People v. Chavez

• Decision Date: 19 September 1985
• Citation: 39 Cal.3d 823,218 Cal.Rptr. 49,705 P.2d 372
• Court: California Supreme Court
• Parties: , 705 P.2d 372 The PEOPLE, Plaintiff and Respondent, v. Raymond Rudy CHAVEZ, Defendant and Appellant. Crim. 22039.

Page 49

218 Cal.Rptr. 49

39 Cal.3d 823, 705 P.2d 372

The PEOPLE, Plaintiff and Respondent, v. Raymond Rudy CHAVEZ, Defendant and Appellant.

Crim. 22039.

Supreme Court of California.

Sept. 19, 1985.

Jonathan M. Purver, Novato, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Edmund D. McMurray and Ward A. Campbell, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Associate Justice.

This automatic appeal follows a judgment imposing a penalty of death pursuant to the 1978 death penalty law. (Pen.Code, § 190.1 et seq.; all statutory references are to this code unless otherwise indicated.)

An information was filed in Tulare County Superior Court charging defendant Raymond Rudy Chavez with the following offenses occurring on August 26, 1979: the murder of Joseph Mossa (count I, § 187) and the robbery of Mossa (Count II, § 211). The information alleged as a special circumstance that the murder charged in count I was committed while the defendant was engaged in the commission of the robbery alleged in count II. ( § 190.2, subd. (a)(17)(i).) Finally, the information alleged that, as to both counts, the defendant personally used a firearm. ( § 12022.5.)

Defendant entered a plea of not guilty to each count and denied the special circumstance and firearm allegation. The jury found defendant guilty on both counts, found the special circumstance to be true, and found the firearm allegation to be true as to both counts. That same jury was unable to reach a verdict in the penalty phase, but a second penalty jury returned a verdict of death. Appeal to this court is automatic. ( § 1239.)

I. FACTS

At approximately 3 a.m. on August 26, 1979, decedent, Joseph Mossa, and his wife drove away from their house at the beginning of a vacation to be spent at Lake Tahoe. As they drove, a car followed them and another pulled in front of them. The cars carried defendant, his brother Tony, and their friends, Gary Hook, Art Aguirre, and Ignacio Pelaiz. The front car stopped and the rear car boxed in the Mossas' car. Defendant jumped from the rear car and walked to the driver's window of the Mossa car. Mr. Mossa, who was at the wheel, rolled down his window and asked defendant what he wanted. The defendant pointed a gun at Mossa and demanded, "Give me your bread." When Mossa asked what he meant the defendant said, "Give me your valuables." Mossa complied by handing over his wallet. After looking through the wallet defendant said, "Where is the rest?" As Mossa tried to turn his steering wheel to drive away, defendant shot Mossa in the head, killing him instantly. The car jumped the curb into a vacant lot and struck a tree. Defendant and his cohorts sped away while Mrs. Mossa got out of her car and ran to a nearby house to call the police.

Pelaiz testified that before the shooting the defendant and his friends had been drinking and smoking marijuana for about 10 hours. He further testified that, after the shooting, the cars drove to Aguirre's house where defendant and Aguirre divided the money in Mossa's wallet. Pelaiz received $9.

The defense was based entirely on the theory of diminished capacity. Defendant did not testify.

II. GUILT PHASE ISSUES

A. Jury Selection

Defendant raises two issues relating to the voir dire and selection of the jury. First, he argues that the excusing for cause of veniremen who would automatically vote against the death penalty but whose views would not affect their ability to judge defendant's guilt or innocence (so called, guilt phase includables) resulted in a guilt phase jury that was conviction prone and was not a fair cross-section of the community. Second, he claims that the People peremptorily challenged all veniremen who expressed any doubts about the death penalty (so called, death-scrupled veniremen) and that such conduct violated the mandate of People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.

1. Jury conviction prone and not a fair cross-section. Defendant's claim that exclusion of the guilt phase includables resulted in a conviction-prone jury was considered and rejected by us in Hovey v. Superior Court (1980) 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301. His assertion that the absence of guilt phase includables denied him a jury composed of a cross-section of the community was considered and rejected in People v. Fields (1983) 35 Cal.3d 329, 197 Cal.Rptr. 803, 673 P.2d 680. We decline to reconsider the holdings of those cases.

2. Wheeler error. In People v. Wheeler, supra, we held that the People may not systematically use peremptory challenges for the sole purpose of excluding members of an identifiable group distinguishable on racial, religious, ethnic, or similar grounds. Defendant asserts that death-scrupled jurors are such a group and that the People systematically excluded them by peremptory challenges in this case. We considered and rejected these arguments in People v. Turner (1984) 37 Cal.3d 302, 313-315, 208 Cal.Rptr. 196, 690 P.2d 669.

B. Expert Testimony

Dr. Morrison, a medical doctor specializing in pathology, testified as an expert witness for the People. His testimony during the case-in-chief was related to the autopsy he performed on Mr. Mossa and was not challenged by defendant. Dr. Morrison was later called in rebuttal and testified, over defense objection, that a person who performed the acts ascribed to defendant would have the requisite intent to commit robbery regardless of whether such person had been drinking or was drunk. He further testified that the performance of those acts would be inconsistent with the evidence that such a person had consumed the amount of alcohol alleged to have been consumed by defendant. Defendant challenges the admissibility of the rebuttal testimony, asserting that Dr. Morrison was not qualified as an expert in the area in which he testified on rebuttal.

Evidence Code section 720, subdivision (a), allows a witness to testify as an expert "if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." We last addressed this issue in People v. Hogan (1982) 31 Cal.3d 815, 183 Cal.Rptr. 817, 647 P.2d 93. There, we explained that an expert's qualifications "must be related to the particular subject upon which he is giving expert testimony. Qualifications on related subject matter are insufficient. [Citations.]" (Hogan, supra, at p. 852, 183 Cal.Rptr. 817, 647 P.2d 93.)

In Hogan, a "criminalist" who could properly testify that certain stains were blood and could identify the blood type was permitted to testify whether the blood had been spattered or transferred by contact. The criminalist's qualifications on the issue of the source of the stains were that he had once viewed an exhibit on the subject, had read a book "some years prior" about flight patterns of blood (although he was neither very familiar with the book nor had he relied upon it in forming his opinion), and had viewed bloodstains at many crime scenes. He further admitted that he had performed no tests on the stains involved in the case nor did he have any standards to which to compare the stains. We held that admission of the criminalist's testimony of the origin of the stains was error.

We are required to uphold the trial judge's ruling on the question of an expert's qualifications absent an abuse of discretion. (Hogan, supra, 31 Cal.3d at p. 852, 183 Cal.Rptr. 817, 647 P.2d 93.) Such abuse of discretion will be found only where " 'the evidence shows that a witness clearly lacks qualification as an expert....' " (Italics in original, ibid., citing Jefferson, Cal. Evidence Benchbook (1972) § 29.3, p. 502.) Here, Dr. Morrison's testimony showed that he was a medical doctor with extensive experience in forensic pathology. He had analyzed the results of between 500 and 600 postmortem blood alcohol tests and related those results to the circumstances surrounding death. He also indicated that he knew of the extensive medical literature dealing with alcohol and behavior. He admitted that most of his professional experience had been with dead bodies rather than live persons and that he had no professional experience in estimating blood alcohol based upon the actions of a live person.

Although the matter is not entirely free from doubt, we conclude that Dr. Morrison was qualified to give expert testimony on the issue of alcohol. In Brown v. Colm (1974) 11 Cal.3d 639, 114 Cal.Rptr. 128, 522 P.2d 688, we held that a physician could testify as to the standard of medical care that prevailed in the community in 1949 even though he did not engage in the practice of medicine until 10 years later. We found dispositive the fact that the witness had made a study of the standard of care in 1949 in preparation for his testimony. Similarly here Dr. Morrison testified that he knew of the medical literature on alcohol and its effects. On the whole, then, we cannot say that Dr. Morrison "clearly lacks" the requisite qualifications and we therefore conclude that the trial judge did not abuse his discretion in permitting Dr. Morrison's rebuttal testimony.

Defendant's challenges to Dr. Morrison were properly treated by the trial judge as going to the weight of the testimony. After a review of the trial transcripts, we are satisfied that the nature and extent of Dr. Morrison's experience was made clear to the jury. The jury was instructed that it was the sole judge of the weight to be given to any witness' testimony, that it could consider the qualifications and credibility of an expert and could disregard any expert opinion. In light of these facts we are satisfied that the jury was fully capable of properly evaluating Dr. Morrison's rebuttal testimony.

Finally, any error that may have occurred by the admission of Dr. Morrison's rebuttal testimony was cured by the testimony of Dr. Berkson, who testified on...