Filed 9/29/16 P. v. Gwozdz CA2/1

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B264109

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA124916)
         v.

LINDA DOREEN GWOZDZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, John A.
Torribio, Judge. Affirmed as modified.
         Leslie Conrad, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb,
Supervising Deputy Attorney General, and Nathan Guttman, Deputy Attorney General,
for Plaintiff and Respondent.
                                             ——————————
       On January 23, 2015, following a mistrial in January 2014, a jury convicted Linda
Doreen Gwozdz (Gwozdz) of second degree murder (Pen. Code, § 187, subd. (a)).1 The
victim, Patrick Duffey (Duffey), died on the afternoon of April 26, 2007, at his home in
Whittier, California, a home that he shared with his then wife, Gwozdz, and two teen-
aged sons. Duffey died from two gunshot wounds in the “top of the head” fired at close
range—experts variously estimated that the gunshots were fired from a distance of “less
than two to three feet,” “greater than one inch but less than seven inches,” and “between
six inches to three feet.” It was undisputed that Gwozdz fired the fatal shots—not only
was there gunshot residue on her hands, but she admitted as much on the call she made to
911. The central issue at trial was whether Gwozdz shot her then husband accidentally or
deliberately. The police interviewed Gwozdz several times: twice on the day of
Duffey’s death (once briefly at the house and then later and at greater length at the police
station); and then again for several hours on January 23, 2009. In each interview, she
maintained that the shooting was an accident. It was not until January 2013 that the
People charged Gwozdz with Duffey’s murder.
       On appeal, Gwozdz argues that the trial court committed prejudicial error when it
excluded statements she made at the scene of the crime describing the shooting to one of
the police officers who responded to her 911 call. Gwozdz contends that her statements
were admissible as spontaneous declarations pursuant to Evidence Code section 1240,
and that she did not forfeit her right to raise this issue on appeal even though her counsel
failed to make the “substance, purpose and relevance of the excluded evidence” known to
the trial court through an offer of proof pursuant to Evidence Code section 354,
subdivision (a). Alternatively, Gwozdz argues that if her claim is forfeited due to her
counsel’s failure to make an offer of proof, reversal is still required because such a failure
demonstrates that she was denied the effective assistance of counsel.




       1 All   further statutory references are to the Penal Code unless otherwise indicated.

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       For the reasons discussed below, we affirm.2
                                     BACKGROUND
       A.       THE CRIME SCENE
       On April 26, 2007, at 2:51 p.m., Gwozdz called 911. She told the 911 operator
that her “husband was going to go . . . shooting at a shooting range” and “he was showing
[her] how to use [a gun] and [she] accidentally shot him.” Gwozdz further explained that
“he was laying down, and he was showing me [the gun] and it went in his head.” She
continued, “My husband said the gun didn’t have any bullets in it. I thought that’s what
he told me. . . . A long time ago, he showed me how to pull the thing back on the top of
the gun and pull the trigger real fast. And that’s what I did.” Gwozdz told the 911
operator that her husband was still breathing and that she was following the operator’s
instructions to apply pressure to the wound. Gwozdz hung up the phone when the
emergency responders arrived.
       When the emergency responders arrived, they found Gwozdz behind the couch
holding a towel to Duffey’s head, “[c]rying” and “[s]obbing.” Duffey did not appear to
be breathing or actively bleeding, other than some blood dripping from his nose. Duffey
was lying on his back on the couch; his head rested on a pillow and faced toward the
television, which was on; his right hand was next to his body on the back of the couch,
and his left hand was inside his pants pocket; his legs were straight, with his right foot
balanced on his left; a pillow under his knee propped up his right leg. Blood had soaked
into the couch, pooled on the floor below and near the couch, and spattered the nearby
walls and furniture. Firefighters tried unsuccessfully to save Duffey’s life.


       2 With  regard to the judgment, the People have noted that a minor error occurred
as to the imposition of certain mandatory fines; specifically, the court omitted to impose a
$300 parole revocation restitution fine pursuant to section 1202.45, subdivision (a). In
her reply brief, Gwozdz does not contest this error. Accordingly, while we affirm the
judgment, as discussed below, we also remand this matter to the trial court for the limited
purpose of modifying the judgment so that it imposes the mandatory $300 parole
revocation restitution fine but stays the execution of that fine unless and until parole is
revoked. (See § 1202.45, subd. (c).)

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       One of the very first emergency responders was Detective Bruce Goldowski
(Goldowski) of the Los Angeles County Sheriff’s Department. Upon entering the house,
Goldowski first “secured” the premises—that is, made sure there were no threats to the
occupants and emergency responders—and then had the fire department paramedics
render aid to Duffey. At some point after entering the house, Goldowski escorted
Gwozdz to another room and asked her to tell him what had happened. Gwozdz told him
that she had accidentally shot Duffey while practicing fan-firing or “rapid-firing” a
double-action revolver, demonstrating how she would hold the gun with one hand while
using the other to brush back the gun’s hammer. Gwozdz also told the detective that
Duffey had “laid down in front of the barrel” just as “the gun went off.” Goldowski
subsequently wrote up a report summarizing Gwozdz’s statements about the shooting.3
       B.     THE FIRST TRIAL
       During the first trial, the People made Gwozdz’s various statements to the police
the centerpiece of their case. Specifically, the People attempted to advance two points:
first, Gwozdz’s statements were internally inconsistent—instead of telling one story over
and over again, she told “many different versions” of the purported accident; and second,
Gwozdz’s statements were inconsistent with the physical evidence, such as Duffey’s
position on the couch, the medical testimony about the effect of the bullet wounds on
Duffey’s ability to speak, and the mechanical characteristics of the revolver used in the
killing (e.g., the visibility of the bullets in the cylinder and the comparative difficulty of
“fan-firing” a double-action revolver versus a single-action revolver). As a result of this
strategic decision, a significant portion of the first trial involved expert testimony from



       3 At both trials, the People argued that Gwozdz’s version of events was not
credible and inherently suspect given, inter alia, the positioning of Duffey’s body on the
couch—lying in a relaxed position with his left hand in his pocket, right hand on the back
of the couch, one leg elevated on a pillow, and his head turned toward the television; such
a position suggested, according to the People, that Duffey was asleep when he was shot,
not giving a shooting lesson to Gwozdz who was behind, not in front of, the couch when
she shot him twice.

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both sides regarding revolvers and their ability to be fired rapidly, and blood splatter
patterns.
       On January 22, 2014, after hearing seven days of testimony and argument, and
after deliberating over the course of three days, the jury failed to reach a unanimous
verdict, and, as a result, the court declared a mistrial.
       C.     THE SECOND TRIAL
       As noted by the trial court, “the People made certain strategic decisions which
changed the tenor” of the second trial. The single greatest change was that the People
greatly simplified their case. They did so in two ways. First, instead of utilizing all of
Gwozdz’s statements as they had done in the first trial, the People relied on just one
statement: the 911 call. Second, the People significantly reduced the expert testimony
they presented. Among other things, the People did not recall their blood splatter expert
and they sharply circumscribed the testimony of their gun expert, eliminating from their
direct examination any discussion about “fan firing.”
       A possible harbinger of this change in strategy by the People occurred in
October 2014, several months before the second trial began. On October 14, 2014,
Gwozdz moved to “PRESERVE” the evidentiary rulings from the first trial for use during
the second trial. The People did not oppose the motion but also did not offer any
argument in support of the motion at the hearing. On October 30, 2014, the trial court
denied the motion, stating that “this is a brand new trial.”
       In any event, the People’s new strategy became clear when they once again called
Goldowski as their first witness. In contrast to the first trial, the People did not ask
Goldowski any questions about the substance of what Gwozdz told him about how the
shooting occurred. Instead, the People confined their direct examination principally to
Goldowski’s observations of the crime scene. On cross-examination, Gwozdz’s counsel
attempted to have Goldowski testify about the statements made to him by Gwozdz, but
the People objected that such a question called for hearsay. The trial court sustained the
objection and Gwozdz’s counsel did not make an offer of proof or otherwise attempt to
convince the court that there was a viable exception to the hearsay rule that would render

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the anticipated testimony admissible. Instead of making an offer of proof, Gwozdz’s
counsel proceeded to ask a series of questions designed to elicit the conclusions
Goldowski had reached about the shooting both before he arrived at the Duffey house and
after he had left; the People objected to these questions on a variety of grounds and the
court sustained those objections.
       On January 23, 2015, after hearing six days of testimony and argument, and after
deliberating over the course of three days, the jury found Gwozdz guilty of second degree
murder. The jury further found that Gwozdz personally and intentionally discharged a
firearm in the commission of the murder. On April 24, 2015, the court sentenced
Gwozdz to a term of 15 years to life in state prison for the murder plus an additional term
of 25 years to life for the firearm enhancement. Gwozdz timely appealed.
                                       DISCUSSION
       A.     GWOZDZ FORFEITED CONSIDERATION OF THE ALLEGED ERROR ON APPEAL
       Gwozdz argues that the trial court prejudicially compromised her right to a fair
trial and a defense by sustaining the People’s hearsay objection to testimony by
Goldowski about statements about the shooting that she made to him at the house.
Gwozdz further argues, for the first time on appeal, that the statements she tried to elicit
were admissible as spontaneous declarations pursuant to Evidence Code section 1240—
that is, those descriptive out-of-court statements were trustworthy, and hence admissible,
because they were made under stress of the situation. As discussed below, Gwozdz failed
to take the necessary steps to preserve this issue for appellate review.
              1.      Standard of review
       Generally, “[a] trial court’s decision to admit or exclude evidence is reviewable
for abuse of discretion.” (People v. Vieira (2005) 35 Cal.4th 264, 292.) An abuse of
discretion standard requires the reviewing court to uphold the exclusion of evidence
unless the reviewing court finds the trial court acted arbitrarily, capriciously, or in a
patently absurd manner and that the exclusion of the evidence resulted in a manifest
miscarriage of justice. (People v. Ledesma (2006) 39 Cal.4th 641, 705.)



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              2.     The need for an offer of proof
       When a trial court denies a defendant’s request to produce evidence, the defendant
must make an offer of proof in order to preserve the issue for consideration on appeal.
Evidence Code section 354 states the rule: “A verdict or finding shall not be set aside,
nor shall the judgment or decision based thereon be reversed, by reason of the erroneous
exclusion of evidence unless the court which passes upon the effect of the error or errors
is of the opinion that the error or errors complained of resulted in a miscarriage of justice
and it appears of record that: [¶] (a) The substance, purpose, and relevance of the
excluded evidence was made known to the court by the questions asked, an offer of
proof, or by any other means . . . .” As explained by our Supreme Court in People v.
Ramos (1997) 15 Cal.4th 1133, the offer of proof is “a condition precedent to challenging
the exclusion of proffered testimony” and this requirement “applies equally to
establishing a hearsay exception.” (Id. at p. 1178.)
       In People v. Ramos, supra, 15 Cal.4th 1133, during the direct examination of a
witness, the prosecutor made two hearsay objections to questions regarding the contents
of letters the witness received from another person around the time of the crimes. (Id. at
p. 1178.) “In response, [the] defendant did not make an offer of proof as to the substance
of the anticipated testimony, cite a hearsay exception, or argue a nonhearsay purpose.
Accordingly, he failed to preserve the issue.” (Ibid.)
       Similarly, in People v. Livaditis (1992) 2 Cal.4th 759, the defendant argued, as
here, that the trial court prejudicially erred in sustaining the prosecution’s hearsay
objections to various testimony. (Id. at p. 777–778.) Our Supreme Court held that the
defendant failed to preserve the issue for appeal by not making an offer of proof to the
trial court. (Id. at p. 778.) Although the relevancy of the subject testimony (to show the
defendant’s remorse) was revealed to the trial court—the witnesses answered the
questions before the objections were sustained— the defendant “did not show that the
testimony came within an exception to the hearsay rule, and did not attempt, by offer of
proof or otherwise, to lay the proper foundation for that exception.” (Ibid.) “Defendant



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did not even suggest the hearsay statements were admissible under some exception.”
(Id. at p. 779.)
       The requirement for an offer of proof follows from the touchstone principle that
the “proponent of proffered testimony has the burden of establishing its relevance, and if
the testimony is comprised of hearsay, the foundational requirements for its admissibility
under an exception to the hearsay rule. [Citations.] Evidence is properly excluded when
the proponent fails to make an adequate offer of proof regarding the relevance or
admissibility of the evidence.” (People v. Morrison (2004) 34 Cal.4th 698, 704.)
       The offer of proof serves two critical functions. First, it helps the trial court reach
a fully informed decision. By making an offer of proof, the proponent of the proffered
evidence gives the opposing party a chance to explain more fully the basis for its
objection, thereby providing the trial court with greater clarity. The need for clarity is
especially pressing with regard to hearsay: “The proponent of hearsay has to alert the
court to the exception relied upon and has the burden of laying the proper foundation.”
(People v. Livaditis, supra, 2 Cal.4th at p. 778.) As explained by the Law Revision
Commission, “if the disputed preliminary fact is whether the proffered statement was
spontaneous, as required by Section 1240, the proponent would have the burden of
persuading the judge as to the spontaneity of the statement.” (Cal. Law Revision Com.
com., Deering’s Ann. Evid. Code (2004 ed.) foll. § 405, p. 185.) In short, the offer of
proof provides a valuable pause in the proceeding which allows the trial court to
reconsider and change and/or clarify its ruling.
       Second, the offer of proof assists the reviewing court. “‘“Before an appellate
court can knowledgeably rule upon an evidentiary issue presented, it must have an
adequate record before it to determine if an error was made.” [Citation.]’ [Citation.]
‘The offer of proof exists for the benefit of the appellate court. The offer of proof serves
to inform the appellate court of the nature of the evidence that the trial court refused to
receive in evidence . . . . The function of an offer of proof is to lay an adequate record for
appellate review . . . .’” (Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83, 93–94.)



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              3.     Cross-examination and the need for an offer of proof
       Evidence Code section 354 also provides an exception to the offer of proof
requirement— if the trial court excludes evidence on cross-examination, no offer of proof
is necessary to preserve the issue for consideration on appeal. (Evid. Code, § 354,
subd. (c).)
       However, there are exceptions to this exception. For example, “[i]f the evidence
the defendant seeks to elicit on cross-examination is not within the scope of the direct
examination, an offer of proof is required to preserve the issue.” (People v. Foss (2007)
155 Cal.App.4th 113, 127.) Similarly, if the cross-examination is not exploratory in
nature—that is, the defendant knows the substance of the information sought on cross-
examination—and/or it is apparent the trial court does not recognize the theory of
relevancy, an offer of proof is required. (See People v. Allen (1986) 42 Cal.3d 1222,
1270, fn. 31; People v. Burton (1961) 55 Cal.2d 328, 344–345; People v. Coleman (1970)
8 Cal.App.3d 722, 729–731; People v. Lancaster (1957) 148 Cal.App.2d 187, 196.)
              4.     Gwozdz failed to make the necessary offer of proof
       Here, as in People v. Ramos, supra, 15 Cal.4th 1133, and People v. Livaditis,
supra, 2 Cal.4th 759, Gwozdz did not make an offer of proof as to the substance of the
anticipated testimony by Goldowski, cite a hearsay exception, or argue a nonhearsay
purpose. This failure is not excused because Gwozdz tried to introduce the testimony at
issue during cross-examination of Goldowski. The subject of her statements to
Goldowski were not raised during the People’s direct examination of the detective and
her cross-examination of the detective was not exploratory in nature—Gwozdz and her
counsel not only had Goldowski’s report summarizing his conversation with Gwozdz at
the house, but they also had his prior trial testimony about her statements. In other
words, Gwozdz already knew Goldowski’s expected testimony.
       On appeal, Gwozdz makes a reasonable case that her statements to Goldowski
may have been admissible as spontaneous declarations—she made the statements to
Goldowski shortly after he arrived at the house and before he secured the crime scene,
and when Goldowski first saw Gwozdz she “sounded somewhat hysterical.” However,

                                             9
because she did not make an offer of proof, the People were not able to argue to the trial
court that Gwozdz’s statements were inadmissible as spontaneous declarations because,
for example, they were made under police questioning, and they were made to Goldowski
after he secured the house (but not the crime scene), and, based on the lack of blood on
her, that the statements were made some considerable time after she had fired the first
shot—that is, there was time for her to collect her wits and “‘to contrive and
misrepresent.’” (People v. Poggi (1988) 45 Cal.3d 306, 318.) In other words, the People
could have argued that statements to Goldowski were not excited utterances, but
calculated, self-serving testimonials. However, the People were not able to make such
arguments and the trial court was not able to consider and weigh both sets of arguments,
because Gwozdz failed to make the necessary offer of proof.
       In short, because Gwozdz’s trial counsel never raised the issue of a hearsay
exception, the facts relevant to determining whether a hearsay exception applied were
never fully developed, nor subjected to confrontation by the People, nor subjected to the
factfinding and discretionary functions of the trial judge. On the basis of the record
before us, we cannot say that the trial court acted arbitrarily, capriciously or in a patently
absurd manner by sustaining the People’s hearsay objection to testimony by Goldowski
about Gwozdz’s statements to him at the house. Accordingly, we uphold the trial court’s
decision.
       B.     GWOZDZ’S INEFFECTIVENESS OF COUNSEL ARGUMENT IS PREMATURE
       Gwozdz argues that to the extent her counsel’s “omissions result in the forfeiture
of the argument on appeal, [she] was denied effective assistance of counsel.” According
to Gwozdz, “reversal is required here because the record reveals no rational tactical
reason for [her] counsel’s failure to adequately protect the record for appellate purposes.”
As discussed below, we decline to review this claim.
              1.     Standard of review
       To prevail on a claim of ineffective assistance of counsel, defendant must establish
her attorney’s representation fell below professional standards of reasonableness and
must affirmatively establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668,

                                              10
687; People v. Hart (1999) 20 Cal.4th 546, 623–624.) If the defendant’s showing is
insufficient as to one component of this claim, we need not address the other.
(Strickland, at p. 697.)
       However, “[a] claim on appeal of ineffective assistance of counsel must be
rejected “‘[if] the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation.’” [Citations.]
Unless the record affirmatively discloses that counsel had no tactical purpose for his act
or omission, ‘the conviction will be affirmed and the defendant relegated to habeas
corpus proceedings at which evidence dehors the record may be taken to determine the
basis, if any, for counsel’s conduct or omission.’” (People v. Hinds (2003) 108
Cal.App.4th 897, 901.)
       As our Supreme Court observed in People v. Mendoza Tello (1997) 15 Cal.4th 264
(Mendoza Tello), “[b]ecause claims of ineffective assistance are often more appropriately
litigated in a habeas corpus proceeding, the rules generally prohibiting raising an issue on
habeas corpus that was, or could have been, raised on appeal [citations] would not bar an
ineffective assistance claim on habeas corpus.” (Id. at p. 267.) In Mendoza Tello, the
Supreme Court unanimously reversed the Court of Appeal’s reversal of the defendant’s
conviction on the grounds that counsel was ineffective for failing to make a suppression
motion; the court did so due to gaps in the record: “On this record, we do not know what
[the deputy] would have said had he been asked at a suppression hearing why he did what
he did . . . . [P]erhaps he did have a reason, of which defense counsel was aware, and
which justified counsel’s actions. Perhaps there was some other reason not to suppress
the evidence.” (Ibid.) “No one gave [the deputy] the opportunity to point to any specific
and articulable facts justifying his actions. Nor did the prosecution have the opportunity
to offer some other possible reason not to suppress the evidence.” (Ibid.)
       The lesson from Mendoza Tello, supra, 15 Cal.4th 264, is that an appellate court
should not reverse “unless it can be truly confident all the relevant facts have been
developed.” (Id. at p. 267, italics added.) Or, as the court in People v. Hinds, supra, 108

                                             11
Cal.App.4th 897, put it, “[w]e are wary of adjudicating claims casting aspersions on
counsel when counsel is not in a position to defend his conduct. A claim of ineffective
assistance of counsel instead is more appropriately made in a habeas corpus proceeding.”
(Id. at p. 902.)
               2.     The record is too undeveloped to support direct appellate review
       Here, we decline to review Gwozdz’s ineffectiveness of counsel claim because the
record does not contain any explanation for her counsel’s conduct, or necessarily rule out
a satisfactory one.
       Gwozdz argues that there was “no rational tactical reason” and “no satisfactory
explanation” for counsel’s failure to adequately protect the record. However, the People
have advanced a number of potentially meritorious arguments why Gwozdz’s counsel
made a “reasonable tactical decision[]” to rely on the description of the shooting in the
911 call and that this decision was part of a “coherent and viable . . . strategy,” which had
previously resulted, albeit not in an acquittal, but in a mistrial. What is missing is direct
evidence about the strategy and tactical decisions by Gwozdz’s counsel. “Action taken or
not taken by counsel at a trial is typically motivated by considerations not reflected in the
record. It is for this reason that writ review of claims of ineffective assistance of counsel
is the preferred review procedure. Evidence of the reasons for counsel’s tactics, and
evidence of the standard of legal practice in the community as to a specific tactic, can be
presented by declarations or other evidence filed with the writ petition.” (In re Arturo A.
(1992) 8 Cal.App.4th 229, 243, citing Eisenberg et al., Cal. Practice Guide: Civil Appeals
& Writs (The Rutter Group 1991) Writs, § 15.179.1, pp. 15–38.6, 15–38.7.)
       Accordingly, we affirm “without prejudice to any rights [Gwozdz] may have to
relief by way of a petition for writ of habeas corpus.” (People v. Garrido (2005) 127
Cal.App.4th 359, 367.)




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                                      DISPOSITION
       The judgment shall be modified to reflect the mandatory $300 parole revocation
restitution fine pursuant to Penal Code section 1202.45, subdivision (a). The execution of
that fine is stayed unless and until parole is revoked. The superior court is directed to
prepare an amended abstract of judgment reflecting these modifications and forward a
copy to the Department of Corrections and Rehabilitation. As so modified, the judgment
is affirmed.
       NOT TO BE PUBLISHED.


                                                  JOHNSON, J.


We concur:


               CHANEY, Acting P. J.


               LUI, J.




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