People v. Winkler

Decision Date02 November 2020
Docket NumberC077992
Citation271 Cal.Rptr.3d 88,56 Cal.App.5th 1102
CourtCalifornia Court of Appeals Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Todd Alan WINKLER, Defendant and Appellant.

Certified for Partial Publication.*

Athena Shudde, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Robert C. Nash, Deputy Attorney General, for Plaintiff and Respondent.

MURRAY, J.

Defendant killed his third wife (the victim) by plunging a pair of scissors into her neck, severing her jugular vein. She had been having an extramarital affair and was planning to divorce defendant. Defendant did not deny killing her, but claimed he did so in self-defense. A jury found defendant guilty of murder in the first degree and found true the enhancement allegation that defendant personally used a deadly or dangerous weapon in the commission of the murder. ( Pen. Code, §§ 187, 189, 12022, subd. (b)(1).)1 The trial court sentenced defendant to a term of 26 years to life.

On appeal, defendant asserts that: (1) the trial court erred in admitting, pursuant to Evidence Code section 1101, subdivision (b), evidence related to the 1999 death of his second wife as relevant to his intent to kill the victim, the absence of mistake or accident, or to negate self-defense; (2) the trial court erred in admitting the victim's prior statements to others about her fear of defendant; (3) the cumulative effect of the foregoing errors requires reversal; (4) the evidence was legally insufficient to support a finding of premeditation and deliberation so as to support a conviction of first degree murder; and (5) an error on the abstract of judgment must be corrected.

We conclude the trial court abused its discretion in admitting evidence of the 1999 death of defendant's second wife under Evidence Code section 1101, subdivision (b). The Georgia authorities where the incident took place determined the death was accidental. Before allowing the jury to hear this evidence, the trial court had a gatekeeping duty under Evidence Code section 403, subdivision (a) to determine whether there was sufficient evidence to establish a homicidal act by a preponderance of the evidence. In doing so, the trial court relied on evidence related to the charged offense as proof of the earlier homicidal act. This was error. We further conclude that any probative value the uncharged act evidence had was substantially outweighed by the Evidence Code section 352 concerns of undue consumption of time and undue prejudice. However, given the strength of the admissible evidence, we conclude the error was harmless.

As to his asserted error regarding evidence related to the victim's fear of him, defendant forfeited several of these contentions. Those contentions which are preserved are either without merit or harmless. As to those claims which defendant forfeited, we conclude that, contrary to defendant's contentions, he was not denied the constitutionally effective assistance of counsel for his attorney's failure to object to the evidence. We also reject defendant's cumulative error argument. And we conclude there was substantial evidence of premeditation and deliberation to support his conviction of murder in the first degree. Finally, we agree with defendant that the abstract of judgment must be corrected to reflect that the indeterminate sentence imposed was 25 years to life, and delete reference to the term of life without the possibility of parole.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Given the nature of defendant's claims, a fairly detailed summary of the evidence presented at trial and the hearing concerning the uncharged act evidence is required.

The Prosecution's Evidence
Defendant's Report of a "Domestic Incident," His Physical Condition & Arrest

At approximately 10:30 or 11:00 a.m. on February 27, 2012, D.B., defendant's neighbor and a social acquaintance, received a telephone call from defendant. Defendant told D.B. there had been a domestic incident, and that the victim had been killed. D.B. told defendant that he would call 911 while defendant took his children to a neighbor's house.

At approximately 10:30, defendant knocked on the door of his neighbors, V.J. and B.J. B.J. answered the door and defendant stated there was a medical emergency and he asked them to watch his children. When defendant dropped off the children, V.J. noticed that defendant had "taken a shower. He smelled like shampoo or cologne." V.J. testified that defendant did not have any injuries on his hands or face. When defendant handed V.J. his infant son, she saw that there were no injuries on his hands. B.J. also testified that he did not observe any injuries to defendant's hands or face. V.J. and B.J. both testified that defendant's tone was "normal," he had no tears in his eyes and was not acting nervous, emotional, or with any urgency or panic.

At approximately 10:40, El Dorado County Deputy Sheriff Michael Roberts responded to the defendant's house. Roberts parked across the street and kept the house under observation while awaiting additional units. Seventeen minutes after he arrived, defendant emerged from the house. Roberts pointed his firearm at defendant, identified himself, and ordered defendant to approach him with his hands in the air. Roberts observed bandages on both of defendant's hands. The bandages were "obvious" and he first noticed them from some 20 feet away. Roberts later observed a "pretty significant gouge ..." to one of defendant's thumbs. After placing defendant in his patrol car, Roberts and other law enforcement officers entered the house. When Roberts saw the victim, it was clear that she was dead.

Defendant's Interview Statement Describing the Killing2

Detectives Michael Lensing and Paul Hadjes interviewed defendant on the day of his arrest. Defendant stated that the victim had been having an affair, he had recently accepted the fact that she did not wish to reconcile with him, and she had told him that she wanted primary custody of the children. Defendant stated that, on a family trip to Las Vegas the previous weekend, he finally accepted that the couple would divorce. The victim "started to lay out ... all the terms that she had wanted and ... one of them was primary custody of the children and [she] wants to keep the children up here in—in this area, in the Cameron Park area because that's where her boyfriend lives."

Defendant told the detectives he woke up at approximately 3:30 a.m. that morning to prepare to leave for work in Alameda County. He went into the victim's bedroom, as they had been sleeping in separate bedrooms, and crawled into bed next to her, which, according to defendant, was "still ... okay with her, no sexual relations ...." She was awake. Defendant told her that he would not agree to allow her to have full custody of the children. He told her, "I'm a—going to fight you on this." According to defendant, the victim responded, "I can have my boyfriend get rid of you." Defendant told the detectives the victim's boyfriend was "a big gun collector ... I don't know if he's dangerous or not but his ex-wife says that he is ...." Defendant said after the victim's comment, he hit her with his fist on the right side of her face. She sat up with her back to him. Defendant rubbed her back and apologized. According to defendant, the victim then turned around and came at him "with a V of scissors." Defendant said he "got a hold of them," got his hand "into the V" and then they struggled over the scissors and fell off the bed. He said he took some cuts to his hands trying to get the scissors away from her, including the cut the detective noticed when he and the detective shook hands earlier.

Defendant stated he "was able to get—em turned around onto her ...," "[a]nd give her some—some jabs, a lot of jabs ...." He "was just striking for her face." The couple engaged in a "long, long protracted struggle" over the scissors. According to defendant, the victim was "a very strong girl" and was in much better shape than he was. During the course of the struggle, she was injured, but "probably not seriously." Defendant stated that he "poked her in the eye really hard3 and got her to break free ...." He then dropped the scissors and ran to the garage.

In the garage, defendant became concerned about the children and felt that he needed to get his infant child out of the victim's bedroom. Defendant put on a padded motorcycle jacket because it had pads "for like breaking down the door" and returned to the bedroom. As Lensing went over the events a second time, defendant said that, at this point, he was concerned that the victim may have been drinking, and he should not leave the children in the house.

When defendant returned to the victim's bedroom, the door was closed. He turned the doorknob, rushed into the room, tripped on something in the doorway, and fell down at the foot of the bed on all fours. The victim, who was sitting on the floor, kicked him in the face. Defendant became enraged, and he "went after her." They began to struggle on the floor. Defendant "bear crawled up her," and tried to choke her with both hands. According to defendant, the victim "end[ed] up with the scissors again in her hand." Defendant said he "started to get the upper hand ...," and eventually got control of the scissors and "went for her throat." He struck her on the face and throat.

Defendant told the detectives that the victim begged for her life, and repeatedly told him they could "resolve this." She said they would not get a divorce, and she begged for her life and for defendant to "give [her] another chance." She pleaded with him: "[d]on't do this." However, defendant told the detectives he "felt like if [he] g[a]ve her a chance she'll be right back at [him] and [he] was exhausted."...

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  • People v. Mani
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    ...).) Likewise, we review a trial court's section 1101, subdivision (b) ruling for abuse of discretion. ( People v. Winkler (2020) 56 Cal.App.5th 1102, 1144, 271 Cal.Rptr.3d 88 ( Winkler ); People v. Reyes (2019) 35 Cal.App.5th 538, 550, 247 Cal.Rptr.3d 247.)C. Section 11091. Defendant's Cont......
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    ...prospect of a different car to reconcile his or her doubts about the reliability of Martha's testimony"]; cf. People v. Winkler (2020) 56 Cal.App.5th 1102, 1171, 271 Cal.Rptr.3d 88 [finding error harmless because there was no reasonable probability that "even a hung jury would have been ach......
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    ...prospect of a different car to reconcile his or her doubts about the reliability of Martha's testimony"]; cf. People v. Winkler (2020) 56 Cal.App.5th 1102, 1171, 271 Cal.Rptr.3d 88 [finding error harmless because there was no reasonable probability that "even a hung jury would have been ach......
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    • James Publishing Practical Law Books California Objections
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    ...must be either an ultimate fact or an intermediate fact from which an ultimate fact may be inferred. People v. Winkler (2020) 56 Cal. App. 5th 1102, 1151, 271 Cal. Rptr. 3d 88. Elements of the offense and any defense are ultimate facts; motive and the absence of mistake are intermediate fac......
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