(Super. Ct. No. P09CRF0273)
The opinion of the court was delivered by: Robie , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Police found Joanne Witt (Joanne) dead in her El Dorado Hills home with 20 knife wounds to her body. Joanne's 14-year-old daughter, Tylar Witt (Tylar), and Tylar's 19-year-old boyfriend, defendant Steven Paul Colver, were charged with Joanne's murder. Tylar pled guilty to second degree murder in exchange for her subsequent testimony at defendant's trial for first degree murder (premeditation and lying in wait) with two special circumstances (lying in wait and killing a witness to a crime, i.e, sex with a minor). Following the murder trial, a jury found defendant guilty as charged.
On appeal from defendant's resulting sentence of life in prison without the possibility of parole, defendant raises seven contentions dealing with the evidence and instructions. Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Tylar were introduced by friends in December 2008 and started dating two months later. Thereafter, they began having sex regularly. Tylar lied to Joanne about their relationship, claiming it was like brother and sister. At Tylar's prodding, Joanne agreed to take defendant in as a boarder in spring 2009.
On May 14, 2009, upon seeing Tylar's bedroom door open, Joanne knocked on defendant's bedroom door. After a while, defendant appeared "half clothed." Tylar was in the closet, naked. Joanne told defendant to move out, and she told Tylar she would not press charges against defendant if he stayed away from Tylar. Defendant and Tylar thought that defendant could move out and Tylar could run away, and the two could eventually reunite. The next day, defendant moved out, telling Joanne, "'I'm lucky I'm not in jail right now.'"
On May 17, 2009, Joanne called the El Dorado Sheriff's Department to report Tylar missing. At the house, Joanne told a sheriff's deputy that her 14-year-old daughter was possibly having sex with her 19-year-old boyfriend. Tylar ended up calling the house when the deputy sheriff was there, and Tylar said she was at a friend's house. Sheriff's deputies picked up Tylar, who denied the sexual relationship, and they brought her home. The El Dorado Sheriff's Department opened an investigation into defendant's alleged unlawful sex with a minor.
On June 10, 2009, a deputy sheriff returned to the house and told Joanne that Tylar was still denying the sexual relationship. Joanne turned over Tylar's journal that detailed Tylar's sexual relationship with defendant. It was booked into evidence under a "statutory rape" investigation that had been opened.
On Thursday, June 11, 2009, Joanne told Tylar she had turned over the journal and a towel that was on defendant's bed. When Joanne left the house, a panicked Tylar called defendant at Rubio's restaurant where he worked and told him what Joanne had done. They were certain he was going to be arrested. Defendant came to the house a short time later. They talked about what to do, recalling an earlier conversation they had had about committing suicide together, although defendant said that was a last resort. According to Tylar, they finally decided they would run away before Saturday (which is when they thought defendant would be arrested) and commit suicide together the following Monday in San Francisco. There was one "hitch," though. They would have to kill Joanne on Friday night because she would notice them missing. Tylar said they could not take a knife from the house, so defendant said he would get the knife. He had his own knives and blades and had access to knives at work as well.
When Joanne came home, she apologized to Tylar for invading her privacy. Tylar played video games until 10 p.m. or 10:30 p.m. when she went upstairs to go to bed. She noticed Joanne was asleep (for the time being), but the television was still on, meaning Joanne had been drinking. Tylar called defendant to vent about her mother being drunk again and suggested they kill her that night because it would be easier. They decided defendant would kill Joanne when Tylar was sure she was sound asleep. When defendant got off work, he parked his car in an elementary school parking lot next to the house. Defendant was at the parking lot from 10:59 p.m. to 11:56 p.m., which is when defendant received the last cell phone call from Tylar at that location. Tylar told him, " 'She's finally asleep. You can come over now.' "
Defendant walked to the house, so the gated community in which Joanne lived would not register his car's entry. Tylar met defendant outside the house, where he showed her a knife he had gotten from his work that was wrapped in a Rubio's plastic bag. They went inside, and Tylar grabbed a knife from the knife block in the kitchen. Tylar led defendant upstairs to Joanne's bedroom. Defendant went inside the room, and Tylar saw him "practicing" with the knife. She heard rustling, indicating Joanne had awakened. Tylar, with her knife in hand, turned to go into the room, but she "couldn't do it." She heard Joanne telling defendant "to stop." Tylar put her knife on some cabinets right outside Joanne's door, sat against the door, covered her ears with her hands, closed her eyes, and hummed.
Defendant came out of the room holding a knife. He had blood on his pant leg and a teardrop of blood by his eye. Tylar went in Joanne's room, closed the windows and blinds, and turned on the air conditioner. Defendant and Tylar walked to his car and drove to his father's house, where defendant burned his clothes in the fireplace.
The next day, June 12, 2009, defendant and Tylar went to the house of their best friend, Matthew Widman. They told him they were running away to San Francisco to commit suicide. Later that evening, defendant told Widman he had stabbed Joanne in the stomach and slit her throat. When Widman said he wanted proof, defendant got out a bloody butcher knife from his car. After defendant and Tylar said goodbye to Widman, defendant threw the knife down an outdoor sewer drain. The knife was never found.
On the morning of June 13, 2009, Widman met up with a mutual friend of all of theirs, Matthew Bogert. Widman told Bogert defendant confessed to killing Joanne. Bogert called defendant on the phone, and defendant confessed again. Bogert recalled that defendant had sent him a text the afternoon before Joanne was murdered, blaming Joanne for "driving [him] into the ground." Defendant and Joanne had "made an agreement that if [he] would leave right then and there and remove [him]self from their lives, then she would not press charges or anything and let the encounter die." But then "[s]he started all of this hell because she got too fucking drunk one night and called the cops . . . [¶] Joanne was the one continuing to try to destroy [his] life, whether [he] w[as] to stay with Tylar or not."
The night of June 13, 2009, defendant and Tylar drove to San Francisco. Tylar wrote a story called, "'The Killer and [H]is Raven,'" and they both wrote goodbye letters to their friends, which they mailed. The raven story documented the love affair between a 14-year-old girl and a 19-year-old man, the latter who killed the girl's mother when the mother turned over the girl's diary to police and shattered their dreams. In a letter defendant wrote to "whom it may concern," defendant stated the test of being " 'truly in love' " was "taking the life of another to be with the one you love."
On Sunday, June 14, 2009, around midnight, defendant and Tylar ate rat poison mixed with cake and milk, but the concoction did not kill them.
On June 15, 2009, Joanne was reported missing by her supervisor. Police went to Joanne's house and found her dead. There were defensive wounds on her hands and fingers. The fatal wound was a "very large gaping" sharp force injury to the neck. She also had stab wounds on the middle of her chest. From the stab wounds, the most the forensic pathologist could say was that the weapon was "likely a sharp-force object, a knife, and that . . . it [wa]s probably not a serrated knife." According to the crime scene investigator, some of the bloody impressions on the bed were consistent with a large kitchen knife, butcher's knife, or chef's knife. Fingernail scrapings from Joanne's right and left hands contained male DNA as did samples taken from Joanne's left knee. There was no female DNA foreign to Joanne found on samples taken from her body.
On Wednesday, June 17, 2009, defendant and Tylar were spotted by a South San Francisco police officer and were arrested.
Defendant testified. On the afternoon before Joanne was murdered, defendant visited Tylar at her house. She suggested they commit suicide because police had her diary and could arrest and imprison him. They did not talk about killing Joanne. He returned to work at 3 p.m. and left at 10:15 p.m. All the work knives were accounted for. At 10:30 p.m., Tylar called him to come over to her house, upset that Joanne had broken her promise not to get drunk again. He decided not to rush over because the police had her diary that exposed the nature of their relationship. Instead, he drove to the school and waited for Tylar to call him telling him Joanne was really asleep. Around midnight, Tylar called defendant in a frantic state and eventually told him to come over. Tylar met him outside with a kitchen knife in her hand and a red stain on her leg. She told defendant, " 'I did it. I finally did it. My mom is gone forever.' " Defendant went upstairs and nudged Joanne's leg to confirm she was dead. At Tylar's direction, they burned their clothes. Defendant confessed to killing Joanne because he made a promise to protect Tylar. Although they planned on killing themselves on a Monday, the day after the killing was Friday, and "[a] lot can happen in three days."
In addition to his own testimony, defendant provided the testimony of seven character witnesses who attested that he was not violent or aggressive. Included among those witnesses were Terrance Litton, who was the manager at Rubio's, and Dylan Heimbruch, an employee at Rubio's, both of whom did not notice any missing Rubio's knives around the time of the murder.
I Any Error In Excluding Testimony From The Defense's Expert Witness
Regarding Defendant's Nonviolent Character Was Not Prejudicial
The trial court granted the People's in limine motion to exclude the testimony of Dr. Bruce Ebert, who interviewed defendant and conducted a number of personality tests on him. Dr. Ebert concluded he "d[id] not believe [defendant] has the typical characteristics of an individual who would commit a homicide." The court ruled the testimony was inadmissible because it was propensity evidence.
On appeal, defendant relies on People v. Guerra (2006) 37 Cal.4th 1067, 1118-1119, to argue that propensity evidence such as Dr. Ebert's was admissible and its exclusion here was prejudicial. Following the analysis in Guerra, we conclude that any error in ...