Filed 2/23/15 P. v. White 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F066586
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF135958A)
                   v.

JOSEPH M. WHITE,                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Steven M.
Katz, Judge.

         Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Clara M. Levers and John W. Powell, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-
       Defendant Joseph M. White was convicted by jury of first degree murder (Pen.
Code,1 § 187, subd. (a)). As a result, the trial court sentenced defendant to a prison term
of 25 years to life.
       On appeal, defendant contends the trial court’s admission of evidence relating to
the condition of the victim’s body at the time of the autopsy violated his right to confront
and cross-examine witnesses against him where the doctor who made the observations
did not testify at trial. We conclude defendant’s constitutional rights were not violated
and affirm the judgment.
                                              FACTS
       Laquisha Stevenson was a close friend of the victim Rodney Herbert, and the two
lived in the same apartment complex. On the morning of June 3, 2010, Stevenson
observed defendant and the victim arguing by the victim’s apartment. Approximately 15
minutes later, she saw defendant leave the apartment complex. Later that evening, she
saw defendant again as he was leaving the victim’s home. Defendant had blood on his
sleeves. She had a brief conversation with defendant who said. “‘I had to hurt this
nigga.’” She believed he was referring to the victim. Afterwards, defendant jumped off
the second floor and landed into the courtyard. In a later interview, Stevenson told the
investigating officer that defendant said he had to “‘beat a nigga up’” and he had
ransacked the apartment, tied up the victim, and threw him under a bed, although she did
not recall at trial making these statements.
       Another neighbor and friend of the victim, Lucille (Lucy) Harris,2 last saw the
victim on June 3, 2010, at approximately 5:00 or 5:30 in the afternoon as she was leaving
to go watch a basketball game. She noted the victim was outside drinking beer with two



       1All   further references are to the Penal Code unless otherwise indicated.
       2Because   this witness shares the same surname with another witness, we will refer to
them by their first names to avoid confusion. No disrespect is intended.



                                                 2.
men, specifically, defendant and another man she had seen visiting with the victim in the
past.
         Kim Harris, Lucy’s sister, also lived at the same apartment complex, in the
apartment directly underneath the one occupied by the victim. Kim was home ill on the
day in question. That evening she heard noise coming from the victim’s apartment,
including someone saying, “‘leave the old man alone’” and “‘it[’]s not worth it.’” From
the conversation and the voices she heard, she believed there were three people in the
victim’s apartment. She heard some references to drugs and also heard what sounded
like a fight in the kitchen. At one point, Kim heard the victim tell someone to leave his
house and then she heard a door slam.
         Shortly thereafter she heard what sounded like a door being pushed or kicked in,
stomping, and things falling in the apartment. The ordeal lasted for some time. At one
point Kim heard the victim call out for help, and she heard a loud thump that sounded
like someone’s head hitting the ground. The noise appeared to be coming from the
victim’s bedroom. She also heard what sounded like someone putting a bed together or
flipping a mattress. The noise stopped shortly before 7:00 p.m. Afterwards she heard the
sound of running water in the bathroom, which continued throughout the night and into
the next morning. Shortly after the noise stopped, defendant knocked on her door,
apologized for the noise, and asked her not to call the police.
         Cedric Grissom was a friend of the victim’s. On the day in question, Grissom
went to the victim’s home sometime after noon. Grissom noted that defendant was
already at the victim’s apartment, drinking. While visiting, he asked the victim if he
would like something to drink and then he and defendant went to the liquor store and
bought some alcohol and returned to the victim’s apartment. The men continued talking
and drinking and at one point Grissom returned to the store to buy more alcohol.3

         3Video   from the liquor store surveillance camera confirmed the two trips to the liquor
store.



                                                  3.
Grissom described defendant’s behavior as strange; he was inserting himself into
Grissom and the victim’s conversation, and he appeared angry or frustrated. Defendant
appeared to grow more agitated throughout the visit. Grissom recalled defendant talking
about military service in Iraq as well as prior gang affiliations. After Grissom returned to
the apartment the second time, he believed defendant and the victim were smoking drugs
in the bathroom and then the two began to argue.
        While the two were arguing, Grissom told them to stop and defendant grabbed him
by the neck, took his hat and glasses, and told him to stay out of it. After that, Grissom
left. Grissom testified he was not paying attention to what they were arguing about, but
believed it could have been about drugs. He believed he might have told defendant to
leave “the old man alone” at some point. When he left, defendant and the victim were
still arguing. Grissom admitted telling the detectives defendant and the victim were
arguing over drugs and that the victim was upset with defendant because defendant was
using the drugs but did not pay for them. The victim’s apartment was not in disarray
when he left; rather, everything was well kept.
        Grissom suffered a prior felony conviction for burglary in 2002.
        Nathaniel Parker testified he observed defendant get onto a bus later that evening.
Defendant told Parker he had “‘already beat one nigga.’” Parker, who also knew the
victim, noticed defendant was wearing a pair of shoes that looked like the victim’s due to
the distinctive way he wore his shoes. Video footage from the bus surveillance
established defendant entered the bus on June 3, 2010, at 7:57 p.m. In the video,
defendant is seen wearing a shirt belonging to the victim that had been given to him by
his sister.
        The following morning, Stevenson thought it was unusual that she did not see the
victim outside playing his music, so she and Lucy went to the victim’s apartment to
check on him. From the door the two could hear music, but there was no answer. They




                                             4.
called the victim’s sister who subsequently called the police. Thereafter the authorities
entered the apartment.
         Kern County Sheriff’s Deputy Joshua Cain received a call to check on the victim’s
welfare on June 4, 2010, at approximately 10:00 a.m. After speaking with Lucy, he
contacted the fire department and an ambulance to assist. Members of the fire
department were able to open a window. The interior of the apartment was in disarray.
Additionally, the sounds of music and running water could be heard within the apartment.
Deputy Cain entered the apartment and in the disordered bedroom discovered the victim
underneath a mattress that had been partially pushed off the bed. The victim’s hands and
feet were bound and he had clothing wrapped around his face. A scarf was tied around
his neck. The victim was deceased.
         Criminalist Jeanne Spencer responded to document the crime scene. She noted the
apartment was in disarray and some furniture had been overturned and disturbed. The
victim was bound, by the arms and feet, to the bed railing. Drug paraphernalia was
discovered on the bedroom floor. A broken kitchen knife was found in the kitchen.
         Spencer noted shoe prints and bloodstains throughout the apartment. The shoes
the victim was wearing did not match the shoe prints in the apartment. However, she
found a pair of shoes in the apartment that seemed to match those shoe prints. These
shoes tested positive for the presence of blood. Subsequent DNA testing on the shoes
revealed at least three DNA profiles as to the wearer of the shoe. Defendant was a
possible contributor to the wearer mixture.4 The test was inconclusive as to the victim
and Grissom. Further testing revealed the victim’s blood was found on the outside of the
shoes.
         Dr. Eugene Carpenter, Jr., a retired medical examiner coroner, testified regarding
the victim’s cause of death. The autopsy was performed by Dr. Lesley Wallis.

         4The probability of
                           a random person matching the sample was 1 in 520 quadrillion for
Caucasians, 1 in 310 quadrillion for African-Americans, and 1 in 460 quadrillion for Hispanics.



                                               5.
Dr. Carpenter reviewed the coroner’s file—which included the investigator report, the
autopsy report prepared by Dr. Wallis, the toxicology report, and the photographs of the
victim’s body—and opined the victim died from blunt force trauma. Specifically, the
victim suffered potentially lethal injuries in three areas: his head, his chest, and his
throat. The injuries to the victim’s head were evidenced by bleeding beneath the scalp.
Although the victim did not suffer from skull fracture or brain swelling, his body
displayed severe signs of blunt force head trauma consistent with multiple blows to both
sides of his head. In addition to the head trauma, the victim suffered jaw fractures, chest
injuries comprising seven rib fractures on the right side of his rib cage, and blunt force
trauma to the throat and neck. In order to receive the chest injuries, the victim must have
suffered some sort of moderate to severe chest compression. The victim also had
significant bleeding in the muscles of the throat indicating the trauma. Additionally, the
autopsy showed the horns of the thyroid cartilage of the larynx were broken. These horns
are broken through severe compression. The horns keep a person’s throat open and allow
a person to breathe.
       Dr. Carpenter described the injuries to the victim’s head, throat and chest as major
injuries, each of which could potentially be lethal on its own. Additionally, he had
several wounds across his face and hands consistent with defensive wounds. Ligature
marks were around his wrists and ankles.
       Dr. Carpenter noted the victim was 57 years old at the time of his death and had a
moderate to severe obstruction of his major coronary arteries. The victim’s heart was
also enlarged, consistent with heart disease and chronic high blood pressure. Although
the victim’s condition may have made him frail, Dr. Carpenter did not consider his heart
condition as part of the cause of death. This is because the injuries he sustained were
lethal and the victim’s heart condition would have only reduced his tolerance of the
injuries. In Dr. Carpenter’s opinion, the injuries suffered by the victim were sufficiently
lethal to kill a person in good health. Although it is possible the victim could have had a


                                              6.
heart attack due to the struggle, in Dr. Carpenter’s opinion, the victim died from the
trauma. Therefore, Dr. Carpenter classified the victim’s death as a homicide, meaning
his death was caused by another. While the head injury, the chest injury, and the neck
injury each had the potential to be lethal individually, the neck injury indicated the victim
suffered from a compression of the throat that cut off the blood supply to his brain and
caused his death.
Defense Case
       Defendant testified on his own behalf. At the time in question he was 37 years
old, six feet and one inch tall, and weighed 189 pounds. He had known the victim for
approximately five months prior to the incident. The two visited approximately twice a
month at the victim’s apartment and smoked rock cocaine.
       On the day in question, defendant visited the victim and talked. Later, a drug
dealer came by and defendant bought $50 worth of drugs. Although the victim did not
pay for the drugs, defendant and the victim shared them. Sometime later, Grissom
arrived. After Grissom arrived, he and defendant went to the liquor store and bought
some alcohol. They returned to the victim’s home and drank, talked, and listened to
music. Grissom later returned to the liquor store to purchase more alcohol. While he was
gone, the victim asked defendant for more drugs. Ultimately, defendant and the victim
smoked all of the drugs defendant had purchased.
       Defendant recalled an argument between the victim and Grissom regarding money
Grissom owed the victim. Defendant became involved in the argument because Grissom
also owed him money. At one point, defendant put Grissom in a headlock and took his
hat and glasses. Afterwards, Grissom left and defendant and the victim argued.
According to defendant, the victim was “pumped up” over the previous argument and the
two argued for about 15 minutes. The victim also kept asking defendant for more drugs,
but defendant replied they were gone.




                                             7.
       Defendant went into the bathroom for several minutes and the victim told
defendant to give him “‘some of that shit.’” As defendant exited the bathroom, he saw
the victim holding a knife. Defendant asked what he was going to do with the knife and
the victim replied, “‘you going to give me some of that shit.’” The victim came at him,
and defendant wrestled with him in the hallway. The two struggled over the knife for 15
to 20 minutes. Defendant testified he was not able to get the knife from the victim, but he
was not sure what happened to it.
       The fight progressed into the bedroom where the two were holding on to each
other and trading blows. At one point in the bedroom, defendant got knocked to the
ground and began checking himself for injuries. When he looked up, he noticed the
victim was holding a hammer. The victim held the hammer over his head and said,
“‘mother fucker, I’m going to kill you.’” The victim swung the hammer, which
defendant grabbed, and the two struggled over the weapon. Defendant was able to get on
top of the victim and strike him in his side with his knee. Defendant got the hammer
away from the victim and then grabbed his hands and began tying him up. The victim
was on the floor and defendant restrained him with whatever he could reach. The victim
was alive while he was restraining him. Defendant checked himself for injuries and then
changed his shirt and put on a pair of shoes. He checked on the victim again, noted he
was alive, and then left. Defendant did not receive any serious injuries in the fight.
       After he left, he ran into Donte Langston. He told Langston he had gotten into a
fight with the victim and asked Langston to check on him. He also encountered
Stevenson, had a brief conversation with her, and then went to the bus stop and got on the
bus. Defendant never returned to the victim’s apartment. Later he learned he was
wanted and he turned himself in.




                                             8.
                                       DISCUSSION
Defendant’s Confrontation Rights Were Not Violated
       The People moved to elicit the expert opinion of Dr. Carpenter, a pathologist,
regarding the cause of the victim’s death. The original autopsy was performed by
Dr. Wallis, who was not available to testify.5 The People argued a substitute pathologist
could testify as to his opinion as to the cause of death after reviewing the original autopsy
report and photographs. The prosecutor explained she was not seeking to introduce the
original autopsy report or the conclusions of Dr. Wallis. Defense counsel objected to the
admission of the substitute pathologist and likewise made a motion in limine to exclude
the testimony. Defense counsel argued the admission of Dr. Wallis’s testimony would
violate defendant’s confrontation and due process rights and further argued there was a
discovery violation as to Dr. Carpenter’s testimony.
       The trial court ruled that based upon the California Supreme Court’s decision in
People v. Dungo (2012) 55 Cal.4th 608, the substitute pathologist could testify regarding
his opinions, but he could not testify as to Dr. Wallis’s conclusions. Additionally, the
report itself would not be admissible. The court held an Evidence Code section 402
hearing regarding the discovery issues as to Dr. Carpenter’s opinion.
       On appeal, defendant contends the trial court erred in allowing Dr. Carpenter, the
substitute pathologist, to testify to his conclusion as to the cause of death, which was
based upon the information contained in the autopsy report prepared by Dr. Wallis. He
contends the information contained within the autopsy report was testimonial and,
therefore, he was entitled to confront and cross-examine Dr. Wallis regarding the report.
This is because Dr. Carpenter relayed information to the jury regarding the condition of
the victim’s body at the time of autopsy. As he was unable to test Dr. Wallis’s


       5Dr.   Wallis had moved out of state and was uncooperative with subpoenas sent by the
district attorney’s office.



                                              9.
observations through cross-examination, he argues, his confrontation rights were
violated. We disagree.
       Although the United States Supreme Court has not yet produced an identifiable
rule to define testimonial statements, our high court has recently noted the United States
Supreme Court opinions have made it clear that in order to be “testimonial,” a statement
must possess two critical components: (1) it “must have been made with some degree of
formality or solemnity,” and (2) its “primary purpose pertains in some fashion to a
criminal prosecution.” (People v. Lopez (2012) 55 Cal.4th 569, 581, 582.)
       As defendant acknowledges, our Supreme Court in People v. Dungo addressed an
issue identical to the one defendant raises on appeal, namely, whether a defendant’s
confrontation rights were violated where a forensic pathologist testified as to the cause of
death of the victim utilizing photographs of the victim and facts taken from an autopsy
report prepared by a nontestifying pathologist. (People v. Dungo, supra, 55 Cal.4th at p.
614.) The court rejected the defendant’s claim, holding that neither of the two requisite
components of a testimonial statement were present. As to the formality prong, the
statements contained in the autopsy report—which was not introduced into evidence—
were “less formal than statements setting forth a pathologist’s expert conclusions” and
were akin to a physician’s nontestimonial “observations of objective fact” in diagnosing a
patient’s injury or malady and indicating the appropriate treatment for it. (Id. at p. 619.)
As to the primary purpose of the report, the court explained “criminal investigation was
not the primary purpose for the autopsy report’s description of the condition of [the
victim’s] body; it was only one of several purposes.” (Id. at p. 621.) “The autopsy report
itself was simply an official explanation of an unusual death, and such official records are
ordinarily not testimonial.” (Ibid., citing Melendez–Diaz v. Massachusetts (2009) 557
U.S. 305, 324.) Dungo has been followed by our Supreme Court in People v. Edwards
(2013) 57 Cal.4th 658, 705-707 and People v. Rodriguez (2014) 58 Cal.4th 587, 643-644,
and in the Court of Appeal (People v. Huynh (2012) 212 Cal.App.4th 285, 320-321


                                             10.
[nurse’s testimony based upon photographs taken by another nurse at a sexual assault
exam did not violate confrontation clause]).
       The facts of this case are virtually indistinguishable from those in Dungo.
Dr. Carpenter testified as to his independent opinion regarding the victim’s cause of
death. In reaching that opinion, he relied upon Dr. Wallis’s observations as to the
condition of the body during the autopsy. Importantly, Dr. Carpenter did not relay
Dr. Wallis’s statements regarding her conclusions as to the cause of death, and the
autopsy report itself was not admitted into evidence. While Dr. Carpenter did relay
Dr. Wallis’s observations regarding the condition of the victim’s body to the jury, those
statements were not testimonial for the reasons set forth in Dungo. Therefore,
defendant’s confrontation rights were not violated. (People v. Dungo, supra, 55 Cal.4th
at p. 621.)
       Defendant recognizes that his case is controlled by Dungo, but argues the
California Supreme Court’s holding is erroneous. However, as defendant acknowledges,
we are not at liberty to disregard our high court’s pronouncement on this issue. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Consequently, we reject
his claim.
       Even if we were to agree with defendant that the statements should have been
excluded, we would find the admission of the evidence harmless. Erroneous admission
of evidence in violation of a defendant’s right to confront and cross-examine witnesses
requires reversal unless the People can demonstrate beyond a reasonable doubt that the
error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24; People v.
Rutterschmidt (2012) 55 Cal.4th 650, 661.) Defendant argues the “cause of death was a
critical issue in the … case.” He claims because there was evidence that the victim
suffered from severe heart disease and because defendant claimed the victim was alive
when he left the apartment, “it was critical to [defendant’s] defense that he be permitted
to confront and cross-examine the original pathologist concerning her observations of the


                                            11.
condition of [the victim’s] body and her conclusions regarding the cause of death.” We
disagree.
       Initially we note the question presented at trial was not whether defendant caused
the victim’s death, but rather whether he killed the victim in self-defense. Defendant
admitted he fought with the victim in a dispute over drugs. The defense argued it was the
victim who attacked defendant. Indeed, defense counsel argued in closing that defendant
“beat [the victim] up pretty good and ended up causing his death, but the issue in this
case is what was reasonable on [defendant’s] part, not just, you know, who had the worse
injuries.” (Italics added.) Defense counsel never mentioned causation as an issue during
closing argument. Rather, he focused on whether defendant acted in self-defense and
argued the facts supported self-defense rather than premeditation.
       Furthermore, even if the victim’s heart condition was a contributing factor to his
death, it would not absolve defendant of liability for the victim’s death as long as
defendant’s acts were a substantial factor contributing to his death. (People v. Catlin
(2001) 26 Cal.4th 81, 155-156, overruled on other grounds in People v. Nelson (2008) 43
Cal.4th 1242, 1253-1256; People v. Wattier (1996) 51 Cal.App.4th 948, 953; People v.
Stamp (1969) 2 Cal.App.3d 203, 210.) “A robber, for example, is guilty of felony murder
if his victim is an obese person who dies of a heart attack within 20 minutes of a
robbery.” (People v. Wattier, supra, at p. 953.)
       The evidence at trial established the victim sustained a violent beating. Several of
his ribs were broken, he had blunt force trauma to the head and neck compression injuries
consistent with strangulation. The bones in the victim’s throat responsible for
maintaining his airway were broken. The victim was found with his hands and feet
bound to a bed frame, a scarf tied around his neck, and a mattress pulled over the top of
his body. Defendant claimed the victim attacked him and had the stamina to fight with
him for well over 20 minutes. Dr. Carpenter testified the victim’s injuries could have
been fatal even in a healthy person. Furthermore, in reaching its verdict the jury was


                                            12.
required to find that defendant’s actions were the cause of the victim’s death.
(CALCRIM No. 520.) As the evidence overwhelmingly established defendant’s act of
beating the victim caused his death, we conclude any error was harmless beyond a
reasonable doubt.
                                     DISPOSITION
       The judgment is affirmed.

                                                         ___________________________
                                                                             PEÑA, J.
WE CONCUR


 ________________________________
POOCHIGIAN, Acting P.J.


 ________________________________
DETJEN, J.




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