THE PEOPLE v. KEVIN BERGMAN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. KEVIN BERGMAN, Defendant and Appellant.

B219309

Decided: February 23, 2011

Mark Allan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen, Joseph P. Lee, and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Kevin Bergman appeals from the judgment entered after he was convicted of first degree murder and sentenced to life in prison without the possibility of parole.   Relying on Crawford v. Washington (2004) 541 U.S. 36 (Crawford ), and Melendez-Diaz v. Massachusetts (2009) 557 U.S. _ [129 S.Ct. 2527] (Melendez-Diaz ), he contends that he was denied his constitutional right to confrontation when the court admitted the testimony of a medical examiner who had not performed the autopsy on the victim.   We find no confrontation violation, and reject defendant's contention.

Defendant also contends, and respondent concedes, that the trial court erred in imposing a parole restitution fine pursuant to Penal Code section 1202.45.1  In addition, respondent points out that the trial court omitted the mandatory court facilities funding assessment required under Government Code section 70373.   We thus amend the judgment to strike the parole restitution fine and add the court facilities funding assessment, but otherwise affirm the judgment.

BACKGROUND

1. Procedural Background

Defendant was charged with murdering Dean Robert Modica (Modica) with the special circumstance of committing the crime during the commission of a residential burglary and robbery.   The information specially alleged that defendant had suffered two prior felony convictions for which he had not been free of prison custody for a period of five years, within the meaning of section 667.5, subdivision (b) and that defendant had been convicted of three felonies, within the meaning of section 1203, subdivision (e)(4).   A jury convicted defendant of first degree murder, and found the special circumstance and the prior allegations to be true.   On September 23, 2009, the trial court sentenced defendant to life in prison without the possibility of parole, and defendant filed a timely notice of appeal.

2. Relevant Trial Evidence

In April 2008, approximately one month before the murder, defendant had gone with Modica to Cheryl Maxwell's home, where Modica demanded money from her.   When she refused, Modica attempted to take her television from the wall, while defendant stood nearby with his hand on what appeared to be the butt of a gun in his pocket.   Defendant urged Modica to leave when it became apparent that Maxwell had a child, and that Modica was unable to remove the television.   The two men then left.

On May 19, 2008, defendant expressed that he was angry with Modica to several friends.   David Pickett (Pickett) testified that defendant was angry because defendant felt Modica “owed [him] something.”   Defendant told his girlfriend, Celeste Cravey (Cravey), that he was angry with Modica.   Cravey testified that defendant was worried that Modica would “snitch” to the police about his involvement in an incident in which defendant helped Modica attempt to collect money owed to him.

Another of defendant's friends, Jamey Pender (Pender), told police Detective Patrick O'Dowd that two days before the murder, defendant spoke at length about Modica's owing defendant money.   Defendant said such things as, “Fuck that guy,” “That guy owes me,” “He's fucking me around,” and “I'm gonna tax that guy.”   Pender also explained that “tax” was the equivalent of robbing.   Pender offered to find defendant employment as painter so that defendant could earn money if he needed it, but defendant did not take him up on the offer.

Defendant, Cravey, Pickett, and another friend, Joseph Chaaya, went in two cars to Modica's house, where Pickett traded Xanax pills for marijuana.   Modica was a drug dealer, and they were there “casing” his inventory, which was kept hidden in a room attached to the garage.   They were able to see where Modica kept his inventory.

Peggy Poloai testified that defendant appeared angry that day, and she overheard him ask Pickett's help to “tax” Modica.   She explained that to “tax” meant to rob in street slang.   When she saw defendant later that same day, he asked for her help to sell marijuana.   It surprised her that he had so much marijuana to sell, because he had been broke earlier in the day.

Later the same day, Cravey drove defendant back to Modica's house, this time with his friends Sean Schuck (Schuck) and Trevor Cooper (Cooper).   They found Modica in his front yard.   Cravey and Cooper remained in the car, while defendant and Schuck went into the house with Modica, leaving the front door open.   After about 10 minutes, Cravey asked Cooper to go to the house to get them.   Cooper testified that when he reached the door, he heard a commotion, stepped in, and saw defendant and Modica wrestling or fighting.   They were upright, with Modica's back against the wall between the kitchen and living room while Schuck ran around the room and threw something in Cooper's direction.   Schuck then approached them from behind defendant and lunged over him toward Modica.   Cooper claimed that he saw no knife.

Cooper then ran back to the car, jumped in and honked the horn repeatedly in an effort to get defendant and Schuck out quickly.   A neighbor came out of her residence as defendant emerged from Modica's driveway on a motorcycle, and Schuck came running out the front door.   Defendant rode off on the motorcycle, and Schuck jumped into Cravey's car, which then left the area.   Cooper claimed that the object Schuck threw in his direction was a telescope.   However, when Cravey reached the freeway, Cooper handed her a pair of brass knuckles to throw out the car window.

Modica's next-door neighbor, Deborah Heniger (Heniger), testified that she came out of her house shortly after 5:00 p.m. when she heard a commotion in the back of Modica's house, like things being moved around violently.   Once outside she saw a man on Modica's motorcycle backing out of his driveway.   The man then rode away on the sidewalk.   Heniger selected defendant's photograph from a photographic lineup, identifying him as the man on the motorcycle.   She was reluctant to identify defendant in court, as he was heavier and looked different, but she acknowledged that defendant was the same person as the man in the photograph she had selected.   She had seen defendant going in and out of Modica's house before, and a few days before the murder, she witnessed them in a heated conversation.

Heniger summoned Carmen Grimes (Grimes), Modica's neighbor on the other side, for help, telling her that Modica's driveway gate, front door and security door, normally locked, were all open, and the dogs were loose.   Grimes testified that Heniger secured the dogs, closed the gate and went to close the front doors, but ran back to Grimes's door, screaming that Modica had raised his hand, but it just fell, and that there was blood.   Grimes called 911, and went to look.   She saw one of the dogs nudging Modica, who was not moving.

That evening, defendant sold the motorcycle, which was worth approximately $10,000, to Tim Doby for $400.   The next day, when Doby heard about the murder and theft of the motorcycle, he abandoned it near a police station.   When the motorcycle was later examined, it had specks of blood on it.

Several attempts to use Modica's PayPal credit card were made that evening.   Schuck used Modica's credit card and driver's license to make a purchase at a gas station.

After the murder, Cravey noticed blood specks on defendant's hand and face.   She was very frightened, disobeyed defendant's direction to follow behind the motorcycle, and attempted to hide from him by renting a motel room.   She changed her mind after a while, called her roommate/ex-husband, Timothy Adle (Adle), for a ride and went home, where defendant was waiting for her.   When Adle went to park his truck, he encountered Schuck, who held a knife, so Adle drove off instead.   Cravey left defendant the next morning on a pretext, and went to stay with friends.   The next day, Cravey received threatening voice and text messages from defendant.   She tried to retrieve her car from the motel, but the tires had been flattened.   Two days after the murder, defendant and Schuck found Cravey's car at the motel, and Schuck set it on fire.   Cravey testified that it was defendant's habit to destroy things belonging to her when he was angry with her.

Police Officer Leticia Gamboa testified that on the day of the murder, she reached the Modica residence shortly after 5:00 p.m., and went inside.   The victim lay on the floor, face up, with blood all over his face, chest, and legs.   He was unconscious and not breathing.   There was blood in the living room, kitchen, refrigerator, and the area leading to the bedroom.   She saw blood on the floor in the rear of the house, where a door in the bedroom led to the driveway and a small room in the garage.   She saw blood on the ground in that area, as well.

Detective Bryan McMahon explained photographs taken in Modica's house during the investigation.   He testified that there was blood spray on refrigerator, indicating that an injury occurred there, and blood drops all over the kitchen floor.   A sandal was found near the refrigerator, and the other sandal was found on Modica's foot.   Modica's body lay in the living room, just outside the doorway to the kitchen.   Nearby was a torn holster part.   There was a small amount of blood on the living room coffee table, and a large amount on and near the body.   The door from kitchen to the bedroom was bloody and damaged, as though something had run into it, and a human hair was found in the broken wood.   There was a significant amount of blood on the rear door to the garage.   Shipping boxes for the bonsai trees that Modica sold were scattered on the driveway, and blood was found on a box cutter and pair of scissors in the garage.   A bloody nine-millimeter bullet was found on the bedroom floor, but no gun or other ammunition was found.   There was no money or wallet found on the property.

Detective McMahon's opinion, based upon his experience in the investigation of 200 or so homicides, was that the blood evidence indicated a violent struggle as the participants moved from room to room.

Deputy Medical Examiner Vadims Poukens testified that he was a licensed physician, that he had completed a pathology residency at UCLA, as well as a forensic pathology fellowship at the Los Angeles County Department of Coroner, and that he had performed approximately 200 autopsies.   Dr. Irwin Golden performed the autopsy on Modica in May 2008, but he had retired by the time of trial.   Thus, Dr. Poukens reviewed the autopsy report and testified regarding Dr. Golden's findings.   Dr. Poukens expressed his own opinions, based upon the report and the included photographs.   In the photographs, Dr. Poukens observed multiple scratches on Modica's face, arms, and chest.   He also observed two stab wounds on his upper back, one piercing the right shoulder blade and the other piercing his left shoulder blade.   There were three small superficial cuts on his right forearm of the sort usually classified as defensive type wounds.   There were two scratches and one bruise on his left forearm, all of which could also be classified as defensive wounds.   Two cuts on his right lower leg were consistent with defending an attack while lying on the ground with his legs up.   Dr. Poukens acknowledged that it was impossible to know what position Modica was in when he sustained these injuries;  he could have been on his stomach or standing while defending himself by kicking.

In Dr. Poukens's opinion, based upon an examination of the photographs and the report, the victim could have survived for as little as a few minutes and up to an hour with such injuries.   Though methamphetamine and marijuana were found in Modica's body, Dr. Poukens did not think this contributed to his death.   It was his opinion that Modica died as a result of multiple sharp force injuries.

DISCUSSION

I. There was no Crawford/Melendez-Diaz Error

Defendant contends that Dr. Golden's autopsy report was testimonial hearsay, and because defendant had not been afforded an opportunity to cross-examine Dr. Golden, the admission of the report and Dr. Poukens's testimony violated the confrontation clause of the Sixth Amendment of the United States Constitution.2

The confrontation clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.”  (U.S. Const., 6th Amend.)   The object of that clause is to “ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”  (Maryland v. Craig (1990) 497 U.S. 836, 845.)

The United States Supreme Court has concluded that nontestimonial hearsay remains subject to state hearsay law and may be exempted from confrontation clause scrutiny entirely.  (Crawford, supra, 541 U.S. at p. 68.)   However, where testimonial evidence is involved, “the Sixth Amendment demands what the common law required:  unavailability and a prior opportunity for cross-examination.”  (Ibid.) Although there is no comprehensive definition of “testimonial,” it includes statements “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ”  (Id. at p. 52.)   In Davis v. Washington (2006) 547 U.S. 813 (Davis ), the Supreme Court clarified that definition.   Rejecting a contention that questions asked during a 911 call were testimonial, the court concluded that interrogations “solely directed at establishing the facts of a past crime, in order to identify (or produce evidence to convict) the perpetrator” are testimonial.  (Id. at p. 826.)

Respondent contends that defendant has failed to preserve the issue for review.   A claim of error under the confrontation clause is forfeited on appeal by failing to object below.  (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19.)   Here, defendant failed to object to the autopsy report or to Dr. Poukens's testimony, but counters that any such objection would have been futile as the trial court would most certainly have overruled it under the reasoning of People v. Geier (2007) 41 Cal.4th 555 (Geier ).   We agree, but need not reach the issue of forfeiture, because we conclude that defendant's confrontation claim has no merit.

In Geier, the California Supreme Court held that a DNA analysis report was not testimonial as it was not documentation of past events directed at establishing the facts of a crime in order to identify or prosecute the perpetrator, but rather a “contemporaneous recordation of observable events.”   (Geier, supra, 41 Cal.4th at p. 605.)   The court extracted from its own interpretation of Crawford and Davis three criteria, all of which a statement must meet to be deemed testimonial:  “(1) it is made ․ by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial.”  (Geier, at p. 605.)   Applying the criteria, the court compared laboratory reports to autopsy reports, and concluded that although some forensic reports might contain past facts relating to the crime, scientific evidence memorialized in routine forensic reports is not testimonial.  (Id. at p. 606, and see fn. 12.)   The court also found support in the opinions of other jurisdictions that had concluded that autopsy reports were not testimonial under Crawford.   (Geier, at pp. 601-602, 604.)

Here, although it was reasonable to believe that Dr. Golden's report could be used at a later trial, there was no evidence that he recorded past facts related to criminal activity for use at trial, or that he directed it to a law enforcement agent.   Further, defendant does not point to any such facts in Dr. Golden's report or Dr. Poukens's testimony.   Thus, under the reasoning of Geier, the autopsy report was nontestimonial.

Defendant contends that Melendez-Diaz has abrogated Geier.   We disagree.  Melendez-Diaz is distinguishable from Geier and from the facts of this case.   In Melendez-Diaz, the United States Supreme Court held that the challenged laboratory analysts' certificates of analysis, showing that seized material was cocaine, were “quite plainly affidavits” and thus, within the core class of testimonial statements covered by the confrontation clause.   (Melendez-Diaz, supra, 129 S.Ct. at p. 2532.)

Here, in contrast, the autopsy report and photographs upon which Dr. Poukens based his testimony and opinions were not affidavits.   They did not consist, as in Melendez-Diaz, of sworn statements, prepared long after the tests were performed.   Further, the autopsy report and Dr. Poukens's testimony, unlike the affidavits in Melendez-Diaz, did not leave defendant without knowledge of “what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed.”  (Melendez-Diaz, supra, 129 S.Ct. at p. 2537.)   Indeed, Dr. Poukens did not simply reiterate what was in the autopsy report, he testified as an expert, interpreting Dr. Golden's findings, explaining the normal procedures of the Department of Coroner, and making his own findings based upon the photographs and reported observations.   We agree with respondent that Melendez-Diaz cannot be stretched beyond its facts to turn routine autopsy reports into testimonial statements implicating the confrontation clause.3

In any event, the evidence that defendant challenges as prejudicial hearsay was neither hearsay nor prejudicial.   It consisted of Dr. Poukens's own opinion that some of the injuries shown in the autopsy photographs were stab wounds, and that others were consistent with defensive wounds.   Hearsay does not consist of a statement given while testifying, unless it describes a statement made out of court.  (Evid.Code, § 1200, subd. (a).)  Further, photographs are not statements, and thus cannot be hearsay.  (See ibid.)

Arguing that the evidence was prejudicial, defendant points out that the prosecution presented the case on the alternative theories of malice aforethought and felony murder, whereas the defense theory was that he was not the actual killer and did not share the killer's mental state.   First, defendant argues that although the evidence established that he committed a robbery, the autopsy evidence was necessary to establish that the robbery was not merely incidental.   Second, defendant argues that because either he or Schuck could have been the actual killer, the prosecution needed the autopsy evidence to prove that defendant was a major participant in the attack, and acted with a reckless indifference to human life.

The felony-murder special circumstance applies to a defendant who aided and abetted another in the commission of a robbery, and in doing so, acted as a major participant with reckless indifference to human life. (§ 190.2, subds. (b), (c), (d);  People v. Cleveland (2004) 32 Cal.4th 704, 729.)   A robbery that is merely incidental to the murder cannot serve as the basis for a felony-murder special circumstance.  (People v. Gurule (2002) 28 Cal.4th 557, 628-629.)   However, where robbery was the defendant's primary motivation, it was not incidental.  (Ibid.;  see also People v. Bolden (2002) 29 Cal.4th 515, 557-558.)

Quite apart from the autopsy report, overwhelming evidence established that defendant went to Modica's home intending to rob him.   Defendant had expressed his intention to “tax” Modica, as well as resentment toward him.   He turned down Pender's offer of employment as an alternative to robbing Modica.   Pickett had gone with defendant to Modica's home that morning for the purpose of “casing” Modica's narcotics inventory, which included Vicodin and a half pound to a pound of marijuana.   The police arrived within minutes of the murder, found the residence in disarray and found neither narcotics nor Modica's wallet on the premises.   Defendant took and sold Modica's motorcycle and was seen trying to sell marijuana that day.

We reject defendant's contention that the autopsy evidence was necessary to support the prosecutor's argument that defendant was a major participant in the attack, and acted with a reckless indifference to human life.   Defendant argues that the autopsy evidence of multiple stab wounds, defensive wounds, and injuries indicating that Modica was beaten, showed that more than one person acted in concert to overwhelm the victim while he fought for his life.   We agree that the autopsy evidence supports the conclusion that defendant was, if not the actual killer, a significant participant in the attack, and that he acted with a reckless indifference to human life.   However, other overwhelming evidence also permitted the jury to make these findings.   Specifically, prior to the murder, defendant had expressed his anger toward Modica as well as his concern that Modica would tell the police about his involvement in a crime they committed together.   The murder scene indicated to an experienced homicide detective that a violent struggle had taken place.   The attack on Modica began in Modica's room across the driveway.   He and his assailant or assailants came into the house in or near the bedroom, and the struggle continued there, with enough violence to break a door and leave blood and hair on it.   The beating continued into the kitchen injuring Modica severely enough to cause blood spray on the refrigerator, and then into the living room, where Modica died.

Defendant was clearly involved in the struggle.   He had blood on his face afterward, and there was enough blood on him to drip onto the motorcycle.   Cooper testified that he saw defendant fighting with Modica, and saw Schuck about to join the conflict moments before they fled and minutes before the neighbor saw Modica, still alive, in the position the police found him.   However many stab wounds Modica suffered, and regardless of whether his minor wounds could be characterized as defensive or whether he was beaten, it is apparent that Modica was pursued through several rooms and severely wounded before reaching the living room, where Cooper saw defendant holding him against the wall while Schuck attacked.

Confrontation clause violations are subject to the harmless error test of Chapman v. California (1967) 386 U.S. 18, 24.  (Geier, supra, 41 Cal.4th at p. 608.)   In applying that test, we ask:  “ ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’  [Citation.]”  (Ibid., quoting Neder v. United States (1999) 527 U.S. 1, 18.)   We conclude that it is clear in this case.   Thus, were it error to admit Dr. Golden's findings that Modica was stabbed numerous times and had defensive wounds or wounds consistent with having been beaten, any such error would be harmless.

II. Parole Restitution Fine

Defendant contends that the trial court erred at sentencing by imposing a parole restitution fine pursuant to section 1202.45, as it is not authorized when the sentence is life without the possibility of parole, with no determinate prison term for other counts.   Defendant is correct;  respondent agrees and the fine must be stricken.  (People v. McWhorter (2009) 47 Cal.4th 318, 380.)

Respondent points out that the trial court omitted the $30 court facilities funding assessment required under Government Code section 70373.   That statute provides that the “assessment shall be imposed on every conviction for a criminal offense ․ except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”

Defendant contends that the language of the statute is ambiguous, and could be interpreted to apply to only traffic offenses.   He acknowledges that another appellate court has rejected such a construction, but points out that the court commented that the statute was “not optimally drafted.”  (People v. Cortez (2010) 189 Cal.App.4th 1436, 1439.)   Defendant asks that we give him the benefit of the doubt.   We have no doubt, however, and agree with the Cortez court that “[d]espite its awkward construction, the scope of [Government Code] section 70373 can be logically construed in only one way--as applying to all criminal convictions, including traffic offenses under the Vehicle Code.” (Cortez, supra, at pp. 1442-1443.)   We therefore modify the judgment as respondent suggests.  (See People v. Turner (2002) 96 Cal.App.4th 1409, 1413.)

DISPOSITION

The judgment is modified as follows:  The $200 parole restitution fine imposed by the trial court pursuant to section 1202.45 is stricken, and defendant is ordered to pay $30 as a court facilities funding assessment pursuant to Government Code section 70373.   The trial court is directed to forward to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting the modified judgment.   As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

1.  FN1. All further statutory references are to the Penal Code, unless otherwise indicated.

2.  FN2. Numerous cases raising the issue of whether the results of a forensic report by an expert who did not conduct the testing violate the right to confrontation are now pending before the California Supreme Court.   (People v. Benitez (2010) 182 Cal.App.4th 194, review granted May 12, 2010, S181137;  People v. Bowman (2010) 182 Cal.App.4th 1616, 1618, review granted June 9, 2010, S182172;  People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted Dec. 2, 2009, S176620;  People v. Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046;  People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886;  People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009, S176213.)

3.  FN3. Defendant suggests that the United States Supreme Court is now considering the issue, as it granted certiorari in State v. Bullcoming (N.M.2010) 226 P.3d 1(cert. granted sub nom.  Bullcoming v. New Mexico (2010) _ U.S. _ [131 S.Ct. 62, 177 L.Ed.2d 1152] ), in which no confrontation violation was found in the admission of the results of a blood alcohol test, generated by a gas chromatograph machine, along with the testimony of a qualified analyst who did not prepare the report.  (See State v. Bullcoming, at p. 4.)

_, J.

_, P.J. BOREN_, J. ASHMANN-GERST

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