PEOPLE v. RILEY

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Derrick Newsome RILEY, Defendant and Appellant.

No. F022661.

Decided: April 16, 1996

David A. Nickerson (Court—appointed), San Rafael, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Roger E. Venturi and Ward A. Campbell, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

On April 12, 1994, the Kern County District Attorney filed an information in superior court charging defendant as follows:  count I—murder of Diana Riley (Pen. Code, § 187, subd. (a)) and count II—murder of a human fetus.   As to each count, the district attorney specially alleged the defendant committed multiple murder (Pen. Code, § 190.2, subd. (a)(3)).

On July 5, 1994, the court denied defendant's motion to dismiss count II of the information (Pen.Code, § 995) and on August 22, 1994, defendant's motion to exclude evidence of his inculpatory statements to officers (Evid.Code, § 402) was also denied.

Jury trial commenced on August 25, 1994, and on September 12, the jury found defendant guilty as charged, fixed each count in the second degree, but found the special circumstances not true.   The court sentenced defendant to state prison for consecutive terms of 15 years to life.

Defendant filed a timely notice of appeal.

FACTS***

Facts from the Trial

Defendant, a onetime basketball star at East High School, lived with his wife, Diana, on Norseman Court in Bakersfield.   The couple owned a two-door blue Honda Accord hatchback.   The couple married in 1991 or early 1992.   Diana had attended a nondenominational church, the Shekinah Ministries, before their marriage.   After two or three months, defendant began attending with her.   Shortly after their wedding, Diana told her fellow church members of problems at home.   Money was missing from the house and a break-in had occurred.   Diana's pastor, Ronald Crenshaw, counseled Diana about defendant's problems.

Crenshaw and Diana ultimately confronted defendant and in December 1993 he confessed before the entire congregation he had stumbled back into drug use.   Defendant was initially receptive to counseling but then became defensive.   He acknowledged the wrongfulness of his acts but did not make long-term changes.   Diana initiated the counseling sessions for the most part.   Defendant believed he was being unjustly accused of drug use and stealing.   Diana would raise her voice at him in anger and he too would raise his voice.   At one point, the couple separated for several weeks.   Diana told Crenshaw defendant raised his hand as if to strike her during one argument.   Defendant nevertheless continued to attend church with Diana.

In 1993, Diana was pregnant with her second child.   The second pregnancy appeared to be normal and Diana's 31st week of pregnancy occurred during early 1994.   She was due to have the baby on April 8, 1994.   On February 4, 1994, the fetus was 30 weeks and 5 days old, and was viable.   An ultrasound of the fetus confirmed the due date.   Diana also kept a “pregnancy calendar” on which she noted various pregnancy events beginning with her last menstrual period (July 2) and ending on February 4, 1994—the 30th week of her pregnancy based on her calculations.

Ron Crenshaw and two church elders visited defendant and Diana from 11:30 p.m. on Monday, January 31, 1994, through 1 a.m. on Tuesday, February 1.   The church cash box had been burglarized and Diana suspected defendant was the culprit.   In fact, she stated defendant had taken the church cash box.   She was upset because she believed defendant was responsible for the burglary based on his pattern of conduct that day.   For instance, defendant had been nervous when Diana went out to the garage and he followed her.   She went out to the garage to look for the church's missing cash box.   She and Crenshaw found a large amount of change in the car ashtray which had not been there before.   Defendant offered heated denials.

Sometime between 11 and 11:30 a.m. on Thursday, February 3, Diana Sellers, a Mary Kay consultant, called Diana Riley to confirm a home facial appointment for 1 p.m. that afternoon.   A male answered the phone and Sellers said she would call back before 1 p.m..  Sellers assumed defendant was the person who answered the phone.   She called again before 1 p.m. but talked to the same male rather than to Diana.   Sellers called again that evening and talked to the same man.   The following day she left a message on Diana's home answering machine but she never spoke with Diana.

At about 4 p.m. on February 3, defendant called Diana's friend, Irene Colitti, and asked her if she would baby-sit his son, David, while he coached a basketball game.   Colitti had often baby-sat defendant's son.   Defendant delivered David to Irene between 4 and 4:30 p.m.   He told Irene his wife was lunching with her friend Barbara in Los Angeles and would pick the boy up shortly.   He also told Irene that Diana was driving her brother's fancy car.   When Diana did not pick up David, Irene left a message on the defendant's answering machine.   Defendant returned a short time later and picked up David.   Defendant was unusually talkative and did not seem annoyed that Diana had not returned.

At approximately 9 p.m., defendant also called Diana's friend, Karen Lares.   He had never called Karen at home before.   Defendant asked if Diana was at her house.   She told him Diana was not there and then joked, “Why, don't you know where your wife is?”   Defendant explained he and Diana had fought and she had left the house.   Another friend of Diana, Teresa Caldwell, returned home from her bowling night on February 3.   Defendant had left a phone message that he could not find Diana.   At about 11:20 p.m., Teresa returned defendant's call.   Defendant told Teresa he still had not found Diana.   Defendant said he and Diana had an argument a few days earlier and she had left for a friend's house.   Defendant asked Teresa if Diana had come over to her house.   Teresa replied negatively and said she did not know the couple was having problems.   In a flat voice, defendant explained he had some drug problems a few months earlier.   Defendant also said Diana had told him the baby was not his.   Teresa was skeptical but defendant said he believed Diana.

The following day, Friday, February 4, Karen Lares called defendant's house to respond to an invitation for David's birthday party.   Defendant told Lares Diana was not there but he would convey the RSVP to her.

Teresa Caldwell also called that Friday afternoon to see if defendant had heard from Diana.   Defendant said Diana had come home with a friend named Barbara, changed clothes, and left again.   Teresa had never heard of Barbara.   Defendant also told her they were going to Turlock to visit friends.   He claimed they were driving a black Mustang that belonged to Barbara.   That evening, defendant returned a blouse Diana had purchased at Mervyn's.   He received a credit voucher since he did not have the receipt.

On Saturday, February 5, defendant's neighbors, Olivia Heer and Donna Pena, held a yard sale.   Heer was in her yard as early as 6:30 a.m. and remained there until about 10 a.m.   Pena was present at approximately the same time.   They did not see Diana or a black Mustang convertible, but they did see defendant pulling in his trash can before lunch time.   Defendant smiled and waved.

Between 2 and 4 p.m. that day, defendant and David were at the Valley Plaza Mall.   He spoke to two friends, Cynthia Cripe and her husband.   Cynthia asked about Diana and defendant did not appear upset.

Defendant called Teresa Caldwell between 6 and 6:30 p.m. that evening.   He said he had talked to Diana on the phone and now expected her home the next afternoon, February 6.

At approximately 5:15 a.m. on Monday, February 7, defendant called the California Highway Patrol (CHP) in Bakersfield.   He reported his wife, Diana, was “overdue” by approximately 18 hours and requested help in finding her.   Defendant explained his wife left Turlock at about 3 p.m. on Sunday, February 6, and was expected to arrive in Bakersfield at 6 p.m. the same day.   He said she was traveling with a friend named Barbara in a 1994 black Mustang convertible.   Scott Marotte, a CHP officer, confirmed defendant made such a report.   At 7:30 a.m. that same day, Roger Coach, a California Department of Water Resources employee, found Diana's corpse floating in circles around a gate in the California Aqueduct.   The gate was located near the Buena Vista Golf Course, about 10 miles from Taft.

That same morning, defendant called the home of Diana's uncle, James Reynolds.   Reynolds returned the call and defendant explained Diana had gone to Turlock with someone named Barbara, he last talked to her at 3 p.m. the day before, and she was now missing.   Later that morning, Reynolds—a court reporter in the Kern County Municipal Court—suggested defendant call the CHP and file a missing person report.   Defendant did not mention he had already contacted the CHP.   Reynolds also suggested defendant call Stanislaus County officials.

At 3 p.m. on February 7, defendant called the missing persons division of the Stanislaus County Sheriff's Department and reported his wife was missing.   Defendant advised the Stanislaus authorities his wife was seven months pregnant and he had last spoke to her the previous day.   Defendant said she might be traveling in a 1994 black Mustang convertible in the company of someone named, “Barbara.”   Defendant asked that local hospitals be contacted.   Jane Irwin, a Stanislaus County deputy sheriff, confirmed that Riley made such a report.

Reynolds went to defendant's house around noon on Monday, February 7. Defendant was upset and concerned about Diana's whereabouts.   While driving to defendant's house, Reynolds heard a radio report about a body found in the aqueduct.   However, the report “didn't ring any bells” for Reynolds.   At 3 p.m., Reynolds called the coroner's office and said he had a relative missing.   Detective Raymond, an acquaintance from court, later called Reynolds and the latter described Diana.   At 4:30 p.m., Raymond called Reynolds and asked him to meet him at defendant's house.   When Reynolds arrived at the defendant's residence, Raymond showed him some autopsy photographs.   Reynolds identified the body in the photographs as Diana.   When officers told defendant about Diana, he became “extremely distraught, wailing.”

Kern County Sheriff's Detective John Fidler went to defendant's house with pictures of the body found in the aqueduct.   Defendant initially wanted to wait until the following day to do the identification.   He eventually identified Diana's pants from a photograph but declined to look at photographs of her face.   Defendant told Fidler he had last seen Diana between 8 and 8:15 a.m. on Saturday, February 5.   She had left for Turlock with a friend named Barbara.   He did not know Barbara's last name.   He said they drove off in a new black Mustang convertible.   Defendant had not previously known Barbara but said she had graduated from high school with Diana.   After talking to defendant further, Fidler unsuccessfully tried to identify Barbara and find out more about the new Mustang.

Kern County Sheriff's Detective Raymond contacted the CHP on February 8 and learned defendant had lodged a missing persons report with that agency the previous day.   On the same day, defendant called Teresa Caldwell at the school where she taught kindergarten.   He spoke to her about the discovery of Diana's body in the aqueduct.   Defendant seemed to be crying.

On Thursday, February 10, Detectives Fidler and Raymond interviewed defendant on tape.   He admitted accidentally killing Diana and hiding her jewelry and purse.

On February 7, Armand L. Dollinger, M.D., a forensic pathologist, performed an autopsy on Diana's body.   Dr. Dollinger testified the cause of Diana's death was asphyxia due to “un[deter]mined mechanism.”   Dr. Dollinger said there was no evidence of strangulation as opposed to suffocation.   However, there was evidence of a blunt force cranial trauma with subdural hemorrhage sufficient to produce asphyxia.   The trauma could have been caused by a fall against a solid object.   The horseshoe shape of the wound was not consistent with falling against a table or edge of a night stand or the headboard in the defendant's bedroom.   Dr. Dollinger said death by hemorrhage could take minutes to hours;  death by suffocation could take four to five minutes.   Diana was dead before being placed in the water.   She had been in the water at least 36 to 48 hours.   The estimated age of the dead male fetus in Diana's body was 33 to 35 weeks of age.   The fetus was seventeen and one-half inches long and weighed three and three-quarter pounds.   The fetus died from lack of oxygen due to Diana's death.

Wendy Collette Crenshaw, M.D.,2 a specialist in obstetrics and gynecology, testified about fetal viability within the Bakersfield community.   She said the lowest age of viability is 26 to 27 weeks.   During a search of defendant's house, officers found a pregnancy calendar below the light switch in Diana's bedroom.   The calendar, annotated in Diana's handwriting, showed the week of February 4, 1994, was her 30th week of pregnancy.

Defense †

DISCUSSION

I.–III.†IV. DID THE TRIAL COURT ERRONEOUSLY ADMIT THE PREGNANCY CALENDAR INTO EVIDENCE UNDER THE FAMILY HISTORY EXCEPTION TO THE HEARSAY RULE?

Defendant argues the admission of Diana's pregnancy calendar into evidence under the family history exception to the hearsay rule (Evid.Code, §§ 1200, 1310) was error:

“Jim Reynolds testified concerning a ‘pregnancy calendar’ that was found ‘in Diana's bedroom below the light switch.’․   Entries made in the calendar were in Diana's handwriting․

“The prosecution sought to have the pregnancy calendar (Exhibit 31) introduced into evidence.   According to the prosecutor, the calendar ‘goes back to the beginning of the pregnancy and contains dates of appointments which correspond with the testimony of Dr. Crenshaw and other notations of whether she felt movement and things of that nature, the first time she felt a heartbeat, a flutter, that she recorded these things as they occurred․’  ․ According to the prosecutor the calendar also ‘would establish at that point, February 4th ․ as the end of the 30th week of her pregnancy based on the calculations that she (Diana) maintained.’․

“Defense counsel objected to the introduction of the calendar as hearsay and argued that there was no applicable exception to the hearsay rule․

“The trial court found that the calendar ‘is being used for hearsay purposes' but ruled that an exception to the hearsay rule was applicable.   The trial court ruled that the ‘family history’ exception to the hearsay rule set forth in Evidence Code section 1310 was applicable because the events described in the calendar ‘related to the parent and child.’   The court ruled that the pregnancy calendar was admissible․

“․

“However, at issue here is not a parent and child relationship.   The pregnancy calendar reflected only Diana's notations concerning the unborn fetus.   No ‘child’ existed.   Therefore, no ‘parent and child relationship’ existed.   As a result, the trial court erred in admitting the pregnancy calendar.”

Evidence Code section 1310 states:

“(a) Subject to subdivision (b), evidence of a statement by a declarant who is unavailable as a witness concerning his own birth, marriage, divorce, a parent and child relationship, relationship by blood or marriage, race ancestry, or other similar fact of his family history is not made inadmissible by the hearsay rule, even though the declarant had no means of acquiring personal knowledge of the matter declared.

“(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.”

 Statements regarding family history constitute an exception to the hearsay rule.  (Estate of Stevenson (1992) 11 Cal.App.4th 852, 863, 14 Cal.Rptr.2d 250.)   However, a statement about family history is not admissible if it was made under circumstances such as to indicate its lack of trustworthiness.   The language of Evidence Code section 1310 permits the judge to consider the declarant's motives to tell the truth as well as his or her reasons to deviate therefrom in determining whether the statement is sufficiently trustworthy to be admitted as evidence.  (See Cal. Law Revision Com. com., West's Ann. Evid.Code, § 1310 (1995) p. 402.)

Here the trial court ruled:

“I do believe it is being used for hearsay purposes to reflect information concerning the pregnancy.   It also reflects on events during the pregnan[cy] such as the heartbeat and flutter, and ․ a material part of the proffer is for the purpose of hearsay usage and there is an exception to the hearsay rule, Evidence Code 1310, parent is unavailable and entries have to do with the parents and child, and it is evidence where the calendar was at the time it was seized, and it appeared to be on the wall over the light switch and the entries were made in the handwriting of Diana and the events reflected in the entries are events that related to the parent and child, and such information is admissible.

“These are similar facts as to family history and it is admissible under Evidence Code 1310.”

 Defendant maintains a “fetus” is not a “child” for purposes of Evidence Code section 1310 and the absence of the term “fetus” in that statute indicates the Legislature did not intend this hearsay exception to apply to parent/fetus relationships.   Even assuming arguendo the correctness of defendant's argument, the lower court also admitted the pregnancy calendar as a “similar fact” of Diana's family history.   Scholars have observed there is no definite or formal limitation as to the kind of fact that may be the subject of a statement of family history.   The general inquiry should be:  Were the circumstances named in the statement such a marked item in the ordinary family history and so interesting to the family in common that statements about them in the family would likely to be based on fairly accurate knowledge and to be sincerely uttered?  (Estate of Berg (1964) 225 Cal.App.2d 423, 431–432, 37 Cal.Rptr. 538, citing 5 Wigmore on Evidence (3d ed. 1940) § 1490.)

In our view, the “parent and fetus relationship” is a “similar fact” for purposes of the family history exception to the hearsay rule.   As the People point out, the calendar in question was not a traditional January–December almanac but a calendar directed at documenting a pregnancy.   The calendar included a space for the date of Diana's last known menstrual period and chronicled the significant events of the pregnancy—medical tests, obstetric appointments, ultrasound examinations, and fetal movements—on a week-by-week basis.   The calendar was located below a light switch in Diana's bedroom and was annotated in her handwriting.   The lower court could reasonably conclude this document was based on “fairly accurate knowledge” and “sincerely uttered.”

 Finally, any error in the admission of the calendar was harmless in light of the testimony of Dr. Crenshaw, Diana's obstetrician, and Dr. Dollinger, the forensic pathologist, regarding the gestational age of the fetus.

V. DID THE PROSECUTION FAIL TO PROVE THE VIABILITY OF THE FETUS BEYOND A REASONABLE DOUBT? ††

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

2.   Dr. Crenshaw is the wife of Ronald Crenshaw, the pastor of Diana's church, Shekinah Ministries.

FOOTNOTE.   See footntoe *, ante.

FOOTNOTE.   See footnote *, ante.

MARTIN, Acting Presiding Justice.

THAXTER and WISEMAN, JJ., concur.