California Court of Appeals, First District, Second Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
[As modified May 13, 2015]
Alameda County Super. Ct. No. C162185A, Kenneth Mark
[Copyrighted Material Omitted]
John Francis McCabe II, under appointment by the Court of Appeal, for Defendant and Appellant Rosa Pui Hill.
Law Offices of Robert J. Beles, Robert J. Beles, Paul Gilruth McCarthy and John Patrick McCurley, for Defendant and Appellant Mei Yuk Li.
Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Seth K. Schalit, Sharon R. Wooden and Dorian Jung, Deputy Attorneys General, for Plaintiff and Respondent.
The crimes alleged in this matter arose out of a custody dispute between estranged spouses Rosa Pui Hill and Eric Hill. Appellants Rosa Hill and her mother, Mei Li, appeal from the judgment following their conviction by a jury of the first-degree murder of Selma Hill (Eric Hill’s grandmother) and the attempted premeditated murder of Eric Hill. Mei Li was also convicted of first-degree burglary of Selma Hill’s residence.
On appeal, Mei Li raises several claims of instructional error. Rosa Hill argues the trial court erred in admitting her pretrial statement and failing to answer a question from the jury during deliberations. She also raises claims of prosecutorial misconduct and ineffective assistance of counsel. Both appellants argue the evidence was insufficient to support the attempted murder conviction and cumulative error. Each appellant joins in the arguments of the other pursuant to California Rules of Court, rule 8.200(a)(5). Finding merit to one of Mei Li’s claims of instructional error, we will reverse her conviction for the murder of Selma Hill. We affirm the judgment in all other respects.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 17, 2009, the Alameda County District Attorney filed an information against Ping Li and appellants Rosa Hill and Mei Li. Count one charged Rosa and Mei with the murder of Selma, in violation of Penal Code section 187, subdivision (a). In connection with count one, the information alleged the felony-murder special circumstance that Rosa committed this offense in the course of a burglary, within the meaning of section 190.2, subdivision (a)(17),  and that Rosa and Mei were armed with firearms within the meaning of section 12022, subdivision (a)(1).
Count two charged Ping and appellants Rosa and Mei with the premeditated attempted murder of Eric, in violation of sections 187, subdivision (a), and 664, subdivision (a). In connection with count two, the information alleged that Rosa personally used a firearm within the meaning of sections 12022.5, subdivision (a), and 12022.53, subdivision (b), and that Ping and Mei were armed with firearms within the meaning of section 12022, subdivision (a)(1).
Count three charged Ping and Mei with residential burglary of Selma’s home, in violation of section 459. In connection with count three, the information alleged that Ping and Mei were armed with firearms within the meaning of section 12022, subdivision (a)(1).
On March 5, 2010, the trial court granted Rosa’s motion to set aside the special circumstance allegation.
On March 7, 2011, the trial court granted Ping’s motion to sever.
Rosa and Mei were tried together by a jury between March 16 and June 28, 2011.
A. Prosecution Case
1. Eric and Rosa
Eric and Mei both worked at the Alameda County Social Services Office in Oakland as eligibility technicians. Mei introduced Eric to her daughter, Rosa, in late 2002. Eric and Rosa began seeing each other in early 2003 and married in April 2005. They lived with Mei and Ping in Antioch for four or five months before purchasing a condominium in Fremont. They had a child together, a daughter. E.H., who was born in June 2006.
Upon Eric’s return to work from paternity leave, supervisors complained about his job performance. Eric believed his work was adversely impacted by medication he took to control his mental illnesses, which included severe depression, visual and auditory hallucinations, and suicidal tendencies. His symptoms became worse when he stopped taking his medication.
Eric had a history of mental problems dating back to high school. In 2004, after Rosa saw Eric put a knife to his wrist, he took time off work and went to a Kaiser intensive outpatient program (IOP) designed to deal with depression and associated suicidal thoughts. His treating psychiatrist, Dr. Cohen, advised Rosa to supervise Eric and to remove all knives and sharp objects from the home. In 2005, Eric had a breakdown at work and was driven to the emergency room by his supervisor. He was placed back in the IOP. In 2007, Eric was not in therapy but spoke to Dr. Cohen on the phone from time to time. By the time of trial in 2011, Eric self-reported that he was not on any medication and was feeling fine.
In early 2007, Eric and Rosa were having problems in their marriage; they separated in March. Eric moved out and went to live with his grandmother, Selma, in Dublin. Rosa had custody of E.H. after the couple separated. Eric initiated legal proceedings for full legal and physical custody in May 2007 after being informed by Carolyn Lacativo of Child Protective Services (CPS) that she thought Rosa was a danger to E.H. due to Rosa’s paranoid tendencies and erratic behavior. Rosa accused Eric of molesting E.H.; Eric denied the allegations.
The Alameda County Family Court assigned Dr. Phillip Montes, a psychologist, as the mediator in the case. The court ordered both Rosa and Eric to undergo psychiatric evaluations by Dr. Randall Kolin. At the next hearing, the court split legal and physical custody equally between Eric and Rosa. During the year and a half of custody litigation, Eric complained to Dr. Montes about Rosa, including that she disrupted daycare, did not put E.H. in daycare as instructed, was overfeeding E.H. and that she did not return her on
time after Thanksgiving. By August 2008, Eric had physical custody of E.H. 85 percent of the time and 100 percent legal custody.
In January 2009, Eric and E.H. were living with Selma, who was 91 years old and in declining health. She was approximately five feet tall, “heavy, ” and had poor eyesight. She had difficulty moving around and she sometimes used a walker to maintain her balance. Selma was romantically involved with Lester Rowe, and would spend Thursday until Sunday at his condominium in Fremont. Lester was 90 years old and dying of bladder cancer. Lester regularly called Selma at 4:00 p.m. on the days they were not together.
2. Events of January 7, 2009
On January 7, 2009, Eric and E.H. left the house around 7:00 a.m., before Selma woke up, and Eric went to work after dropping E.H. at daycare.
Shortly after 5:00 p.m., Lester telephoned his son and daughter-in-law, Jeffrey and Ute Rowe. He explained that he had been trying to reach Selma by telephone for the last hour, and it was very unusual that she had not answered. Lester was very upset. Jeffrey and Ute agreed to drive to Selma’s residence to check on her. They arrived around 5:30 p.m. and found nothing unusual. Ute knocked and rang the doorbell several times, while Jeffrey checked the back yard. Finding nothing, they agreed to wait for Eric to arrive.
Eric and E.H. arrived shortly before 6:00 p.m. Jeffrey and Ute introduced themselves to Eric and explained why they were there. They all went into the house through the garage, with Eric carrying E.H. in his arms.
Jeffrey and Ute waited in the family room while Eric carried E.H. upstairs. When Eric went into his grandmother’s room, he saw Mei crouching near the closet. He felt confused and worried because Mei should not have been there; she did not have a social relationship with Selma.
Eric asked Mei what she was doing there. She stood up but did not answer. Eric put E.H. down and asked where his grandmother was. When Mei said Selma “was out shopping, ” Eric knew something was not right. Then he asked Mei how she got into the house. Mei said she came “through the door in the garage.” Eric “got scared” and “thought something may have happened to” Selma. He “started running towards the garage.”
As Eric hurried toward the stairs, “Rosa ran out of the baby’s room and charged” toward him. She wore a dark jacket and a black ski mask. He felt a bump on the back of his head and heard popping noises. He fell down in the hallway and the two women hit him all over his body. Rosa used a hand-held
stun gun to stun Eric repeatedly in the legs and lower back, while Mei hit Eric with a baton. Eric yelled, “Help, Jeff, help.”
Downstairs, Jeffrey and Ute Rowe heard two or three popping noises, followed by Eric screaming, “What are you doing? What are you doing?” Worried that they had heard gunshots, they ran next door to the home of a neighbor, who called 911. Jeffrey, Ute and the neighbor went back to Selma’s house, where they heard more popping sounds. The neighbor heard Eric screaming, “Wait. Wait. Wait.”
Meanwhile, Eric felt blood dripping down his face and he realized he was in a fight for his life. He testified that in 2009, he weighed 265 pounds and that Rosa and Mei each weighed around 100 pounds. Eric stood up and pushed Mei away, but Rosa knocked him down again. He was hit multiple times with stun guns. Eric managed to get the baton and was hitting someone with it. He kicked Rosa into the baby’s room, but she came out again and hit him with the stun gun while telling him to shut up and stop moving. At this point, Eric saw that Rosa was holding a gun to his chest. He stopped fighting and lay still on the floor. Mei pushed the baton down on Eric’s throat and began choking him. Both Mei and Rosa insisted that Eric give up custody of Elizabeth. They demanded, “Are you going to give up [E.H.]? Will you give up [E.H.]? Can Rosa have [E.H.]" Eric agreed to give [E.H.] to them because he did not want to die.
At that point, Eric heard sirens outside. Rosa ran to the window while Mei held the baton to his throat. Rosa returned to the bedroom doorway, pointing her gun at Eric. He could hear police officers in the house.
Deputies of the Alameda County Sheriff’s Office arrived at Selma’s house at 5:53 p.m. They heard screaming and yelling from inside the house and a male voice saying, “Please don’t kill me. I don’t want to die. Please don’t.”
The deputies went upstairs with their weapons drawn. They found Eric on his knees in the hallway. Mei was bleeding from the head and standing near unspent bullets, an “electronic stun device” and a “collapsible baton.” Eric suddenly darted into a bedroom, and Deputy Daniel Molleson deployed his Taser to incapacitate him. Deputy Jared Hattaway ordered Mei to drop to her knees and raise her hands. Deputy Hattaway heard Eric shouting that Mei and Rosa had a gun and that his two-year-old daughter was in the house. Hattaway asked Mei where the child was, but she did not respond. When he asked her again, she pointed to a bathroom. Looking into a mirror on the bathroom wall, Hattaway saw the reflection of Rosa, “standing very still, ” in a nearby ...