Trial Court Contra Costa County Superior Court Trial Judge Honorable Leslie G. Landau (Contra Costa County Super. Ct. No. 5-090779-0)
The opinion of the court was delivered by: Dondero, J.
CERTIFIED FOR PUBLICATION
Defendant was convicted following a jury trial of first degree murder (Pen. Code, § 187), grand theft (Pen. Code, § 487, subd. (a)), first degree residential burglary (Pen. Code, § 459), and arson of an inhabited structure (Pen. Code, § 451, subd. (b)). In this appeal he claims that the trial court erred by admitting evidence of a reenactment of the homicide. We conclude that harmless error was committed, and affirm the judgment.
Defendant did not dispute that he killed the victim, Ted Neff, by strangling him in his three-level townhouse on Bustos Place in Baypoint on the night of December 3, 2008, then set fire to his residence. The crucial issues at trial were defendant's intent associated with the homicide and the subsequent theft of items from the victim's residence.
Neff was gay, and used Craigslist to seek companionship and sexual relations. He was also an accomplished flautist, who owned a cherished solid gold Nagahara flute and a sterling silver flute.
Defendant advertised massage, escort and sexual services on Craigslist. Neff contacted him, and in the middle of 2008 they began a sexual relationship that evolved into a friendship. Defendant visited Neff at his home regularly, often just to talk, eat dinner, or listen to Neff play the flute. On other occasions, Neff paid defendant for sexual encounters. At first, they used condoms, but they "trusted" each other, so thereafter they engaged in "unprotected sex."
Defendant testified that around 6:00 on the night of December 3, 2008, he appeared unexpectedly at Neff's residence for a visit. Neff was pleasantly surprised to see him. As they talked for a while in the living room, Neff told defendant about an "attempted break-in" the Sunday before, during which the "power switch" to the house was "pulled" to disconnect the electricity, and the front door was damaged. They watched a movie, then lit the fireplace logs on the second level of the residence. Smoke from the fireplace activated the fire alarm, which continued to ring loudly until defendant disconnected it on the third level.
After Neff left the house for 10 or 15 minutes, he returned and told defendant that he "had something very serious" to discuss. Neff said that "somebody he was seeing" in a "sexual way - had tested positive for HIV," and he may have "contracted the disease." He suggested that defendant get "checked out."
Upon hearing Neff's revelation defendant thought of his wife and son, and became enraged. Defendant testified that he felt upset and "betrayed." He "started wrestling" with Neff, threw him to the floor and began choking him. Neff implored defendant to "please stop it," but defendant was "on auto pilot," and "wasn't paying no mind to anything that was going on" other than choking the victim. Defendant stopped when he observed "a lot of saliva [and] some foamy stuff" coming from Neff's mouth. Defendant decided to leave. Neff was breathing, but defendant thought he was unconscious.
As defendant "headed towards the door to get out," he heard the phone ring. He looked at the "caller ID" feature on Neff's phone and discovered that the call was from the San Francisco "AIDS department." Defendant testified that he "hated" the victim "at that moment." Defendant realized Neff was still "grasping for air," so he took a "plastic strap" and choked him "until he couldn't breathe any more." He "didn't care" if Neff was dead.
When defendant was certain Neff was dead, he dragged the victim's body down to the first-level bedroom. Defendant then decided for "revenge" to take Neff's flutes, piccolos, and laptop computers, which he placed in a suitcase. Defendant became "paranoid," so he grabbed a book or magazine, lit it on fire, and threw it in the entertainment room. He wanted to destroy evidence of his presence in the house. Defendant then immediately left Neff's residence and drove straight home. However, within a few hours of killing Neff, defendant was back on-line soliciting a female customer to join him and his wife in a menage-a-tois. Within a few days of the incident, defendant engaged in sex with his close friend Ernesto Molina. From the date of this homicide until his arrest, defendant never submitted to a medical test for HIV.
A neighbor reported the fire, and the Contra Costa County Fire District responded to Neff's townhouse residence just before 10:00 p.m. The first level suffered fire damage, primarily in the "entertainment room," which was the point of origin of the fire started by an accelerant. Neff's body was discovered in a bedroom on the first level. A forensic pathologist concluded that Neff died from asphyxia due to hand and ligature strangulation, and was "dead at the time of the fire." The phone lines and fire alarms in the townhouse had been disconnected before the fire. Gas burners on the stove had been ignited.
The police investigation of Neff's murder focused on the theft of the solid gold Nagahara flute. The Contra Costa County Sheriff's Department was alerted by a flute dealer to defendant's attempt to sell the flute, and given his telephone number. The sheriff's department also discovered defendant's connection to the victim through a posting on his Craigslist escort service website of a photograph of him in a shower with the same "distinctive tile work" as was observed in Neff's house. The phone ...