PEOPLE of the State of California, Plaintiff and Respondent, v. Toby Kirk JONES, Defendant and Appellant.
A jury convicted defendant Toby Kirk Jones of first degree murder (Pen.Code, § 187). In an earlier appeal, this court filed an unpublished opinion on April 26, 1990, reversing the judgment of conviction because of instructional error. (No. E006297.)
In the new trial on remand, a jury convicted Jones of second degree murder, and the court sentenced him to 15 years to life. Jones now contends the trial court erred in (1) failing to instruct on the lesser related offense of accessory after the fact; (2) excluding evidence of his girlfriend's history of drug use and prostitution; (3) giving prosecution instructions that focused the jury's attention on specific evidence rather than on general legal theories; and (4) allowing inflammatory photographs of the victim to go to the jury.
The victim, Marion Lee Usher, 67 years old in 1988, subsisted on Social Security payments. He became acquainted with Jones and his girlfriend, Denise Davis, at the restaurant where Jones worked. Jones and Davis learned that Usher was sleeping in the park, and they invited him to stay with them. He lived with them for the next few weeks, paying $100 a month for rent.
In May 1988, Usher received a back payment of about $2,700 from Social Security. He used part of the money to buy a car. Because he did not have a driver's license, he asked Jones to drive him on a trip to Wyoming.
After they returned from the trip on May 21, 1988, Jones and Usher argued frequently about money. Usher accused Jones of having taken money from him.
On Tuesday, May 24, 1988, Usher was drinking heavily. Davis testified that she got high on rock cocaine that evening and went to the bedroom to lie down while Jones remained in the living room with Usher. Usher and Jones argued about money, about racial issues, and about the basketball game they were watching. At one point, Jones came into the bedroom and told Davis that Usher had threatened him. He remarked that he would do something to Usher before Usher did something to him.
The two men were quiet for awhile, and then Davis heard Usher say, “ ‘For God sakes, Toby,’ ” in a loud voice as if he were frightened. Davis then heard a hammering sound several times. Jones said he had dropped something.
Davis looked into the living room and saw Usher on the couch covered up with a blanket. Jones closed the door in Davis's face. Davis heard a dragging sound and then heard Jones leave in Usher's car. Davis later saw blood on the floor leading to the back door.
Jones was gone for about an hour. When he returned, he brought cleaning supplies, and he asked Davis to help clean up. Jones scrubbed the couch and the floor, and he cut part of the cushion out of the chair.
Jones told Davis he had thrown Usher's body in the river. His clothes had sand and blood on them. Usher's body was later discovered in the river. An autopsy revealed that he had died from trauma to the head caused by multiple blows with a blunt instrument.
In a search of Davis and Jones's house, officers seized a pair of black pants with sand on them. The pants were still damp. In the trunk of Usher's car, officers found a bloodstained carpet. There were blood spatters, consistent with Usher's blood type, on the wall behind the couch and on the couch cushion.
Jones told an investigator that Usher had been drunk on May 24 and had left to catch a bus to Phoenix or Wyoming. In another conversation, Jones said that Davis “did't [sic ] know nothing and she didn't do nothing.”
Defense. Jones testified in his own behalf. He stated that on Tuesday morning, he went to a restaurant to apply for a job and was hired on the spot. He worked from about 8 a.m. until 3 p.m. and was then called back to work from 3:15 p.m. until 11:30 or 12 p.m. He came home from work and went right to bed without seeing Usher.
When he got up at 10:30 or 11 the next morning, Davis was scrubbing the carpet. She said she and Usher had argued, and she had hit him in the nose, causing a nose bleed. She had been high on rock cocaine at the time. Jones helped Davis clean the floor. He did not see any blood on the walls or on the couch.
Jones drove around in Usher's car looking for Usher and then went to work. Usher still was not there when he got home. The next day, Davis called Jones at work and told him Usher had been killed. Jones went home, and Davis told him she had fought with Usher while she was high on rock cocaine, and she had killed Usher.
When Davis visited Jones in jail, she told him Usher had told her he was dying of AIDS, and she would die too because she had had sex with him. She then went crazy and beat Usher to death with an iron.
Dr. Irving Root, a pathologist, testified that the wounds to Usher's head could have been caused by a tire iron or hand iron. If someone with Jones's build 1 and strength had hit Usher with such an object, the skull and brain would have been much more severely damaged than the autopsy showed. Root would have expected the skull to be fragmented and the brain pulverized. The position of the blows and their severity led Root to believe that the killing had occurred during an uncontrolled outburst of rage rather than during a premeditated act.
Other relevant facts are set forth below.
IFailure to Instruct on Offense of Accessory After the Fact
Jones contends the trial court erred in refusing his request to instruct the jury on the offense of accessory after the fact 2 as a lesser related offense to murder. On the defendant's request, the trial court must instruct on lesser related offenses when three conditions are met: (1) there is some evidentiary basis, other than the inexplicable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged; (2) the offense is closely related to the charged offense; and (3) a conviction for the related offense would be consistent with the defendant's theory of defense. People v. Geiger (1984) 35 Cal.3d 510, 531, 199 Cal.Rptr. 45, 674 P.2d 1303.
We focus our discussion on the second prong of the Geiger test: that the offense be closely related to the offense charged and shown by the evidence. The Geiger court explained that earlier cases had “limited instructions to those on offenses having an ‘inherent relationship’ with the charged offense in order to prevent ‘abuse’ by defendants seeking to appeal to the jury's sense of mercy by requesting instructions on every offense that is arguably shown by the evidence. We agree that the right to instructions on related offenses is not without limit. The purpose of the rule, however, serves to define its limits. The right to instructions on related offenses exists only to enable the jury to determine fairly the issues presented by the evidence and in so doing to avoid any incentive to convict the defendant of a greater offense than that which he committed. The issues presented by the evidence are those related first to the defendant's guilt or innocence of the charged offense. Although some evidence offered by the People or the defendant may indicate that the defendant has committed a crime other than that charged, instructions regarding that crime need not be given unless the evidence is also relevant to and admitted for the purpose of establishing whether the defendant is guilty of the charged offense.” (Geiger, supra, 35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303, emphasis added.)
In People v. White (1986) 185 Cal.App.3d 822, 231 Cal.Rptr. 569, the court held that the crime of accessory to murder is closely related to murder. (Id., at pp. 829–830, 231 Cal.Rptr. 569.) However, the trial court did not address the meaning or applicability of the second prong of the Geiger test. After reviewing Geiger and cases which have followed it, we conclude that White was wrongly decided, and we decline to adopt its holding, for reasons we discuss below.
In Geiger, the court concluded that vandalism was closely related to the charged offense, burglary, “since it is made an offense to protect the same societal interest—security of property—as burglary. It is often proven by the evidence that is offered to prove burglary.” (Id., 35 Cal.3d at p. 532, 199 Cal.Rptr. 45, 674 P.2d 1303.) In determining whether one offense is a lesser related offense to another, several courts have seized on the Geiger court's statement concerning the societal interests underlying the crimes in question. These courts have focused primarily on whether the charged crime and the lesser crime protect the same societal interest.
In People v. Boyd (1985) 167 Cal.App.3d 36, 212 Cal.Rptr. 873, the court stated that the societal interest involved in the crime of attempted possession of cocaine was “elimination of a dangerous substance the use of which represents a serious [health] risk” (id., at p. 47, 212 Cal.Rptr. 873); the societal interest involved in the crimes of assault with a deadly weapon and exhibiting a firearm was “security of the person” (ibid.); and the societal interest involved in the crime of robbery was “security of personal property from a felonious taking.” (Ibid.) Thus, the court held that attempted possession of cocaine, assault with a deadly weapon, and exhibiting a firearm were not closely related to armed robbery. (See also People v. Hill (1992) 6 Cal.App.4th 33, 41, 8 Cal.Rptr.2d 123 [holding that obtaining property by false pretenses was not a lesser related crime to selling a substance in lieu of the controlled substance cocaine because the two crimes related to different societal interests—“protect[ing] against the fraudulent deprivation of property” and “discourag[ing] anyone from engaging or appearing to engage in drug traffic” respectively]; People v. Santos, 222 Cal.App.3d 723, 739–740, 271 Cal.Rptr. 811 [holding that battery was a lesser related offense to lewd and lascivious acts by force on a child because the two crimes related to the same societal interest—protection of the security of the person].)
We believe that the “societal interest” test does not address the Geiger court's central concern in establishing the second prong of its test for a lesser related offense. The Geiger court emphasized the issues raised by the evidence, not the abstract societal interests protected by the crimes involved. (Geiger, supra, 35 Cal.3d at p. 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)
Moreover, the societal interest test, in our view, may be both overinclusive and underinclusive with respect to defining lesser related crimes. It may be overinclusive, because crimes, in the abstract, may protect the same societal interest, but the evidence supporting proof of one crime may be irrelevant to proof of the other crime. In those instances, the societal interest test may lead to a conclusion that the crimes are closely related without regard to the evidence adduced at trial.
The societal interest test may also be underinclusive, if a narrow definition of the societal interest is used. The concept of the “societal interests” underlying various criminal offenses is subject to great variation in interpretation and application, and the use of a test based exclusively on this concept may lead to anomalous and inconsistent results. Therefore, we reject the reasoning of the Hill, Boyd and Santos courts with respect to their application of the second Geiger factor.
Instead, we prefer the position taken in other cases that have focused on whether there is substantial overlap in the statutory elements of the two offenses. In People v. Moore (1990) 224 Cal.App.3d 234, 237, 273 Cal.Rptr. 680, the court held that, based on the statutory elements of the crimes, the misdemeanor offense of brandishing a replica firearm (§ 417.2) was not a lesser included offense to possession of a firearm by a felon (§ 12021). In People v. Weathington (1991) 231 Cal.App.3d 69, 282 Cal.Rptr. 170, the court determined that the offense of being drunk and disorderly in public was closely related to the offense of driving under the influence, because of substantial overlap in their element. Both offenses required a showing that the defendant was under the influence of an intoxicant; both required a showing that the defendant's faculties were impaired; and both required a showing of “misbehavior”. (Id., at p. 78, 282 Cal.Rptr. 170.)
The statutory elements test has the advantages of predictability and consistency in application. Courts may readily compare the statutory elements of various crimes to determine whether there is substantial overlap. Moreover, this test, unlike the societal interest test, addresses the Geiger court's concern that evidence of the charged crime be relevant to the lesser related crime. When crimes share common elements, the evidence introduced to prove those elements as to one crime is equally relevant to proving the elements of the other crime.
The crime of accessory is distinct from the underlying crime. (People v. Mitten (1974) 37 Cal.App.3d 879, 883, 112 Cal.Rptr. 713.) Although the two crimes are mutually exclusive, the same evidence might support a conviction of either the principal offense or the offense of accessory. (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Introduction to Crimes, § 91, pp. 107–108.) However, there is no overlap between the statutory elements of the crime of murder and the crime of accessory.3 Therefore, contrary to the position taken in White, we conclude that the second Geiger prerequisite for an instruction on a lesser related offense was not met, and the court properly denied the instruction.
Limitation on Cross–Examination
At trial, Jones attempted to introduce evidence of Davis's prostitution and history of addiction to rock cocaine. Jones contends the trial court denied him his constitutional right of cross-examination by limiting his inquiry into those matters.
A. Evidence of Drug Use
Davis testified that she had used cocaine at least twice on the day of the murder. On cross-examination, the court allowed further inquiry as to: (1) whether Davis was addicted to cocaine at the time of the murder, (2) whether she was using cocaine at the time of the murder, (3) whether she was using or addicted to cocaine when testifying, (4) whether she was under the influence of cocaine during interviews with the police, and (5) how much cocaine she was using daily in May 1988. She was also cross-examined extensively as to the effects of rock cocaine use and the price of rock cocaine.
However, Jones complains that he was not allowed to present evidence of her prior drug use. He wished to demonstrate that she had been addicted to cocaine for a long time, but that he was able to influence her to abstain from cocaine during her pregnancy.4 He also wished to show that Davis encouraged him to go on the trip with Usher so she could resume her drug habit after the birth.
B. Evidence of Prostitution
In cross-examination, Davis testified her relationship with Usher had not been sexual, and he had not given her money in exchange for sex. Davis denied telling Jones she had performed sexual favors for Usher in exchange for money. Davis also testified she had been tested for the HIV virus several times. Davis testified she was not a prostitute, but the court limited further inquiry on the subject. However, an officer testified on cross-examination that Davis had told him in an interview that she “had engaged in prostitution.”
Jones contends he attempted to show that Davis made her living as a prostitute. He contends such evidence would have impeached her testimony she had not taken money from Usher in exchange for sex and would have bolstered his testimony that Davis told him she killed Usher because she became enraged when Usher disclosed he had AIDS after she had had sex with him.
C. Right of Cross-examination
A defendant is given wide latitude to test the credibility of a prosecution witness. (People v. Redmond (1981) 29 Cal.3d 904, 913, 176 Cal.Rptr. 780, 633 P.2d 976.) Nonetheless, the trial court must control all proceedings during trial, and must limit the introduction of evidence to relevant and material matters. (Ibid.; Pen.Code, § 1044.) Similarly, trial courts have wide discretion to impose reasonable limits on cross-examination based upon concerns such as harassment, safety of witnesses, prejudice, confusion of the issues, or inquiries of marginal relevance. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [106 S.Ct. 1431, 1435, 89 L.Ed.2d 674].) The trial court's exercise of its discretion will not be overturned on appeal absent clear abuse of discretion. (Evid.Code, § 354.)
The defendant's right of confrontation is not violated when the prohibited cross-examination could not reasonably have produced a “ ‘significantly different impression of [the witness's] credibility․’ [Citation.]” (People v. Rodriguez (1986) 42 Cal.3d 730, 751, fn. 2, 230 Cal.Rptr. 667, 726 P.2d 113.) Here, Davis was impeached with a felony conviction for sale of rock cocaine. The defense pointed out numerous inconsistencies between her trial testimony and earlier statements. The defense was allowed to introduce extensive testimony concerning Davis's drug use around the time of the murder and during the investigation. Evidence was introduced that she had admitted prostitution to the investigator. Further probing in these areas would have done little to undermine her credibility. We therefore uphold the trial court's exercise of its discretion to exclude further evidence.
Challenges to Jury Instructions
Jones contends the trial court erred in instructing the jury with CALJIC Nos. 2.03,5 2.06,6 and 184.108.40.206 He contends that the challenged instructions were argumentative and biased and were improper “pinpoint” jury instructions. In People v. Wright (1988) 45 Cal.3d 1126, 248 Cal.Rptr. 600, 755 P.2d 1049, the Supreme Court held the trial court could reject a proposed defense instruction that focused the jury's attention on particular evidence it could consider on the issue of reasonable doubt. (Id., at p. 1135, 248 Cal.Rptr. 600, 755 P.2d 1049.) The court stated that instructions could properly pinpoint the theory of the defense, but it was improper for instructions to imply “certain conclusions from specified evidence.” (Id., at p. 1137, 248 Cal.Rptr. 600, 755 P.2d 1049.)
A. Waiver of Error
Jones did not object to the challenged instructions in the trial court, and the People argue that any error was waived. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978, 125 Cal.Rptr. 419.) Under section 1259 we may review jury instructions whether or not an objection was raised below when the instructions affect substantial rights of the defendant. To make that determination, we must consider the issue on the merits.
B. CALJIC No. 2.03
Jones contends CALJIC No. 2.03 improperly singled out his statements for the jury's attention and informed the jury that his statements tended to prove guilt. In People v. Kelly (1992) 1 Cal.4th 495, 531, 3 Cal.Rptr.2d 677, 822 P.2d 385, the California Supreme Court rejected a challenge to CALJIC No. 2.03 on the ground it was an improper pinpoint instruction under Wright. The court explained, “CALJIC No. 2.03 ․ does not merely pinpoint evidence the jury may consider. It tells the jury it may consider the evidence but it is not sufficient by itself to prove guilt. [Citation.] Defendant obviously does not quarrel with the emphasized language. If the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence. Nothing in Wright affects such an instruction. There was no error.” (Kelly, supra, at pp. 531–532, 3 Cal.Rptr.2d 677, 822 P.2d 385.)
Kelly forecloses Jones's challenge to CALJIC No. 2.03.
C. CALJIC No. 2.06
Jones contends that CALJIC No. 2.06 improperly focused the jury's attention on his efforts to suppress evidence. In People v. Breaux (1991) 1 Cal.4th 281, 3 Cal.Rptr.2d 81, 821 P.2d 585, the defendant contended that both CALJIC No. 2.06 and CALJIC No. 2.03, “confused the jury, permitting it to draw irrational and irrelevant inferences about his state of mind at the time of the offenses․” (Id., at p. 304, 3 Cal.Rptr.2d 81, 821 P.2d 585.) The court found no error, explaining, “We addressed the same two instructions and rejected the identical due process argument in People v. Crandell (1988) 46 Cal.3d 833 [251 Cal.Rptr. 227, 760 P.2d 423]: ‘The instructions advise the jury to determine what significance, if any, should be given to evidence of consciousness of guilt, and caution that such evidence is not sufficient to establish guilt, thereby clearly implying that the evidence is not the equivalent of a confession and is to be evaluated with reason and common sense. The instructions do not address the defendant's mental state at the time of the offense and do not direct or compel the drawing of impermissible inferences in regard thereto.’ [Citations.]” (Breaux, supra, 1 Cal.4th at p. 304, 3 Cal.Rptr.2d 81, 821 P.2d 585, accord, People v. Wimberly (1992) 5 Cal.App.4th 773, 796, 7 Cal.Rptr.2d 152.)
More recently, in People v. Randle (1992) 8 Cal.App.4th 1023, 10 Cal.Rptr.2d 804, the court rejected the argument that a modified version of CALJIC No. 2.06 was an improper pinpoint instruction. The court stated, “The instruction at issue here does not focus on specific evidence. A contrary conclusion might have been reached if the trial court had specifically directed to jury's attention to [the defendant's efforts to suppress evidence]. No such pinpointing was present here. Instead, the trial court only tailored the instruction to the generic type of consciousness of guilt disclosed by the evidence.” (Id., at pp. 1036–1037, 10 Cal.Rptr.2d 804.)
Breaux, Wimberly and Randle foreclose Jones's challenge to CALJIC No. 2.06.
D. CALJIC No. 2.71.7
Jones contends that CALJIC No. 2.71.7, by implication, labels a statement made by the accused as indicative of motive or intent and thus implants a negative connotation in the minds of the jurors before they fully discuss the statement.
The challenged instruction, considered as a whole, does not suffer from the defect Jones claims. Moreover, to the extent the instruction advised the jury to consider with caution the defendant's statement about intent or motive, it could only have operated to Jones's benefit.
All of Jones's challenges to the jury instructions are meritless.8
Introduction of Photographs of the Victim
By a motion in limine and by objections at trial, Jones sought to prevent the prosecutor from introducing autopsy photographs of the victim. The court allowed many of those photographs to be admitted into evidence; however, the court excluded the photographs it considered the most gory and least probative.
The trial court has broad discretion to admit photographs into evidence. (People v. Poggi (1988) 45 Cal.3d 306, 323, 246 Cal.Rptr. 886, 753 P.2d 1082.) The trial court's exercise of its discretion will not be disturbed on appeal unless the prejudicial effect of the photographs clearly outweighs their probative value. (People v. Allen (1986) 42 Cal.3d 1222, 1256, 232 Cal.Rptr. 849, 729 P.2d 115.) However, the court has no discretion to admit irrelevant evidence. (Poggi, supra, 45 Cal.3d at p. 323, 246 Cal.Rptr. 886, 753 P.2d 1082.)
Jones offered to stipulate that the victim was once alive and was now dead, and there was no dispute as to the victim's identity. Jones contends the photographs were thus unnecessary to prove any element of the offense and were therefore irrelevant. When a defendant offers to admit an element of the charged crime, the prosecutor must accept the offer and refrain from admitting evidence to prove that element. (People v. Ramos (1982) 30 Cal.3d 553, 577, 180 Cal.Rptr. 266, 639 P.2d 908, revd. on other grounds in California v. Ramos (1983) 463 U.S. 992 [103 S.Ct. 3446, 77 L.Ed.2d 1171].)
Here, however, the photographs clarified and illustrated the testimony of Dr. DeTraglia, who explained the autopsy and the nature and location of the victim's wounds. Moreover, the defense expert, Dr. Root, testified that the victim's skull had not been broken into multiple pieces as he would have expected if a strong man like Jones had used a metal object to strike the victim's skull many times. Root relied in part on the photographs in forming his opinion.
Based on Dr. Root's opinion as to the physical characteristics of the perpetrator, the photographs were relevant to the issue of the identity of the perpetrator. The trial court also correctly commented that the photographs represented circumstantial evidence of the degree of force used to kill the victim, which pertained to the issues of malice and intent. The court explicitly considered the prejudicial impact of the photographs and excluded the most gruesome among them. We conclude the trial court did not abuse its discretion in admitting the photographs.
The judgment is affirmed.
1. Jones weighed about 250 pounds.
2. In People v. Prado (1977) 67 Cal.App.3d 267, 136 Cal.Rptr. 521, the court instructed, “The crime of being an accessory after the fact has the following essential elements: (1) someone other than the person charged as an accessory ․ must have committed a specific completed felony; (2) the accused must have harbored, concealed or aided the principal; (3) with knowledge that the principal committed a felony; and (4) further, the hiding, concealing or harboring must be with the specific intent that the principal may escape from arrest and trial [citations].” (Id., at p. 271, 136 Cal.Rptr. 521.)
3. Penal Code section 32 defines the crime of accessory: “Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the specific intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.”
4. Davis gave birth on May 13, 1988, and the child showed no evidence of cocaine in its blood.
5. The court instructed the jury with CALJIC No. 2.03: “If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crime for which he is now being tried, you may consider such statement as a circumstance tending to prove a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination.”
6. The court instructed the jury with CALJIC No. 2.06: “If you find that a defendant attempted to suppress evidence against himself in any manner, such as by the intimidation of a witness or by destroying evidence or by concealing evidence, such attempts may be considered by you as a circumstance tending to show consciousness of guilt. However, such evidence is not sufficient by itself to prove guilt and its weight and significance, if any, are matters for your consideration.”
7. The court instructed the jury with CALJIC No. 2.71.7: “Evidence has been received from which you may find that an oral statement of intent or motive was made by the defendant before the offense with which he is charged was committed. [¶] It is for you to decide whether such a statement was made by the defendant. [¶] Evidence of an oral statement ought to be viewed with caution.”
8. Jones's opening brief was filed on March 18, 1992, and his reply brief on June 16, 1992. The People's brief was filed on May 26, 1992. Neither party cited any of the following cases, all directly on point, and all filed before briefing was completed: Kelly, supra, 1 Cal.4th 495, 3 Cal.Rptr.2d 677, 822 P.2d 385 (1992); Breaux, supra, 1 Cal.4th 281, 3 Cal.Rptr.2d 81, 821 P.2d 585 (1991); and Wimberly, supra, 5 Cal.App.4th 773, 7 Cal.Rptr.2d 152 (1992).We believe conventional research techniques should have revealed these authorities, and counsel had an obligation to discuss them.
DABNEY, Associate Justice.
RAMIREZ, P.J., and McKINSTER, J., concur.