(Super. Ct. No. 05F09184)
The opinion of the court was delivered by: Hull ,j.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Maksim Yuryevech Isayev, Gennadiy Sevchuk, and Mariya Stepanov were convicted by separate juries of murdering Dmitriy Paskar, a young man who slept with Stepanov and then bragged about it. Defendant Isayev admitted shooting the victim, but asserted he did so out of heat of passion or provocation and was therefore guilty only of voluntary manslaughter. Defendant Stepanov claimed that she never intended Isayev to kill the victim but simply wanted the victim to apologize and be punished. Defendant Sevchuk asserted that although he was at the scene of the murder, he was drunk and uninvolved in any plan to kill the victim.
The juries rejected defendants' claims. One jury convicted defendant Isayev of first degree murder (Pen. Code, § 187, subd. (a); unspecified statutory references that follow are to the Penal Code) and found that Isayev personally used and discharged a shotgun in the commission of this offense (§ 12022.53, subd. (d)). The jury also found true the special circumstance that Isayev killed the victim while lying in wait. The court sentenced defendant to life without possibility of parole, plus 25 years to life for the firearm enhancement.
The other two juries convicted defendants Stepanov and Sevchuk of second degree murder and found that they were vicariously armed with a shotgun. Stepanov's jury found untrue a special circumstance alleging that she intended that the victim be killed and that the murder occurred by means of lying in wait. The court sentenced both Stepanov and Sevchuk to prison for terms of 15 years to life, plus an additional year for the weapons enhancement.
All three defendants appeal, asserting numerous reversible errors occurred over the course of their trials. We strike one fine imposed on defendant Isayev and otherwise affirm the judgment.
We discuss most of the relevant facts in the context of the issues raised, but provide this brief summary of the underlying background.
The events surrounding this murder began when the victim slept with defendant Stepanov and then bragged about it. Stepanov was very upset and told defendant Isayev, her former boyfriend, what had happened. Isayev told his friend, defendant Sevchuk.
Defendant Sevchuk bought ammunition for Isayev's shotgun and loaded the gun. Isayev, Sevchuk and others drove to the victim's home, intending to shoot the victim when he came out of his house. However, when the victim made his appearance, he was accompanied by his girlfriend and the assault did not occur because defendants did not want any witnesses.
Isayev called Stepanov to report this kink in the plans, and told her to call the victim to make arrangements to meet him late that night at a park. Stepanov did so. When Isayev and Sevchuk drove up, Isayev saw the victim and Stepanov standing close to together; the victim reached for Stepanov and groped her. Isayev got out of the car, retrieved his loaded shotgun from the trunk, and approached the victim, asking Stepanov if this was "the guy." When Stepanov nodded, Isayev shot the victim twice and killed him.
As relevant to this appeal, the primary issues at trial were (1) whether the murder was premeditated or whether Isayev shot the victim out of heat of passion, and (2) whether Sevchuk and Stepanov were liable as aiders and abettors for a murder that was the natural and probable consequence of an intended assault.
Evidence established Isayev's reputation as a violent and jealous person. Defendants Sevchuk and Stepanov knew that Isayev had a gun and had previously been involved in shooting incidents arising from jealousy. Witnesses described hearing Isayev brag about the murder and make statements such as "[W]henever I do anything, I do it 100 percent. I know what I'm doing." He told one witness that he had aimed for the victim's head and killed him to stop him from raping girls.
One of the prosecution witnesses was Mikalai Yarmaliuk, the person who first drove the car to the victim's house. Yarmaliuk described Sevchuk loading the shotgun, the plan to shoot the victim, the phone conversations between defendants Isayev and Stepanov, and Isayev's past violent conduct. Yarmaliuk had suffered head injuries in an earlier accident and defendants challenged his memory, emphasizing the inconsistencies in his testimony and his general credibility.
As noted, the juries convicted defendant Isayev of first degree murder and found a lying-in-wait special circumstance to be true. The other two juries convicted defendants Stepanov and Sevchuk of second degree murder and found the charged firearms enhancement to be true.
The three defendants appeal.
A. Access to Medical Records
Witness Mikalai Yarmaliuk testified about defendants' involvement in the events leading up to the shooting of the victim. Yarmaliuk had suffered a head injury some years earlier when his car collided with a train, and he had some memory loss as a result. Defendant Stepanov sought to obtain Yarmaliuk's medical records, asserting that these documents "will reveal information pertinent to Yarmaliuk's memory and credibility."
The trial court released the only two pages of the medical records that it found relevant. One, a report dated September 5, 2003, described Yarmaliuk as having "short-term memory loss." The other, from May 19, 2004, indicated that Yarmaliuk was being treated for a "traumatic brain injury [with] mild cognitive impairment," and other problems.
The court ruled that defendants would be permitted to "fully cross-examine Mr. Yarmaliuk on those points" and counsel did so.
On appeal, defendants ask this court to review the sealed records and determine if additional medical records of Yarmaliuk should have been disclosed. The Attorney General has no objection to this review. We have examined the sealed medical records and conclude that the trial court's ruling was correct. There are no other relevant documents that should have been disclosed.
In a related argument, defendants challenge the timing of the court's ruling, asserting that the court erred in waiting to review the medical records until midtrial, when Yarmaliuk began to testify. Their argument is based on a belief that the records contained other information that should have been provided prior to trial to ensure adequate time to conduct additional investigation. Defendants' claim falters on its predicate: there was no other information that should have been provided. Our conclusion that the trial court gave counsel all of the relevant medical records obviates the need to discuss this matter further.
B. Evidence Relating to Kutsenko Shooting
Defendants Isayev and Sevchuk raise two claims relating to a drive-by shooting at the home of Roman Kutsenko. At the time of this shooting, defendant Isayev was dating Nadia S., Kutsenko's former girlfriend. When Kutsenko continued to call and text Nadia, Isayev became jealous, and he threatened to shoot Kutsenko's house. The next day, someone in fact shot at the house and at a van parked outside.
Various witnesses, including Nadia and Mikalai Yarmaliuk, reported that the drive-by shooting was done by defendants Isayev and Sevchuk.
We turn to the two specific claims at issue in this appeal.
1. Admissibility of Evidence
Defendants Isayev and Sevchuk contend that the trial court erred in permitting the prosecution to introduce evidence relating to the Kutsenko shooting.
As relevant to this appeal, the prosecution sought to introduce evidence relating to the Kutsenko shooting to prove defendants' intent, motive and knowledge. (Evid. Code, § 1101, subd. (a), (c).) Defendants opposed that motion, challenging the applicability of Evidence Code section 1101 and raising claims under Evidence Code section 352.
The trial court concluded that "the evidence of the Kutsenko drive-by shooting is relevant on the issue of Isayev's intent and motive. [¶] I have conducted [an Evidence Code section] 352 analysis and find admission of this evidence is not outweighed by undue consumption of time, substantial danger of undue prejudice, confusion of issues or misleading the jury.
"The similarities between the charged offense and the Kutsenko drive-by, which occurred a couple of weeks apart, support the inference that defendant Isayev probably harbored the same intent in each situation. [¶] The object of the shooting in both cases was a person who defendant Isayev knew had sexual interest in a woman with whom defendant Isayev formerly or currently had a relationship. [¶] In both situations the defendant Isayev enlisted the aid and support of some of the same individuals, [including] Sevchuk. The evidence tends to prove that Isayev was motivated to kill, or at a minimum, do violence with a gun to anyone who disrespected him and his girlfriends. [¶] He had a motive[,] as a jealous boyfriend, to avenge disrespect shown to a girl with whom he had a relationship."
The court also found the evidence admissible as to defendant Sevchuk, concluding that the "evidence is relevant, at a minimum, to show that knowledge of Isayev's intent when they went looking for Paskar [the victim of the charged offenses], that is, that Isayev meant to shoot Paskar.
"Regarding Mr. Sevchuk's knowledge, since knowledge is a required element in aiding and abetting, this evidence is relevant. It also tends to show Sevchuk's own intent to aid and abet since he previously engaged in similar conduct in an attempt to help Isayev deal with Kutsenko.
"I conducted [an Evidence Code section] 352 analysis and I find that this evidence is not substantially outweighed by any of the 352 factors."
Defendants Isayev and Sevchuk challenge these rulings.
Evidence Code section 1101, subdivision (b) provides that evidence of other crimes is admissible to prove "some fact (such as motive, opportunity, intent, preparation, plan, knowledge identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." The admissibility of other crimes evidence falls along a continuum depending on the purpose for which it is offered. Distinctive common marks between the charged and uncharged offenses are required to prove identity, "[a] somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent." (People v. Roldan (2005) 35 Cal.4th 646, 705, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) A trial court's ruling under Evidence Code section 1101 is subject to an abuse of discretion standard. (Ibid.) The same standard applies to rulings under Evidence Code section 352. (People v. Waidla (2000) 22 Cal.4th 690, 724.)
Defendants contend that evidence of the Kutsenko shooting should have been excluded because the two events were not sufficiently similar to be probative on the issues of intent and motive. We disagree.
"'"We have long recognized 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution."'" (People v. Roldan, supra, 35 Cal.4th at p. 706.) The same is true of evidence relating to motive. (Id. at p. 707.)
Defendants focus on the factual differences between the charged offense and the Kutsenko shooting, but fail to recognize the overarching similarities between the events. In each case, a jealous Isayev used a gun to attack someone who had made advances to a former girlfriend. Notwithstanding the different particulars of each shooting, Isayev reacted the same way in each case. His violent behavior under the same general circumstances was sufficiently similar to warrant admission under Evidence Code section 1101.
In a related argument, defendants contend that the probative value of this evidence was minimal because the witnesses who testified about the Kutsenko shooting were unreliable and gave conflicting and contradictory accounts of what occurred. But witness credibility is a matter for the jury's determination. (People v. Boyer (2006) 38 Cal.4th 412, 480.) Defendants challenged the witnesses and emphasized the discrepancies in their testimony. The fact that the juries resolved these credibility issues against defendants does not equate to error.
Defendants also contest the admissibility of the Kutsenko shooting under Evidence Code section 352. For the reasons just explained, we reject the claim that the witnesses were so unreliable that their testimony should have been excluded.
Equally unavailing is the contention that evidence of the Kutsenko shooting was highly inflammatory and unduly prejudicial. This evidence, involving a drive-by shooting at a residence in which no one was injured, is far less inflammatory than the charged offense involving the close range shooting and murder of the victim.
In arguing otherwise, defendants note that Yarmaliuk identified Sevchuk as the shooter in the Kutsenko incident, and assert that the jury was likely to be influenced "to punish Sevchuk because of their emotional reaction to his earlier misconduct." Thus, they argue, the evidence was inflammatory. We must disagree. The jury knew that Sevchuk was involved in the Kutsenko shooting one way or the other and the jury certainly would not be more inclined to hold the incident against him if he was the shooter than if he was not. This bit of testimony does not change our analysis of the admissibility of the evidence against him.
"'[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352 "prejudicial" is not synonymous with "damaging."'" (People v. Karis (1988) 46 Cal.3d 612, 638.)
The trial court acted well within its discretion in rejecting defendants' challenges and admitting evidence of the Kutsenko shooting.
2. Evidence of Third Party Culpability
Defendants Isayev and Sevchuk assert that the trial court erred in excluding evidence that someone other than defendant committed the Kutsenko shooting.
Defendant Isayev theorized that the Kutsenko shooting was actually committed by the brothers of Kutsenko's former girlfriend, Nadia S., and that Kutsenko stabbed one of these men later in retaliation for the shooting.
When Isayev's counsel began to cross-examine Nadia on this theory, the prosecutor objected. He asserted that this line of questioning was confusing and its potential for prejudice outweighed any probative value. The trial court agreed and ruled this area inadmissible under Evidence Code section 352. Defense counsel asked that Nadia be subject to recall and added, "[p]erhaps I can put my words together better in writing better than I am able to verbally." The court agreed to reconsider the matter "upon further argument."
Approximately two weeks later, Isayev filed a motion to question both Kutsenko and Nadia about the involvement of Nadia's brothers in the shooting of Kutsenko's house, and the People filed opposition. The court indicated that it was still skeptical about the relevance of the proffered evidence, but said it would reevaluate the matter if Isayev explained specifically what he wanted to ask Nadia on recall. Isayev rested without recalling Nadia or making any further motions on this subject.
On appeal, defendants Isayev and Sevchuk assert the trial court erred in refusing to allow the proposed questioning. The People assert that Isayev abandoned this claim by failing to follow up on the motion with the trial court.
Assuming for purposes of argument that this claim is properly before us, it is without merit.
"When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption. . . . On appeal, the ruling is reviewed for abuse of discretion." (People v. Cudjo (1993) 6 Cal.4th 585, 609.)
Citing cases such as People v. Hall (1986) 41 Cal.3d 826, 833, and People v. Mitchell (1893) 100 Cal. 328, 333, defendants assert that evidence of third party culpability is extremely relevant because it raises reasonable doubt about defendant Isayev's guilt. They argue that it is always proper to show that some person other than the defendant "committed the crime with which he is charged." (Mitchell, at p. 334.) Defendants miss a key distinction here: the proffered evidence does not relate to the charged offense but to a peripheral event.
"A defendant may present evidence that another person committed the charged offense. '[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352.'" (People v. Basuta (2001) 94 Cal.App.4th 370, 386-387, italics added.)
In Basuta, for example, a daycare provider was convicted when a child died from physical abuse. (People v. Basuta, supra, 94 Cal.App.4th at pp. 376-377.) The appellate court reversed, finding the trial court abused its discretion in excluding evidence that the child's mother had a history of abusive behavior. That evidence was directly relevant to raise the possibility that the mother, not the day care provider, had harmed the victim. (Id. at pp. 386-388.)
Here, however, the evidence defendants sought to introduce did not relate to the charged offense, but to the Kutsenko shooting. The relevance of this evidence to the charged murder is attenuated and has little, if any, bearing on the question of whether defendant Isayev killed this victim, in this case.
Moreover, any probative value was outweighed by other considerations under Evidence Code section 352. Had this evidence been allowed, the trial would have become one focused on determining who was responsible for the Kutsenko shooting, not the Paskar murder. The trial court acted well within its discretion in concluding that evidence relating to the involvement of Nadia's brothers in the Kutsenko shooting would likely confuse the jurors and consume excessive time in an already lengthy trial. Defendants' claims to the contrary are unpersuasive.
Sufficiency of the Evidence
In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 60.)
We turn to each of defendants' specific claims.
A. Corroboration of Accomplice Testimony
All three defendants contend there was insufficient evidence to corroborate Yarmaliuk's claim that Stepanov asked Isayev to kill the victim. Defendants' focus is misplaced.
"A conviction can be based on an accomplice's testimony only if other evidence tending to connect the defendant with the commission of the offense corroborates that testimony. (§ 1111.) The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplice's testimony, tend to connect the defendant with the crime." (People v. McDermott (2002) 28 Cal.4th 946, 985-986, italics added.)
"Corroborative evidence must come in by means of the testimony of a nonaccomplice witness. [Citation.] It need not corroborate every fact to which the accomplice testified or establish the corpus delicti, but is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the ...