whatever.” The prosecutor then asked the following clarifying question:
“But, in general, what would be the range, if there’s no blood on the rifle and a small
amount on the jacket, what would be the outside parameters of the distance that you
would, you know, find?” Defense counsel objected that the question called for an answer
outside the scope of the doctor’s expertise, which was overruled. Dr. Resk answered:
“It’s been my experience that with high velocity weapons we could be looking upwards
of five feet.”
       Later, the prosecutor asked Dr. Resk about the bullet hole in the bedroom window,
specifically, whether he could “tell anything at all from the beveling of that hole.” After
another beyond the scope objection was overruled, Dr. Resk answered, the “external
beveling” of the hole indicated the bullet “came from inside the house rather than from
outside the house.” This answer prompted another beyond the scope objection that was
also overruled. Then, after eliciting testimony that the height of the hole in the window
was “about five feet,” the prosecutor asked: “And so does that indicate to you anything
about the path that the bullet followed to get there?” Another beyond the scope objection
was overruled. Dr. Resk answered: “The path would have been essentially a fairly



                                             22
straight trajectory rather than at an angle . . . . But it would have been essentially at about
the same height. I would have expected the muzzle of the weapon that caused this to be
at about the same height, about five feet or so.”
       A final beyond the scope objection was made to the following question: “And so
were you able to make some sort of an estimate about the trajectory of the bullet?” After
the objection was overruled, the prosecutor clarified the question: “All things considered,
including the location and the height of the hole at the window, do you have an estimate
about what sort of trajectory that bullet followed?” Dr. Resk answered: “Based on my
experience, training, and observation at the scene, as well as the autopsy, it’s my opinion
that [Michael] was standing -- as opposed to being crouched or laying on the ground -- he
was standing essentially at normal height. The person holding the rifle would have also
been standing at essentially normal height; would have been an adult rather than a, you
know, a child, a six-year-old child playing with a gun or something like that. [¶]
Because of the trajectory, [Michael] was shot on the right side of his eye. The bullet
passed through his skull, having essentially exploded his skull, and continued its passage
through the room in which [Michael] found himself, and then passed through the window
that we’ve already looked at pictures of.”
                                              B.
                                           Analysis
       Defendant argues the blood spatter and trajectory testimony offered by Dr. Resk
was outside the scope of his expertise as a forensic pathologist. He further argues the
hypothetical question asked by the prosecutor improperly assumed facts not in evidence.
We need not decide whether defendant is correct because any assumed error was
manifestly harmless.
       As we have previously explained, while circumstantial in nature, the case against
defendant was very strong. We decline to repeat each of the circumstances that together



                                              23
proved beyond a reasonable doubt defendant shot his father with the rifle. We do
specifically address defendant’s contention the jury might not have found premeditation
and deliberation without the foregoing challenged testimony concerning the distance back
spatter might have traveled to reach defendant’s jacket and the likely trajectory of the
bullet. The back spatter testimony established defendant could have been as far away as
five feet when he shot Michael. The trajectory testimony based on the hole in the
window established the shot was fired at a horizontal trajectory. Together, defendant
argues, this evidence allowed the jury to “infer premeditation and deliberation and reject
the defense theories of accident or recklessness.”
       However, even if Dr. Resk lacked expertise in blood spatter and ballistic trajectory
analyses, there is no dispute he possessed expertise in wound analysis. Based on the
condition of the skin around the entrance wound, and without objection, Dr. Resk
testified the end of the rifle’s barrel was no closer than “a foot and a half” away from
Michael when the fatal shot was fired. Also based on the condition of the entrance
wound, and again without objection, Dr. Resk testified the shot was fired “straight on,” as
opposed to at an angle. Moreover, the jury heard from another witness, also without
objection, the window had a bullet hole at a height of “5 foot 3 inches,” and the bullet
came from inside the room and exited outside. Based on this evidence, even without the
challenged testimony, we have no doubt the jury would have concluded the bullet
traveled in a horizontal trajectory, passing through Michael’s skull, and exited through
the window. We further conclude Dr. Resk’s unchallenged testimony that the end of the
rifle barrel was no closer than “a foot and a half” away from Michael when the shot was
fired was more important to the jury’s assessment of premeditation and deliberation than
was his challenged testimony defendant might have been as far away as five feet. This is
because even if defendant was that shorter distance away, he was still too far away for the
rifle to have discharged accidentally in a struggle for the weapon. Finally, other



                                             24
circumstantial evidence also supported the jury’s premeditation and deliberation
conclusion, specifically, the fact defendant and Michael were arguing when the fatal shot
was fired and defendant’s incriminating behavior following the murder.
       Simply put, even if the challenged evidence was improperly admitted, there is no
reasonable probability of a more favorable result without the evidence.
                                            V
                                   Cumulative Prejudice
       Finally, having concluded the error in admitting hearsay statements from Sarah
was harmless beyond a reasonable doubt, and assuming error in the admission of Dr.
Resk’s blood spatter and trajectory testimony, concluded such assumed error was also
harmless, we further conclude the cumulative effect of these actual and assumed errors
does not require reversal.
                                      DISPOSITION
       The judgment is affirmed.



                                                             /s/
                                                HOCH, J.



We concur:



              /s/
RAYE, P. J.



        /s/
MURRAY, J.



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