People v. Zack

• Decision Date: 13 August 1986
• Citation: 229 Cal.Rptr. 317,184 Cal.App.3d 409
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. George F. ZACK, Defendant and Appellant. Crim. B011269.

Page 317

229 Cal.Rptr. 317

184 Cal.App.3d 409

The PEOPLE, Plaintiff and Respondent, v. George F. ZACK, Defendant and Appellant.

Crim. B011269.

Court of Appeal, Second District, Division 6, California.

Aug. 13, 1986.

Review Denied Nov. 26, 1986.

Norman W. De Carteret, Sherman Oaks, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert F. Katz, Supervising Deputy Atty. Gen., Donald J. Oeser, Deputy Atty. Gen., for plaintiff and respondent.

YEGAN, Associate Justice. ^*

George Francis Zack was convicted of first degree murder (Pen.Code, §§ 187, 189) and was sentenced to state prison for 25 years to life. He contends: "I. The court erred when it admitted evidence of prior bad acts against defendant over objection and instructed the jury from CALJIC 2.50 [on] evidence of other offenses. II. The court ruled that all prior statements of defendant were admissible, allowed the plaintiff to play tapes and present transcripts and testimony of innumerable exculpatory and irrelevant statements of defendant, allowed ostensibly impeaching testimony, allowed plaintiff to argue alleged false statements to show a consciousness of guilt, and instructed the jury on consciousness of guilt. III. The court erred when it allowed testimony that Theresa [F.] consulted with attorney John Smiley who obtained a restraining order."

The People introduced uncontradicted evidence that Theresa F., the decedent herein, was murdered at approximately 3 a.m. on January 21, 1982. Her body was found in her car in the Dakota Apartments parking lot. Cause of death was aspiration of blood due to strangulation and five or six applications of blunt force trauma to the head and neck. In addition, there were 21 injuries on her body, including 2 fractured ankles. She was literally beaten to death. Significantly, there was no evidence of sexual assault, robbery or any other independent felonious purpose.

The circumstantial evidence against appellant was compelling. Appellant met the decedent in 1973 when they were employed at the Point Mugu Naval Base. After dating, they lived together in a stormy "up and down" relationship commencing in 1978 and ending in 1980. During that period, they jointly acquired property. As a result thereof and upon separation, appellant executed a $10,000 promissory note payable to the decedent which was due April 1, 1982, two months after her demise. The decedent's grandson, Wes, also lived with appellant and the decedent between 1978 and 1980. Wes and appellant did not get along, partly as a result of watching appellant, on several occasions, use force upon the decedent, the last application of which resulted in her having two black eyes. Appellant threatened to kill the decedent if she left him.

After the decedent moved into the Dakota Apartments, she and appellant continued to experience problems. Appellant accused Wes and the decedent of committing a burglary of his residence. The decedent retained attorney John Smiley who, with appellant's attorney, obtained mutual restraining orders prohibiting harassment.

Notwithstanding the restraining order, several residents at the Dakota Apartments saw appellant or his distinctive orange Toyota truck with a white camper shell and a "crease" in the rear fender at the Dakota Apartments between November of 1981 and the day before the murder. The parking lot where the decedent's body was found was ordinarily illuminated by an overhead light. On the day of the murder, the bulb was not operative, not because it had burnt out, but because it had been unscrewed.

The police found four distinctive bloody heel prints on the pavement near decedent's body. Appellant was required to wear Knapp safety shoes at his work at Point Mugu. The heel impressions from appellant's Knapp safety shoes had 15 to 20 points of similarity with the bloody heel impressions at the crime scene. There were no points of dissimilarity. The circular wound to decedent's cheek corresponded to a Seiko watch owned by appellant. Although disputed, both a police officer and Doctor Gerald Vale, a forensic dentist, opined that appellant's wrist watch made the subject wound. In addition, a minute amount of blood was found on appellant's watch.

The day after the murder, appellant was questioned after advisement and waiver of his constitutional rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). During the interrogation, appellant made several statements which were at variance with other evidence. First, aware that blood was found under the decedent's fingernail, the police noticed that appellant had scratches on his face and abrasions on his lip. Appellant explained that he received these injuries in an altercation involving two hitchhikers on a recent fishing trip from which he had just returned. Second, he indicated that he had spent the night of the murder in his truck at San Simeon. Later, he claimed that he had spent the night in Carmel. Third, he described with particularity the Carmel gas station where he claimed to have purchased gas. Investigation revealed that the subject station had stopped selling gas on January 10, 1982, approximately 10 days before the murder and appellant's fishing trip. Fourth, appellant claimed to have turned in his Knapp safety shoes to obtain new ones. A co-worker, however, saw appellant simultaneously in possession of both pair. Fifth, he initially denied having ever threatened decedent. Thereafter, he said that the threats were "superfluous." Sixth, appellant claimed to have been fishing in Carmel. However, at the subject time, Carmel was experiencing a major rain storm and cold weather, with winds to over 30 miles per hour and ocean waves in excess of 10 feet. It even included unprecedented hail.

Appellant's first contention is without merit. In ruling that the People could introduce evidence of appellant's prior assaults on the decedent, the court expressly relied upon People v. Daniels (1971) 16 Cal.App.3d 36, 93 Cal.Rptr. 628, and determined that People v. Deeney (1983) 145 Cal.App.3d 647, 193 Cal.Rptr. 608, was distinguishable. We quickly dispose of appellant's Evidence Code section 352 claim. Consistent with decisional law (e.g., People v. Frank (1985) 38 Cal.3d 711, 731, 214 Cal.Rptr. 801, 700 P.2d 415; People v. Montiel (1985) 39 Cal.3d 910, 924, 218 Cal.Rptr. 572, 705 P.2d 1248), the trial court with meticulous precision expressly articulated its thought process in overruling appellant's Evidence Code section 352 objection. The trial court's determination was not an abuse of discretion, i.e., arbitrary, whimsical, or capricious, and not being erroneous as a matter of law, must be sustained on appeal. (People v. Alfaro (1976) 61 Cal.App.3d 414, 423, 132 Cal.Rptr. 356; People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65.)

In People v. Daniels, supra, 16 Cal.App.3d 36, 93 Cal.Rptr. 628, the defendant argued that his prior assaults on his wife were "... proof of prior offenses inadmissible under the rule stated and applied in People v. Kelly [1967] 66 Cal.2d 232, 238 [57 Cal.Rptr. 363, 424 P.2d 947], and People v. Haston [1968] 69 Cal.2d 233, 246-247 [70 Cal.Rptr. 419, 444 P.2d 91]." (At p. 45, 93 Cal.Rptr. 628.) The court held: "Evidence showing jealousy, quarrels, antagonism or enmity between an accused and the victim of a violent offense is proof of motive to commit the offense.... Evidence relevant as proof of motive or behavior pattern is not inadmissible because it also is proof of prior crimes. ..." (At p. 46, 93 Cal.Rptr. 628; see also People v. Haylock (1980) 113 Cal.App.3d 146, 150, 169 Cal.Rptr. 658; People v. Benton (1979) 100 Cal.App.3d 92, 98, 161 Cal.Rptr. 12.) The Daniels rule is based in part on the early California Supreme Court cases of People v. Weston (1915) 169 Cal. 393, 396, 146 P. 871, and People v. Soeder (1906) 150 Cal. 12, 15, 87 P. 1016, the first of which indicates " '[E]vidence having a direct tendency, in view of the surrounding circumstances, to prove motive on the part of a person for a crime, and thus to solve a doubt, "... as to the identity of the slayer ..." is admissible against a defendant, however discreditably it may reflect on him, and even where it may show him guilty of other crimes.' " This principle has our California Supreme Court's express imprimatur as late as 1960. In People v. Cartier (1960) 54 Cal.2d 300, 311, 5 Cal.Rptr. 573, 353 P.2d 53, the court said: "Evidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the former is properly admitted and is competent to show the motive and state of mind of the defendant." (See also People v. De Moss (1935) 4 Cal.2d 469, 473, 50 P.2d 1031.)

Without resort to a "distinctive modus operandi" (People v. Haston (1968) 69 Cal.2d 233, 245, 70 Cal.Rptr. 419, 444 P.2d 91), "signature" (People v. Alcala (1984) 36 Cal.3d 604, 632, 205 Cal.Rptr. 775, 685 P.2d 1126), "calling card" (People v. Tassell (1984) 36 Cal.3d 77, 86, 201 Cal.Rptr. 567, 679 P.2d 1), analysis of other factors, "... the common mark of the identical perpetrator and identical victim in both the charged and uncharged offenses is so distinctive that it adds persuasive support to the inference that defendant and not some other person was the perpetrator...." (People v. Beamon (1973) 8 Cal.3d 625, 633, 105 Cal.Rptr. 681, 504 P.2d 905; see also People v. Haston, supra, 69 Cal.2d at pp. 249-250, 70 Cal.Rptr. 419, 444 P.2d 91; People v. Cavanaugh (1968) 69 Cal.2d 262, 273-274, 70 Cal.Rptr. 438, 444 P.2d 110; People v. DeRango (1981) 115 Cal.App.3d 583, 589-590, 171 Cal.Rptr. 429) and renders the prior evidence admissible on the issue of identity.

The California Supreme Court's "... statements of law remain binding on the trial and appellate courts of this state [citations] and must be applied [where as here] the facts of a case are not fairly distinguishable from the...