Laying Foundation For the Credit Report Introduction

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Laying Foundation For the Credit Report Introduction

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People v. Walker,
Not Reported in Cal.Rptr.3d, 2005 WL 78952, Not Officially Published, (Cal. Rules of Court, Rules 976, 977), Cal.App. 2 Dist., January 14, 2005 (No. B168784.)

ASHMAN-GERST, J.
*1 Appellants Ken Walker (Ken) and Vanessa Walker (Vanessa) were arrested for the murder of Vanessa's mother, Nada Lazarevic (Nada).

In count 1 of the first amended information, Ken was charged with the murder of Nada under Penal Code section 187, subdivision (a).FN1 Vanessa was charged with the same crime in count 2. They were charged together, in count 3, with conspiracy to commit murder. It was alleged that Vanessa suffered a voluntary manslaughter conviction in 1989 that qualified as a prior strike conviction (§§ 1170.12, subds.(a)-(d); 667, subds. (b)-(i)) and a prior serious felony (§ 667, subd. (a)). Dual juries FN2 found Ken and Vanessa guilty of murder in the second degree and acquitted them on the conspiracy count.


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


FN2. The trial court ordered dual juries based upon a motion by the defense under Bruton v. United States (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518.


Ken was sentenced to state prison for 15 years to life. Vanessa admitted the prior conviction for voluntary manslaughter and was sentenced to state prison for 35 years to life.

Ken and Vanessa both appeal and join in each other's arguments.

Vanessa premises her appeal on the following: (a) the trial court improperly precluded her from introducing additional evidence of Ken's history of domestic violence, and also statements Ken made during a polygraph examination; (b) the trial court and prosecution FN3 violated her right to due process by misleading her counsel into believing that all evidence regarding Ken's history of domestic violence would be admitted, which caused her counsel to make promises to the jury that she was unable to keep; and (c) the trial court improperly admitted gruesome pictures of Nada's body, evidence of a statement made by Nada, and evidence of statements in the form of credit reports regarding Vanessa, Ken and Nada. Ken argues that the trial court should have instructed the jury on voluntary manslaughter.


FN3. There were two prosecutors, one for Vanessa and one for Ken. For ease, we refer to the prosecution rather than distinguishing between the different prosecutors.


We find no error and affirm.



FACTS



1. Prosecution evidence presented to both juries.

For about 18 months from the end of 1999 to April of 2001, Nada lived with her daughter Jasmina Trifunovic (Jasmina) in Simi Valley. Nada, who was originally from Yugoslavia, was careful with money. When she purchased a Toyota Camry (the Camry), she paid cash. She was very protective of the Camry and did not allow other people to drive it. After Nada experienced some health problems,FN4 she became irritable, developed a temper, and sometimes acted in an inappropriate manner.


FN4. At different points in the record the witnesses stated that Nada had a heart attack, that she had a stroke, and that she was ill.


In April 2001, Nada was 67 years old. She moved out of Jasmina's home and paid cash for a house in Palmdale. For money, Nada did seamstress work out of her house. Ken and Vanessa also lived in Palmdale. Vanessa worked at an indoor swap meet selling small items,FN5 and Ken worked as a mechanic at Hunter Dodge.


FN5. Detective Danny Smith of the Los Angeles County Sheriff's Department testified that Vanessa sold jewelry.


In July 2001, Jasmina received a letter addressed to Nada and Vanessa from a collection agency regarding a Chase credit card account. Jasmina called Nada and read the contents. The letter stated that the account had a past due amount of $7,655.68. Nada started yelling, saying that something was wrong, that the account did not belong to her. Over the ensuing weekend, Nada called Jasmina. According to Nada, she was “stressed” and could not eat.

*2 Prior to the weekend of Saturday, August 25, 2001, Natasha Trifunovic (Natasha), Nada's granddaughter, stayed with Nada and heard collection agencies repeatedly leave messages on Nada's answering machine. Nada was distressed. She spoke to her friend Adriana Solomon (Solomon) over the telephone and complained that her name had been used by Ken and Vanessa to incur over $50,000 in debt. Nada also spoke to Jasmina. It was the last time they spoke. Nada yelled and screamed and said, “ ‘I'm irate. They owe me money. I gotta go talk to Ken and Vanessa this weekend for them to give me some money ··· I don't care if I have to put them in jail, but they have to pay me some money.’ “ FN6


FN6. Jasmina testified: “My mom was so irate that I can't even explain it,” and “[s]he wasn't even like this when my dad left her for a younger woman. That's how irate she was.”


On Saturday, August 25, 2001, a neighbor of Nada's named Gloria Gallardo (Gallardo) saw the Camry parked in Nada's garage during the day. That evening Gallardo saw a 4-Runner and a little dark car arrive at Nada's home. Vanessa got out of the 4-Runner and Ken got out of the car. They knocked and then entered Nada's house. Eventually Nada came out and went to her mailbox. At 11:30 p.m., when Gallardo went inside, the 4-Runner and the little car were still in front of Nada's house. Gallardo never saw Nada again. Jasmina called Nada on Saturday night but did not get an answer.

Cellular phone records for Ken and Vanessa showed completed calls from Ken's phone to Vanessa's phone at 2:40 a.m. and 2:49 a.m. in the early morning hours of Sunday, August 26, 2001.

Jasmina repeatedly called Nada on Sunday to no avail. At about 9:00 p.m. that night, Nada's neighbor, Leontyne Tisdell, noticed that the lights were on in Nada's kitchen.

On Monday, August 27, 2001, Jasmina called the police after again failing to contact Nada by telephone. The police called back an hour later and said that the house was locked and that no one was home.

At about 9:00 p.m. that night, Nada's neighbor, Amanda Cordova (Amanda), saw Ken driving the Camry. He was alone. Neither Amanda nor her sister Aisha Cordova (Aisha) had ever seen anyone but Nada drive the Camry. Ken pulled up as if he was going to turn into Nada's driveway. When he saw Amanda and Aisha, he straightened out and continued driving up the street. Vanessa was following behind him in the 4-Runner and talking on a cellular phone. Cellular phone records showed that Ken called Vanessa at 9:30 p.m.

When Jasmina went to Nada's house on Tuesday, August 28, 2001, the Camry was gone and all the blinds were closed. Jasmina could not find Nada's golden brown purse. Two items Nada always took with her, her telephone directory and bag of medication, were still in the house. A shot glass, as well as the pink pill Nada took every night before she went to sleep, were on the kitchen counter. Natasha noticed that Nada's jewelry and collection of currency FN7 were missing from the master bedroom, as was a blue bag. The following day, Wednesday, Jasmina noticed that Nada's floor had swivel marks in a circular pattern. This was strange because Nada mopped her floor in a special way to prevent water marks.


FN7. Natasha testified that Nada collected foreign coins, half dollars and silver dollars. Jasmina testified that Nada collected “currency in bills from different countries. Silver dollars, half dollars. Those 2 $ bills.”


*3 During the week after Nada's disappearance, Gallardo saw Ken come out of Nada's house with some bags. He had a watering canister and watered Nada's plants. Kim Cordova FN8 took a picture of Ken arriving at Nada's house in a little, dark car and watering Nada's plants. On Thursday, August 30, 2001, Amanda looked into the back of the 4-Runner Vanessa parked at Nada's house and saw a golden brown purse in a box.


FN8. Kim Cordova is the mother of Amanda and Aisha.


Jasmina, her family and friends passed out about 4,000 flyers. Ken and Vanessa, however, did not help.

Jayne Kayne (Kayne), a forensic identification specialist, examined Nada's home. She noticed, in particular, that the floor appeared to have been cleaned with a sticky chemical. About a week later, on September 6 or 7, 2001, Detective Smith listened to the messages on Nada's answering machine. He heard messages from Jasmina and friends trying to find Nada, but there were no messages from Ken and Vanessa.

Ken became quiet at work, and he began making mistakes. He asked his supervisor, Jeffrey Brown, “How am I acting?” and “How am I looking?” Ken never revealed that Nada was missing.

Nada's body was found on September 8, 2001, in a dry riverbed near Highway 178. She had been dead 10 to 14 days.

Ken was arrested four days later. Detective Robert Kenney and Detective Smith went to Ken and Vanessa's home with a search warrant team. They seized a tan bag from under the bed in the master bedroom. The tan bag contained an empty blue bag FN9 and smaller plastic baggies that held currency. A $44 check made out to cash was recovered from a desk or dresser. It was from two of Nada's alterations customers, Joseph and Judith Strauss. From the top of a bureau, the detectives took a plastic bag that contained multiple credit cards. FN10 They found an agreement between Vanessa and Cambridge Credit Counseling Corporation regarding a payment program for credit card debts totaling $47,253.73. Nada's social security number was listed on the document. Additionally, the detectives found various credit card documents for accounts that bore both Vanessa's and Nada's names.


FN9. At trial Natasha testified that the blue bag seized by the detectives was the one Nada had kept in her master bedroom.


FN10. Detective Kenney testified all the credit cards were in Vanessa's name except a Victoria's Secret credit card that was in Ken's name.


At first Vanessa claimed to know nothing about the location of the body or the Camry. But after she was handcuffed and read her rights, she said she might remember where to find the car. She directed the deputies to where the Camry was parked in Lancaster.

Blood stains were taken from the Camry and tested. They matched Nada's blood with a frequency of one in 552 quadrillion.

Vanessa went to Hunter Dodge on September 14, 2001 and asked for Ken's toolbox. She was denied access to his toolbox due to a hold from Matco Tools. This made Vanessa angry. The toolbox was eventually opened and Nada's keys were found inside.



2. Prosecution evidence presented only to Vanessa's jury.

Prior to her disappearance, Nada told Jasmina that Ken and Vanessa had to pay for the debt referenced in the collection agency notice. Also, Nada wanted to be repaid for the $6,000 she provided to them for a move from Oregon and the $5,000 she paid to bail Ken out of jail regarding a domestic violence incident involving Ken, Vanessa and their daughter Crystal Walker (Crystal).

*4 The Tuesday after Nada disappeared, Jasmina called the police from Nada's house and informed Vanessa, who said: “ ‘If the police get there before I do, just want to let you know that there's a restraining order between Ken and me.’ “ When Vanessa arrived at Nada's house that evening, Vanessa did not seem to take the disappearance seriously. She told Jasmina: “ ‘Why did you come all the way from Simi Valley to call the police? Why didn't you call me? I would have done it.’ “ Vanessa asked what they would do with the house and all the stuff if something happened to Nada.

When Jasmina asked Vanessa to help post flyers, Vanessa said: “ ‘I don't have time, I have three kids to take care of, and I don't have money.’ “ The Friday after Nada disappeared, Jasmina stopped by the swap meet to see Vanessa, but Vanessa was not there. Crystal told Jasmina that Vanessa was in Lancaster getting her hair done. At one point when Jasmina was passing out flyers, Vanessa said: “ ‘You're passing out too many flyers.’ “



3. Prosecution evidence presented only to Ken's jury.

In 1988, Vanessa shot and killed her first husband while he was sleeping. Vanessa was arrested and charged and Nada paid $15,000 to $18,000 for a defense attorney. Ken and Vanessa met while she was out on bail. Though she eventually went to prison, Ken waited for her. He lived with Nada and helped her pay bills. According to Jasmina, Ken talked about being in love with Vanessa. Vanessa wore the pants in their household.

Nada paid for everything for Ken and Vanessa. Still, they were in debt. Ken jumped from job to job, and Vanessa often complained about how little money she made at the swap meet where she worked.FN11


FN11. Ken and Vanessa each put on limited defenses. To the extent the defense evidence is relevant to our opinion, it will be discussed.




DISCUSSION



I. The trial court did not err when it excluded additional evidence of Ken's history of domestic violence.

The jury heard from several witnesses that Ken was involved in a domestic violence incident involving Vanessa and Crystal. When Vanessa's counsel tried to introduce additional evidence regarding that domestic violence incident, the trial court ruled that it was inadmissible because it was cumulative and it was being offered to show propensity. Vanessa contends that the trial court erred and deprived her of due process FN12 because the additional evidence was integral to her defense and admissible pursuant to Evidence Code section 1101, subdivision (b) or section 1109. We find no error and need not discuss prejudice.


FN12. Vanessa contends that if she was denied a defense, she was also denied of the right to assistance of counsel. This argument is a subpart of her argument regarding due process and is subsumed herein.


In broaching this issue, we are guided by the following considerations: A trial court has the discretion to exclude relevant evidence after weighing its probative value against the danger of prejudice, confusion, and undue time consumption. (Evid.Code, § 352; People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.) That discretion, however, is not unfettered because it must “bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his defense. [Citations.]” ( Ibid.)



A. The proceedings below.

*5 Prior to trial Vanessa's counsel indicated that she intended to introduce evidence that Ken was violent and that he had been arrested for attacking Crystal and then battering and choking Vanessa when she tried to intervene. The relevance, according to the defense, was twofold. First, it would negate premeditation because it would support the defense theory that Ken killed Nada due to a violent outburst rather than a conspiracy with Vanessa. Second, it would explain that Vanessa feared Ken and that was the reason she did not go to the police.

Jeffrey Brown testified: One night, at Jeffrey Brown's home, Ken asked to borrow money through Hunter Dodge. He said that he had an altercation with his wife and the police were after him. In August 2001, Ken was taking prescription medication. Sometimes his mood was high, sometimes it was low. He was high strung. That month Ken's work dropped off. Jeffrey Brown heard that “[Ken's] temper went off and some tools [flew] and things like that.” There was a broken metal door frame and damage in the bathroom. Ken was informed that he would be fired if there were any more incidents.

One of the owners of Hunter Dodge, Timothy Fuller (Fuller), testified that Ken requested a $1,000 advance, which was approved. Vanessa's counsel asked if the advance was for attorney fees for a domestic violence case. Fuller did not know the purpose.

Jasmina testified that she spoke to Nada about having to bail Ken out of jail after the domestic violence incident involving Vanessa and Crystal. The prosecution objected based on hearsay and lack of foundation. The trial court opined that the objections were well taken. But instead of striking the testimony, it allowed Jasmina's testimony to stand and told the attorneys to move on.

Later in the trial Vanessa's counsel tried to introduce a 911 call made by Crystal regarding the domestic violence incident, and also the testimony of Deputy Ronald Schultz, the officer who responded to the 911 call. The trial court ruled that the evidence was barred by Evidence Code section 1101, subdivision (a).FN13 It went on to note that Vanessa's counsel had already elicited proof of the prior act of domestic violence and could argue that prior act to the jury. The trial court ruled that any further evidence would be cumulative and irrelevant.


FN13. Evidence Code section 1101, subdivision (a) provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”


Vanessa's counsel objected, saying: “[R]ight now the jury doesn't even know what day. They don't know what [Ken] did.”

Deputy Schultz testified as an offer of proof. He stated that on May 19, 2001, he responded to Crystal's 911 call. Vanessa was upset when Deputy Schultz arrived. The left side of her face was red and swollen, and there was a small puncture wound behind one of her ears where an earring got pushed into her neck. When Deputy Schultz asked her what happened, she stated the following: Ken yelled at Crystal, then chased her and threw her down. Vanessa told him to stop. Ken slapped and punched Vanessa, then grabbed her by the neck.

*6 The trial court ruled that Deputy Schultz's testimony was classic Evidence Code section 1101, subdivision (a) evidence and was inadmissible. The trial court continued on, saying: “But even if there was never an [Evidence Code section 1101, subdivision (a) issue], the inference is unbearably weak. I don't know statistically what the connection would be to those people who commit one act of domestic violence and then commit murder.” Aside from that observation, the trial court ruled that the evidence was prejudicial to the People and cumulative.

At a subsequent hearing, Vanessa's counsel argued that the evidence was admissible under Evidence Code section 1109 on the theory that Ken and Nada were previous cohabitants. “I don't think this applies,” responded the trial court. “In the event it did apply, I would find the probative value is so slight and the prejudicial affect so great that under [section] 352 of the Evidence Code, I'd keep it out, but I don't think it applies anyway.”



B. Application of Evidence Code section 1101, subdivision (b).

Evidence Code section 1101, subdivision (a) precludes propensity evidence but not “evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” (Evid.Code, § 1101, subd. (b).)

In “ascertaining whether evidence of other crimes has a tendency to prove the material fact, the [trial] court must first determine whether or not the uncharged offense serves ‘logically, naturally, and by reasonable inference’ to establish that fact. [Citations.]” ( People v. Thompson (1980) 27 Cal.3d 303, 316, fn. omitted.)

The defense introduced evidence that Ken was arrested in connection with a prior act of domestic violence involving Crystal and Vanessa, and also that Ken was high strung, was taking medication, threw tools, and may have damaged property at Hunter Dodge. The defense demonstrated that Ken had a volatile personality and was prone to violence. Additional evidence of the incident that triggered the 911 call did not have significant probative value regarding the question of why Vanessa did not report the crime to the police. First, the admitted evidence demonstrated that Ken was a person who had committed violence against family members. Any additional evidence would have been cumulative. Second, and more importantly, Vanessa did not testify. There was no evidence that she was afraid of Ken after Nada died, or that she allowed Ken to control and manipulate her through violence or threats of violence. The excluded evidence therefore did not shed any light on Vanessa's state of mind after the murder. Thus, the Due Process Clause is not implicated.

*7 In the absence of constitutional considerations, we review evidentiary rulings under Evidence Code section 352 for an abuse of discretion. ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 [“Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice’ “].) In our view, the probative value of the evidence was minimal at best. The prior act of domestic violence, which occurred more than three months before Nada's murder, did not have a tendency to establish why Vanessa did not report the crime. Even if it did, the inference is strained and easily outweighed by the prejudice to the prosecution and the cumulative nature of the additional evidence. The trial court's ruling was not arbitrary and did not result in a manifest miscarriage of justice.

Our analysis is much the same regarding whether the additional evidence should have been admitted to demonstrate lack of premeditation. Vanessa wants to show that Ken killed Nada in a violent outburst. But there was no evidence suggesting that two events bore any similarity. In short, any logical connection between the two incidents is so tenuous that the additional evidence did not have significant probative value. Further, it cannot be said that the trial court's decision under Evidence Code section 352 was an abuse of discretion. The evidence was cumulative. Moreover, Vanessa is hardly in a position to cry prejudice. The jury found Vanessa guilty of second degree murder. In other words, it did not find premeditation.



C. Application of Evidence Code section 1109.

In a criminal action in which the “defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evid.Code, § 1109, subd. (a).) Domestic violence, for purposes of Evidence Code section 1109, subdivision (a), has the meaning set forth in section 13700, which defines it, inter alia, as abuse committed against an adult by a former cohabitant. (§ 13700, subd. (b).) Vanessa's position is that Ken and Nada were former cohabitants because Ken lived with Nada while Vanessa was in prison.FN14 We disagree. Ken and Nada did not have a sexual or amorous relationship and were not cohabitants for purposes of the statutory scheme. (See People v. Holifield (1988) 205 Cal.App.3d 993, 999 [reading Penal Code section 13700 as being “limited to amorous and/or sexually intimate relationships”].)


FN14. In the presence of Ken's jury, Jasmina testified that at some point while Vanessa was in prison, Ken lived with Nada. He helped pay the bills and helped take care of Vanessa's children.




II. The trial court and prosecution did not render the trial unfair in violation of Vanessa's right to due process.

The Due Process Clause “guarantees the fundamental elements of fairness in a criminal trial. [Citations.]” ( Spencer v. Texas (1967) 385 U.S. 554, 563-564.) Vanessa contends that she was denied this constitutional guarantee. She complains that the trial court and the prosecution failed to object when a pretrial offer of proof was made regarding Ken's history of domestic violence, but then ambushed her during trial with belated objections and rulings. In essence, she argues that the prosecution had to object when the offer of proof was made, or not at all. She cited no law on point. Her argument is based solely on the concept of fairness.

*8 Though there is some confusion in the record, at no point did the trial court and the prosecution agree that the evidence would be admitted. When asked, the prosecution stated: “Why don't we do this? [¶] Can we do this when [Vanessa's counsel] gets ready to cross-examine and she believes she's going to bring up [Ken's] prior [domestic violence] incidents[.] [M]ay we just approach and figure out do we skip it now, do it later, do it as a separate jury?”

In her opening statement, Vanessa's counsel told the jury: Vanessa was not guilty. She and Ken went to Nada's on August 25, 2001 to discuss financial issues, such as a credit card debt and Ken's failure to make payments on a bail bond that Nada posted in order to bail Ken out of jail for his domestic violence case. Ken and Nada began to argue and Vanessa left the house. While outside, Vanessa heard a scream. When she finally went back in, she saw Nada's lifeless body. The reason that Vanessa did not call the police was a combination of shock and fear of what Ken might do if she picked up the phone. Despite the absence of a clear ruling on the issue, Vanessa's counsel indirectly alluded to Ken's history of domestic. She stated that Ken “has a volatile temper, a volatile personality” and stated that Vanessa “was paralyzed with fear” during the incident.

Once the trial began, the trial court allowed several references to Ken's history of domestic violence. When the trial court excluded additional evidence on the topic, it did so based on Evidence Code sections 352 and 1101, subdivision (a). The prosecution's first trial objection to the evidence, which came when Jasmina was testifying regarding the time Nada bailed Ken out of jail, was based only on hearsay and foundation. In fact, the prosecution stated: “I don't have a problem with it coming in, but it shouldn't be coming in through this witness who it's like double hearsay.” Though hearsay, Jasmina's testimony was allowed to stand. Subsequently, the prosecution objected to the testimony of Deputy Schultz based on Evidence Code sections 352 and 1101, subdivision (a). Even if there had been an agreement that the evidence was admissible, the trial court would nonetheless have retained the authority to exclude cumulative evidence. The record, when viewed in this light, belies the contention that Vanessa was impermissibly ambushed.

Nearly two decades ago, our Supreme Court observed: “As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]” ( People v. Hall (1986) 41 Cal.3d 826, 834.) We take heed of this observation. Due process did not prevent the prosecution from asserting objections or the trial court from ruling on those objections. This is so because there was no agreement or ruling that the evidence was admissible, and the jury otherwise learned of Ken's domestic violence.

*9 According to Vanessa, her case was sabotaged because: “[I]t is simply impossible to determine what [Vanessa] could have done differently by way of a defense had the prosecution objected before trial and had that objection been sustained. [¶] Similarly, it is not possible to ever determine what the jury would have thought had they not been promised a particular defense, only to see it never delivered. Weighing the impact of trial counsel's loss of credibility is simply impossible···· [¶] ··· [¶] In this case, [Vanessa's] trial counsel clearly laid her credibility on the line in [her] opening statement, basing what would virtually be the entire defense on a theory that she had ‘vetted’ before the prosecution and trial court.”

Vanessa never explains what defense was promised to the jury but never delivered. Upon review of the record, it is apparent that Vanessa's counsel did not deliver evidence to support her opening statement that Vanessa was outside the house when Nada was murdered. This, though, was not the fault of the prosecution or the trial court. Vanessa's counsel indicated that Ken had been arrested for domestic violence and had a volatile personality. Significantly, on this point, Vanessa's counsel did in fact deliver the promised evidence.



III. The trial court properly excluded various statements made by Ken during his polygraph examination.

Vanessa argues that she was deprived of her right to present a defense when the trial court excluded the following statements by Ken: (1) he admitted that he got into an argument with Nada over his “inability;” (2) he admitted that he got heated and mad when he spoke to Nada; (3) when he was asked what happened, he said, “All I can say is that I didn't take my medicine when I was supposed to;” (4) when he was asked if he hit Nada, he said he thought he needed a lawyer; and (5) when he was asked if he would talk to his lawyer about helping the police find the car and the body, he said yes. This argument lacks merit.

A declaration against penal interest is admissible if the declarant is unavailable as a witness, the declaration subjected him to the risk of criminal liability, and it was trustworthy under the circumstances. (Evid.Code, § 1230; People v. Frierson (1991) 53 Cal.3d 730, 745.) “To determine whether the declaration passes the required threshold of trustworthiness, a trial court ‘may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.’ [Citation.] On appeal, the trial court's determination on this issue is reviewed for abuse of discretion. [Citation.]” ( People v. Cudjo (1993) 6 Cal.4th 585, 607 ( Cudjo ) [the jailhouse confession of the defendant's brother should have been admitted under Evidence Code section 1230, but its exclusion was harmless error].)

On this record, there was no abuse of discretion.



A. The polygraph examination.

*10 The polygraph examiner asked Ken, inter alia, if he killed Nada, if Vanessa killed Nada, if he knew the location of the Camry, and if he was involved in Nada's disappearance. He answered “no.”

Ken asked how he did and the polygraph examiner stated: “So this says deceptive indicated, probability .99, which means you failed my test miserably.” The polygraph examiner told Ken that he was not telling the truth about Nada, that he was a bad liar, that he had spoken about Nada in the past tense, and that he had spoken about her like she was dead.

The following colloquy ensued:

“Polygraph examiner: Did you and [Nada] have an argument?

“[Ken]: Yeah.

“Polygraph examiner: Yeah? About what?

“[Ken]: My inability.

“·························

“[Ken]: I ain't leaving here tonight, am I?

“Polygraph examiner: I don't know. Tell me what happen[ed]. You and [Nada] got in an argument over what?

“[Ken]: I don't know. I think I need a lawyer. I think in this situation, I think I should have a lawyer.

“·························

“Polygraph examiner: Do you want to tell me what happen[ed]?

“[Ken]: All I can say is I didn't take my medicine like I was supposed to.

“Polygraph examiner: You got heated and mad with her?

“[Ken]: Yeah.

“Polygraph examiner: Did you beat her, hit her? Huh?

“[Ken]: I think I need a lawyer.” (Some capitalization omitted .)

“Detective Smith: Let me ask you something without asking you a question. Are you interested in helping us find that car and/or [Nada]? [¶][Ken]: So it's already ··· you know it was me? [¶] ··· [¶] Detective Smith: You want to talk to a lawyer first? Well, let me ask you this. If you talk to-if we get a lawyer and you can talk to a lawyer, would you consider and discuss with your lawyer helping us find that car and finding her? [¶] [Ken]: Yes.” (Some capitalization omitted.)



B. The proceedings below.

When Vanessa sought to introduce Ken's statements, the trial court opined that it did not see Ken's polygraph examination as being “even remotely like the [brother's] confession in Cudjo.” Indicating that it had reread the polygraph examination transcript and listened to the taped examination, the trial court stated: “He comes across as being cocky, arrogant, unfeeling, uncaring. He's caught in some lies···· [¶] ··· [T]he vast majority of this are just exculpatory statements···· [¶] You know, he switches a bit and talks about different stuff, and it's basically an exculpatory statement from beginning to end. It's not a confession. It's certainly not a confession. It is only marginally an admission. [¶] Taken in context, it is exculpatory. [¶] ··· [¶] When confronted that he was lying, he basically gives the next exculpatory statement that it was an argument···· [¶] I have real problems with the trustworthiness of Ken.”



C. Analysis of the statements.

There is no dispute that Ken was unavailable as a witness. Our inquiry is limited to whether his declarations were against his penal interest, and whether his statements were trustworthy.

*11 Unlike the brother in Cudjo, Ken did not confess. Whether Ken had a heated argument with Nada, or whether he forgot to take his medication, is not an admission that he killed her. That he asked for a lawyer was his constitutional right and does not demonstrate guilt. Ken said yes when asked to discuss with his lawyer the possibility of helping to find the body and the Camry. But he did not admit to knowing the location of either. The question under Evidence Code section 1230 is whether these statements “so far subjected [Ken] to the risk of ··· criminal liability ··· that a reasonable man in his position would not have made the statement unless he believed it to be true.” (Evid.Code, § 1230.) We must answer in the negative. Ken may have offered to help look for Nada and the Camry in order to appear cooperative and to present himself as being innocent. He may have made the other comments in an effort to present facts that mitigated premeditation or malice. Given the context of the polygraph examination, Ken's statements were not trustworthy.

The trial court properly exercised its discretion.



IV. The trial court properly admitted two photographs of the body.

The trial court admitted two photographs of Nada's body. This ruling, Vanessa charges, was an abuse of discretion under Evidence Code section 352 which deprived her of due process and her right to a fair trial because the photographs were gruesome and unnecessary for the prosecution's case. The People contend that Vanessa waived any objection to People's exhibit No. 34, and that People's exhibit No. 34 and People's exhibit No. 85 were otherwise admissible to demonstrate that Nada's death was not accidental, and also to demonstrate the great lengths to which Ken and Vanessa went to conceal the body.

We find no reversible error.



A. The proceedings below.

At the pretrial Evidence Code section 402 hearing, the prosecution indicated that it planned to introduce photographs of the body. No cause of death was determined because the body was chewed up by animals, deteriorated and scattered. The prosecution stated: “I think the coroner will say that she believes because of the pattern of the animals' eating that there might be injury to the rib area, particularly the one side, there was probably blood, that the animals attacked the throat because they always do that, so there could have been evidence of strangulation, beating, but because those areas were actually taken out, she can't say for certain, but she can theorize.”

The prosecution later showed various photographs to the trial court outside the presence of the jury. The first photograph contained a full body shot of Nada, the second photograph showed that Nada's feet were clean, and the third photograph depicted fractures in Nada's ribs. Vanessa's counsel objected to the first two photographs, but the objections were overruled.

Then came People's exhibit No. 34. The prosecution stated that this exhibit “is where the animals were eating. It shows actual teeth marks and where the most animal activity was, and [the coroner is] going to testify to that regarding the organs that were left and why in the throat-why she couldn't come up with an actual cause of death.”

*12 Vanessa's counsel stated: “There is [no] objection to that.”

At that point the trial court ruled: “Well, certainly a body that's been left out in the wild is not a pleasant thing to look at, but I think all the pictures go to illustrate the medical examiner's testimony. All probative value. The probative value outweighs any prejudice, so I'll allow them in.”

Dr. Donna Lee Brown, the forensic pathologist, was called to testify. She explained that she listed Nada's cause of death as “apparent lethal trauma.” Though Nada did not have a clear and convincing cause of death, Dr. Brown noted in her report that the manner of death was “homicide.” In particular, Nada had some fractures that may have been lethal. Dr. Brown went on to explain: “Many body organs were not available for examination because after her death, animals encroached upon her and the postmortem artifacts was such that her body was chewed upon by various wildlife such as coyotes or carrion.”

Dr. Brown was asked about a photograph showing a gloved hand. She stated that the hand was hers. She was holding up tissue near Nada's chest near the armpit and shoulder areas. The entire right arm was missing. It had been “disarticulated at postmortem by animals and twisting and chewing and tearing.” This tissue contained bite marks from animals. The teeth marks were mostly in the chest area and on Nada's right side.

In Dr. Brown's opinion, the animal activity “could indicate that that's where trauma or injury was apparent and she was draining a bloody fluid from that, and generally animals tend to go to that area first as well as maggot activity.” According to Dr. Brown, People's exhibit No. 34 showed Nada's skull. Only part of it was present. There was very little flesh on her face.

Later in the trial the People called Detective John Soliz from the Kern County Sheriff's Department. According to Detective Soliz, Nada was found down an embankment, approximately 20 feet from the North shoulder of Highway 178. Nada was wrapped in a robe. The back of the robe was fairly clean in appearance. He reviewed a photograph marked as People's exhibit No. 81 and said it was an accurate representation of how Nada looked. In his opinion, Nada was not rolled down the embankment. Detective Soliz added that after Nada began decomposing, her body was moved about a foot, probably by animals. The body was eventually identified as Nada after the investigators were able to compare her dental records.

The prosecution showed Detective Soliz People's exhibit No. 85 and asked if it showed drag marks. Detective Soliz said that it did not.

Ken's counsel objected on the grounds that the photograph was “very graphic and very unpleasant.” FN15 ° The trial court noted that the photograph was “less graphic than the ones that we were shown from the medical examiner.” Ken's counsel went on to argue that People's exhibit No. 85 did not show drag marks. The trial court responded thusly: “Well, this has been a topic discussed by counsel on direct and recross and redirect, so ··· if it shows, ··· it's illustrative···· I find the probative value of all the photographs, including this one, outweighs any prejudice[,] so I'll overrule the objection.”


FN15. According to Vanessa's opening brief, People's exhibit No. 85 “showed [Nada's] body as it was found. The most gruesome aspect of the picture is that it appears her head has been severed from her body.”




B. Evidence Code section 352.

*13 A trial court is vested with broad discretion under Evidence Code section 352 to admit photographs of a victim in a criminal trial. ( People v. Smithey (1999) 20 Cal.4th 936, 973.) An appellate court will not disturb that exercise of discretion unless the probative value of the photographs is clearly outweighed by the prejudice. ( Id. at p. 974.) “Photographs of a murder victim that illustrate the testimony of prosecution witnesses are relevant to corroborate that testimony and to establish that a murder occurred. [Citation.]” ( Id. at p. 973.) Of course, victim photographs will not always be admissible. “Such photographs should be excluded where their principal effect would be to inflame the jurors against the defendant because of the horror of the crime.” ( People v. Chavez (1958) 50 Cal.2d 778, 792.)

Any objection to People's exhibit No. 34 was waived. Not only did Vanessa's counsel fail to object, she affirmatively stated that she had no objection. (See People v. Harris (1981) 28 Cal.3d 935, 962.) The trial court, therefore, did not err in admitting that photograph.

It cannot be said that the probative value of People's exhibit No. 85 was clearly outweighed by its prejudice. The photograph was just one in a series that was probative to corroborate and clarify the testimony of the People's witnesses. Any potential prejudicial impact of the photograph was nullified by all the photographs to which Vanessa's counsel did not object. The trial court was of the opinion that the photographs that were introduced in connection with Dr. Brown's testimony were in fact more gruesome than People's exhibit No. 85. Under these circumstances, the trial court ruled within the bounds of reason.



V. The trial court properly admitted Nada's statement that her name had been placed on a credit card application by Ken and Vanessa.

Relying upon the Sixth Amendment right to confrontation, Vanessa argues that the trial court should have prohibited Solomon from testifying that she was told by Nada that Ken and Vanessa, unbeknownst to Nada, placed Nada's name on a credit card application. According to the People, Nada's statement was admissible under Evidence Code sections 1240 and 1250 because it was an excited utterance and demonstrated Nada's state of mind. We concur with the People that Nada's statement was admissible as evidence of Nada's state of mind. We need not determine whether it was also admissible as an excited utterance.



A. The proceedings below.

Prior to trial, the prosecution indicated that it planned to introduce various statements Nada made to Solomon. Vanessa's counsel objected that this evidence constituted late discovery and, in any event, was barred as hearsay. The prosecution argued that the statements were admissible as an excited utterances and to prove Nada's state of mind as to whether she intended to allow her credit to be used by Ken and Vanessa.

Vanessa's counsel later expressed concern over the portion of Nada's statement accusing Ken and Vanessa of falsifying a credit card application and being crooks. The trial court responded: “What [the prosecution] is saying is that whether it's true or false, whether they are crooks or not, whether they are false is irrelevant. [Nada] believed at the time of the meeting they falsified documents and that she believed they were crooks and that the meeting was going to be about this confrontation.”

*14 Solomon was called as an offer of proof.

Nada called Solomon on the Wednesday or Thursday before Nada disappeared. According to Solomon, Nada “seemed very agitated” and she began talking “very, very loud and very, very-somewhat angry. And she started telling me that she is very, very upset.” Nada started to cry and said that Ken and Vanessa had incurred $50,000 in debts in Nada's name. Solomon asked how. Nada explained that they had credit cards in her name. “She said that they ··· signed her name on the application, and that she did not apply for ··· that application.” Nada then said that she would talk to them that weekend, that she did not care if they went to jail, that she planned to go to the police and the District Attorney. The whole time Nada “was crying and screaming and that was not her nature.” Her plan was to get her money back from Ken and Vanessa.

The trial court tentatively ruled that the statements were admissible under People v. Majors (1998) 18 Cal.4th 385 ( Majors ) and People v. Alcalde (1944) 24 Cal.2d 177 “because it refers to state of mind to do a future act and what the state of mind would be during that future act.” The trial court went on to state: “It is a strong statement of intent to do something and a strong statement of her state of mind during the confrontation she was planning.” To avoid prejudice, the trial court indicated that it would instruct the jury that the statements were evidence of what Nada believed, not the truth of the matter asserted. Ultimately, Nada's statements were deemed admissible.

Solomon then testified before the jury.



B. Evidence of Nada's state of mind.

Unless it is untrustworthy, as provided by Evidence Code section 1252, evidence of a statement of a declarant's state of mind is permissible when it is offered to prove the declarant's state of mind at that time or any other time when it is an issue in the action or when it is offered to explain the declarant's conduct. (Evid.Code, § 1250.) Our Supreme Court has instructed that the declaration “must tend to prove the declarant's intention at the time it was made; it must have been made under circumstances which naturally give verity to the utterance; it must be relevant to an issue in the case.' [Citation.]” ( Majors, supra, 18 Cal.4th at p. 404.) If evidence is admissible under Evidence Code section 1250, there is no violation of the Confrontation Clause in the Sixth Amendment. ( Majors, supra, at p. 405.)

Nada's statement was relevant to prove her intent to confront Ken and Vanessa. It demonstrated one of the accusations she planned to level at Ken and Vanessa and, inferentially, helped explain their motive to kill. Moreover, we conclude that the statement was trustworthy. Nada stated her intent to Solomon, an old friend, while very emotional. In words quoted by Majors, “ ‘it was a natural utterance made under circumstances which could create no suspicion of untruth in the statement of her intent.’ “ ( Majors, supra, 18 Cal.4th at p. 404.)



VI. The trial court properly admitted evidence of credit reports.

*15 Vanessa complains that credit reports for her, Ken and Nada contained multiple levels of hearsay and should not have been admitted pursuant to the business records exception in Evidence Code section 1271. The People, in opposition, argue that Vanessa objected on relevance grounds only and therefore cannot now challenge whether a proper foundation was established for the business records exception. Beyond that, the People contend that a proper foundation was established and, even if it was not, Vanessa was not harmed by any resulting error.

We examine these issues.



A. The proceedings below.

During trial the prosecution indicated that they planned to introduce credit cards and credit documents, including documents from credit card companies and a credit reporting agency, for Ken, Vanessa and Nada. The purpose was to show that Ken and Vanessa incurred substantial debt in Nada's name, Nada found out, and that was the motive for Nada's murder.

Vanessa's counsel objected to the credit reports, stating, “Part of our objection is the timeliness of the information and also the relevance of a lot of information on there. [¶] The credit reporting agency generally just reports multiple levels of hearsay, and putting in a computer what people are telling them, so if we're going to talk about the credit reports, I would appreciate it if [the prosecution] would refer to which group of credit reports and provide the [trial] court a copy, so the [trial] court can evaluate whether they show what [the prosecution] claims.”

The trial court stated that the credit reports were business reports that are relied upon every day in commerce. At that point, Vanessa's counsel argued: “My objection is that they contain a vast quantity of irrelevant information.” When the trial court queried whether the prosecution could lay a foundation for the credit reports, the prosecution stated that it had a representative from Transunion present and ready to testify.

Before introducing the credit reports, the prosecution questioned Jasmina about Nada's credit cards. According to Jasmina, Nada was very frugal. The prosecution showed Jasmina numerous credit cards that bore Nada's name. Jasmina had never seen these cards before. They carried balances and listed Ken and Vanessa's home as the billing address.FN16


FN16. The prosecution presented voluminous evidence demonstrating the fraudulent use of Nada's name to obtain credit.


The trial court indicated that the defense had raised a hearsay objection to the credit reports. Vanessa's counsel added that the objection was also “relevance as to portions” of the reports.

Judd Rousseau (Rousseau), the custodian of records from Transunion, was called to make an offer of proof. He explained that the information in a credit report comes from companies that extend credit. That information is put into Transunion's system within 30 days. Data received by Transunion is analyzed statistically to find discrepancies and is deemed reliable. The credit reports at issue were made in the normal course of business. All the information in those reports was current within a short time from August 25, 2001.

*16 The prosecution argued that the credit reports met the business records exception. In response, Vanessa's counsel stated: “I'm not saying he's wrong about that···· I think [they] contain information that is completely irrelevant.” The trial court found that the credit reports were business records, they were trustworthy, and they were “clearly admissible.” Both Ken's counsel and Vanessa's counsel asserted a relevancy objection that was overruled.

Rousseau then testified before the jury. Ken's credit history revealed accounts that were in excess of credit, past due, or charged off as bad debts. Vanessa's credit history was similar. There was an overlap of credit cards between Vanessa's credit history and Nada's credit history. For other accounts, Nada's history showed charges below credit limits and prompt payments.

The only correlation between Nada's credit cards and Ken's credit cards was a Fleet credit card.



B. Waiver.

Vanessa's objection on appeal is as follows: Rousseau offered no testimony regarding the data gathering and recording practices of the companies that forwarded information to Transunion. There was no finding that these other sources of information were trustworthy. The business records exception “does not permit the introduction of statements made by customers of the business unless the employee was responsible for verifying the statements.” In light of these principles, credit agency reports do not qualify as business records for purposes of Evidence Code section 1271 because they contain multiple levels of hearsay. Moreover, many aspects of credit reports are made with an eye to litigation. When bad debts are being written off and sold is when they should be scrutinized the most.

These objections were waived.

Evidence Code section 353 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”

“ ‘[The] general rule [is] that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citations.] The contrary rule would deprive the People of the opportunity to cure the defect at trial and would “permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.” [Citation.]’ [Citation.]” ( People v. Privitera (1979) 23 Cal.3d 697, 710.)

*17 Prior to the Evidence Code section 402 hearing, Vanessa's counsel stated that the credit report contained multiple levels of hearsay. However, it is clear from the context of her statements that her objection was based on relevance, not hearsay. Then, after the prosecution argued that it had laid the foundation for the business records exception, Vanessa's counsel stated that she did not disagree. Her complaint remained that the report contained irrelevant information. Accordingly, we conclude that Vanessa did not preserve her objection for appeal.

In any event, even if Vanessa had preserved her objection and it was well taken, we would nonetheless affirm the judgment. The question would be whether her right to confrontation had been abridged. But even if it had, we would be compelled to affirm if the error was harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 24.) Here, that would be the case.

Vanessa argues that the case against her was weak and that the credit report may have tipped the scales against her. But this contention is belied by the record. There was evidence that Vanessa charged up credit cards in Nada's name, Nada found out and planned to confront Ken and Vanessa. Vanessa was seen at Nada's house the weekend she disappeared. As well, Vanessa was seen following Ken as he drove the Camry. Testing established that Nada's blood was on the Camry, which supports the inference that the Camry was used to transport and dump Nada's body. Because Vanessa knew the location of the Camry after Nada's disappearance, the inference is that Vanessa was involved in the cover up. Amanda looked in the back of the 4-Runner Vanessa was driving and saw Nada's purse. Later, the police found Nada's collection of currency under Vanessa's bed. This evidence suggests that Vanessa stole from Nada after she had been murdered. In our view, the People presented a strong circumstantial case that Vanessa was involved in the crime.

Regarding credit fraud, Solomon testified that Nada accused Ken and Vanessa of incurring debts of $50,000 in Nada's name and of falsely using Nada's name on a credit card application. As well, Jasmina testified that there were accounts in Nada's name that went to Vanessa's address. Even in the absence of the credit reports, the jury had strong evidence of credit fraud. Therefore, any purported error was harmless beyond a reasonable doubt.

We need not determine whether the credit reports qualified as business records under Evidence Code section 1271.



VII. The trial court did not have a duty to instruct on voluntary manslaughter.

Ken argues that the trial court should have given a voluntary manslaughter instruction because there was evidence that Nada provoked her murder. The People defend that trial court's refusal to give the instruction on the grounds that there was insufficient evidence of a quarrel between Ken, Vanessa and Nada to justify a finding that murder resulted from heat of passion.

*18 The People are correct.



A. The proceedings below.

The defense requested a voluntary manslaughter instruction. The trial court denied the request, reasoning: “I listened to the evidence and there is a dearth of evidence to support any kind of heat of passion. What we are missing is not just an argument. What we're missing is just some testimony or some evidence from which we can infer that the killing was done in the heat of passion. [¶] Ordinarily that is supplied either by defendant or by a third party witness who testifies to shouting, screaming, or to photographs indicating broken furniture or whatever, and there is none of that in this case. [¶] I would have to completely speculate as to, first of all, the existence of an argument; secondly, that it was such that would cause this violent confrontation without any premeditation and deliberation. [¶] Left undiscussed in this conversation is the adequacy of provocation. I believe as a matter of law the provocation would be inadequate to support a voluntary manslaughter instruction. It's very hard to see how that could be. [¶] The testimony in this case was a woman under five feet tall and very elderly and ill-she had heart attacks and whatever-and the notion that she would pose such a threat and that ··· the legitimate demand ··· that [Ken and Vanessa] repay debts is not the kind of provocation that would justify reducing an intentional killing ··· to voluntary manslaughter.”

The trial court instructed the jury on first and second degree murder only. The jury was told: “If the evidence establishes that there was provocation which played a part in the inducing an unlawful killing of a human being, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.”



B. The evidence of provocation was insufficient to justify a voluntary manslaughter instruction.

A trial court must instruct on a lesser included offense when there is a question as to whether the elements of the charged offense are present and substantial evidence justifies a conviction of the lesser included offense. The trial court has no duty to so instruct when there is no evidence that the offense is less than what was charged. ( People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Breverman (1998) 19 Cal.4th 142, 154, 162 ( Breverman ).) “[T]he existence of ‘ any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could ··· conclude[ ]” ‘ that the lesser offense, but not the greater, was committed. [Citations.]” ( Breverman, supra, at p. 162.)

*19 Murder is an unlawful killing with malice aforethought. Voluntary manslaughter, in contrast, is an unlawful killing without malice. ( People v. Lasko (2000) 23 Cal.4th 101, 107-108.) It is a lesser included offense of murder. ( Id. at p. 111.) A defendant is guilty of voluntary manslaughter when he or she commits an intentional and unlawful killing but lacks malice because the killing resulted from a sudden quarrel or heat of passion on adequate provocation. ( Breverman, supra, 19 Cal.4th at p. 163.) The provocation must be caused by the victim or reasonably believed by the defendant to have been caused by the victim. ( People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.) Heat of passion is “ ‘such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances····' “ ( People v. Berry (1976) 18 Cal.3d 509, 515.)

According to Ken: “The prosecution's evidence established that [Nada], angrier, more agitated, more upset at learning of the debt created in her name by Vanessa and [Ken] than friends and family had ever seen her intended to confront them about repayment of the money and report them to the police and [the] district attorney. Implicit in this evidence of [Nada's] emotional state and her demands is that [Nada] was killed when [Nada] heatedly confronted Vanessa and [Ken].” Ken points out that the prosecution's case rested entirely upon circumstantial evidence. He then states that “the evidence of [his] actual involvement in incurring the debts that allegedly served as motivation for the murder, as well as the evidence of [his] actual involvement in the killing [,] was minimal.”

We are not persuaded.

“Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.]” ( People v. Mendoza (2000) 24 Cal.4th 130, 174.) Here, all we have is speculation as to what transpired when Nada was murdered. As a result, there was insufficient evidence for a jury to determine that the murder resulted from a heat of passion which would naturally be aroused in the mind of an ordinarily reasonable person. We acknowledge that there is an inference from Nada's state of mind evidence that she was angry when she confronted Ken and Vanessa. But this does not constitute evidence from which a jury could conclude that Ken and Vanessa committed voluntary manslaughter but not murder.



DISPOSITION

The judgments are affirmed.


We concur: BOREN, P.J., and DOI TODD, J.


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Monogram Credit Card Bank of Georgia v. Morris
Not Reported in N.Y.S.2d, 2002 WL 31360695
N.Y.City Civ.Ct.,2002.
May 10, 2002

As evidence of plaintiff's defamatory statements, defendant's attorney presents partial copies of credit reports. These reports do not establish plaintiff's defamatory words directly or that they are obtainable through disclosure. In determining plaintiff's motion to dismiss the counterclaim under C.P.L.R. § 3211(a), the court may consider affidavits and other admissible evidence presented to remedy defects in the pleading. Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56 (1998). Defendant similarly must present admissible evidence to establish his claim that the facts required to sustain his cause of action are obtainable. Amigo Foods Corp. v. Marine Midland Bank-N.Y., 39 N.Y.2d 391, 395, 384 N.Y.S.2d 124, 348 N.E.2d 581 (1976); Ramsay v. Mary Imogene Bassett Hosp., 113 A.D.2d at 152, 495 N.Y.S.2d 282. The affirmation of defendant's attorney, who lacks personal knowledge of the facts and fails to lay a foundation for the unsworn credit reports' admissibility, is of no probative value and thus unavailing for either purpose. Williams v. Citibank, 247 A.D.2d 49, 52, 677 N.Y.S.2d 318 (1st Dep't 1998).

Were the court to consider these documents, they still do not satisfy the pleading requirement of C.P.L.R. § 3016(a). Nothing suggests that the credit reports contain plaintiff's actual communications to the credit reporting agencies. Nor do the documents make the showing required under C.P.L.R. § 3211(d). Defendant received these reports from credit reporting agencies, yet nowhere alleges that he sought plaintiff's original communications to the agencies from them and that they refused to provide that information.

*3 Therefore the court dismisses defendant's counterclaim for defamation. He may replead this claim in a future action insofar as it is consistent with C.P.L.R. §§ 205(a), 215(3), and 3016(a). Hodge Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 269 A.D.2d 330, 331, 703 N.Y.S.2d 184 (1st Dep't 2000); Schindler v. Issler & Schrage, 262 A.D.2d 226, 227, 692 N.Y.S.2d 361 (1st Dep't 1999). See C.P.L.R. § 3211(e); Bardere v. Zafir, 63 N.Y.2d 850, 852-53, 482 N.Y.S.2d 261, 472 N.E.2d 37 (1984); Elliman v. Elliman, 259 A.D.2d 341, 687 N.Y.S.2d 31 (1st Dep't 1999); Ott v. Automatic Connector, 193 A.D.2d 657, 658, 598 N.Y.S.2d 10 (2d Dep't 1993).


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Thomas v. State
Not Reported in S.W.3d, 2002 WL 54821
Ark.App.,2002.
January 16, 2002

Counsel contends there is merit to the appeal of case No. CR99-2555. He contends that Thomas's conviction for fraudulent use of a credit card should be reversed because the court erred in denying Thomas's hearsay objection to the admissibility of a credit report of Patricia Craig, the alleged victim, and because the State failed to prove the value of the property obtained through use of the card.

Counsel contends that “credit reports are hearsay and, therefore, are inadmissible unless they are qualified for admission pursuant to the hearsay exception that allows records of regularly conducted business activity to be admitted,” citing United States v. Metallo, 908 F.2d 795 (11th Cir.1990) and United States v. Beecroft, 608 F.2d 753 (9th Cir.1979). Counsel argues that credit reports inherently lack trustworthiness without some indication that the record was made by someone in the course of their business and near the time of the events. Counsel further contends that the proper foundation for the business-records exception was not laid because no custodian of the credit report records testified and that the report's admission was prejudicial because it constituted the State's only proof that the transactions were credit transactions.

The State contends that the admission of the reports was not reversible error because Craig testified, without objection, to the contents of the report. We need not decide in this case whether the business-records exception is applicable to credit reports in this case because the report's admission was harmless error. The business records predicate was not met in this case; there was no testimony from a custodian of the records and no business-records exception affidavit to replace the custodian's testimony. However, even if credit reports must be admitted under the business-records exception and such exception was not met here, this was harmless error, as the relevant part of the report is merely cumulative of Craig's testimony-that the two credit transactions were made. The report, as Thomas's counsel argues, does contain much more information than this. However, we cannot say that the admission of such extraneous information, such as amount of outstanding credit, payment history, etc. contained in the report, was harmful error.


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McMillan v. Experian
170 F.Supp.2d 278
D.Conn.,2001.
October 19, 2001

Here, plaintiff's sworn statements in Paragraphs One through Three of his affidavit, although perhaps not in a form adequate to make the attached credit report excerpts admissible at trial, do satisfy Rule 56(e)'s requirement of setting forth evidence that will be presented in admissible form at trial, as defendant has identified nothing that suggests that the credit reports attached to plaintiff's affidavit could not be admitted at trial with the appropriate foundation under the business record exception to the hearsay rules, Fed.R.Evid. 803(6). Thus, the Court concludes that Paragraphs One through Three and the attached exhibits will be considered for purposes of this motion for summary judgment, and defendant's motion to strike is denied as to these paragraphs and the attached exhibits.

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U.S. v. Castro
887 F.2d 988
C.A.9 (Cal.),1989.
October 23, 1989

Castro and Cotter contend the admission of TRW credit reports into evidence under the business records exception to the hearsay rule, Fed.R.Evid. 803(6), was plain error because no foundation was laid and there was no showing that a person with knowledge of the contents of the reports had made the records. Appellants also argue admission of the reports violated their sixth amendment right to cross-examine witnesses.

These arguments are without merit. The TRW reports were introduced to show what information was available to Castro at the time he approved the loans, and to illustrate his reckless disregard for the Bank's interests by failing to act in response to the information disclosed by the reports.FN1


FN1. An expert witness for the government testified that of twenty-one loans made by Castro, two credit checks were performed prior to their approval, and none of the assets listed on the reports was verified.


The credit reports were not introduced for the truth of their contents. They were not hearsay. Fed.R.Evid. 801(c), and there was no violation of the appellants' sixth amendment confrontation rights.

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American Bank of Commerce v. Corondoni
169 Cal.App.3d 368, 215 Cal.Rptr. 331
Cal.App. 2 Dist.,1985.
June 18, 1985

Appellant countered with New Mexico case law. He argued that the tolling statute did not apply because respondent did not attempt to serve appellant during his absence from New Mexico. Appellant concurrently made a motion to strike, on evidentiary grounds, those portions of the declaration referring to defendant's statement and the credit report.

In its minute order of March 30, 1984, the trial court denied appellant's motion to vacate the judgment, but did not refer to the *371 motion to strike.FN2 Almost two weeks after the hearing, appellant filed a request for a statement of decision, which the court denied. The court similarly denied appellant's subsequent motion for reconsideration and his request for relief under section 473 of the Code of Civil Procedure.FN3


FN2. With respect to appellant's admission that he had been absent from New Mexico for more than five years, his counsel argued that the admission was made during the course of settlement negotiations. There was no evidence introduced to support this contention. Thus the trial court had no basis upon which it could possibly consider the merits of the motion and no error occurred. If the court fails to rule on an unclear objection, the error is considered waived. (See Witkin, Cal. Evidence (2d ed. 1966) Introduction of Evidence at Trial, § 1303, p. 1205.)

Appellant objected to the credit report on relevancy and hearsay grounds. The hearsay objection appears to have been well taken because the record before us does not clearly reveal that an appropriate foundation had been laid for the introduction into evidence of the credit report. However, this evidence was cumulative only and admission of the report constitutes harmless error.


FN3. Appellant requested relief under section 473 in the event that his request for a statement of decision was untimely.
--------------------------------------------------------------------------------

Cruz v. MRC Receivables, Corp., ___ F. Supp. 2d. ___, 2008 WL 2627143,
**2-4 (N.D. Cal. July 3, 2008) (sustaining hearsay objections to
credit reports and consumer's declaration, and ordering portions of
declaration stricken); see also Philbin v. Trans Union Corp., 101 F.3d
957, 961 nn. 1-2 (3d Cir. 1996) (excluding hearsay statements from
credit grantors concerning alleged reasons for credit denials); Baker
v. Capital One Bank, 2006 WL 173669, *5 (D. Ariz. Jan. 24, 2006)
(excluding credit reports).
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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